Dr. S. Dawood Sharief Petitioner v. The Director Of Collegiate Education,

Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration, declaring the action of the respondents 1 to 3 in reconsidering the appointment of the petitioner as Vice Principal, the New College (evening) Chennai or abolishing the post of Vice Principal, the New College (evening), Chennai as Agenda is illegal and consequently direct the respondents 1 to 3 to continue the petitioner as Vice Principal the New College-Evening Chennai.

O R D E R

Heard both sides.

2. The petitioner has come forward to file the present writ petition seeking for a writ of declaration, declaring the action of the respondents 1 to 3 in attempting to reconsider the appointment of the petitioner as Vice Principal of the New College (evening) Chennai or abolishing the post of Vice Principal of the said College as per the Agenda as illegal and consequently direct the respondents 1 to 3 to continue the petitioner as Vice Principal in the New College-Evening Chennai.

3. When the matter came up on 25.11.2009, this Court gave a direction to the respondents not to remove the petitioner from the post of Vice Principal for a period of two weeks. Subsequently, the interim order was extended till 18.12.2009 and it was further extended till 05.01.2010 The respondents were directed to file counter in the meanwhile.

4. It is the case of the petitioner that he was originally appointed as the Assistant Professor of Zoology by an order dated 03.10.1981 by the third respondent on temporary basis. Subsequently, the said order came to be extended until the petitioner's services were regularised by an order dated 04.01.1990 The petitioner was also given the Lecturer (Senior) Scale on 13.10.1989 under the Career Advancement Scheme (CAS). The petitioner was also made as Selection grade Lecturer on 30.10.1994, Reader on 31.12.2005 and Associate Professor on 01.01.2006 under CAS. Thereafter, from 01.06.2009, he was given the charge as Vice Principal of the Evening Section of the College.

5. All these while, the petitioner was working in the regular college, i.e, the third respondent College which is an aided private college. The College is a ‘minority college’ having the protection under Article 30(1) of the Constitution of India. The said college is also running an Evening Section on a self-financing basis. Apart from the staff appointed to take classes for the evening Sections, some regular college teachers were also given additional charge for manning the evening Sections. It is the claim of the petitioner that he was made in-charge Vice Principal of the evening Section with effect from 01.06.2009

6. It is at this juncture, the Staff Association of the New College (R-4) and the Association of Univeristy Teachers (AUT) had started campaign against the petitioner's appointment as the Vice-Principal of evening college, overlooking the seniority claims of other teachers in the college. They also conducted slogan shouting in front of the college. Handouts were issued about the appointment of the petitioner. They demanded that the petitioner should be removed from being the Vice Principal of the evening college. The staff Association had sent letters to the Secretary dated 30.10.2009 and 13.11.2009 The teachers were also willing to suspend their agitation and wait for the Management to take a stand in this regard.

7. It is in this backdrop, the third respondent had convened a meeting of the college Management Committee on 26.11.2009 to decide several issues in their Agenda circulated to the members. The 5th agenda related to request of the Staff Association and AUT Unit of the college to reconsider the appointment of the Vice Principal (Evening College). The sixth Agenda related to the letter received from the Staff Association dated 30.10.2009 requesting for the abolition of the post of Vice Principal. Therefore, the petitioner had rushed to this Court with the prayer set out above.

8. On notice from this Court, the fourth respondent Association has filed a counter affidavit dated 14.12.2009 In the counter affidavit, it was claimed that the petitioner was holding the post of Lecturer in a regular capacity only from 23.02.1989 and he cannot claim seniority on the basis of his temporary post held by him earlier. In fact, the petitioner was given temporary posting against leave vacancies and it cannot be considered as a regular appointment. It was also stated that in the original seniority list of the staff of the college, the petitioner's name was placed below several persons and suddenly through manipulation, he got his seniority revised during 2008 without any proper notice or reasons. The normal practice of the college was to put the Senior Professor as in-charge of the evening college and the petitioner's entry into the evening college was illegal and contrary to the standard practice. It was also stated that there was no post of Vice Principal either under the grant-in-aid Code or under the norms sanctioned under the Private College Act.

9. To the counter filed by the fourth respondent, the petitioner has filed a reply affidavit dated 19.12.2009 The petitioner has claimed that being a senior Professor, he is entitled to be appointed as Vice Principal and his claim for seniority on the basis of Career Advancement Scheme will also enure to his benefit for all purposes. Therefore, the attempt made by the fourth respondent to coerce the management to remove him from the post or the post itself was illegal.

10. Mr. Bharath Chakravarthy, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in Indian National Congress (I) v. Institute of Social Welfare reported in AIR 2002 SC 2158. It is for the purpose of showing that any authority who acts quasi-judicially is required to act according to the Rules and he cannot act on the basis of dictated policy or expediency. It is not clear as to how this judgment is of any assistance to the petitioner.

11. Before dealing with the actual contention, it is necessary to remove certain misconception over alleged right claimed by the petitioner. The third respondent college is an aided private college, which is also a minority college protected under Article 30(1) of the Constitution. Therefore, in the matter of appointment of teachers and other staff, they enjoy certain autonomy and it cannot be lightly interfered from outside. This position of law has been clarified by the Supreme Court vide its judgments in N. Ammad v. Emjay High School reported in 1998 (6) SCC 674 as well as Secretary, Malankara Syrian Catholic College v. T. Jose reported in 2007 (1) SCC 386.

12. The only interference that is possible is only when the person appointed is not having the required qualification for the post which he is holding. In the present case, the fight between the petitioner and the fourth respondent is not with reference to any appointment in the Day College, which is a fully aided private college. In that case, the Court would have considered the rival claims of contending parties. Therefore, the Court cannot decide a matter, which is purely a matter of internal administration either on the strength of the petitioner's self made assertion or on the basis of any alleged direct action by the fourth respondent. It is suffice to state that the third respondent will have to decide the issue on the basis of their own norms and right to administer the institution of their choice.

13. But, the claim that the petitioner was the Senior on the basis of Career Advancement Scheme cannot also be accepted. The Supreme Court vide its judgment in Dr. Rashmi Srivastava v. Vikram University reported in (1995) 3 SCC 653 has held that Career Advancement Scheme is only an accelerated promotion and persons who gets such advancement do not come within the regular cadre. Paragraph 44 of the said judgment will clear the said position, which is as follows:-

“44. …In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed that with a view to avoid stagnation amongst university teachers the Commission recommended a scheme of merit promotion. The very preamble of the scheme shows that it is necessary to give reasonable opportunity for career advancement and recognition of merit and it is on the basis of competitive test for recognising outstanding work and merit that such merit promotions were given. Once a Lecturer is promoted on merit as Reader or a Reader as Professor even though the promotion may be personal to him he can certainly continue to work as promotee Reader or Professor till he retires or otherwise ceases to be an employee of the University or till he is reverted for some valid reasons. There is no question of such a merit promotee being reverted otherwise to the lower cadre from which he came. He has to work as a Reader or Professor as the case may be and share the workload with the cadre employees. In fact as there is no vacancy created in the lower cadre from which he came on account of his promotion, he has also to share the burden of workload of the lower post. Consequently it cannot be said that such a merit promotee is not the Reader or Professor so far as his work as Reader or Professor is concerned. He cannot claim to be fitted in the inter-se seniority list and may remain outside the cadre of Reader or Professor as the case may be. However, for all other purposes like pay, work and status, he is a Reader or Professor as the case may be.”

(Emphasis added)

14. It is rather unfortunate that persons who got appointed to regular college also claim for holding posts in the evening college. The Career Advancement Scheme was brought in by the University Grants Commission (UGC) by taking note of actual teaching hours to be put in by a teacher together with their other responsibilities. For this purpose, they have also calculated the total hours that a teacher must put in including the maximum teaching hours in a college or in a university. The 16 hours per week fixed for college teachers is based upon the requirement to improve their knowledge by upkeeping with current trends. The Mehrotra Committee as well as the Rasthogi Committee have taken pains to explain the responsibilities of the teachers.

15. But it is unthinkable that a full time teacher should also claim for some part-time work by working for the evening classes, which is not part of their regular duty. There is no compulsion for them to do such work outside their normal work. The evening college should be considered as a separate unit and appointments should be made by the Management directly for manning those classes considering the large sections of unemployed teachers available in the job market. For the day college teachers to fight with each other to grab assignments for the evening session is not only detrimental to the academic excellence but it will also defeat the very purpose for which the UGC had made recommendations in prescribing maximum teaching hours.

16. In any event, it is entirely a matter left to the third respondent to decide whether the day college teachers should get teaching assignments or administer the evening College. One is at a loss to note that after doing day college teaching to full satisfaction, whether any energy left in them to teach/administer evening College work and thereafter, prepare for the next day's work in the morning college, for which they have been adequately paid salaries which were also revised from time to time. Today an Associate Professor as per the UGC Scales draws more than 75 thousand Rupees per month as Salary

17. The short question is whether there can be any fight over a non-existent post i.e the post Vice Principal which is neither provided under the grant-in-aid Code nor under the staff strength sanctioned as per the Tamil Nadu Private Colleges (Regulation) Act, 1976. In the absence of any sanctioned post, no one has got a right to occupy the said post. In the absence of any rules or regulations creating the post, the attempt by the petitioner to continue to function as the Vice Principal of the evening College also cannot be countenanced by this Court. The term ‘teacher’ is defined under Section 2 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. It did not include any post of Vice-Principal. Even the statutes framed by the University of Madras defining the term teacher do not contain the post of Vice-Principal. At the maximum it is the freedom of the Management. Even a person acting as a Vice-Principal continues to hold his substantive Post and draws salary only for the post. Any extra allowance is paid only from the Management's funds. The petitioner's prayer that the fourth respondent and other persons cannot armtwist the respondents 1 to 3 also cannot be accepted. It is not as if that the first respondent will succumb to the pressure of the persons mentioned by the petitioner nor the third respondent will give up their right to manage the institution by forgoing their constitutional right. On the contrary, it is open to them to take note of any protest about an unjust occupation or the desirability of allowing a person to occupy the position which he may not deserve otherwise. The right to form association and articulate once views to the authorities, is a right which flows from Article 19(1)(a) of the Constitution. Therefore, the petitioner cannot by filing the writ petition forestall any action being taken by the fourth respondent or its members to persuade respondents 1 to 3 to revise their earlier decision.

18. In more or less similar circumstances a Division Bench of this Court dealt with an issue relating to restoration of service of a deposed Principal and the consequent decision to revert the incumbent Principal to the post of Professor. Even when the matter of termination of the Principal was before the Court, the College management without any Court order restored the old Principal to his post and passed a consequent order of reversion of the person to his old post. Aggrieved by the action of the Management, he challenged it before the Court on grievances of impropriety and irregularity. The said matter was dealt with by a Division Bench of this Court vide its decision in PROF. T.K SUDHINDRAN v. P. JOTHI, SECRETARY COLLEGE COMMITTEE, SIR THEAGARAYA COLLEGE, MADRAS AND OTHERS reported in 1984(2) SLJ 651. The defence of the College was set out in paragraph 48 of the order which is as follows:-

“48. Mr. Chidambaram, appearing on behalf of defendants 1 and 3 however, submitted that the prayer in the writ petition is two fold. Firstly, to quash the proceedings of the College Committee dated 27.1.1983 reinstating Dr. Rao, its erstwhile Principal, and sending back the petitioner to his old post of Professor. It was not a public duty and no statute prevented such a course of action in the facts and circumstances of the case. The second submission is as regards the second prayer to quash the order of the Secretary dated 30.3.1983 permitting Dr. Rao to join was consequential to the order of reinstatement of Dr. Rao as Principal. The prayer in the writ petition is to restrain respondents 1 to 3 from interfering with the functioning of the petitioner as Principal of the College, is not a statutory right nor a public duty. The rival contentions of parties have now to be considered.”

19. The Division Bench is answering the challenge gave the following findings which are set out in paragraphs 53 and 59. Those paragraphs may be usefully extracted below:-

“53. It was in this background that the college committee decided to reinstate Dr. Rao. The resolution of the college committee may usefully be quoted.

“It is resolved to reinstate Dr. G. Madan Mohan Rao as Principal for the following reasons:-

(i) As per the opinion of the Legal Adviser, it has been observed by the Court that if the appeal filed by Dr. G. Madan Mohan Rao is allowed ultimately the Board will have to pay huge sum towards back wages for all these years.

ii) The Board will not be in a position to meet such huge amount as back wages or compensation. It is further resolved that regarding payment of compensation it could be settled after negotiation with Dr. G. Madan Mohan Rao personally”.

From the aforesaid fact it is apparent that the College Committee did not act arbitrarily or without proper legal advice in reinstating Dr. Rao and acted bonafidely in the interest of the College.

59. …In the instant case we do not find any material for holding that the College Committee has restrained from doing something which it was obliged to do and which was in the nature of a public duty. We do not find, therefore, that the College Committee has committed any irregularity or breach of any statutory duty enjoined on it in reinstating Dr. Madanmohan Rao as Principal resulting in the reversion of the petitioner to his original post of Professor. There is, therefore, no merit in this writ petition and it is accordingly dismissed.”

20. In view of the above factual matrix and the contentions raised, this Court is not inclined to entertain the writ petition. The writ petition is misconceived and lacks in merits. Accordingly, the writ petition stands dismissed. However, there will be no order as to costs.

10.02.2010

Index: Yes/No

Internet :Yes/No

To

1. The Director of Collegiate Education,

DPI Campus, Chennai - 600 008.

2. The Joint Director of

Collegiate Education,

Chennai Region, Teacher's College Campus,

Saidapet, Chennai.

3. The Secretary,

The New College,

Muslim Educational Association of

Southern India,

87, Peters Road, Royapettah,

Chennai - 600 014.

4. The New College,

New College Staff Association represented

87, Peters Road, Royapettah,

Chennai - 600 014.

K. CHANDRU, J.

Svki

Pre-Delivery order in W.P No. 23975 of 2009

10.02.2010

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