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2014 DIGILAW 3630 (MAD)

N. Veerappan v. Director of Collegiate Education

2014-09-25

R.S.RAMANATHAN

body2014
Judgment : 1. The petitioner in W.P.No.21392 and 24844 of 2014 is working in Sir Theagaraya College, Chennai. He is attaining superannuation on 30.09.2014. The post of Head of the Department of Plant Biology and Plant Bio-Technology Department has fallen vacant and the petitioner is the senior most person to be considered for appointment to the post of the Head of the Department. The Regional Joint Director of Collegiate Education, Chennai, directed the College to fill up the Head of the Department of the post by nominating the senior most person in the Department. As the petitioner is the senior most person, he sent a representation to the College Committee to consider his name for that post. As there was no progress, the petitioner filed W.P.No.19794 of 2014 seeking for direction directing the college committee to consider his candidature for appointment as Head of the Department and the Writ Petition is pending. As he is reaching superannuation on 30.09.2014, he applied for extention of service by representation dated 2.7.2014. According to the petitioner, the extention has to be decided by the Regional Joint Director of Collegiate Education and the Application has to be routed through the Secretary, College Committee and the petitioner followed the procedure and applied for extention of service. Two other persons, namely, Dr.S.N.Nageswara Rao, Head of the Department, Department of History and Dr.V. Natchathiram, Associate Professor, Department of History are also due to retire on 30.09.2014 and they also applied for extention of their service till the end of the academic year. The College Committee forwarded their representations with their approval to the Regional Joint Director of Collegiate Education but did not approve that of the petitioner for extention of service and send the proposal of the petitioner. According to the petitioner, as per G.O.Ms.No.281, Education Department, dated 13.02.1981, teachers who attain the age of 58 years in the middle of the academic year shall be permitted to continue till the end of the academic year. Therefore, the petitioner is also entitled to get re-employment after attaining superannuation and the Application sent by the petitioner to the College Committee must be sent to the Regional Joint Director of Collegiate Education but the same was not sent. Therefore, the petitioner is also entitled to get re-employment after attaining superannuation and the Application sent by the petitioner to the College Committee must be sent to the Regional Joint Director of Collegiate Education but the same was not sent. Hence, W.P.No.21392 of 2014 was filed seeking for direction directing the Regional Director of Collegiate Education to call for proposal from the Secretary, College Committee and the Application submitted by the petitioner on 2.7.2014 for extention of service and to grant extention of service. 2. During the pendency of the Writ Petition, the College Committee sent a letter to the Regional Joint Director of Collegiate Education, Chennai Region, dated 27.8.2014 that the Committee resolved not to extend re-employment to the petitioner, namely, Dr.N.Veerappan. The petitioner's continuation in service on re-employment would not be in the interest of institution and the students, and his conduct and character are not found satisfactory and he was issued the charge sheet dated 01.07.2010 for the commission of misconduct involving moral turpitude and insubordination and in view of the charges proved, he was awarded punishment of stoppage of 3 increments with cumulative effect and the same was challenged by the petitioner in W.P.No.13327 and 13718 of 2012 and the same are pending. Further, he has not submitted his pension papers which is one of the requirements for re-employment and therefore, he cannot be considered for re-employment. The College Committee also informed the petitioner by proceedings dated 01.09.2014 reiterating the very same allegations that he would not be considered for re-employment. The same is challenged by the petitioner in W.P.No.24844 of 2014. 3. The Regional Joint Director of Collegiate Education by his proceedings Na.Ka.No.5183/C2/2014 dated 4.9.2014 directing the College Committee to send the proposal for re-employment of the petitioner stating that reasons stated by the College Committee for not-re-employing the petitioner cannot be accepted. The proceedings of the Regional Joint Director of Collegiate Education dated 4.9.2014 is challenged in W.P.No.2441 of 2014 by the College Committee. 4. As the issue involved in all the three Writ Petitions are one and the same, all the three Writ Petitions were heard together and a common judgment is rendered. 5. In this order, the reference to petitioner is the petitioner in W.P.No.21392 of 2014 and 24844 of 2014. 4. As the issue involved in all the three Writ Petitions are one and the same, all the three Writ Petitions were heard together and a common judgment is rendered. 5. In this order, the reference to petitioner is the petitioner in W.P.No.21392 of 2014 and 24844 of 2014. The reference to College Committee is the petitioner in W.P.No.24410 of 2014 and the fourth respondent in W.P.No.21392 of 2014 and the second respondent in W.P.No.24844 of 2014. 6. The learned counsel for the petitioner submitted that as per G.O.No.281 Education Department dated 13.2.1981, every teacher who attains 58 years in the in the middle of the academic year shall be permitted to continue till the end of the academic year and no option is given to the management to refuse to send the proposal of re-employment and it is mandatory for the College Committee to send the proposal of re-employment and without appreciating the same, the College Committee refused to send the proposal of the petitioner for re-employment by quoting that his conduct and character were not satisfactory and he was imposed with the punishment of stoppage of increment. He further submitted that the conditions for extention of service of a teacher who retires in the middle of the academic year are that the conduct and character of that teacher must be satisfactory, the teacher must be medically fit and he must have submitted the proposal for pension and those conditions cannot be applied to the College teachers and the College teachers are governed by the Tamil Nadu Private College (Regulation) Act and the Rules framed thereunder and also G.O.Ms.No.281 Education Department, dated 13.2.1981. Therefore, a proposal cannot be refused to be sent on the ground that the character and conduct of the petitioner are not satisfactory. He further submitted that the contention of the College Committee that the conduct and character of the petitioner are not satisfactory cannot also be accepted and with mala fide motive such stand was taken by the management for the reasons that the petitioner applied for the post of Head of the Department and also challenged the order of punishment imposed by the management for the alleged misconduct. He further submitted that even assuming that the petitioner was punished for his misconduct that punishment was over and even after the punishment, he was allowed to work in the College and therefore, that cannot be taken as a ground for denying the re-employment and every teacher is entitled to re-employment when he retires in the middle of the academic year and that was introduced in the interest of the students. Therefore, the College Committee has no right to take a decision not to send such proposal and therefore, the Writs filed by the petitioner are liable to be allowed and the College Committee may be directed to send the proposal for the re-employment of the petitioner. 7. On the other hand, Mr.B.Ravi, learned counsel appearing for the College Committee, submitted that re-employment cannot be claimed as of right and it depends upon various circumstances and considering the conduct and character of the petitioner and the fact that he has not submitted his pension papers, the College Committee rightly refused to send the proposal of the petitioner and there is no mala fide intention on the part of the College Committee. He further submitted that the petitioner was guilty of misconduct and an enquiry was conducted and sufficient opportunity was given to the petitioner in that enquiry and the charges were found proved in the enquiry and he was awarded punishment of stoppage of 3 increments with cumulative effective and for that punishment, there was no need to get approval from the Regional Joint Director of Collegiate Education and the same is also challenged by the petitioner. Having regard to the misconduct, the College Committee resolved not to extend the service of the petitioner as he was found guilty of insubordination and was making sarcastic comments about the other teachers in the College and the decision was taken bona fide, and reemployment is subject to the following conditions, namely, (i) character and conduct should be satisfactory, (ii) teacher should be medically fit and (iii) and the petitioner should have submitted his pension papers within a stipulated time. The petitioner has not submitted his pension papers within the stipulated time and the character and conduct of the teacher were also not satisfactory, and being the appointing authority, the College Committee has every right to deny reemployment and the same cannot be challenged and the Regional Joint Director of Collegiate Education also cannot insist upon the College Committee to send the proposal for reemployment and he has no justification to insist upon the College Committee to send the proposal for re-employment of the petitioner and therefore, the proceedings of the Regional Joint Director of Education dated 4.9.2014 is liable to be quashed and the Writ Petitions filed by the petitioner are liable to be dismissed. He also relied upon the judgments of this Court rendered in W.A.No.1074 of 2008 dated 16.4.2009 between E.R.Shanmugam vs. The Director of School Education, Chennai and others; W.A.No.456 of 2014 dated 24.9.2014 between the Secretary, National College, Trichy District and another Vs. T.Seshasayee and others and the judgment rendered in W.P.No.15382 of 2012 dated 14.8.2012 between Dr.S.Palanisamy Vs. Kongunadu arts and Science College, Coimbatore, in support of his contention. 8. The learned Government Advocate appearing for the Regional Joint Director of Collegiate Education, Mrs.P.Rajalakshmi, contended that the College authority has no right to deny reemployment and as per G.O.Ms.No.281 Education Department, dated 13.2.1981, re-employment is automatic once the College teacher retires in the middle of the academic year. Therefore, the Regional Joint Director of Collegiate Education has rightly directed the College Committee to send the proposal of the petitioner. The learned Government Advocate further submitted that punishment imposed on the petitioner by the College Committee was also not approved and therefore, it has no validity and the reasons that the petitioner has not submitted his pension papers within the stipulated time for not sending the proposal cannot also be accepted as the same has been condoned by the Regional Joint Director of Collegiate Education. She therefore submitted that the Writ Petitions filed by the petitioner are liable to be allowed and the Writ Petition filed by the College Committee is liable to be dismissed. 9. The issue for consideration in these Writ Petitions is whether the College Committee has got power to withhold the proposal for re-employment on the ground that the character and conduct of the petitioner are not satisfactory? 10. 9. The issue for consideration in these Writ Petitions is whether the College Committee has got power to withhold the proposal for re-employment on the ground that the character and conduct of the petitioner are not satisfactory? 10. To appreciate the same, we will have to see the provisions of the Tamil Nadu Private Colleges (Regulation) Act 1976 and the Rules framed thereunder. Section 14(b) of the Act empowers the College Committee to appoint teachers and other persons of the Private College subject to the provisions of the Act and Rules made thereunder. Section 14(c) empowers College Committee to take disciplinary action against the teacher and other persons of the Private College. Section 19 provides that subject to any Rule that may be made in that behalf, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise, terminated except with the prior approval of the competent authority. There is no provision in the Tamil Nadu Private Colleges (Regulation) Act 1976 and Rules regarding re-employment and Rule 13 deals with suspension. Section 17 provides that Government may make rules in consultation with the University regulating the number and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respects disciplinary matters but excluding qualifications) of the teachers and other persons employed in any Private College. Section 18 says every teacher and every other person employed in any Private College shall be governed by such Code of Conduct as may be prescribed and any violation of that Code of Conduct will result in disciplinary action taken against the teacher or other employee. As per Rule 12 of the Tamil Nadu Private Colleges (Regulation) Rules 1976 that every teacher or other person employed in the College shall be governed by the Code of Conduct as set out in the Annexure I and Annexure I deals with Code of Conduct for teacher and other persons employed in the Private Colleges. Form 7-A is the form of agreement to be executed by College Committee of the College in respect of permanent teachers. Form 7-A is the form of agreement to be executed by College Committee of the College in respect of permanent teachers. Therefore, the College Committee is the authority to appoint teacher and other persons in the Private Colleges and College Committee is also empowered to dismiss, remove or reduce in rank of any teacher or other persons employed in the College subject to prior approval of the competent authority. It is stated in Section 19(1) that power to dismiss or removal can be exercised with the prior approve of the competent authority and the same is subject to any rule that may be made in this behalf. Form 7A agreement is to be executed between a College Committee and a teacher and Clause 7(a) of Form 7A also deals with the procedure for dismissing or removing of a teacher and clause 10 of Form 7A empowers College Committee to impose major punishment such dismissal, removal or reduction in rank or termination of service or any minor punishments such as censure, withholding of increment with or without cumulative effect, recovery from pay to the extent necessary of the monetary value. Therefore, reading of these various clauses in the Act and Rules makes it clear that for dismissal or removal or termination of service of a teacher, prior approval of the competent authority has to be obtained and in the absence of such prior approval of the Government, removal, termination or dismissal is not valid. 11. In this case, it is the contention of the College Committee that it is not a case of dismissal, removal or termination and re-employment cannot be claimed as of right and depending upon the character and conduct of a teacher, the College authority can consider re-employment of a teacher for the remaining period of that particular year and it is the prerogative of the College authorities to send the proposal and that cannot be interfered with by the Regional Joint Director of Collegiate Education. It is further contended that the petitioner was found guilty of insubordination and having committed misconduct involving moral turpitude, such a person cannot be allowed to continue in employment after retirement and therefore, the College Committee cannot be directed to send the proposal for re-employment. It is further contended that the petitioner was found guilty of insubordination and having committed misconduct involving moral turpitude, such a person cannot be allowed to continue in employment after retirement and therefore, the College Committee cannot be directed to send the proposal for re-employment. In other words, the College Committee is the authority to consider whether the proposal can be sent or not for reemployment and if the College Committee refuses to send proposal for re-employment on valid grounds, the same cannot be interfered with by the Regional Joint Director of School Education and the decision of the College Committee is final in that aspect. 12. The judgment relied upon by the College Committee, namely, W.A.No.1074 of 2008, is in respect of a school teacher who was not given re-employment. In that case, the school management refused to forward the proposal for re-employment on the ground that character and conduct of the teacher was not satisfactory and the same was also accepted by the educational authorities and considering the nature of misconduct levelled against the teacher, the Hon'ble Division Bench after taking into consideration of G.O.1643 Education (U2) Department, dated 27.10.1988, which prescribes certain conditions to be fulfilled for the grant of re-employment held that the school authorities were justified in not sending the proposal and that was rightly accepted by the educational authorities. 13. In the judgment rendered in W.P.No.15382 of 2012, dated 14.08.2012, the College Principal was not given extention; and the learned single Judge relied upon the judgment dated 31.01.2011 rendered in W.A.No.106 of 2009 between the Secretary, Devangar Higher Secondary School, Chinnalapatti, Dindigul District V. S.Ayyathurai and others; W.A.No.1226 of 2003 dated 5.1.2007 and W.A.No.2693 of 2007 dated 16.03.2007 upheld the contention of the management of the college held that the teacher was not entitled for re-employment as the Management which is the appointing authority decided not to give re-employment based on his conduct and character. The learned Judge held that G.O.Ms.No.281 Education Department dated 13.2.1981 is similar to G.O.Ms.No.1643 Education U2 Department dated 27.10.1988 and also held that the College Management is the appointing authority and it has got prerogative right to take a decision whether or not the teacher is entitled to be given re-employment. The learned Judge held that G.O.Ms.No.281 Education Department dated 13.2.1981 is similar to G.O.Ms.No.1643 Education U2 Department dated 27.10.1988 and also held that the College Management is the appointing authority and it has got prerogative right to take a decision whether or not the teacher is entitled to be given re-employment. In those cases, the school management and the college management refused to grant approval on the ground that the teacher was already punished for misconduct and other minor punishment was imposed having regard to the nature of misconduct; and therefore, his conduct and character were not found satisfactory and therefore, the teacher was not entitled to get extention mainly based on the criteria laid down in G.O.Ms.No.1643 Education (U2) Department, dated 27.10.1988. 14. The main contention of the learned counsel for the petitioner is that G.O.Ms.No.1643 Education (U2) Department, dated 27.10.1988 cannot be taken into consideration and the college teachers are governed by G.O.Ms.No.281 Education Department dated 13.2.1981, wherein no condition has been prescribed for granting extention and therefore, no option is given to the college authorities to refuse to send the proposal and they are bound to send the proposal when they are asked to do so by the educational authorities. It is seen from G.O.Ms.No.281 that the college teachers who attain 58 years in the middle of the academic year shall be permitted to continue till the end of the academic year. There is no condition prescribed for giving extention as given in G.O.Ms.No.1643 referred to above which was issued in respect of school teachers. Further, it is seen from the proceedings of the Director of Collegiate Education in Na.Ka.No.53430/G3/2011 dated 6.6.2012 relying upon G.O.Ms.No.300 Higher Education (F) Department dated 8.9.2006 that the teachers who are retiring in the middle of the academic year shall be given extention till the end of the academic year. It is further stated that some college committees are refusing to send proposal for giving extention and considering the proceedings of the Directorate of Collegiate Education in Na.Ka.No.2707/S1/74 dated 20.07.1976, it was mandatory on the part of the college authorities to grant extention and the college authorities have no power to take any other decision except to send proposal for extention. It is seen from G.O.Ms.No.300 Higher Education (F) Department, dated 8.9.2006, the re-employment of principals, teachers shall be allowed subject to the conditions stipulated in the Government Orders, namely, G.O.Ms.No.1351 Education Department dated, 28.06.1976 and G.O.Ms.No.355 Education Department, dated 20.3.1989. 15. It has not been brought to my notice that in those G.Os. namely, G.O.Ms.No.1351 Education Department dated, 28.06.1976 and G.O.Ms.No.355 Education Department, dated 20.3.1989 any condition similar to the condition imposed in G.O.Ms.No.1643 Education (U2) Department, dated 27.10.1988 are laid down. Therefore, as far as college teachers are concerned, they are governed by G.O.Ms.No.281 Education Department dated 31.03.1981, G.O.Ms.No.300 Higher Education (F) Department dated 8.9.2006 and the proceedings of the Director of Collegiate Education dated 6.6.2012 and 20.07.1976. As a matter of fact, the Commissioner of Collegiate Education, Madras, by proceedings R.C.No.48914/G/3/95 dated 14.9.1995, advised the college management to adhere to the guidelines issued by the Government in respect of teachers retiring on superannuation in the middle of the academic year without fail and the guidelines referred to are the guidelines given in G.O.Ms.No.281 Education Department dated 31.02.1981. It is further stated that when there are disciplinary proceedings against any teaching staff and final orders were issued imposing punishment, the managements are at liberty to put-forth the entire details of such cases along with proposal for re-employment to the concerned Joint Director of Collegiate Education with the remarks and the same shall be considered by the Joint Director and pass orders. It is further held in all the judgments that re-employment is not a matter of right and it is a concession taking into consideration the larger interest of the students. Though under section 14 of the Private Colleges (Regulation) Act, 1976, the College Committee is the appointing authority, under Section 19, no teacher shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the approval of the competent authority, which is subject to any rule that may be made in this behalf. Though under section 14 of the Private Colleges (Regulation) Act, 1976, the College Committee is the appointing authority, under Section 19, no teacher shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the approval of the competent authority, which is subject to any rule that may be made in this behalf. Though no rule has been provided under the Tamil Nadu Private Colleges (Regulation) Rules 1976 regarding reemployment, having regard to G.O.Ms.No.281, G.O.Ms.No.300 referred to above and the proceedings of the Director of Collegiate Education as referred to above, the College Committee has no power to decline the re-employment and it has to send the proposal to the Director of Collegiate Education giving reason for not recommending employment and the same can be considered by the Joint Director of Collegiate Education and if the Joint Director of Collegiate Education considers that the reasons cannot be accepted and directs the college committee to send the proposal, the College Committee has no other option except to send the proposal. 16. I am fortified in the above conclusion on the basis of G.O.Ms.No.281 referred to above. As stated supra, Section 19 gives power to College Committee to take disciplinary proceedings and pass punishment of dismissal, removal or termination with the prior approval of the competent authority. In this case, the petitioner is reaching superannuation on 30.09.2014. Therefore, there is no question of dismissal or termination of the petitioner from service. Neither the Tamil Nadu Private Colleges (Regulation) Act, 1976 nor the Rules framed thereunder, dealt with reemployment and only under G.O.Ms.No.281, referred to above, a right is given by the Government for re-employment when a teacher retires in the middle of the academic year and while permitting the teacher to work till the end of the academic year, the Government has not imposed any condition. At the same time, in respect of school teachers, certain conditions are imposed under G.O.Ms.No.1643 dated 27.10.1988 referred to above. The absence of those conditions in G.O.Ms.No.281 dated 13.2.1981 referred to above, would make it clear that in respect of college teachers, the re-employment is automatic and the only condition is that they should retire in the middle of the academic year. The absence of those conditions in G.O.Ms.No.281 dated 13.2.1981 referred to above, would make it clear that in respect of college teachers, the re-employment is automatic and the only condition is that they should retire in the middle of the academic year. It is further made clear in the proceedings of the Commissioner of Collegiate Education, Madras, R.C.No.48914/G3/95 dated 14.09.1995, wherever there are disciplinary proceedings against any of the teaching staff and final orders are issued imposing punishment, the managements are at liberty to put forth the entire details of such cases along with the proposal for re-employment to the concerned Joint Director of the Region, who will examine such cases and pass suitable orders. Therefore, the question of re-employment can be decided only by the Government through the Director of Collegiate Education and the College Committee can only send remarks for not giving extention for that particular teacher stating the reasons and it is for the Director of collegiate Education to consider the same and pass orders. Further, under Sect.19 of the Act, prior approval is necessary for dismissal, termination and removal. Right of employment is given under G.O.Ms.No.281 and therefore, when the same is denied, the prior approval has to be obtained and without obtaining the prior approval, the College cannot refuse to send the proposal. In that context only, it is stated in the proceedings dated 14.9.1995 that when disciplinary proceedings are pending or punishment given, the college committee shall send the proposal with their remarks for the Joint Director of Collegiate Education to take a decision. Therefore, in my opinion, the authority to grant extention vests only with the Director of Collegiate Education and the College committee can only recommend whether or not to grant re-employment and depending upon the remarks made by the College Committee, the Director of Collegiate Education has to consider the same. Unfortunately, in the judgments referred to above, the G.O.Ms.No.300 dated 8.9.2006 referred to above, and the proceedings of the Commissioner of Collegiate Education dated 14.9.1995, 6.6.2012 were not brought to the knowledge of the Hon'ble Judges. In my opinion, had these Government Orders G.O.Ms.No.300 dated 8.9.2006 referred to above and the Proceedings of the Commissioner of Collegiate Education dated 14.9.1995, 6.6.2012, were brought to the notice of the Hon'ble Judges, decision would have been different. In my opinion, had these Government Orders G.O.Ms.No.300 dated 8.9.2006 referred to above and the Proceedings of the Commissioner of Collegiate Education dated 14.9.1995, 6.6.2012, were brought to the notice of the Hon'ble Judges, decision would have been different. In my respectful opinion, the guidelines or conditions provided in G.O.Ms.No.1643 dated 27.10.1988 referred to above, cannot be applied to the College teachers and they are governed by G.O.Ms.No.281 and 300 referred to above, wherein no conditions are imposed. 17. Further in the judgment rendered in W.A.(MD)No.456 of 2014, the Hon'ble Division Bench held that even if the college teacher was facing disciplinary proceedings, on that ground, the Director of Collegiate Education cannot refuse to grant permission and the Court can go into the merits of the disciplinary proceedings and if the charge memo did not stand in the way of getting re-employment, the teacher was entitled to get re-employment and the proceedings of the Joint Director of Collegiate Education refusing to grant re-employment was set aside. 18. According to me, the punishment imposed on the petitioner cannot stand in the way of granting re-employment. Though the College Committee contends that petitioner was guilty of insubordination and having committed misconduct involving moral turpitude, the management has given a minor punishment of withholding of 3 increments and that would also prove that the management was also not so serious about the nature of charges. If the charges were so serious in nature nothing would have prevented the management from dismissing the teacher after getting approval from the authorities. 19. Therefore, I hold that in respect of re-employment of College teachers, the competent authority is the Regional Joint Director of Collegiate Education and the power is derived from G.O.Ms.No.281, 300 referred to above and the proceedings of the Commissioner of Collegiate Education dated 14.09.1995, Director of Collegiate Education, dated 20.07.1976 and 6.6.2012 referred to above, and the College management is bound to send the proposal for re-employment with their remarks and final authority to take decision is the Regional Joint Director of Collegiate Education and the College management cannot refuse to send the proposal for re-employment even on the basis of punishment imposed on the teacher. Hence, W.P.Nos.21392 and 24844 of 2014 are allowed and W.P.No.24410 of 2014 filed by the College Committee is dismissed. No costs. The connected Miscellaneous Petitions are closed. Hence, W.P.Nos.21392 and 24844 of 2014 are allowed and W.P.No.24410 of 2014 filed by the College Committee is dismissed. No costs. The connected Miscellaneous Petitions are closed. The College Committee is directed to send the proposal for re-employment of the petitioner on or before 30.09.2014 and it is also open to them to state remarks for not recommending the petitioner for re-employment and it is for the Regional Joint Director of Collegiate Education concerned to take decision on the matter.