S ROSEMARY Vs. DIRECTOR OF COLLEGIATE EDUCATION

JUDGEMENT

(1.) This writ petition is filed for a writ of certiorarified mandamus to quash the order of the second respondent and to direct the third respondent to designate the petitioner as Head of the Department of Chemistry of the third respondent College.

(2.) The brief facts that are necessary for the purpose of the disposal of the case is as follows:- The petitioner joined as Lecturer of Chemistry on 17.6.1970 in the Auxilium College Vellore. She became the senior most Lecturer in the Department in the year 1986. But on that date, the Principal Sister Sesilee Thomas was a teaching staff in the Chemistry Department. Therefore, she was the Head of the Department till her retirement on 14.6.1993. From 15.6.1993 the present Principal by name Alphonsa was appointed as the Principal. She was working in a different college and she was junior to the writ petitioner herein. But she was brought to this college and was appointed as the Principal of the College on the ground that since she was also a Chemistry Lecturer, she was designated as Head of the Department. But in fact as per the Rules, the senior most Lecturer in the Department should be designated as Head of the Department. Therefore,the petitioner made a representation on 6.1.1994 to the Secretary, Auxilium College and also to the Regional Deputy Director of Collegiate Education to the effect that she being the senior most Lecturer in the Chemistry Department, she is eligible to be nominated as Head of the Department. That was rejected by an undated letter on the ground that the present Principal Sister Alphonsa Mary also belonged to faculty of Chemistry and so, she automatically heads the Department of Chemistry. Hence the question of nominating any one else as the Head of the Department does not arise. Thereafter, writ petitioner made another representation on 15.4.1995 to the Commissioner of Collegiate Education through proper channel. In that she referred to G.O.Ms.No.1785 dated 5.12.1998 and as per the G.O., senior most Lecturer shall be nominated as Head of the Department and on that basis, she wanted her to be appointed as Head of Department of Chemistry. For that, a reply was sent by letter dated 13.1.1997 by the Director of Collegiate Education. In that, it is stated that in so far as the Chemistry Department of the College, the seniority list has not been prepared. Therefore, the Regional Joint Commissioner of Education was directed to fix the seniority in the Department and send it to the Department. Again on 17.6.1997 the Joint Commissioner, Collegiate Education wrote a letter informing that since Alphonsa Mary, who is the Principal is also a Chemistry Graduate, the petitioner cannot be designated as Head of Department. Thereafter, the present writ petition has been filed to quash the impugned order, the second letter dated 17.6.1997.

(3.) A counter has been filed by the 4th respondent in which it is stated that the College is a religious minority educational institution established and administered by Roman Catholic Congregation of the daughters of Mary Help of Christians. It is purely a charitable and philanthropic institution administering several schools. The third respondent is not merely a private college. It is an educational agency that runs it. It entitles to the protection of Article 30(1) of the Constitution of India and as defined in Section 2(7) of the Tamil Nadu Private Colleges Act and the Rules framed thereunder. It does not receive cent per cent aid for all the staff and there are several teaching and non teaching staff for which no aid is granted. The Government is empowered to frame Rules relating to service conditions of the teachers and the other employees working in this college. No rule restricting the administrative and disciplinary control exercised by this minority educational agency is valid. Any service conditions, which are violative of Article 30(1) of the Constitution of India are void and non est in law and they cannot be enforced against minority institution; only such of those provisions of the Act and Rules and other directions issued by the Government which are not violative of Article 30(1) of the Constitution of India are applicable to this College. This follows G.O.Ms.No.1785 dated 5.12.1988 in so far as it is not detrimental to the minority rights guaranteed under Article 30(1). The Minority Educational Agency has the right to choose and appoint persons, who possess enough merit and ability and whose ideals , interests and beliefs are compatible with those of the institutions and the educational agency. As per Rule 11 sub clause 4 and sub clause 1 of Tamil Nadu Private Colleges (Regulation) Act 1976, promotion in respect of teaching staff should be made on merit and ability, seniority being considered only where merit and ability are approximately equal. This Rule is also subject to Article 30(1) of the Constitution. The administrative control of the College vests with the Educational Agency and the second respondent was also not empowered to fix seniority among the staff of this college. The 4th respondent, who is the Principal cannot under any circumstance be made to take instructions from the writ petitioner in the Chemistry Department and hence selection of the 4th respondent as Principal and the Head of the Department is perfectly valid and in the interest of the administration of the institution. It will be an anomaly if the Principal of the College is to be subordinate to a staff member of the Department to which she belongs. The Principal as the natural guardian of the college is the natural Head of the Department. If any attempt is made to place the Principal subordinate to the Head of the Department, it would result in loss of status for the Principal which would violate Article 30 of the Constitution. Further, the designation of the Head of the Department is not attached with any monetary benefit but is granted with lesser work load in teaching hours. As such, the Principal being conferred with the said designation of the Head of the Department would be more able to administer the institution and the Department efficiently. If the writ petitioner is designated as Head of Department of Chemistry, the college will have to appoint another Lecturer to fill up the unmanned working hours, which will result in the loss to the college. G.O.Ms.No.1785 is not binding on the third respondent college. It is also a convention in all the colleges that the Principal is also Head of Department to which he/she belongs. In the circumstances, the writ petition deserves to be dismissed.