Madras High Court
S.Muthiah vs The State Of Tamilnadu on 25 April, 2024
W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.04.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.(MD)Nos.4917 to 4922, 7954 to 7984, 7111 to 7113, 5329 to 5337, 4923 to 4927,
5338 to 5347, 5228, 5234 to 5239, 5650 to 5653, 6056, 6175 and 7496 of 2024 and
all connected Miscellaneous Petitions
WP(MD)No.4917 of 2024:
S.Muthiah ... Petitioner
Vs.
1.The State of Tamilnadu,
Rep., by the Principal Secretary to Government,
Higher Education Department,
Fort St.George,
Chennai- 600 009.
2.The Registrar,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai-625 021.
3.The Director,
Local Fund Audit,
Kuralagam,
Chennai-108.
4.The Deputy Director,
Local Fund Audit,
Madurai Kamaraj University,
Madurai-625 021. ... Respondents
1/ 34
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorari, to call for the records relating to the impugned
order vide Emp.No.0044/Estt.1/MKU/Show Cause Notice/Reply/2024 dated
13.02.2024 issued by the 2nd respondent as illegal and quash the same.
For Petitioner : Mr.K.M.Vijayan,
Senior Counsel
for M/s.K.M.Vijayan Associates
For Respondents : Mr.P.Veerakathiravan
Additional Advocate General
assisted by Mr.T.Amjadkhan
Government Advocate for R1& R3
: Mr.T.Cibichakraborthy for R2 & R4
WP(MD)No.7954 of 2024:
B.Renganathan ... Petitioner
Vs.
1.The State of Tamilnadu,
Rep., by the Principal Secretary to Government,
Higher Education Department,
Fort St.George,
Chennai- 600 009.
2.The Registrar,
ManonmaniamSundaranar University,
Abisekapatti,
2/ 34
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
Tirunelveli- 627 012.
3.The Director,
Local Fund Audit,
Kuralagam,
Chennai-108.
4.The Assistant Director,
Local Fund Audit,
Tirunelveli. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorari, calling for the records relating to the impugned
letter No.NIL dated 07.03.2024 issued by the 2nd respondent and quash the
same as illegal.
For Petitioner : Mr.K.M.Vijayan,
Senior Counsel
for M/s.K.M.Vijayan Associates
For Respondents : Mr.P.Veerakathiravan
Additional Advocate General
assisted by Mr.T.Amjadkhan
Government Advocate for R1 &R3
: Mr.M.MahaboobAthiff for R2 & R4
COMMON ORDER
The petitioners in these group of writ petitions were aggrieved either due 3/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch to re-designation accompanied with pay reduction or mere pay reduction due to re-fixation. As the issue involved in these writ petitions is common to dispose all the writ petitions, all these writ petitions are dealt together by issuing a common order.
2. Heard Mr.K.M.Vijayan, learned Senior Counsel for the petitioners in WP(MD)Nos.7954 to 7984, 7111 to 7113 and 4917 to 4922 of 2024, Mr.K.Prabhu Rajadurai, learned counsel for the petitioners in W.P(MD)Nos. 5329 to 5337 of 2024, Mr.D.Kirubakaran, learned counsel for the petitioners in W.P(MD)Nos.4923 to 4927 of 2024, Mr.Ajmal Khan, learned Senior Counsel for the petitioners in W.P(MD)Nos.5338 to 5347 of 2024, Mr.Rajasekar, learned counsel for the petitioner in W.P.(MD)No.5228 of 2024, Mr.Mohammed Mohideen, learned counsel for the petitioners in W.P(MD)Nos. 5234 to 5239 & 7496 of 2024, Mr.Shaazim Shagar, learned counsel for the petitioners in W.P(MD)Nos.5650 to 5653 of 2024, Mr.C.M.Arumugam, learned counsel for the petitioners in W.P(MD)No.6056 & 6175 of 2024, Mr.M.Mahaboob Athiff, learned counsel for the Manonmaniam Sundaranar University, Mr.T.Cibichakraborthy, learned counsel for the Madurai Kamaraj 4/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch University and Mr.P.Veerakathiravan, learned Additional Advocate General assisted by Mr.T.Amjadkhan, learned Government Advocate appearing for the State.
3. The petitioners in W.P(MD)Nos. 4917 to 4922, 5329 to 5337, 4923 to 4927, 5338 to 5347, 5228, 5234 to 5239, 5650 to 5653, 6056, 6175 and 7496 of 2024 are the employees of the Universities of the Madurai Kamaraj University and the petitioners in W.P(MD)Nos.7954 to 7984 of 2024 and 7111 to 7113 of 2024 are the employees of the Manonmaniam Sundaranar University. As stated already they are aggrieved either due to re-designation accompanied with pay reduction or mere pay reduction due to re-fixation.
4. In all the impugned orders, the reference was made only to the objections raised in the report of the Local Fund Audit. A prelude about the impugned orders is worth mentioning. It originates from the Government Letter(Ms).No.174 dated 25.09.2013, issued to all the Registrars of the alleged all Universities. The letter instructs all the registrars to make recovery of the excess payment which were noted in the earlier audit report from the persons who received the excess or from those persons on whose error the alleged excess payment has been made. For a better clarity the scanned version of the 5/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch above Government letter is reproduced.
6/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch 7/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
5. The above Government Letter makes a reference about an earlier government letter No.1822/K1/2003-5 dated 24.03.2005 and seeks to withdraw the instructions given therein. In the said letter dated 24.03.2005, instructions have been given by the Government to the Local Fund Audit not to repeat the previous audit objections repeatedly in the subsequent audit reports. The above Government letter of the year 2005 would instruct not to state the audit objections of earlier year in the following years, but remove it by making a concise note of it in the succeeding reports.
8/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
6. The letter dated 25.09.2013 has been issued consequent to the requests made by the Director of Local Fund Audit to withdraw the instructions given in the Government letter dated 24.03.2005 and to direct the Universities to take actions like refixing the pay and reversing the alleged wrong promotions/increments in order to avoid the excess payment. After examining the request of the director of the Local Fund Audit, the Government has withdrawn the earlier letter dated 24.03.2005 and thereafter directed all the Registrars of the Universities to take strict action to refix the pay and reverse the wrong promotion/increment given as pointed out in the earlier audit report.
7. The above exercise appears to have been taken after the grant was allotted to each University for making payment towards salary and pension to the employees and pensioners for the period from August 2021 to March 2022. In so far as the Madurai Kamaraj University is concerned the G.O.Ms.No.282 Higher Education Department dated 13.02.2022 sanctions the grant. In respect of Manonmaniam Sundaranar University, the grant has been made through the Government Order in G.O.Ms.No.86 Higher Education (H1) Department dated 28.03.2024.
9/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
8. It is mentioned in those fund grant orders that the Vice Chancellors of the respective Universities have given an undertaking to the Government to reduce the remuneration of Teaching Assistants from Rs.25,000/- to Rs.20,000/- as per G.O.Ms.No.88 Higher Education Department dated 26.02.2021 and reduce the sanctioned strength of Teaching Assistants in various institutions and take various cost reduction measures. One such undertaking is to review the pending audit paras and to take necessary actions including disciplinary action to resolve the pending audit paras and other establishment issues. The provisional pension is also ordered to be revised based on the revised pay certified by the Local Fund Audit Department. All these exercises are to be done to reduce the financial burden. Thus the impugned orders are the offshoot of these steps and communications.
9. The unanimous voice of all the petitioners who have challenged the impugned orders is that the government can not either directly or indirectly take the power to change the service conditions of the university servants. It is further submitted that the Universities have got the independent statutory bodies 10/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch who have the autonomy to administer the affairs of the university including the staff structure and fixation of pay and the independency of those statutory bodies can not be undermined by executive instructions and most particularly in the name of audit objections.
10. At some point in time, similar such measures were taken by the universities in compliance of the audit objections and government instructions for restructuring the staff posts of the university on par with the posts in the Government.
11. In this regard it is appropriate to refer the earlier judgments of this Court held in W.P.Nos.49 of 2007 etc., batch. In the said writ petition almost all the Universities of Tamil Nadu were parties. University of Madras, Bharathidasan University, Madurai Kamaraj University, Annamalai University, Bharathiyar University, Manonmaniam Sundaranar University, Tamil University have been impleaded along with the State respondents.
12. Before issuing the Government letter in Letter No.174 dated 11/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch 24.09.2013 the Government ought to have read the above judgment. By virtue of the orders passed in W.P.Nos.49 of 2007 etc., batch, G.O.Ms.No.402 Higher Education dated 13.12.2006 has been quashed so far as it relates to amending the service conditions of the University employees. The above Government Order is in respect of the Madurai Kamaraj University. However the limits of powers of the Government to issue executive orders in respect of the administration of the Universities has been well defined. For a better clarity, the relevant portion of the above judgment is extracted as below:
“32. In view of my elaborate discussions in the foregoing paragraphs, I would sum up the conclusions in the following terms :
(i) As the law has been made by the State legislature conferring the power of regulation of service conditions of non-teaching staff of the universities on Syndicate, the executive is not empowered to pass the impugned order in regard to that matter in exercise of his executive power under Article 162 of the Constitution nor can he exercise such power with reference to that matter through the officers subordinate to him.
(ii) A law having occupied the field, it is not open for the State, in exercise of its executive power, to prescribe the same field, by an executive order.
(iii) Executive power of the State cannot be repugnant to the enactment of the legislature.
(iv) Executive order of the State can be issued only when the 12/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch statutes or enactments are having gaps and do not cover the area by the existing rules.
(v) Mere funding of the State to the Universities does not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities.
(vi) Executive order i.e., the impugned order of the first respondent in G.O.Ms.No.402, Higher Education (H2) Department, dated 13.12.2006, is inoperative and it is, accordingly, declared ultra vires to the provisions of the Acts.
33. The above conclusions of mine would give rise to the following answer to the question framed :
Executive orders of the State will prevail over the statutes or enactments made by the legislature only when the said statutes or enactments are having gaps and do not cover the area by the existing rules whereof, but not otherwise.”
13. Since the above judgment is applicable in respect of any other Government Orders that would have issued in respect of other Universities also if it seeks to amend the service conditions of the University employees of the respective Universities. In fact, the audit objections that were referred in the previous Government letter in Letter No.1822/K1/2003-5 dated 24.03.2005 have also got overruled. So it is not legal to raise any audit objection with regard to the service conditions and expenses incurred by the Universities in this regard.13/ 34
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
14. Mr.MahaboobAthiff, learned counsel appearing for Manonmaniam Sundaranar University and Mr.T.Cibichakraborthy, learned counsel appearing for Madurai Kamaraj University submitted that the salary and other emoluments of the University employees should be on par with the Government servants and the University was not following its own Statute, but was magnanimous enough to give a salary higher than that of the Government servants as it was comfortable to support the same with the Central and UGC funds. It is also submitted that when the University is fully funded by the State Government and if these kinds of measures are not allowed to be taken, some compelling situation might arise to close the University and the petitioners will loose their jobs and that will affect the students who have enrolled in the University itself.
15. Mr.P.Veerakathiravan, learned Additional Advocate General stressed on the point that the University has to fix the salary as per its financial status and on par with the State employees. So the Audit Objection are raised when the grant given by the Government has been utilised for excess payments of salary and other emoluments to the University staff. It is submitted that the staff were 14/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch not denied to get their salary, but subsequent to the decisions taken by the Finance Committee, the salary was revised on par with the similarly placed persons who are working in the State Government.
16. Mr.K.M.Vijayan, the learned senior counsel for the petitioners submitted that the Local Fund Audit has no competency or jurisdiction to interfere with the service conditions that has been fixed by the Universities within the powers conferred on them. Universities have got a different governance in view of its statutory nature and the Syndicate is the competent authority to appoint the employees.
17. It is further submitted that checking the University whether it has followed the due procedure while appointing the staff and fixing their salary, would fall only within the review powers of the Courts. Earlier teaching and non-teaching staff of the University have been paid on par with the Madras University. After it was bifurcated and the Kamaraj University was formed, several staff from Madras University have come to Kamaraj University and for whom pay protection have already been assured.
15/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
18. The Finance Committee which is a statutory product has already decided to revise and pass a resolution and only in pursuant to that, the appointments were made. The petitioners have not questioned G.O.Ms.No.282, dated 13.10.2022 through which certain restrictions on the utility and spending of the grant allotted to the University. There is no re-fixation or reduction of salary. The Syndicate has also passed a resolution to simply adopt the resolution of the Finance Committee. In fact, no recovery has been made and the Syndicate has decided to accept the decision of the Finance Committee.
19. The learned counsel for the respondents tried to justify the revision of pay fixation by reducing it from earlier pay and the re-designation of certain post by stating that the Vice Chancellors of the Universities themselves have given undertaking and the University have passed resolutions by properly discussing the subject in the Syndicate Committee and the Finance Committee and hence, the autonomy of the University is not affected.
20. No doubt, the Syndicate shall have the powers to control the administration of the University and the funds of the University. So far as the 16/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch Madurai Kamaraj University Act, 1965, is concerned Chapter 24 would state about the conditions of services of the establishments of the University. The said conditions of services does not list the nomenclatures of the post for which appointments can be made. Because power of creating or abolishing appointment, temporary or permanent in the superior or inferior establishments of the University is vested with the Syndicate. In fact, all those employees appointed by the University are University employees. The rules nowhere equates the pay of the University servant with that of the Government servant. In fact the Tamilnadu Pension Rules has been amended from time to time in order to make it applicable to the employees of the University. In para 61 of Chapter XXIV of the above rules would note that the term 'Government' referred in Tamilnadu Pension Rules Part-I would mean the ‘Syndicate’.
21. Chapter XXIV ordinance is applicable to all superior and inferior establishments of the University and not regulated by separate laws framed in accordance with the provisions of the Act and Statutes, so long as they are not inconsistent with the separate laws framed therefor. It means that all those rules are applicable even when there is no separate laws framed to regulate the service conditions of the academic staff, if it is not inconsistent with the 17/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch provisions of the Act and Statutes. So the source of power for such appointments and the management of their service conditions can be only in accordance with the provisions of the Acts and Statutes.
22. Once a decision is taken by the Syndicate and Academic Council, the power to review their actions is vested only with the Senate. The Senate is the supreme body of the University. Even the Vice Chancellor is not an independent body to give any undertaking to the Government while receiving funds, because it is the Senate which has the power to make Statutes and amend or repeal or modify or cancel the ordinance and regulations in the manner prescribed by the Act.
23. Syndicate is empowered to make the appointments and fix the emoluments. Even though the Vice Chancellor is one of the Ex-officio members of the Senate and the Syndicate, he can do anything with regard to the appointment and fixing the emoluments of the employees of the University only through the decisions taken by the Syndicate, which are subjected to the review done by the Senate. Once the Syndicate approves the financial estimates 18/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch with regard to the appointments and all other incidental expenses of the University, the finance committee shall scrutinize and make modifications if it is considered necessary. If the financial committee does not approve but make modification of any financial estimate sent by the Syndicate, then, such estimates should be sent back to the Syndicate. And it is within the powers of the Syndicate either to accept the modification or to review it. But in both cases, the modified estimate should be placed before the Senate and the Syndicate shall sanction it either with or without modification. However, the Senate cannot increase the estimate of expenditure or reduce the expenditure or income. So, the Vice Chancellor on his own does not have the authority or competence to give any undertaking to reduce the financial commitment in respect of the staff members without the said financial decision is supported by the Senate, even if it is presumed that such modifications have been made by the finance committee and it is accepted by the Syndicate.
24. The finance committee of the Madurai Kamaraj University has passed a resolution in the subject of considering the re-fixation of the pay scales of nonteaching staff of University on par with the Tamil Nadu Ministerial pay and it is to the following effect.
19/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch “ Resolved that it be a recommendation to the Syndicate that as instructed in the Government letter (Ms).No.174, Higher Education (k1) Department, dated 25.09.2013 and G.O.(D)No.282 Higher Education (H2) Department, dated 13.10.2022, wrong pay be refixed.”
25. The Government at no point had played a role in any of the administrative body or the system of the University including its financial decisions. The question of right or wrong pay would arise only at the initial instance when the post was sanctioned by the University and the pay is fixed and thereafter revised. In the case in hand all those staffs whose pay has been reduced and revised are attached to the posts designated and they are the old permanent employees of the University. Even before the finance committee no proposal is placed for approving either the post or the pay fixed for the same. The Finance Committee on its own taken up the subject of wrong fixation by placing reliance on the G.O.Ms.No.282 dated 13.10.2022 and Govt. Letter No. 174 dated 25.09.2013 had passed a resolution. As per the procedure as shown in the Statute, the financial estimate has to be submitted from the Senate and the Finance Committee has to either approve it or send it back to the Syndicate with modification. Even on such modification, it is for the Syndicate to take a 20/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch decision either to accept the modification or refuse the same. In both the cases, the decision of the Syndicate has to be approved by the Senate. So, without adopting the above procedure no financial commitment of the University be modified or rejected.
26. As per the Manonmaniam Sundaranar University Act, 1990, the Finance Committee can make recommendation to the Syndicate and every proposal involving investments and expenditure for which no proposal has been made in the annual establishment or which involves expenditure provided in the annual financial expenditure. Sofaras the salary element of the staffs is concerned it is not an estimate, which cannot have the provision in the annual finance estimate and there cannot be any fluctuation in the salary as it has already been fixed and revised and about which annual finance estimate would be made.
27. The conditions of service as contemplated under Section 9 of the Manonmaniam Sundaranar University Act, would state about the appointment procedure for selection, pay and allowance and other conditions of service of the officers, teaching and non-teaching staff employment of the University. 21/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
28. The salary meant for the post is how it has been prescribed at the time when the appointment is made or revised or enhancements is well defined and more clear in the Rules of the Madurai Kamaraj University than the Senate of the Manonmaniam Sundaranar University. Even there, the Senate has the power of approving and reviewing the financial decisions. It is the Syndicate which makes appointments and fixes the salary and other emoluments subject to the review power of the Senate.
29. The learned counsel Mr.Mohaboob Athiff, learned Standing counsel of the Manonmaniam Sundaranar University submitted that as per the Statute, the scale of pay and allowance of the employees in respect of various categories of the post of the University from time to time can be refixed or revised by the Syndicate provided such scales of pay fixed or revised shall be comparable to those adopted or accepted for similar posts under the Government of Tamilnadu and Universities Grants Commission. Dearness Allowance, House Rent Allowance and City Compensatory Allowance shall also be regulated as per the rules applicable to the employees of the Government of Tamilnadu from time to 22/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch time and the powers of the Syndicate is not approved to fix any higher pay.
30. The learned Standing counsel tried to justify by resting on the above provision that the staff of the University shall not have higher pay than the similar post in the Government and all such positions should be on par with the Government. On a thorough reading of the above provision given under Statute 10 and Clause 1 of the University, it can be seen that it only ensures that the staff of the University are not paid a pay lesser than the pay paid to similar posts in the Government. Though the above Clause has used the word 'comparable', and it does not say that the pay should be as similar as that of the scale paid by the Government to the similar post and that no more post, other than the posts available in the Government, should be created in the university. So far as the Dearness Allowance, House Rent Allowance and City Compensatory Allowance are concerned there is no doubt because the rules applicable to the Government employees have been adopted by the Universities also in this regard.
31. As per the Rules the staff of the University shall not be paid with any lower pay which is in no way comparable to similar such pay assured to the 23/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch Government servants. So in every aspect of the matter, the autonomy of the administration of the University is protected and at no point Government’s interference is invited.
32. The Local Fund Audit is an audit section under the administrative control of the Finance Department of the State and it can scrutinize whether the expenditure incurred by the University is in consonance with the policy of the University. The Local Fund Audit has got no superior power to interfere with the policy decision of the University and find fault or suggest to have different nomenclatures for non-teaching posts available in the University or to reduce the scale of pay payable to them. With regard to the payment of salary of the staff, the Local Fund Audit has got a limited role to ensure whether payments have been made to the staff only in accordance with the sanction already obtained by the Finance Committee. Even in the Manonmaniam Sundaranar University, Senate which is the supreme body does not have such power than the Senate of other Universities. So it is needless to state that the observations of the Local Fund Audit that the Universities had given wrong promotion and 24/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch increments and wrong job title exceeds its jurisdiction and competence.
33. In this regard, it is essential to refer the judgment in W.P.No.6635 of 2019 dated 16.06.2023, the learned Single Judge has made the following observations about the functions of the Local Fund Audit as regard the Manonmaniam Sundaranar University, which is extracted as under:
“7.I could have disposed of this writ petition in the light of the aforesaid two decision. However, it is my duty to deal with the contentions advanced by the learned Additional Government Pleader anchored on Section 27 of the ManonmaniamSundaranar University Act, 1990. This said provision is as follows:-
“27. (1) The annual accounts of the University shall be submitted to such examination and audit as the Government may direct and a copy of the annual accounts and audit report shall be submitted to the Government.
(2) The University shall settle objections raised in such audit and carry out such instructions as may be issued by the Government on the audit report. (3) The accounts, when audited shall be published by the Syndicate in such manner as may be prescribed by the ordinances and copies thereof shall be submitted to the Senate at its next meeting and to the Government within three months of such publication.”
8. Section 27 of the Act will not empower the Government to issue a direction of this nature. The Director of Local Fund Audit had gone to the extent of stating that the University has been giving wrong promotions / increments. The job of the Local Fund Audit is to see if 25/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch the expenditure incurred by the University is in consonance with the policy of the University. As per Section 27 of the Act, the Syndicate has the power to appoint the University Lectures, University staff and fix their emoluments. It is not for the Local Fund Audit to go into the justification of the promotions given by the University. The Government has gone entirely by the report of the Local Fund Audit.
It clearly amounts to interference with the internal administration of the University. Section 27 of the Act has been misconstrued by the Government. The impugned communication is without jurisdiction. It is quashed and the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.”
34. What appears from the above judgment of this Court is that the Local Fund Audit has no privilege to interfere with the administration of the University and makes audit objection beyond the scope of its powers and functions. Section 27 of the Act does not give any directions to any of the bodies of the University but it only states that the University shall settle objections raised in such audit and carry out such instructions as may be issued by the Government on the audit report. It is a general provision which would elaborate about the functions of the audit and the responsibility of the University towards the audit report. The above provision does not mean that either the Government or its Local Fund Audit department can interfere with 26/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch the internal administration of the University in establishing its staff structure, service conditions, appointments and the pay fixation.
35. In fact in a batch of writ petitions filed challenging the re-designation in respect of the retired non-teaching staff of the University by the Madurai Kamaraj University in W.P(MD)Nos.8537 to 8546 of 2024, this Court vide its order dated 04.04.2024 has held as under:
“8. It is trite law that the Government Order cannot be superseded by any statutory provisions which are governing the service conditions of the employees. So far as these petitioners are concerned, they had retired from service and the relation between the petitioners and the second respondent University as that of employee and employer had ceased to exist. It is not the argument of the respondent that the posts, by names, Senior Deputy Registrar and Senior Superintendent, were not in existence at the time of their employment. Only because those posts are available, the petitioners are rightly placed in those posts on their promotion and they were allowed to retire as how they have been designated. In this regard, it is worthwhile to refer to the judgment of the Hon'ble Supreme Court of India in the case of State of Jharkhand vs. Jitendra Kumar reported in (2013) 12 SCC 210, wherein, it has been held that the right to receive pension is recognised as a right in “property” and the executive instructions cannot have a statutory character and hence those executive instructions cannot be called as law. The words of the Hon'ble Supreme Court of India are given as under:27/ 34
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch “16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:
“300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law”. Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and therefore, cannot be termed as “law”within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.
18. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.”
10. The petitioners, who were working as Senior Deputy Registrar and Senior Superintendent, were not subjected to any disciplinary proceedings and while allowing them to retire no conditions were imposed in view of any pending or contemplated disciplinary action.
As stated already, the pensionary benefits sanctioned to the 28/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch petitioners are all regular pension in accordance with the Rules. Hence, the respondents have got no authority to call for those orders which are given already and to revise the same pursuant to the subsequent Government Order issued due to change of policy of the University.
11. The learned Senior Counsel appearing for the petitioners submitted that the order which has not been issued for recovery of the pension already granted itself would amount to implementing the Government Order with prospective effect and hence, they can not be given with retrospective effect.
12. The reduction of pension has been made only because the posts by names Senior Deputy Registrar and Senior Superintendent are something luxurious and hence, they have to be re-designated as Superintendent and Deputy Registrar respectively, as how they are available in the government departments. Such re-designation has been made with effect from the year 2008 and consequence thereof, the pension due to the petitioner has been revised through the impugned order. No re-designation has been impacted on those persons who are no more in service. In other words if any re- designation exercise is done in respect of retired individuals that is possible only by going posterior in time. Whichever way it is looked, the attempt of the second respondent University to implement the Government Order against the petitioners in a retrospective manner is glaringly visible.
............
14. In the cases in hand, the entitlement of the petitioners to get pension in accordance with the provisions of pension has been reduced and modified through an administrative order which is 29/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch thoroughly illegal. In reality, the petitioners’ services with the respondent University had ended and thereafter the posts held by the petitioner can not be re-designated as against them. In other words the petitioners are no more holding the posts of Senior Deputy Registrar and Senior Superintendent in order to get it re-designated. Such an action would amount to doing something on a thing which does not exist. Hence in all possibilities and realities of rule of law, the respondents do not have authority to pass the impugned order. As the impugned notices are against the spirit and scope of the statutory protection given to the petitioners, they are illegal and liable to be set aside.”
36. It makes no difference when it comes to the staffs who are in service also. It is obviously because they are governed by the service conditions which are assured to have at the time of their appointment and the decision taken about their promotion, increment and other pay revision from time to time. Even if any reduction in the pay scale or revision of any designation, those decisions have to be taken by the Syndicate and it can be given with prospective effect. In fact the issue as to equating the nomenclature and emoluments of the post on par with the Government servants has already been discussed in the earlier W.P.Nos.49 of 2007 etc., batch are settled down once and for all. It is reiterated that the Syndicate does not deprive of its power to create or abolish any post or 30/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch to give different nomenclature. But all those cannot be made against those persons who are already in service in the existing designations.
37. Whenever the University is facing financial crunch some decisions have to be taken for properly budgeting the expenses. The expenses of the University would include not only the staff salary but also the other expenses. So the universities can think about reducing some expenses which does not have any incidence of civil right incidence. As the staff structure and the salary design of the university seems to be bit different and better than the government departments, the disciplinary mechanism can be robust in order to get the full potential and service be utilized. That should match the pay benefits allowed to them. That will even expedite the projects and other programmes of the university and it can have the incidence of cost reduction. The dead wood among the staff university can be weeded out in order to ensure a meaningful expenditure on the staff structure. A reasonable raise in the tuition fee or any other avenues to improve the revenue to the university might also help for self- financing the university expenditure to some extent.
38. Though the financial burden on the State is understandable, the State 31/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch cannot compromise the access and quality of education by placing hard and fast terms for providing funds to support educational systems. Education is one of the priority services of the State and every other development of the state depends upon the access and quality of education. Any interference in the university administration in the name of audit will steal away the autonomy of the Universities and it is not the whole object of the statutes governing universities. Hence the impugned orders affecting the rights already accrued on the staff of the University and the autonomy of the University are no doubt liable to be quashed.
39. In the result,
i) The Writ Petitions in W.P.(MD)Nos.4917 to 4627 of 2024 are allowed and the impugned orders of the third respondent dated 13.02.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
ii) The Writ Petitions in W.P.(MD)Nos.5228, 5234 to 5239, 5330, 5332 32/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch to 5337, 5338 , 5339, 5341 to 5344, 5347 of 2024 are allowed and the impugned orders of the third respondent dated 26.02.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
iii) The Writ Petitions in W.P.(MD)Nos.5329, 5331, 5345 & 5346 of 2024 are allowed and the impugned orders of the third respondent dated 27.02.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
iv) The Writ Petitions in W.P.(MD)Nos.6056 & 6175 of 2024 are allowed and the impugned orders of the second respondent dated 27.02.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
v) The Writ Petitions in W.P.(MD)Nos.5650 to 5653 of 2024 are allowed and the impugned orders of the second respondent dated 33/ 34 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch 28.02.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
vi) The Writ Petitions in W.P.(MD)Nos.7954 to 7984 & 7111 to 7113 of 2024 are allowed and the impugned orders of the second respondent dated 07.03.2024 are quashed. The respondents are prohibited from revising the scale of pay of the petitioners by re- fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
vii) The Writ Petition in W.P.(MD)No.7496 of 2024 is allowed and the impugned order of the third respondent dated 12.03.2024 is quashed. The respondents are prohibited from revising the scale of pay of the petitioner by re-fixing their scale of pay on par with the scale of pay in the Departments of Government of Tamil Nadu.
viii)Consequently, all the connected miscellaneous petitions are closed. No Costs.
25.04.2024
34/ 34
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
Index : Yes / No
Internet : Yes/No
NCC : Yes / No
PJL
To
1. The Principal Secretary to Government
State of Tamilnadu,
Higher Education Department,
Fort St.George,
Chennai- 600 009.
2. The Director,
Local Fund Audit,
Kuralagam,
Chennai-108.
35/ 34
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.4917 to 4922 of 2024 etc., batch
R.N.MANJULA, J.
PJL
W.P.(MD)Nos.4917 to 4922, 7954
to 7984, 7111 to 7113, 5329 to
5337, 4923 to 4927, 5338 to 5347,
5228, 5234 to 5239, 5650 to 5653,
6056, 6175 & 7496 of 2024
and
all connected Miscellaneous Petitions
25.04.2024
36/ 34
https://www.mhc.tn.gov.in/judis