Madras High Court
Dr.S.Arul Antony vs The State Of Tamil Nadu on 28 April, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-04-2018 C O R A M THE HONOURABLE Mr.JUSTICE S.M.SUBRAMANIAM W.P.No.33351 of 2017 and W.M.P.Nos.8484 and 10650 of 2018 and 36798 and 36799 of 2017 Dr.S.Arul Antony ...Petitioner Vs. 1.The State of Tamil Nadu Rep by the Principal Secretary to Government Higher Education Department Secretariat, Fort St George Chennai - 600 009. 2.The Director of Collegiate Education DPI Campus, College Road Chennai - 600 006. 3.The Chairman Teachers Recruitment Board 4th Floor, E.V.K.Sampath Maligai College Road, Chennai - 600 006. 4.N.Geetha 5.Rosari Ranjithabai 6.R.Jamunarani 7.Muthukumar 8.Geetharani 9.Banumathi 10.Chitra Kalarani 11.Rupavathipal 12.Hema 13.N.K.Kandasamy 14.G.Gowthaman 15.P.H.Mani 16.S.Manimekaladevi 17.J.Malavizhi 18.K.S.Meena 19.A.Gurusamy 20.D.Seghar 21.B.Narayanan 22.C.Thiruselvan 23.R.Sreenivasan 24.R.Chandran 25.P.Ravikumar 26.R.Baskaran 27.S.Kowsalya Devi 28.Julie 29.P.Vijaya 30.T.Arivudai Nambi 31.K.Elisabeth Premakumari 32.G.Magendran 33.S.Devi 34.G.Eswari Prabhu 35.V.Senthamizh Selvi 36.R.Rohini 37.M.K.Rajkumar 38.K.Suguna 39.P.R.Rajkumar 40.K.Chitra 41.P.Panneer Selvam 42.C.Latha Poornam 43.R.R.Jayanthi 44.S.Kalaiselvan 45.Pethalakshmi 46.M.Subramani 47.K.N.Geetha 48.C.V.Mythili 49.S.Chidambara Vinayagam 50.E.Padmini 51.K.Vasanthamani 52.C.V.Deepa 53.S.Usha 54.C.Jothi Venkateshwaran 55.P.ponmuthu Ramalingam 56.K.Maruthambal 57.P.Hemalatha 58.N.Santhi 59.G.Rajavel 60.R.Ulagi 61.G.Geetha 62.R.Sumathi 63.V.Alagusundari 64.R.Renganayagi 65.A.Geetha 66.Varalakshmi Rajagopalan 67.R.Dhansam Roth Hepzibha 68.P.Palanisamy 69.P.Bhuvaneshwari 70.S.Ramaiah 71.T.Aravazhi 72.G.Ezhilan 73.K.P.Ganesan 74.C.P.Saraswati 75.G.Nalini 76.R.Jayachandran 77.K.Velu 78.P.Ranganathan 79.Megala 80.R.Ravanan 81.D.Gladis 82.Poornachandran 83.K.Parameshwari 84.P.Sindia Selvi 85.N.Ramalakshmi 86.S.Kaveri Ammal 87.Vedanayaki 88.G.Poongothai 89.M.Eswaramoorthy 90.Swarna Latha Joseph 91.P.Elan Kumaran 92.M.Kumarasamy 93.Girija 94.P.Madurai Veeran 95.D.Lakshmi 96.S.Ravi 97.Nirmala 98.R.Perumal 99.S.Vanathi 100.Mohankumar 101.C.Pandiammal 102.S.Mahendran 103.S.Shanmugam 104.K.S.Ganeshwari 105.P.Revathi 106.S.Chandra Babu 107.P.Ambalavanan 108.A.Poiyamozhi 109.J.Sunitha 110.M.Nirmala 111.S.Ponmudi 112.J.Suganthi 113.S.Marimuthu 114.A.K.Maheshwari 115.Sheela Sylvia 116.K.Ravichandran 117.Sheela Jayarani 118.M.Vijayarajan 119.Packiya Prabha 120.P.Thamarai Selvi 121.S.S.Rose Mary 122.S.Senthil Kumaran 123.P.Sundarasolan 124.S.Dhandapani 125.Latha Fenn 126.K.Ravishankar 127.V.Lakshmi 128.T.Padmaja 129.G.Vasanthi 130.M.Maharasi Balasubramaniam 131.R.K.V.Suresh 132.R.Santhal 133.K.Poongothai 134.N.Rama 135.N.Umamaheshwari 136.B.Thilagavathy 137.C.Seetharaman 138.T.Mangayarkarasi 139.M.V.T.Sumathi 140.M.Uthirapathy 141.S.Indirani 142.S.Arul Mary 143.Santha Markret ... Respondents Prayer Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for the records pertaining to G.O.Ms.No.348 (Higher Education F1 Department) dated 08.12.2017, G.O.Ms.No.349 (Higher Education F1 Department) dated 09.12.2017 and G.O.(D).No.360 (Higher Education F1 Department) dated 09.12.2017 on the file of the 1st respondent and quash the same and consequently, direct the 1st respondent to fix the seniority of all the Associate Professors regularised vide G.O.Ms.No.81 dated 13.03.1998 and appointed between 1986-1992 presently working in the Government Arts and Science Colleges in Tamil Nadu based upon the date of their initial appointment as Contract Lecturers in accordance with law. For Petitioner : Mr.P.Wilson, Senior Counsel for M/s.Richardson Wilson For Respondents-1to3 : Mrs.Narmadha Sampath, Additional Advocate General Assisted by Mr.C.Munusamy Special Government Pleader. For Respondent-24 : Mr.S.Ayyadurai For Respondents-20 to 22 & 50: Mr.G.Sankaran For Respondent-76 : Mr.L.P.Maurya O R D E R
The present writ petition is filed by the writ petitioner Dr.S.Arul Antony to quash G.O.Ms.No.348 (Higher Education F1 Department) dated 08.12.2017, G.O.Ms.No.349 (Higher Education F1 Department) dated 09.12.2017 and G.O.(D).No.360 (Higher Education F1 Department) dated 09.12.2017 issued by the 1st respondent and direct the first respondent to fix the seniority of all the Associate Professors regularised vide G.O.Ms.No.81 dated 13.03.1998 and appointed between 1986 and 1992.
2. G.O.Ms.No.348 (Higher Education F1 Department) dated 08.12.2017 is the publication of seniority list in the Tamil Nadu Government Gazette. The seniority list of contract lecturers appointed on regular basis with effect from 20.3.1993 were considered and the seniority list was published as per the orders of this Court passed in Writ Appeal No.925 of 2017 dated 4.8.2017 against the order dated 11.7.2017 passed in W.P.No.4594 of 2017, so also the order passed by this Court in W.P.No.29923 of 2017 dated 22.11.2017.
3. G.O.Ms.No.349 (Higher Education F1 Department) dated 09.12.2017 is the regular panel for the post of Principal Grade-II for the year 2017-2018.
4. G.O.(D).No.360 (Higher Education F1 Department) dated 09.12.2017 is the promotion and posting order for the post of Principal Grade-II for the year 2017-2018.
5. At the outset, the writ petitioner has challenged the publication of seniority list, approved panel and the promotion and posting orders.
6. The writ petitioner is now working as an Associate Professor in the Presidency College. During the years between 1986 and 1993, the first respondent appointed about 314 Lecturers on contract basis and also on temporary basis under Rule 10(a)(i) of the Tamil Nadu Subordinate Service Rules in Government Arts and Science Colleges. In G.O.Ms.No.369, Higher Education (F2) Department, dated 11.4.1992, the Government directed the third respondent to conduct direct interview for M.Phil and Ph.D Degree Holders from amongst the Lecturers and for the remaining Lecturers to conduct written test and interview for the purpose of bringing all those contract and temporary Lecturers into regular service. However, even during the relevant point of time, the writ petitioner was continued as a contract Lecturer. After undertaking the process of regularization by the Competent Authorities, finally the Government issued G.O.Ms.No.81, Higher Education (F2) Department, dated 13.3.1998.
7. G.O.Ms.No.81, Higher Education (F2) Department, dated 13.3.1998 was issued regularising the services of the contract Lecturers into regular service. The initial appointment of those contract and temporary employees were made not in accordance with the recruitment rules in force. All those contract and temporary lecturers were appointed irregularly without following the recruitment rules. In order to regularise those appointments, the Government conducted an interview and thereafter issued G.O.Ms.No.81, regularising the services of those contract and temporary Lecturers. While conducting the interview for M.Phil and Ph.D., Degree Holders from amongst the Lecturers and by conducting the written test for the remaining Lecturers, the merit assessment was made by the appropriate Competent Authorities. Thus, the regularization was granted after conducting the interview for M.Phil and Ph.D., Degree Holders and written test for other Lecturers.
8. Thus, marks were awarded both for written test and interview and based on the marks, the rank list was prepared and by following the rules of reservations, the benefit of regularization was granted. The rank list was prepared and published based on the performance of the individuals in the selection process. Thus, in G.O.Ms.No.81 itself, there is a categorical finding by the authorities that the contract and temporary Lecturers were placed in accordance with their merits and rank list and by following the rules of reservation and therefore, their seniority also to be followed in the same order.
9. It is pertinent to note that when there was a selection conducted for the purpose of regularization and the ranking list was prepared and published, then the seniority also to be followed in accordance with the ranks allotted based on the merits during the process of selection.
10. For instance, the same procedure is followed by the Tamil Nadu Public Service Commission, while preparing the ranking list of the selected candidates. The rank list followed by the Tamil Nadu Public Service Commission alone to be taken into account for the purpose of seniority and for all purposes after the appointment of the selected candidates.
11. For the purpose of seniority, this Court has to refer Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules, which states the seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. Even the rule stipulates that the rank obtained in the selection alone is to be considered for the purpose of fixation of seniority and by following the rules of reservations. Thus, for all purposes, the rank awarded in the selection process, which was settled in the order of regularization issued in G.O.Ms.No.81, Higher Education Department, dated 13.3.1998 alone is to be taken for the purpose of seniority for promotion.
12. A perusal of the said G.O.Ms.No.81, dated 13.3.1998 and it reads as under:-
@2/ nkw;fhz; Mrpupau;fs; VG Mz;L fhykhf xg;ge;j mog;gil tpupt[iuahsu;fshfg; gzpahw;wp tUtjhy; Kiwahd gzpf;F mtu;fs; midtiua[k; cl;gLj;j ntz;Lk; vd muRf; fy;Y}up fHfk; Kiwapl;ljd; mog;gilapy; midj;J xg;ge;j tpupt[iuahsu;fisa[k; bjhlu;e;J gzpapypUf;f mDkjpj;Jk;. Mrpupau; nju;t[ thupak; btspapl;l gl;oay; tupirg;go mtu;fspd; Kj;Jupik epu;zapf;fg;gLk; vd;W mwpt[Wj;jpa[k; murhiz (epiy) vz;/310. fy;tp. ehs; 26/3/1993y; Mizaplg;gl;lJ/ mt;thiz btspapl;l 26/3/1993 Kjy; (Kiwahd gzpf;F) midj;J xg;ge;j mog;gil tpupt[iuahsu;fisa[k; cl;bfhzug;gl;Lk; kjpg;bgz; kw;Wk; ,dr;RHw;rp KiwfSf;Fl;gl;L mtu;fspd; gzpK:g;g[ tupir mt;thizapy; epu;zapf;fg;gl;lJ/ 3/ Mrpupau; nju;t[ thupak; xg;ge;j mog;gil tput[iuahsu;fis murpd; cj;jut[fSf;fpz';f neu;fhzYf;F miHj;J me;egu;fspd; bgau; gl;oaiy fy;Y}upf; fy;tp ,af;FeUf;F mDg;gpaJ/ Mrpupau; nju;t[ thupak; xg;ge;j mog;gilapy; gzpaku;j;jg;gl;L gzpahw;wp tUk; tpupt[iuahsu;fspd; bgau; gl;oaiy mtu;fs; bgw;w kjpg;bgz; kw;Wk; ,dr;RHw;rp mog;gilapy; mDg;gp mtutu;fspd; bgaUf;bfjpuhf Fwpg;gplg;gl;Ls;s njjpapypUe;J mtu;fsJ gzpia tud; Kiw bra;a[khW fy;Y}upf; fy;tp ,af;Feu; gupe;Jiu bra;Js;shu;/ 4/ nkw;fhz; fy;Y}upf; fy;tp ,af;Feupd; gupe;Jiuia muR ed;F guprPypj;J xg;ge;j mog;gilapy; gzpg[upe;J te;j 314 tpupt[iuahsu;fspd; gzpia neu;fhzypy; mtu;fs; bgw;w kjpg;bgz; kw;Wk; ,dr;RHw;rp Kiw mog;gilapy;. bgau;gl;oaypy; ,izg;gpy; Fwpg;gplg;gl;lthW mtutUf;bfjpuhf Fwpf;fg;gl;Ls;s ehs; Kjy; tud; Kiwg;gLj;jp muR MizapLfpwJ/@
13. The rank list of the writ petitioner is found in page No.37 of the typed set of papers filed along with the writ petition. The writ petitioner Dr.S.Arul Antony is placed in Serial No.172 and was considered under the category of Backward Community.
14. During the relevant point of time, during the year 1993, the writ petitioner was possessing the qualification of M.Sc., Chemistry. His services were regularised with effect from 26.3.1993. Thus, when the selection process was conducted, the writ petitioner was not in possession of the Ph.D Degree. He was in possession of M.Sc., Chemistry Degree alone. Even he was not in possession of the qualification of M.Phil. Thus, the writ petitioner participated in the written test and based on the marks obtained by him, his seniority was fixed in the rank list and accordingly, he was regularised.
15. The regularization order was well within the knowledge of the writ petitioner herein. The rank list awarded was also known to the writ petitioner. When he accepted the date of regularization granted with effect from 26.3.1993 and all along continued in service. When it is categorically stated in the Government Order that at the time of grant of regularization, the seniority list will be followed based on the ranking list published at the time of selection and the rule of reservation was also followed while awarding the rank list, there is no reason to take a different stand by the writ petitioner now after a lapse of about 19 years that he is entitled for seniority based on his initial appointment as a contract Lecturer.
16. The Government subsequently issued G.O.Ms.No.320, Higher Education Department, dated 2.9.2007, when the representations were made to regularise the services of the contract employment, the Government considered and issued orders in G.O.Ms.No.320, condoning the break-in service and granted the benefit and passed orders as under:-
3/ ,f;fUj;JUit ftdKld; muR Muha;e;J. xg;ge;j mog;gilapy;. 1986?1987k; Mz;L tpupt[iuahsuhf epakdk; bra;ag;gl;L. gpd;du;. 26/3/1993 Kjy; gzp tud; Kiw bra;ag;gl;l tpupt[iuahsu;fspd;. xg;ge;j mog;gilapy; gzpg[upe;j fhyj;jpy; Vw;gl;Ls;s gzpKwpitg; bghWj;jUsp. mg;gzpf; fhyj;ij. murhiz (epiy) vz;/84. cau;fy;tp Jiw ehs; 21/3/2000d; go mtu;fspd; gzp nkk;ghl;ow;F (Career Advancement) fzf;fpy; bfhs;s fPnH Fwpg;gpl;Ls;s epge;jidfSf;Fl;gl;L mDkjp mspj;J muR MizapLfpwJ ?
i) xg;ge;j mog;gilapy; gzpg[upe;j fhyj;jpy; Cjpak; bgw;W gzpg[upe;j fhyj;ij kl;Lk; gzpnkk;ghl;ow;F (Career Advancement) fzf;fpy; vLj;Jf; bfhs;sg;glntz;Lk;/ gzpKwpt[ fhyj;jpy; gzp bra;ahjjhy; Cjpak; bgwhj mf;fhyj;ij gzp Kd;diltpw;F vLj;Jf; bfhs;sf;TlhJ/
ii) gzpKwpt[ fhyj;ij bghUj;jUspdhYk;. mij gzp nkk;ghl;oidj; jtpu gzpr;rYiffs; (service benefits)-Xa;t{jpak; nghd;w ntW ve;j gad;ghl;ow;Fk; fzf;fpy; bfhs;sf;TlhJ/
iii) ,g;gad;ghL murhiz btspapLk; ehspypUe;J tH';fg;glntz;Lk;. Kd;njjpapl;L tH';f ntz;oajpy;iy/ vdnt epYitj; bjhif bgw mtu;fs; jFjpaw;wtu;fs; Mtu;@/
17. Subsequently, on 24.9.2014, the writ petitioner along with other contract Lecturers and temporary appointees, made a representation for grant of seniority with effect from the date of their joining, that was not considered, however, the Government issued G.O.Ms.No.203, Higher Education Department, dated 9.12.2014, considered the case of the petitioners and granted the benefit of calculating the contract and temporary services for the purpose of grant of pensionary benefits under Rule 11(1) of the Tamil Nadu Pension Rules, 1978, subject to the condition that the break-in service and non salary period shall not be taken into account for qualifying service.
18. It is pertinent to note that the period of contract and temporary services were taken into account subject to the conditions stipulated in Rule 11 of the Tamil Nadu Pension Rules only for the purpose of grant of pensionary benefits. Thus, it is clear that the Government has considered the case of the writ petitioner in respect of the services rendered by him as a contract Lecturer and granted the benefit of pensionary benefits alone and in all other respects, the date of regularization will be the date for the purpose of regular services and for seniority.
19. The writ petitioner, admitting the seniority granted based on the rank list published at the time of selection in G.O.Ms.No.81 continued in service for about 19 years from the year 1998. All of a sudden, the writ petitioner Dr.S.Arul Antony along with 27 other colleagues, filed WP No.4594 of 2017, with a prayer for a direction to direct the respondents to draw up an inter-se seniority list for the post of Associate Professors regularised vide G.O.Ms.No.81 dated 13.3.1998, appointed between 1986 and 1992 in all Government Colleges under the second respondent based upon the date of their initial appointment as contract Lecturers in accordance with law, this Court passed an order on 11.7.2017 as under:-
6. It is contended that neither the order of regularization passed in G.O.Ms.No.81, Higher Education (F2) Department, dated 13.03.1998, nor G.O.(Ms) No.203, Higher Education (F1) Department dated 09.12.2014, are challenged by the writ petitioners. The question of considering the retrospective regularization and claiming the seniority for the services rendered as contract lecturers by the writ petitioners does not arise at all.
7. Let us now look into the manner in which the cause was brought before this Honourable Court. The writ petitioners worked as contract/temporary lecturers from the year 1986 and their services were regularized with effect from 1993. Though they peacefully continued in service for 17 years without raising this issue, soon after the official respondents started preparing the panel for promotion, they have suddenly woke up and raised this ground and filed this writ petition, stating that they are entitled for seniority for the period from which date they served as contract/temporary lecturers. In fact, this Court is of the opinion that the writ petitioners have slept over their right, for the past 17 years and only at the time of preparation of panel for promotion they started waking up and filed this writ petition with the claim that they are entitled for seniority.
8. The learned Senior Counsel appearing for the contesting respondents urged this Court that even on earlier occasions promotions were accorded and even at that point of time the writ petitioners have not raised this point. Therefore, it is a clear case, to be dismissed on the ground of laches also. Further the other co-employees, who are likely to be affected on account of the prayer sought for in this writ petition, have not been impleaded as parties. For all the reasons the writ petition deserves to be dismissed.
9. Considering the arguments advanced by the respective counsels both appearing for the petitioners as well as the respondents, this Court is of the firm view that
(i) The writ petitioners were working as lecturers on contract/temporary basis from 1986 to 1993. Thus the services rendered on contractual basis cannot be counted for seniority.
(ii) The services of the petitioners were regularized and they were brought under the regular time scale of pay, only pursuant to the order passed in G.O.Ms.No.81, Higher Education (F2) Department, dated 13.03.1998. Therefore, the right of seniority has to be conferred on the writ petitioners only from the date of regular absorption.
(iii) The writ petitioners were regularized with effect from 1993, in pursuant to the order G.O.Ms.No.81, Higher Education (F2) Department, dated 13.03.1998. Therefore, if at all they have got any grievances, left over to them, they should have agitated the matter within the reasonable period of time.
10. Contrarily, they have allowed the time to lapse for 17 years and moved this writ petition. Thus the writ petition is to be dismissed on the ground of laches. Considering the above three grounds this Court is of the view that the writ petition deserves no merit and accordingly stands dismissed. However, no order as to costs. Consequently, connected miscellaneous petition is closed.
20. Challenging the above order passed in W.P. No.4594 of 2017, 26 petitioners filed Writ Appeal in W.A.No.925 of 2017 and the Hon'ble Division Bench of this Court passed an order on 4.8.2017 which reads as under:-
4. Be that as it may, the list of seniority has not been been finalised by the Government and it is only at the draft stage. As this stage, the petitioners/ appellants have approached this court seeking maintenance of seniority by the date of joining into service by contending that as otherwise their juniors would overtake them, etc. All these contentions would be looked into by the authority concerned. Therefore, it is for the petitioners/appellants to approach the authorities concerned with a detailed representation raising all their contentions within a period of fifteen days from the date of receipt of a copy of this judgment and in such event, the authorities shall consider the same before finalising the seniority list. The writ appeal is disposed of accordingly. No costs. The connected miscellaneous petitions are closed.
21. It is pertinent to note that taking note of the order passed by the Hon'ble Division Bench of this Court as well as the order passed by the learned single Judge of this Court, the Government published the seniority list in G.O.Ms.No.348, dated 8.12.2017. Consequently, G.O.Ms.No.349 also was issued publishing the approved panel for promotion to the post of Principal Grade II.
22. The eligible qualified persons were included in the panel as per the seniority and an order of regular panel and promotion to the post of Principal Grade II for the year 2017-2018 was approved and the Government also issued the same in G.O.Ms.No.349, dated 9.12.2017. It is pertinent to note that the consequential promotions and posting orders were also issued in G.O.(D) No.360 dated 9.12.2017. Under these circumstances, the present writ petition has been moved by the writ petitioner.
23. The learned Senior Counsel, appearing on behalf of the writ petitioner, contended that the contesting respondents also should file a counter for the purpose of deciding the issue relating to seniority in this writ petition. The Government Order issued in G.O.Ms.No.81 dated 13.3.1998 is not at all the seniority list and it is an order of regularization. Therefore, based on the said regularization order, seniority cannot be fixed. Citing the earlier order passed in the writ petition and the order passed by the Hon'ble Division Bench of this Court in the Writ Appeal, the learned Senior Counsel, appearing on behalf of the writ petitioner, has stated that the date of appointment of the writ petitioner as a temporary lecturer is to be taken into account for the purpose of fixation of seniority. This apart, the seniority list now published was without any opportunity to the writ petitioner and the said seniority list impugned in this writ petition was published on Saturday i.e., on 9.12.2017, which is a Holiday for Government. Therefore, the official respondents have acted with some ulterior motive to favour the candidates.
24. The learned Additional Advocate General, appearing on behalf of the respondents 1 to 3, opposed the contentions raised on behalf of the writ petitioner by stating that undoubtedly the G.O.Ms.No.81, dated 13.3.1998 is an order of regularization. However, the said order of regularization was granted in respect of the contract and temporary Lecturers by way of a concession. While undertaking the process of permanent absorption of these contract and temporary Lecturers, the Government had conducted both the written test and the interview. Even the temporary Lecturers, who had not completed M.Phil and Ph.D., were permitted to write the examination. It is a concession granted by the Government to these contract and temporary Lecturers. While undertaking the process of selection, marks were given and the selection process was conducted. During the selection process, merit assessment was made and accordingly, the ranking list was published. As per the rank list, the temporary and contract Lecturers were absorbed on permanent basis and accordingly, their seniority also was fixed as per the merit ranking list. The contract and temporary Lecturers were initially engaged on various dates. Some of them were not fully qualified and acquired the qualifications subsequently. When the process of selection was conducted for the purpose of absorbing these contract and temporary Lecturers, the selection list published based on the merit alone to be followed even for the purpose of seniority as per the rules in force.
25. Once the selection process was completed and the candidates were selected in accordance with their merits and by following the rule of reservation, then the seniority also to be followed based on the same ranking list. The position regarding the seniority was already informed to the writ petitioner and similarly placed contract and temporary Lecturers in G.O.Ms.No.81, there is no reason to say that no opportunity was given to the writ petitioner. Further, the current claim of the writ petitioner to grant retrospective regularization and seniority from the date of his initial appointment as contract and temporary Lecturer, cannot be considered at all and the same was not considered during the permanent absorption of these temporary and contract Lecturers.
26. This apart, the learned Additional Advocate General, referred G.O.Ms.No.310, Education Department, dated 26.3.1993, which also relates to the absorption of contract Lecturers working in Government Colleges, the process of permanent absorption itself was undertaken by the Government only based on the request made by the Association of these Lecturers. The Government passed the following orders in G.O.Ms.No.310:-
4) After careful consideration of the request of the Association, Government pass the following orders:-
i) All the contract Lecturers working in Government Colleges as on date be allowed to continue until further orders;
and
ii) All the contract Lecturers working as on date may be appointed on regular basis with effect from the date of issue of this order and their ranking shall be made on the basis of the marks obtained by them during the interview held by the Teachers Recruitment Board, but also after adopting the rule of reservation.
The Commissioner of Collegiate Education is requested to take further action in this regard and intimate the action taken to Government in due course.
27. This Court is of an opinion that the first writ petition in W.P.No.4594 of 2017 was filed by the present writ petitioner Dr.S.Arul Antony along with 27 other writ petitioners, who all were regularised based on G.O.Ms.No.81. Further, it is relevant to note that some of the writ petitioners in W.P.No.4594 of 2017 were now included as respondents in the present writ petition, namely, WP No.33351 of 2017. Now the writ petitioner has chosen to file the present writ petition independently on the ground that the seniority list published is incorrect. This Court is of an opinion that the contract and temporary Lecturers, who were engaged on certain terms and conditions, are certainly not entitled for regularization or permanent absorption in view of the fact that their initial engagement as contract or temporary Lecturers were not in accordance with the recruitment rules in force. At the time of engaging these contract and temporary Lecturers, the Regulations issued by the University Grants Commission were not followed and the candidates, who did not possess the requisite qualifications, were engaged as contract or temporary Lecturers.
28. No doubt, some of these Lecturers acquired the qualifications subsequently. However, their initial appointment was certainly irregular and in certain cases, it is illegal. Thus, the regularization or permanent absorption, cannot be granted if the initial appointment as Lecturer was not in accordance with the recruitment rules in force. In the case of the writ petitioner and other contract or temporary Lecturers, based on the request made by the Association of employees, the Government has granted a concession by conducting a special selection process for the purpose of permanent absorption of these contract and temporary Lecturers. The process of selection conducted exclusively for these temporary and contract Lecturers itself is in violation of Articles 14 and 16 of the Constitution of India, because the permanent posts are to be filled up only by following the recruitment rules in force and by providing equal opportunity to all the qualified citizen of this great Nation. By conducting a special selection process exclusively for these temporary and contract Lecturers, the opportunity to all the eligible candidates, who are aspiring to secure the post of Lecturer, had been denied.
29. At the outset, the constitutional rights of the equally placed candidates were not provided. Thus, the special selection for these contract and temporary employees itself was a concession given by the Government and such a concession is certainly in violation of the constitutional mandates. However, the Government conducted the selection process by conducting the written test and the interview and by awarding marks. The persons were permanently absorbed on merit basis and by way of rank list. While passing the order of regularization, it is categorically enumerated that the ranking list provided under the regularization order will be the seniority for all purposes and for promotions. When the seniority was given in accordance with the merit ranking list and by following the rule of reservation, then there cannot be any grievances in respect of these contract and temporary Lecturers.
30. The writ petitioner and other contract and temporary Lecturers were brought under the permanent establishment. Now after a lapse of 19 years, claiming retrospective regularization from the date of their initial appointment as contract Lecturers. Further they are raising the issue by stating that their seniority are to be reckoned from the date of their initial engagement as contract and temporary Lecturers.
31. The attitude of this writ petitioner as well as the similarly placed persons are to be deprecated in view of the fact that they had initially appointed in an irregular manner and the Government granted a concession and permanently absorbed them and granted the benefit of regularization. Now after serving for about 19 years, again they are claiming retrospective regularization for the benefit of getting seniority over and above all other candidates, who were appointed in accordance with the recruitment rules in force. Regularization or permanent absorption cannot be granted with retrospective effect. The date of regularization granted to the present writ petitioner as well as the similarly placed persons are the date to be reckoned for the purpose of fixation of seniority in accordance with the rules. Thus, the very claim is directly in violation of the service jurisprudence.
32. This apart, the writ petitioner as well as the other similarly placed persons have not only slept over their right and they have accepted their seniority, which was granted based on the merit ranking at the time of granting regularization and permanent absorption.
33. In respect of regularization and permanent absorption, the Constitution Bench of the Hon'ble Supreme Court of India, categorically laid down the legal principles in the case of State of Karnataka and Others vs. Uma Devi [(2006) 4 SCC 1], that no regularization or permanent absorption can be granted in respect of irregular or illegal appointments made. However, the regularization was granted to the writ petitioner as well as to the other similarly placed persons in the year 1998 by way of a concession by the Government and by conducting a selection process. Thus, the question of granting further regularization with retrospective effect does not arise at all. The seniority of the writ petitioner and all other persons regularised in G.O.Ms.No.81, must be given in accordance with the terms and conditions stipulated therein, which was published based on the very merit ranking list and by following the rule of reservation.
34. The idea of the writ petitioner as well as the similarly placed Lecturers, who were initially engaged as contract and temporary Lecturers, are to stall the promotions already granted in G.O.(D) No.360, Higher Education Department, dated 9.12.2017. This Court is of an opinion that the Higher Education Department is a sensitive Department, wherein large number of students are studying in various colleges and the appointment of Principal is certainly imminent and vital for the peaceful functioning of these colleges in the State. A regular Principal in a college is certainly required for the purpose of running the administration of the college peacefully. The colleges are already facing many issues in the matter of administration. Thus, regular appointment of Principals in the colleges are certainly important and the Courts cannot stall the appointment of the Principals in the Government Colleges in the absence of any valid legal grounds. Promotions and postings, cannot be intercepted in a routine manner.
35. This being the principles to be followed, the writ petitioner has not even established any prima facie case for the purpose of interfering with the seniority list, panel, promotion and posting orders issued by the Government.
36. Thus the present writ petition is not entertained in view of the following reasons:
(i) The Government has already filed a counter and vacate stay petition. One contesting 76th respondent also filed a vacate stay petition and counter in this writ petition;
(ii) The seniority position of the writ petitioner and other similarly placed contract and temporary Lecturers, brought under the regular establishment, had been very well settled in G.O.Ms.No.81 itself;
(iii) G.O.Ms.No.81 categorically states that the merit ranking list, prepared at the time of selection process by following the rule of reservation alone, is to be followed in future for the purpose of seniority also;
(iv) The writ petitioner or any other similarly placed persons have not challenged the said G.O.Ms.No.81 dated 13.3.1998 at any point of time. Contrarily, they accepted the merit rank list published in G.O.Ms.No.81 and serving in the Higher Education Department for the past about 19 years;
(v) Even before issuance of G.O.Ms.No.81, the Government issued G.O.Ms.No.310, dated 26.3.1993, stating that all the contract Lecturers working as on date may be appointed on regular basis with effect from the date of issue of this order and their ranking shall be made on the basis of the marks obtained by them during the interview held by the Teachers Recruitment Board, and by adopting the rule of reservation. Thus, the merit ranking list prepared and published based on the marks alone to be followed for the purpose of fixation of seniority of these contract Lecturers;
(vi) The Government issued G.O.Ms.No.203 dated 9.12.2014, categorically stating that the period of service rendered by these contract or temporary Lecturers shall be taken into account as qualifying service for pensionary benefits only as per Rule 11(1) of the Tamil Nadu Pension Rules, 1978, subject to the condition that the break-in service and non-salary period shall not be taken into account for qualifying service. Thus, the temporary services were considered for the purpose of pensionary benefits by the Government. This also is a concession given by the Government to these contract Lecturers;
(vii) The seniority of these contract Lecturers were fixed in G.O.Ms.No.81 itself, while regularising their services. Now after a lapse of 19 years, the writ petitioner cannot say that he is not aware of the seniority fixed in G.O.Ms.No.81. This apart, the publication of seniority list in G.O.Ms.No.348, Higher Education Department, dated 8.12.2017 was issued complying with the orders passed by this Court in W.A.No.925 of 2017 in W.P.No.4594 of 2017;
(viii) Even in the said G.O.Ms.No.348, the Government has categorically stated that pursuant to the direction of the High Court to consider the representations, the same were considered and a final seniority list was published. Therefore, objections/explanations submitted by the writ petitioner as well as the other similarly placed persons were considered and the final seniority list was published. Thus, it cannot be construed that no opportunity was given to the writ petitioner before publishing the seniority list in G.O.Ms.No.348;
(ix) By following the seniority list and in order to fill up the post of Principal for the year 2017-2018, a regular panel was prepared and published in G.O.Ms.No.349 and thereafter promotion and posting orders were issued in G.O.(D) No.360. Thus, the seniority of the writ petitioner and other similarly placed persons were fixed long back in the year 1998 in G.O.Ms.No.81 and they were very much aware of their respective seniority in the cadre of Lecturer itself.
37. Now, at the time of granting promotion to the post of Principal Grade II, the writ petitioner and the other similarly placed persons are moving this Court for the purpose of getting retrospective regularization from the date on which they were engaged as contract or temporary Lecturers, so as to gain further promotion to the post of Principal. Thus, such stale claims made after many years, cannot be entertained by this Court, if at all, the appointment/promotion to the Principal is stalled, certainly, the interest and welfare of the students studying in the colleges will be very much affected. Thus, the interim order already granted also stands vacated.
38. For all these reasons, this Court is of a strong opinion that the writ petitioner has not established any legal grounds for the purpose of considering the relief, as such, sought for in this writ petition. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
28-04-2018 Speaking Order Internet : Yes Index : Yes Svn To
1.The Principal Secretary to Government State of Tamil Nadu Higher Education Department Secretariat, Fort St George Chennai - 600 009.
2.The Director of Collegiate Education DPI Campus, College Road Chennai - 600 006.
S.M.SUBRAMANIAM, J.
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3.The Chairman Teachers Recruitment Board 4th Floor, E.V.K.Sampath Maligai College Road, Chennai - 600 006.
WP No.33351 of 201728-04-2018