Madras High Court
K. Uma vs Union Of India on 28 January, 2009
Author: P.K. Misra
Bench: P.K. Misra, A. Kulasekaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28-01-2009
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
WRIT PETITION Nos.15270 of 2001 & 11012 of 2002
and
WPMP.No.22667 of 2001
W.P.No.15270/2001
1. K. Uma
D/o.M. Kunjithapatham
2. Babu Rao Godi
S/o. Moolaswam
3. A. Vimala
W/o. Vijayasankaran .. Petitioners
Vs.
1. Union of India,
Rep. by the Govt. of Pondicherry,
Through the Chief Secretary to Govt.,
Secretariat, Pondicherry.
2. Secretary to Government for Education,
Chief Secretariat, Pondicherry.
3. V.Mahalingam
Lecturer, K.M. Centre for
Post Graduate Studies, Lawspet,
Pondicherry.
4. The Registrar,
Central Administrative Tribunal,
Chennai Bench, City Civil Court Buildings,
High Court Campus, Chennai 104. .. Respondents
W.P.No.11012 of 2002
1. Union of India,
Rep. by the Govt. of Pondicherry,
Through the Chief Secretary to Govt.,
Secretariat, Pondicherry.
2. Secretary to Government for Education,
Chief Secretariat, Pondicherry. .. Petitioners
Vs.
1. V. Mahalingam
2. The Registrar,
Central Administrative Tribunal,
Madras Bench,
High Court Campus, Chennai 104.
3. Kumudha Sadagopan
4. P. Yesodha
5. A.Vimala
6. K.Uma
7. V. Kumarasam
8. Babu Rao Godi
9. V.K. Sankaran .. Respondents
Writ Petitions filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records in O.A.No.604 of 1999, dated 2.7.2001 and quash the same.
For Petitioners : Mr.P.V.S. Giridhar
In WP.15270/2001 &
R3 to R9 in WP.11012/02
For Respondents 1 & 2 : Mr. Syed Musthafa
in WP.15270/2001 & A.G.P. (Pudhucherry)
Petitioners in WP.11012/02
Respondent-3 : Mr.V. Ajaykumar
in WP.15270/01 & R-1
in WP.11012/02
- - -
COMMON JUDGMENT
P.K. MISRA,J These two writ petitions are directed against the same passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) dated 2.7.2001 in O.A.No.604 of 1999. Under the said impugned order, the Tribunal given the following direction in the Original Application, which was filed by Respondent No.3 in W.P.No.15270/2001 and Respondent No.1 in WP.No.11082 of 2002 :-
i) The official respondents are directed to fix the seniority of the applicant and respondents 4 to 9 in an appropriate place.
ii) As far as the 3rd respondent is concerned, the applicant is not entitled to get any relief and the O.A. is dismissed as far as R.3 is concerned.
iii) We direct the official respondents to prepare the seniority list as per the G.O.Ms.No.219/78 dated 26.12.78 and fix the seniority of the applicant and respondents 4 to9 accordingly.
iv) The respondents are directed to implement the order within a period of three months from the date of receipt of a copy of this order.
2. The present petitioners in W.P.No.15270 of 2001 were Respondent Nos.6, 8 and 5 respectively in such O.A. The other writ petition is filed by the Government of Pondicherry and the Secretary, who were impleaded as Respondents 1 & 2 in such Original Application.
3. For convenience, the parties are described as described in W.P.No.15270 of 2001.
4. The core question relates to inter se seniority in the reclassified cadre of Lecturers serving under the Government of Pondicherry. Before adverting to the rival claims, it is necessary to notice certain admitted background facts for appreciating the core question.
Under the Government of Pondicherry, before issuance of G.O.Ms.No.219/78, Education Department, dated 26.12.1978, there were different academic posts in various colleges such as Professor, Assistant Professor, etc. The post of Professor could be appointed either by direct recruitment or by promotion from the post of Assistant Professor. The University Grants Commission (in short UGC) has prescribed revised scale for educationalists which was accepted by the Central Government. Subsequently, the UGC scale of pay along with other recommendations, accepted by the Central Government, were also accepted and implemented by the Government of Pondicherry by issuing G.O.Ms.No.219/78 dated 26.12.1978. The recommendation of the UGC for amalgamation of all posts of Assistant Professors and Professors and redesignating those posts as a common cadre of Lecturers was implemented by the said G.O. with effect from 1.4.1976 with monetary benefit to be given effect from 1.1.1977. Subsequently, however, the Government of India revised the cut-off date, which was adopted by the Pondicherry Government, by G.O.Ms.No.29 dated 1.9.1985, whereunder it was indicated that scale of pay would be effective with effective from 1.4.1974. On the basis of G.O.Ms.No.219/78 dated 26.12.1978 restructuring took place. Since the question of seniority is very much intertwined with interpretation of such G.O., it is appropriate at this stage to extract the relevant portion of G.O.Ms.No.219/78 dated 26.12.1978.
ORDER:-
The Government of India have sanctioned vide their letters cited, the scales of Pay recommended by the University Grants Commission to the teaching posts and other posts like Librarians, Physical Education Directors (both gazetted and Non-Gazetted) and Tutors and Demonstrators in colleges in this Union Territory which come under the purview of the Universities as detailed in the Schedule-I annexed hereto. The extension of the University Grants Commission Scales to those posts has been made by the Government of India with the stipulations that the posts of Professors and Assistant Professor should be redisignated as Lecturer and there should not be any more appointment as Tutors and Demonstrators in the Colleges. Consequently, the Lieutenant Governor has been pleased to redesignate as Lecturer the posts of Professor and Assistant Professor in the Arts Colleges and the post of Junior Professor in the Law College in the Union Territory of Pondicherry to whom those orders apply and also direct that there will not be any appointment of Tutors and Demonstrators in those colleges in future.
The Lt. Governor has also been pleased to make the following orders in connection with the implementation of the University Grants Commission Scales, namely:-
i) to v) omitted as not necessary
vi) As a result of the redesignation of the posts of Professor and Assist Professor as Lecturer with the identical scale of pay the existing incumbents of the posts will be dealt with as follows :
a) Such of the Professors who hold posts in a substantive capacity will continue to hold the redisgnated posts of Lecturer without prejudice to their inter-se seniority. Such of the Professors who were appointed on a regular basis prior to 1-4-1976 will also continue to hold the redesignated posts of Lecturer without prejudice to their inter-se seniority. Such of the Professors who hold the posts in a substantive capacity will en-bloc be senior to the officiating Professors who hold the posts on regular basis and both the said categories of Professors will en-bloc be senior to the Assistant Professors redesignated as Lecturers.
(b) to (f) omitted as not necessary . . .
5. In the above background, it is now necessary to notice the relevant factual backdrop in respect of the private parties concerned in the present writ petiton.
6. Petitioner No.1, namely K. Uma, was appointed as Professor of Economics 19.6.1978 and the UPSC had regularized the selection in the post of Professor and notification was published in the State Gazette on 22.8.1978. Petitioner No.2, namely Babu Rao Godi, was appointed as Professor of Chemistry on 29.9.1978 and the UPSC regularized such selection and notification was issued on 21.11.1978. Petitioner No.3, namely A. Vimala, was appointed as Professor of Mathematics on 31.8.1977 and such selection was regularized by the UPSC and notification was published on 14.2.1978. Respondent No.3, who was the applicant before the Tribunal, was appointed as Assistant Professor in English on 8.9.1965 and was continuing as such when G.O.Ms.No.219/78, dated 26.12.1978, was issued.
7. In the above background, the contention of the applicant in the Original Application filed by him was to the effect that as per G.O.Ms.No.219/78 dated 26.12.1978, the cut-off date 1.4.1976 has been fixed with monetary benefit available from 1.1.1977 and, subsequently, such cut-off date has been revised to 1.1.1974 instead of 1.4.1976 and the monetary benefit has been made available with effect from 1.4.1977. The specific assertion of the applicant (Respondent No.3 in the present writ petition) was to the effect that it was the duty of the Government to publish the seniority on the basis of G.O.Ms.No.219 by taking 1.1.1974 as cut-off date and if such a common list of seniority would have been published as indicated in the G.O., the applicant would be slotted in 20th place and Respondent Nos.3 to 11 in the Original Application (some of whom are the petitioners) would have been shown much below the applicant. It was further stated that O.A.No.1586 of 1993 was filed on account of non-publication of the seniority list and challenging the promotion to the post of Principal on the basis of seniority list, which was void. The Central Administrative Tribunal had directed the present respondents 1 & 2 to publish the seniority list on the basis of G.O.Ms.No.219/78 dated 26.12.1978. Since such direction had not been implemented, the applicant himself had filed O.A.No.1339 of 1995, wherein there was a direction to the present Respondent Nos.1 and 2 to publish the final seniority list of Lecturers on the basis of G.O.Ms.No.219/78 dated 26.12.1978. Thereafter, a seniority list was published, wherein the applicant was shown at Sl.No.34, whereas the opposite parties 3 to 9 were shown respectively at S.Nos.20, 21, 24 to 28, which was contrary to the G.O. It was further contended that since the Opposite Parties 3 to 9 had been appointed after the cut-off date of 1.1.1974, they could not have been shown as seniors to the applicant.
8. In the reply statement filed by present Respondent Nos.1 and 2, who were also Respondent Nos.1 and 2 in the O.A., apart from referring to the contents of G.O.Ms.No.219/78 dated 26.12.1978 and giving details of the appointment of different persons, which we have already noticed, it was contended that such persons were shown seniors in accordance with para (vi) of the G.O., as all of them were functioning as Professors on the date of issuance of G.O. A contention was also raised by the Respondent Nos.1 and 2 before the Tribunal that the list of Professors had been circulated in the year 1982, wherein the name of the applicant did not figure and such list having not been challenged, had become final.
9. The private opposite parties did not file any separate counter as the reply filed by the Government reflected their stand.
10. The Tribunal repelled the last contention of the Respondent Nos.1 and 2 by observing that as on 1982 there was no post of Professor or Assistant Professor and, therefore, such list was against the direction in G.O.Ms.No.219/78 dated 26.12.1978. The Tribunal further interpreted the G.O.Ms.No.219/78 dated 26.12.1978 to mean that seniority list was to be prepared on the basis of length of service as Lecturers and not of Professors or Assistant Professors, but the seniority list published in 1982 was prepared on the basis of appointment to the post of Professor. On the aforesaid basis, the Tribunal allowed the Original Application by observing that except Opposite Party No.3, all other opposite parties were juniors to the applicant as they had joined the service much after the applicant. The other directions given by the Tribunal have been already extracted above.
11. The basic question is relating to seniority in the restructured cadre of Lecturer and the interpretation to be given to para (vi) of the G.O.Ms.No.219/78 dated 26.12.1978. We have already noticed that there is no dispute regarding the fact that before the UGC suggestion was accepted and implemented by the Pondicherry Government by G.O.Ms.No.219/78 dated 26.12.1978, the persons were being appointed as Professors, Assistant Professors or other teaching posts in Colleges. It is not in dispute that before such restructuring the post of Professor was a promotional post for the Assistant Professor. As a matter of fact, the applicant himself had categorically so admitted in his Original Application filed before the Tribunal as apparent from the avements made in para 2 of such O.A., to the following effect :-
2. . . . Prior to the implementation of UGC recommendation the nomenclature of the posts in the colleges was Assistant Professor and Professor. The next promotional post of Assistant Professor was the post of Professor and from Professors, appointment will be the same to the post of Principal. 11.1 Similarly from the reply filed by the present Respondent Nos.1 and 2 before the Tribunal, it is apparent that before 1.1.1974 there was category of Professors with Group A classification in the scale of pay of Rs.700-1600 and Assistant Professors with Group C classification in the scale of pay of Rs.650-900. In other words, before such restructuring took place, the post of Professor was definitely in a superior category as compared to the post of Assistant Professor. It is also apparent from the reply filed before the Tribunal by Respondent Nos.1 and 2 that appointment to the present petitioners were on regular basis through UPSC. In the above background, the specific provision contained in para (vi)(a) of the G.O., to the effect that Such of the Professors who hold posts in a substantive capacity will continue to hold the redesignated posts of Lecturer without prejudice to their inter-se seniority and similarly the specific provision Such of the professors who hold the posts in a substantive capacity will en-bloc be senior to the officiating Professors who hold the posts on regular basis and both the said categories of Professors will en-block be senior to the Assistant Professors redesignated as Lecturers, have to be given effect. It is not in dispute that since the applicant continued in the post of Assistant Professor till restructuring of the G.O., and the present petitioners were holding the post on substantive capacity, they have to be treated as en-bloc senior to the Assistant Professors after redesignating all of them as Lecturers as per the UGC Scheme.
12. Unfortunately, however, the Tribunal had completely missed the above vital and important aspect and simply gone by the initial date of appointment, clearly ignoring the fact that the appointment of the applicant before the Tribunal was an Assistant Professor, whereas the opposite parties were Professors.
13. In such view of the matter, the order passed by the Tribunal cannot be upheld and both the writ petitions are accordingly allowed. The order passed by the Tribunal on 2.7.2001 is quashed and the Original Application is dismissed. There would be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
dpk To
1. Union of India, Rep. by the Govt. of Pondicherry, Through the Chief Secretary to Govt., Secretariat, Pondicherry.
2. Secretary to Government for Education, Chief Secretariat, Pondicherry.
3. The Registrar, Central Administrative Tribunal, Chennai Bench, City Civil Court Buildings, High Court Campus, Chennai 104