WP(MD) No.
23255 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.(MD)No.23255 of 2023
and WMP(MD)No.19451 & 24713 of 2023
The Secretary,
ST.Ignatius College of Education (Autonomous),
Palayamkottai,
Tirunelveli – 627 002. .. Petitioner
Vs.
1. The State of Tamil Nadu,
Represented by its Secretary,
Department of Higher Education,
Fort St. George,
Chennai - 600 009.
2. The Director of Collegiate Education,
College Road,
Chennai - 600 006.
3. The Joint Director of Collegiate Education,
Tirunelveli Region,
Tirunelveli - 627 008. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus,
calling for the records relating to the impugned proceedings issued by
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WP(MD) No.23255 of 2023
the 2nd respondent Director in Na.Ka.No.12308/H1/2023-2 dated
20.04.2023 and the consequential proceedings of 3rd respondent Joint
Director in O.Mu.No.7136/U4/2023 dated 20.09.2023 and quash the
same and further direct the 3rd respondent Joint Director to approve
forthwith the appointment of Mr.J.Antony James as Watchman in the
petitioner college and disburse the grant-in-aid towards his salary and
allowances with effect from the date of appointment i.e., 01.06.2022.
For Petitioner : Mr.A.Ruban Babu
for M/s. Isaac Chambers
For Respondents : Mr. M.Siddharthan
Additional Government Pleader
ORDER
Heard Mr.A.Ruban Babu, learned counsel appearing for the
petitioner and Mr.M.Siddharthan, learned Additional Government
Pleader appearing for the respondents.
2. The petitioner has filed this writ petition seeking Writ of
Certiorarified Mandamus to quash the impugned proceedings issued by
the 2nd respondent in Na.Ka.No.12308/H1/2023-2 dated 20.04.2023 and
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WP(MD) No.23255 of 2023
the consequential proceedings of 3rd respondent in O.Mu.No.
7136/U4/2023 dated 20.09.2023 and further direct the 3rd respondent
to approve forthwith the appointment of Mr.J.Antony James as
Watchman in the petitioner college and disburse the grant-in-aid towards
his salary and allowances with effect from the date of appointment i.e.,
01.06.2022.
3. The petitioner College has appointed one J.Antony James as
Watchman on 01.06.2022. When the proposal was sent for approval of
the third respondent, it was rejected stating that all grouped categories
like Sweepers, Scavengers, Cleaner and Gardener shall be progressively
outsourced and entrusted on contract basis in view of the G.O.Ms.No.49
Employees and Administrative Reforms (F) Department dated
14.05.2002.
4. The above Government Order has issued to the Government
Departments subsequently extended to the appointments made by the
aided Colleges as a whole by issuing another G.O.Ms.No.219 dated
24.10.2013. However, the said Government Order was subsequently
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WP(MD) No.23255 of 2023
challenged by way of filing W.P.(MD)No.15669 of 2016 by the very
same college and the said writ petition was allowed by declaring the
G.O.Ms.No.219 dated 24.10.2023 as invalid. The appeal filed by the
Government challenging the writ petition filed by similar aided college
in W.A(MD).No.2096 and 2124 of 2019 has also been dismissed on
19.07.2019.
5. In the subsequent writ petitions, the above judgment has been
followed by making due reference. In this regard, I feel it is appropriate
to cite the judgment of this Court held in W.P.(MD)No.15669 of 2016
dated 12.08.2021 wherein it is held as under:
“ 4.A Division Bench of this Court in Writ Appeal in W.A.No.
2096 and 2124 of 2019, by order, dated 19.07.2019, considered the
validity of G.O.(Ms) No.219, Higher Education (D1) Department,
dated 24.10.2013. Originally, writ petitions challenging the G.O.
(Ms) No.219, dated 24.10.2013, were allowed, after holding that the
posts, which were sanctioned in accordance with the Tamil Nadu
Private Schools Regulations Act, 1976 and the Rules made
thereunder, cannot be taken away by issuing Government Order
directing or permitting outsource. The order of learned Single Judge
allowing the writ petitions was upheld by the Hon'ble Division Bench
in the order passed in W.A.Nos.2096 & 2124 of 2019, dated
19.07.2019. The relevant portion of the order is extracted below:-
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WP(MD) No.23255 of 2023
“5. The Government issued an order in G.O.(Ms) No.
219, Higher Education, dated 24.10.2013 directing the
Management for outsourcing the vacancies in Group D
categories like Sweeper, Scavenger, Cleaner and Gardener.
The proposals submitted by the Management was rejected
only on the basis of the order in G.O.(Ms) No.219 dated
24.10.2013.
6. Rule 11 (1) of the Tamil Nadu Private Colleges
(Regulation) Rules, 1976, contain a legislative mandate to fix
the staff strength every year. Rule 11 (3) provides that in case
of regular vacancy, it is open to the Management to fill up the
post on regular basis, the only requirement being that the
candidate should be qualified.
7. There is no dispute that the Management was entitled to
make appointments taking into account four vacancies in the
post of Non-teaching staff. The denial of approval was only
on account of the order in G.O.(Ms) No.219 dated 24.10.2013
There is no question of issuing a Government Order for
outsourcing, even in respect of the sanctioned post. When it is
made out that the post is sanctioned, the Management is
having every right to fill up the post. The Government has no
right to say that the post should be filled up only by
outsourcing.
8. The posts were sanctioned only in accordance with the
Tamil Nadu Private Schools Regulation Act, 1976 and the
Rules made thereunder. The staff strength fixed as per the
Rules cannot be taken away by issuing a Government Order
directing or permitting outsourcing. We are therefore of the
view that the learned Single Judge was justified in allowing
the Writ Petition.”
5.The above Judgment of the Division Bench is also followed
by a subsequent decision, by another Division Bench in W.A.
(MD).No.532 to 534 of 2020, dated 06.08.2020, in the case of State
of Tamil Nadu through its Principal Secretary to Government and
another Vs. Women's Christian College, Nagercoil and others.
6.In the counter affidavit filed by the second respondent, the
second respondent has no other defence except referring to G.O.(Ms)
No.219, dated 24.10.2013.
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WP(MD) No.23255 of 2023
7.Since, this Court has declared that G.O.(Ms) No.219, dated
24.10.2013, is invalid and opposed to the Statutory Provisions, the
impugned order cannot be sustained. As submitted by the learned
Senior Counsel appearing for the petitioner, the Government Order
cannot be made applicable to the post, which fell vacant after
31.05.2011. Reading of the impugned Government Order, it is seen
that the Government Order is intended to cover vacancies that have
fallen vacant during the period from 01.06.2008 to 31.05.2011.
Hence, on both grounds the writ petition deserves to be allowed.
8.The learned Government Advocate appearing for the
respondent submitted that the G.O.(Ms) No.49, Personnel and
Administrative Reforms Department, dated 14.05.2002, is also
relevant, as the Government has taken decision as early in 2002 and
directed the outsourcing of 'D' category staffs like sweeper,
scavenger, cleaner, gardener and Office Assistant etc. The learned
counsel fails to note that the G.O.(Ms) No.49, dated 14.05.2002, was
the recommendations for Government Departments. It is stated
therein that all Group 'D' categories like Sweepers and Scavengers,
etc. should be progressively outsourced and engaged on contract
basis. Therefore, the Public Departments and the District Collectors
were directed to outsource the services on contract basis. This
Government Order has no application to Private Educational
Institutions. Only by G.O.(Ms) No.219, dated 24.10.2013, there was
a direction to fill up vacancies during the period from 01.06.2008 to
31.05.2011 through outsourcing and on contract basis, based on the
earlier Government Order vide G.O.(Ms) No.49, dated 14.05.2002,
which was in respect of Government Departments.”
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WP(MD) No.23255 of 2023
6. So in the above judgment itself it is clarified that G.O.Ms.No.
49 dated 14.05.2002 is not applicable to the private Educational
Institutions like the petitioner's College and the only Government Order
applicable is G.O.Ms.No.219 Higher Education Department dated
24.10.2013. Even the said Government Order has been subsequently
quashed and hence the impugned orders are liable to be set aside.
7. In view of the above stated reasons, the impugned orders are set
aside. The 3rd respondent is directed to grant approval of the
appointment of J.Antony James as Watchman in the petitioner college, if
it is otherwise in order and pass orders in the light of the earlier judicial
pronouncements made in this regard within a period of four weeks from
the date of receipt of a copy of this order.
8. With the above direction, this writ petition is disposed of. No
Costs. Consequently, connected miscellaneous petitions are closed.
21.06.2024
(2/2)
Index : Yes / No
NCC : Yes / No
PJL
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WP(MD) No.23255 of 2023
To
1. The Secretary,
State of Tamil Nadu,
Department of Higher Education,
Fort St. George,
Chennai - 600 009.
2. The Director of Collegiate Education,
College Road,
Chennai - 600 006.
3. The Joint Director of Collegiate Education,
Tirunelveli Region,
Tirunelveli - 627 008.
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WP(MD) No.23255 of 2023
R.N.MANJULA, J.
PJL
W.P.(MD)No.23255 of 2023
and WMP(MD)No.19451 &
24713 of 2023
21.06.2024
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