Madras High Court
Madurai Kamarajar Palkalaikazhaga ... vs The State Of Tamil Nadu on 4 July, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :04.07.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Petition (MD)No.19594 of 2013 and M.P.(MD)Nos.1 and 2 of 2013 M.Parthasarathi, Secretary, Madurai Kamarajar Palkalaikazhaga Thalthappattor (SC/ST/SCA) Uyarnilai Matrum Kadainilai Paniyalargal Nala Sangam (Regn.No.194/2011), Madurai Kamarajar Palkalaikazhaga Palkalai Nagar, Madurai-21. ... Petitioner Vs. 1.The State of Tamil Nadu, rep.by its Secretary, Department of Higher Education, Secretariat, Fort St.George, chennai. 2.The State of Tamil Nadu, rep.by its Secretary, Department of Adi-Dravidar and Tribal Welfare, Secretariat, Fort St.George, chennai. 3.Madurai Kamaraj University, rep.by its Vice Chancellor, Palkalai Nager, Madurai-625 021. 4.Madurai Kamaraj University, rep.by its Registrar, Palkalai Nager, Madurai-625 021. ... Respondents Writ petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus, calling for the records in connection with the impugned Advertisement issued by the 4th respondent published in the official website in Advertisement No.R/70/MKU/2013 to R/74/MKU/2013 dated 21.08.2013, quashing the same as illegal, arbitrary, unconstitutional and consequently directing the 3rd and the 4th respondents to fill the vacancy in the post of Professor by earmarking them to Scheduled Caste and Scheduled Tribe Community, by following communal roster and rotation within a time frame that be fixed by this Court. !For Petitioner : Mr.G.Thalaimutharasu For Respondents : Mr.A.K.Baskarapandian, 1 and 2 Spl.Govt.Pleader. For Respondents : Mr.Isaac Mohanlal 3 and 4 :ORDER
V.RAMASUBRAMANIAN,J The Secretary of the Madurai Kamaraj University SC/ST Employees Association has come-up with the above Writ Petition challenging the Notifications issued by the University in its website, inviting applications for filling-up one post of Professor in each of the Departments in Commerce, Communication, Computer Applications, Genetic Engineering and Geography.
2.We have heard Mr.G.Thalaimutharasu, learned counsel appearing for the petitioner, Mr.A.K.Baskarapandian, learned Special Government Pleader for respondents 1 and 2 and Mr.Isaac Mohanlal, learned counsel appearing for the respondents 3 and 4.
3.The grounds on which the petitioner Association challenges the impugned Notifications are:
(a) that all the five posts of Professors notified under the impugned advertisements have been thrown open to the General Turn, without either reserving any post for Scheduled Castes and Scheduled Tribes or without filling-up the backlog vacancies carried forward over the years for these oppressed communities; and
(b) that atleast in respect of two departments, namely, Department of Communication and Department of Computer Applications, no posts have been sanctioned by the Syndicate, as required by the Statutes of the University.
4.Apart from the above two grounds, the petitioner has also raised several other grounds. But, they are not sufficient, legally, to impeach the notifications. Therefore, we reject the other grounds.
5.Insofar as the first ground of attack to the impugned Notifications is concerned, the University has taken a very categorical stand that the posts of Professors in the departments of Communication, Computer Applications, Genetic Engineering and Geography are single cadre posts and that therefore there could be no reservation. Insofar as the department of Commerce is concerned, there are only two posts of Professors available. This is the first recruitment made by the University, after the State Government introduced a 200 point roster under the Government Order in G.O.Ms.No.241, P & A.R.Department, dated 29.10.2007 and therefore as per the said Government order, any recruitment drive should commence from the first point in the 200 point roster. Since the first point in the roster is reserved for General Turn and only the second point is reserved for Scheduled Caste, the University has advertised one post of Professor in the department of Commerce, as falling under the General Turn.
6.Mr.G.Thalaimutharasu, learned counsel appearing for the petitioner, does not dispute the fact that the present recruitment is the first recruitment sought to be made for the post of Professor in the department of Commerce, after the introduction of the 200 point roster and that therefore the University should actually fill-up the post falling in the first point under the 200 point roster.
7.As a matter of fact, the petitioner himself has filed in the paper-book a tabular statement, indicating the cadre strength of each department in the University. The tabular statement relates to the post of Professor, Reader and Lecturer in all the Departments of the University. It appears from the said tabular statement, produced by the petitioner Association themselves, that there are 81 departments in the University. It also appears from the said statement that there is only one post of Professor in the departments of Commerce, Computer Application, Genetic Engineering and Geography. Hence, the contention of the University that four out of five posts now advertised under the impugned Notifications are single cadre posts becomes an admitted fact. Once it is admitted that they are single cadre posts, the petitioner Association cannot claim any reservation to these posts. The law is now well settled to the effect that there can be no reservation in respect of single cadre posts.
8.However, inviting our attention to the 33rd Annual Report of the University (Volume-2 1998) Mr.G.Thalaimutharasu, learned counsel for the petitioner, contended that in the Department of Commerce, there were actually 5 Men Professors and one Woman Professor; that in the Department of Geography there were 3 Men Professors and 2 Women Professors and that in the Department of Genetic Engineering there were 2 Men Professors and that therefore the information furnished by the University to the Court was wrong. But, we do not think that the above contention is actually correct. The respondents have stated, on affidavit, that the Departments of Computer Application, Genetic Engineering, Commerce and Geography have only one post of Professor each. According to the respondents, the other persons have gained promotion to the post of Professors under the Career Advancement Scheme. Even as per the University Grants Commission Regulations, persons promoted as Professors under the Career Advancement Scheme do not occupy the substantive post of Professor. They draw the pay and allowances of the post of Professor, without being considered as the holders of the substantive posts. The distinction between the Career Advancement Scheme Professors and the Regular Professors was brought out in Paragraph 39 of the Judgment of the Supreme Court in Dr.Rashmi Srivastava vs. Vikram University (1995) 3 SCC 653, on the following lines:
"39.At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as recommended by the Commission and adopted by the University concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer becomes obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible.
(i)The directly recruited Readers and Professors fill up the vacancies in the cadres of Readers and Professors for which direct recruitment is resorted to. While the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no post is available by promotion.
(ii)The directly recruited Readers and Professors are recruited pursuant to the only source of appointment contemplated by Section 49, that is by way of direct recruitment. The promotee Readers and Professors are appointed not in the cadre posts but under an entirely different scheme, namely merit promotion scheme. Even under this scheme, no posts as such are created. Those selected under the scheme are given personal posts which cease with their employment. In fact, the posts from which they are promoted do not become vacant and none can be appointed to the said posts while they hold the higher posts.
(iii)Pay scales of promotees Professors and Readers are different from the pay scales of directly recruited Readers and Professors at least after coming into operation of the career advancement scheme as seen earlier. To recapitulate, for direct recruit Readers revised pay scale with effect from 1-1-1986 is Rs.3700-5300 while the pay scale for promoted Reader is Rs.3000-
5000. Pay scale of a direct recruit Professor is Rs.4500-7300 while the pay scale of a promotee Professor is Rs.4500-5700. It is also to be noted that as per the letter of Under Secretary, Department of Education dated 1-1-1989 the aforesaid difference in pay scales of merit promoted teachers is clearly brought out. It is of course true that as per the order of the Madhya Pradesh Government the pay scales of promotees Readers and Professors who were promoted prior to the enforcement of career advancement scheme were promoted. But for such protection they would not have been entitled to pay scales of directly recruited Professors and Readers as revised under the scheme. This difference in the pay scales itself is a distinct feature so far as promotees under the merit promotion scheme on the one hand and the directly recruited Readers and Professors on the other hand are concerned.
(iv)The promotee Readers and Professors are not holding any officiating or even temporary post of Reader or Professor nor is there any temporary addition to the cadre strength of Readers and Professors.
(v)The workload of directly recruited Reader and Professor is different from the workload of promotee Reader or Professor for whom the workload of a Reader or Lecturer as the case may be would still have to be shared as no vacancies are created for being filled in the cadres from which such promotions are effected.
(vi)There is a qualitative difference in the process of selection of direct recruits under the scheme of Section 49, as compared to the promotion of the merit promotees. Although for the latter the infrastructure of Selection Committee under Section 49 may be made available, the criteria for their promotion are entirely distinct and different as envisaged by the guidelines governing the merit promotion scheme.
(vii)There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in th posts concerned as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits."
9.Therefore, merely because there were Career Advancement Scheme Professors, it cannot be contended that they could be counted as cadre posts. To be counted as a cadre post, the post should be a substantive and sanctioned post. In such circumstances, we are unable to hold as incorrect, the stand taken by the University that these are single cadre posts.
10.It is contended by Mr.G.Thalaimutharasu, learned counsel for the petitioner that the previous incumbents in some of those posts were general category candidates and that therefore the present recruitment has to be restricted to Scheduled Caste and Scheduled Tribe candidates. In other words, his contention is that even if they are single cadre posts, they should go by rotation. But, such a contention is not permissible in law. Single Cadre posts are not to be treated as musical chairs.
11.Insofar as the department of Commerce is concerned, the rules themselves prescribe that whenever recruitment is made for the first time after the introduction of the 200 point roster, the recruitment should commence from the first point in the roster. The first point in the roster is reserved for General Turn. Only second point in the roster is for Scheduled Castes. It is submitted by Mr.Isaac Mohanlal, learned counsel for the University, that the University would fill-up the next vacancy in the post of Professor in the department of Commerce only according to the second point in the roster, if and when they fill-up the vacancy. Therefore, this statement addresses the grievances of the petitioner with respect to the department of Commerce.
12.Insofar as the contention of the petitioner with regard to backlog vacancies for Scheduled Castes and Scheduled Tribes is concerned, it is seen from an order passed on 05.12.2006 by a Division Bench of this Court in W.P.(MD)Nos.1997, 2192 and 2880 of 2006 that the backlog vacancies were directed to be filled-up separately by way of independent notifications, without clubbing it with other vacancies. According to the University, they issued separate Notifications, dated 21.03.2007, for filling-up of backlog vacancies of 103, out of which 25 were the backlog vacancies for Scheduled Castes for Scheduled Castes, 2 for Scheduled Tribes, 5 for Most Back Classes and 71 for General Turn. This Notification was challenged in two writ petitions by one P.V.Kathiravan seeking a mandamus to direct the University to treat each school in the University as a separate unit for the purpose of reservation. In that writ petition, this Court directed the University to find out the cadre strength. Therefore, a High Level Committee was appointed. Based upon the Committee's findings, the previous Notification dated 21.03.2007 was withdrawn. Thereafter, the backlog vacancies were exactly fixed as 103, out of which 28 were for Scheduled Castes and two for Scheduled Tribes. Hence, three separate Notifications were issued on 22.01.2010 for filling-up the backlog vacancies. Out of these backlog vacancies, 78 were filled-up and 11 could not be filled up for want of candidates. In order to fill-up these 11 vacancies also, another Notification was issued on 20.07.2010, pursuant to which four vacancies were filled-up. Seven vacancies remained and they were notified on 30.11.2010. Out of them, two were filled-up and five now remained unfilled. Therefore, it is clear that the petitioner cannot make a serious objection with regard to the backlog vacancies. In such circumstances, the first ground of attack to the impugned notifications fails.
13.The second ground of attack is about the lack of sanction for the creation of new posts in the departments now created. Insofar as this aspect is concerned, the University has stated in the counter affidavit that, by a Resolution dated 09.01.2013, the Syndicate decided to create two new schools, one in Information Technology and another in Linguistics and Communication. Under the school of Information Technology, three departments, namely, department of Computer Science, department of Computer Applications and department of Library and Information Science were created. Similarly, three departments were created in the School of Linguistics and Communication. Therefore, the contention that no sanction has been accorded for the creation of news posts does not appear to be correct.
14.In fine, both the grounds of attack to the impugned notifications fail and hence the Writ Petition is dismissed. Connected miscellaneous petitions are also dismissed. There will be no order as to costs.
To
1.The Secretary to Government, Department of Higher Education, Secretariat, Fort St.George, chennai.
2.The Secretary to Government, Department of Adi-Dravidar and Tribal Welfare, Secretariat, Fort St.George, Chennai.