Madras High Court
Bharathiyar University Sc/St vs Bharathiyar University on 7 June, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.23317 of 2010 and 4698 of 2011 and M.P.Nos.1 and 2 of 2011 Bharathiyar University SC/ST Teachers & Staff Welfare Association, Regd. No.224/09 Bharathiyar University Post, Coimbatore-641 046, Tamil Nadu (Affiliated to the Coimbatore District SC/ST, BC & Minorities Employees Federation) rep by its President Mr.Azha.Periyasamy .. Petitioner in both writ petitions Vs. 1.Bharathiyar University, represented by the Registrar, Bharathiyar University Post, Coimbatore-641 046 Tamil Nadu. 2.The State of Tamil Nadu, represented by the Secretary to Government, Education Department, Secretariat, Chennai-600 009. .. Respondents in both writ petitions W.P.No.23317 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records on the file of the 2nd Respondent in connection with the Advertisement in a Tamil News Daily called Dhina Thanthi dated 12.09.2010 for the teaching posts and the Internal Recruitment Notification No.Estt./E2/2010 dated 16.09.2010 for the non-teaching posts issued by the 2nd Respondent and quash the same and direct the 2nd Respondent to follow the 200 point roster after mentioning the total number of vacancies the number of yearwise vacancies under each category backlog vacancies and further direct the 2nd Respondent to fill the back log vacancies before proceeding with any type of recruitment. W.P.No.4698 of 2011 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus for the records on the file of the 1st respondent in connection with the Notification published in Dhinamalar Tamil Daily in Ad. No. E1/UGC-post.2011 dt 27.1.2011 and quash the same and direct the respondents to follow the reservation and roster in the light of G.O. (MS)No.20 P & AR (K) Department dt 12.2.08 and G.O. (MS) No.65 P & AR (K) Department dt 27.5.2009 while making appointments to various posts. For Petitioner : Mr.R.Singaravelan For Respondents : Mr.N.Manokaran for R-1 Mr.A.Suresh, GA for R-2 in both writ petitions - - - - COMMON ORDER
W.P.No.23317 of 2010 came to be posted on being specially directed by the Hon'ble Chief Justice vide order dated 05.01.2011.
2.Both writ petitions were filed by the petitioner Association which according to the petitioner is a registered society with registration No.224/2009. The first writ petition was filed by the petitioner Association challenging a notice issued by the first respondent University in connection with an advertisement published in Daily Thanthi Newspaper, dated 12.09.2010 for appointment to various teaching posts as well as an internal recruitment notification, dated 16.09.2010 regarding non teaching staff issued by the first respondent. After setting aside these proceedings, it seeks for a direction to the University to adhere to the 200 point roster after disclosing the total number of vacancies, the number of yearwise vacancies under each category, backlog vacancies and for a further direction to fill up the backlog vacancies. That writ petition was admitted on 13.10.2010. An interim injunction was also granted on the same day.
3.Aggrieved by the grant of the orders of interim injunction, a vacate interim injunction application was filed by the University in M.P.No.3 of 2010 together with supporting counter affidavit, dated 12.11.2010. This Court by a common order, dated 25.1.2011 disposed of the injunction as well as the vacate injunction applications. In paragraphs 16 to 18, this Court observed as follows:
"16.Pleadings disclose that when suitable candidates were not available for the posts of Professors and Readers, the Syndicate has converted the same into that of Assistant Professors, at the entry level post. Though the petitioner-Association alleges mala fide and arbitrariness in the conversion of the post, at this juncture, in the interlocutory application, the validity of the decision of the Syndicate, cannot be adjudicated.
17.Perusal of the impugned Advertisement shows that applications has been invited for recruitment of various teaching posts in several disciplines and similarly, applications have also been invited to fill up various categories of posts in non-teaching category. Even at the threshold, the process of selection has been injuncted by this Court. As rightly contended by the learned counsel for the University, no useful purpose would be served in restraining the first respondent-University, from even proceeding with the process of selection, like, scrutiny of applications, calling for the candidates for interview, etc., as per the University Regulations.
18.Considering the rival submissions of both parties and the balance of convenience and following the decision of the Division Bench of this Court made in W.A.No.1282 of 2009, dated 15.09.2009, the 1st respondent-University is permitted to scrutinize the applications, pursuant to the impugned notification for filling up of both teaching and non-teaching staff and process the applications for selection. The University is also permitted to select the candidates, as per the regulations and the results of the candidates, so selected, shall not be published by the University, till questionable issues raised in this Writ Petition, are adjudication at the time of final hearing of the Writ Petition."
4.Subsequently, when the second writ petition came up on 10.3.2011, the same was directed to be posted along with the earlier writ petition. Though in the first writ petition, the first respondent was the Bharathiyar University, in the prayer in the writ petition as well as in the affidavit, the petitioner Association had only sought for the relief against the second respondent which is the State of Tamil Nadu. This error though was pointed out was not corrected by the counsel for petitioner till this date.
5.In the second writ petition, they have challenged the notification of the University, dated 27.01.2011 published in Dinamalar daily newspaper and seeks for a direction to the respondents to follow reservation and roster in the light of G.O.Ms.No.20, P&AR Department, dated 12.02.2008 and G.O.Ms.No.65, P&AR Department, 27.05.2009 while making appointments to various posts.
6.By G.O.Ms.No.20, P&AR Department, dated 12.02.2008, the State Government had directed the appointing authorities that they must adopt 1:4 in respect of priority and non-priority categories also and must follow simultaneous application of communal roster.
7.By G.O.Ms.No.65, P&AR Department, dated 27.05.2009, the State Government made reservations in appointment to public services by making internal reservation in respect of Arunthathiyars under the Tamil Nadu Act 4/2009 and also directed that the roster prescribed shall also be applicable in respect of selections made by the recruiting agencies and appointments made on or after 29.04.2009 and that appointing authorities were directed to adhere to the 200 point roster.
8.In the first writ petition, it was averred that there was shortfall vacancies in respect of non teaching staff coming under Grade A to D and they were respectively 6,15,24 and 14 posts as on 29.6.2006. After representations were made, 2 SC candidates were appointed and the earlier writ petitions filed by them were withdrawn. But, the shortfall vacancies were not filled up. Likewise, in the teaching posts, there were backlog of 24 vacancies for various posts of Professors, Readers and Lecturers. The University had not followed 200 point roster and that because of which, there were backlog vacancies of 7 posts of Professors, 11 posts of Readers and 8 posts of Lecturers. It is in that circumstances, the writ petitions came to be filed.
9.In response to these allegations, in a detailed counter affidavit, dated 12.11.2010, the University questioned the maintainability of the writ petitions and about the incapacity of the Association in maintaining the writ petitions. Apart from preliminary objections, it was stated that pursuant to the decision taken by the Finance Committee on 19.02.2003, the University had decided to fill up only 37 posts out of 66 posts lying vacant at the entry level and at that time 100 point roster was in force. Subsequently, a re-advertisement was given in the newspapers. In the advertisement, dated 10.12.2004, applications were called for from the eligible SC/ST candidates for the posts of Lecturers to fill up the shortfall vacancies in some departments. In respect of four departments, candidates have been selected and they had joined duty during April, 2005.
10.It was also stated that since no adequate SC/ST candidates were available in the Statistics Department, a fresh advertisement was given and that a lecturer was selected and was appointed on 16.07.2007. The only shortfall was in the Mathematics Department. Thereafter, an advertisement, dated 29.07.2007 was released for filling up teaching posts in which the post in the Mathematics Department was also included. One Dr.S.Narayanamurthy was appointed as a Lecturer and he had joined duty on 2.2.2009. Thus, the University had filled up all the shortfall vacancies with SC/ST candidates.
11.It was stated that when 200 point reservation norms was made vide G.O.Ms.No.241, P&AR Department, dated 29.09.2007, two advertisements were given for filling up the backlog vacancies for SC/ST and MBC candidates and they were also filled up on various dates during January and February, 2009. In respect of SC/ST and MBC candidates and denotified community, the shortfall vacancies in several departments were filled up.
12.It was also stated that advertisements were given in the newspaper during September, 2010 calling for candidates for various posts. It was at that juncture, 34 vacancies in teaching posts in various departments through advertisement was placed before the Syndicate. The Syndicate in its meeting on 26.08.2010 had approved the vacant positions and had resolved to convert the posts of Professor/Associate Professor lying vacant in the departments of Mathematics, Economics, Computer Science and Engineering and Physical Education to that of entry level post as Assistant Professors in the very same departments. Similarly one post of Professor and Associate Professor lying in vacant in the Department of Sociology and Population Studies was also converted as entry level post by downgrading the post. Six Assistant Professor posts in the department of Educational Technology and two Assistant Professor posts in the Department of Psychology were allotted to some other University departments with same communal reservation and which were actually required based on the students' strength was also approved by the Syndicate in its meeting held on 26.08.2010.
13.It was also stated by the University that they had already filled up the entire backlog vacancies in their special drive in the year 2008. In cases where it was not filled up it was due to the non availability of candidates. It was further stated that reservation policy was fully complied with by the University. There was no need or occasion to carry forward any shortfall vacancies since all the posts were filled up and as on date, only 10 posts remain to be filled up in a phased manner. The University had also stated that in the teaching staff, there were 159 posts, out of which 34 belonged to SC/ST, which worked out to 21.3%. In respect of non teaching staff, there were 341 posts, out of which 60 posts are reserved for SC/ST and it works out to 17.59%. Therefore, there was no illegality in the matter of advertisement given by the University.
14.A detailed statement of reservation made for SC/ST in the advertisements for teaching staff as well as non teaching staff were furnished giving special reasons.
15.Though Mr.R.Singaravelan, learned counsel appearing for the petitioner attempted to argue at length about the illegality of the Syndicate's resolution in converting or downgrading the posts of Professors and Readers to that of entry level posts, this court is not inclined to accept the same. But, the learned counsel attempted to contend that they ought to have recruited the candidates for the posts which were available in the category of Professors and Readers notwithstanding the fact that in some departments, there were no takers and there was dearth of students.
16.It is unthinkable that in an educational institution like the University established by a State Act, cannot decide the nature of posts for which recruitments should be made. No reservation policy can stand in the way of the University deciding the type of posts for which recruitment should be made depending upon its finance as well as academic requirements including the economic strength of students. It is also unthinkable there can be departments with Professors and Readers without there being any students to undergo studies. Such argument can never be advanced and certainly, they can never be entertained by this court, especially in the context of an University being academic body and it alone is capable of deciding its own requirements. It is in that view of the matter, this court is not inclined to refer to the decisions cited by the petitioner which has no bearing to the case on hand. This court is also not going into the question of locus standi of the petitioner association for the simple reason that the two writ petitions are not being entertained in the light of the stand taken by the University. There are no malafides or irregularities adopted by the University. The University had acted responsibly and complied with the procedures mandated by law for recruiting candidates.
17.The petitioner Association cannot dictate the nature of appointments to be made. The contents of the affidavit were bereft of any legal reason and vague allegations were made. This Court in similar circumstances in Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam (AnnaAmSam) Vs. The Vice-Chancellor, Annamalai University and others reported in 2010 (3) CTC 633 had clearly negatived the similar claims after referring to several judgments of the Supreme Court. The said judgment was also confirmed in W.A.No.628 of 2010, dated 7.7.2010.
18.In view of the above, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Registrar, Bharathiyar University, Bharathiyar University Post, Coimbatore-641 046 Tamil Nadu.
2.The Secretary to Government, The State of Tamil Nadu, Education Department, Secretariat, Chennai 600 009