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2013 DIGILAW 420 (MAD)

G. v. Naresh VS Registrar, University of Madras

2013-01-21

K.CHANDRU

body2013
ORDER 1. Both the writ petitions raise identical contention namely the both the petitioners herein wanted the impugned order, dated 22.04.2004 (wrongly shown as 2006 in the writ petitions as well as in the affidavit by the petitioners) passed by the University of Madras (1st respondent herein) to be quashed. 2. When the writ petitions came up for admission on 28.08.2012, the learned Additional Government Pleader Mr. P.S. Sivashanmugha Sundaram took notice for the respondents 2 & 3, and on being directed, Mrs. G. Thilagavathi, learned Standing Counsel for the University of Madras took notice. 3. A counter affidavit has been filed on behalf of the respondents 2 & 3 dated 30.11.2012. The petitioner in W.P.23291/2012 has also filed a reply affidavit dated 21.01.2013. 4. Heard the arguments of Mr. A. Siddiqueali learned counsel appearing for the petitioners and Mrs. G. Thilagavathi, learned Standing Counsel for the 1st respondent and Mr. P.S. Sivashanmugha Sundaram, learned Additional Government Pleader appearing for the respondents 2 & 3. 5. It is seen from the records that the petitioner in W.P.23290/2012 (Mr. G.V. Naresh) was appointed on 18.01.1999 as Lecturer in English in the New College, Chennai, which is an affiliated college to the 1st respondent-University. The petitioner in W.P.23291/2012 (Mr. Anvar Sadhath Valiya Parambath) was also appointed as Lecturer in English in the same college on 18.01.2000. The said college is a private college. The qualifications of the teachers working in aided private colleges are governed by the provisions of the Tamil Nadu Private Colleges (Regulation) Act 1976. Under Section 15 of the said Act, the qualification of a teacher in such colleges will have to be the same as prescribed by the University, which is empowered to make regulation and statute and ordinance specifying the qualification required for appointment to the post of teachers. Section 16 of the said Act prohibits appointment of any other person, who does not possess the qualification in terms of Section 15 of the said Act. 6. In the present cases, after the appointment of the petitioners, their qualifications were approved and they were also getting salary in terms of the aid given by the State Government. The approval was granted by the 3rd respondent by order dated 01.06.2000 in both the cases. 6. In the present cases, after the appointment of the petitioners, their qualifications were approved and they were also getting salary in terms of the aid given by the State Government. The approval was granted by the 3rd respondent by order dated 01.06.2000 in both the cases. In the order granting approval, dated 01.06.2000, it was indicated that the petitioners should pass the Tamil Language Test conducted by the Tamil Nadu Public Service Commission in terms of Rule 12(A) of the Tamil Nadu State and Subordinate Services Rules. The petitioners did not pass the special language test conducted by TNPSC in respect of the persons, whose mother tongue is not Tamil and who have not studied in Tamil Medium in the Schools in the State of Tamil Nadu. 7. The petitioners were apparently under the impression that such requirement is not called for in the light of the judgment passed by this Court in S.Mohammed Basha Vs. The Director of Collegiate Education, College Road, Madras and two others reported in 2002(3) CTC 336 . In the said case, this Court held that under Section 16 of the said Act, a person who does not possess the qualification prescribed under Section 15 is not entitled to be appointed. Under Section 15 of the said Act, it is the University which has to prescribe the qualification. The University having not prescribed any qualification, the question of private college teacher passing the language test under Rule 12(A) of the said Rules does not arise. In the said case, this Court held that Rule 12(A) of the Tamil Nadu State and Subordinate Service Rules cannot be regarded as a statutory so far as the teachers in aided colleges are concerned and that the Government has no power under Private Colleges Act to prescribe any qualification and such power has been reserved to the University. 8. However, it transpires that subsequent to the above cited judgment, the Secretary to the Government, Higher Education Department, wrote a letter to the University dated 08.01.2004 impressing upon the University that they should also impose passing of language test as a qualification for the teachers to be appointed in the private colleges. In the light of the said request made by the State Government, the University has issued the impugned notification, dated 22.04.2004, addressed to all Correspondents of aided private colleges coming under their purview. In the light of the said request made by the State Government, the University has issued the impugned notification, dated 22.04.2004, addressed to all Correspondents of aided private colleges coming under their purview. In the impugned communication, dated 22.4.2004, it was observed as follows:- "In communicating the above decision of the Syndicate/Academic council, I am to inform you that the teachers who have been appointed in the College after the date of issue of the above G.O. i.e., 31.12.1982 should qualify themselves for the Tamil Language Test ordered in the said Government Order. Such of those teachers who do not have adequate knowledge of the official language of the State, namely TAMIL should get themselves qualified in "Tamil Language Test" within a period of one year i.e., before 27.02.2005. This may be brought to the notice of all those concerned in Colleges" In the light of the impugned communication of the University, the petitioners have not been given promotion only on the ground that they have not passed the language test as required under the impugned communication dated 22.04.2004. Hence, the present writ petitions have been filed by the petitioners. 9. Though the lacuna pointed out by this Court in the Judgment in S. Mohammed Basha case cited supra, the present contention of the petitioners was that they having been appointed before the impugned communication and at that relevant point of time such a qualification was not prescribed by the University, the impugned communication is either invalid or alternatively it cannot be applied retrospectively. 10. The first contention that the impugned communication is invalid cannot be accepted as the only lacuna pointed by this Court in S. Mohammed Basha case cited supra has been removed. The alternative plea namely whether the said communication can have retrospective effect is concerned, the very same issue came to be considered in W.P.No.43750 of 2006 (Francis Jose Vs. The Registrar, University of Madras and two others) dated 23.04.2010. In the said case, this Court held that the 1st respondent has got competency to pass the impugned order. But, while considering the question whether it could have retrospective effect or not, this Court held that it certainly cannot affect the appointment made before the impugned communication. The Registrar, University of Madras and two others) dated 23.04.2010. In the said case, this Court held that the 1st respondent has got competency to pass the impugned order. But, while considering the question whether it could have retrospective effect or not, this Court held that it certainly cannot affect the appointment made before the impugned communication. In para 10 of the order this Court has observed as follows:- "10.) Therefore, it can be called out from the above decisions that the statute conferring the power to make rules with retrospective effect can be made unless such rules cannot have the effect of positively affecting the vested right. So far as the instate case is concerned, the petitioner was appointed as the Assistant Professor in the Commerce Department as early as in the year 1982 and he possessed M.Com. qualification, which is the requisite qualification for the said post and subsequently he had obtained Ph.D in the year 2003. In the said situation, the impugned order, which is passed with retrospective effect, taking away the vested rights of the petitioner in the matter of increments and promotional avenues is totally against the established principles of law and natural justice. Moreover a perusal of the judgments relied on by the petitioner shows that subsequent to the quashing of G.O.Ms.No.2766 by this Court, similarly placed persons on par with the petitioner have filed writ petitions before this Court and got appropriate relief. Under such circumstances, I have no hesitation to hold that the vested right of the petitioner cannot be taken away by passing the impugned order with retrospective effect and it has to be only with prospective effect. Therefore, the impugned order dated 22.04.2004 passed by the 1st respondent with retrospective effect is liable to be quashed and accordingly the same is hereby quashed. Consequently, the respondents concerned are directed to release the annual increments that are due to the petitioner from 2002 onwards and approve his eligibility for promotion." It is fairly admitted by the learned Additional Government Pleader Mr. P.S. Sivashanmugha Sundaram appearing for the respondents 2 & 3 and Mrs. G. Thilagavathi, learned Standing Counsel for the University that this order has become final and no appeal has been filed. 11. In the light of the above, both the writ petitions are partly allowed. P.S. Sivashanmugha Sundaram appearing for the respondents 2 & 3 and Mrs. G. Thilagavathi, learned Standing Counsel for the University that this order has become final and no appeal has been filed. 11. In the light of the above, both the writ petitions are partly allowed. While the impugned communication, dated 22.04.2004, cannot be struck down as illegal, it can certainly be declared that the impugned communication will not apply to the appointments of the petitioners herein. The petitioners are entitled to have their service benefits without being compelled to comply with the condition in the impugned order dated 22.04.2004. Consequently, connected Miscellaneous Petitions are closed. No costs.