K. Uma M. Kunjithapatham v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28-01-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE A. KULASEKARANWRIT PETITION Nos.15270 of 2001 & 11012 of 2002andWPMP.No.22667 of 2001W.P.No.15270/20011. K. UmaD/o.M. Kunjithapatham2. Babu Rao GodiS/o. Moolaswam3. A. VimalaW/o. Vijayasankaran.. PetitionersVs.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... RespondentsW.P.No.11012 of 20021. Union of India, Rep. by the Govt. of Pondicherry, https://hcservices.ecourts.gov.in/hcservices/ Through the Chief Secretary to Govt., Secretariat, Pondicherry.2. Secretary to Government for Education, Chief Secretariat, Pondicherry... PetitionersVs.1. V. Mahalingam2. The Registrar, Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai 104.3. Kumudha Sadagopan4. P. Yesodha5. A.Vimala6. K.Uma7. V. Kumarasamy8. Babu Rao Godi9. V.K. Sankaran.. RespondentsWrit Petitions filed under Article 226 of the Constitution ofIndia for the issuance of Writ of Certiorari to call for the recordsin O.A.No.604 of 1999, dated 2.7.2001 and quash the same.For Petitioners : Mr.P.V.S. GiridharIn WP.15270/2001 &R3 to R9 in WP.11012/02For Respondents1 & 2: Mr. Syed Musthafain WP.15270/2001 & A.G.P. (Pudhucherry)Petitioners in WP.11012/02Respondent-3 : Mr.V. Ajaykumarin WP.15270/01 & R-1in WP.11012/02COMMON JUDGMENTP.K. MISRA,JThese two writ petitions are directed against the samepassed by the Central Administrative Tribunal (hereinafter referredto as “the Tribunal”) dated 2.7.2001 in O.A.No.604 of 1999. Under https://hcservices.ecourts.gov.in/hcservices/ the said impugned order, the Tribunal given the following directionin the Original Application, which was filed by Respondent No.3 inW.P.No.15270/2001 and Respondent No.1 in WP.No.11082 of 2002 :-“i) The official respondents are directed to fix theseniority of the applicant and respondents 4 to 9 in anappropriate place.ii) As far as the 3rd respondent is concerned, theapplicant is not entitled to get any relief and the O.A. isdismissed as far as R.3 is concerned.iii) We direct the official respondents to prepare theseniority list as per the G.O.Ms.No.219/78 dated 26.12.78and fix the seniority of the applicant and respondents 4to9 accordingly.iv) The respondents are directed to implement the orderwithin a period of three months from the date of receipt ofa copy of this order.”2. The present petitioners in W.P.No.15270 of 2001 wereRespondent Nos.6, 8 and 5 respectively in such O.A. The other writpetition 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 describedin W.P.No.15270 of 2001.4. The core question relates to inter se seniority in thereclassified cadre of Lecturers serving under the Government ofPondicherry. Before adverting to the rival claims, it is necessaryto notice certain admitted background facts for appreciating the corequestion.Under the Government of Pondicherry, before issuance ofG.O.Ms.No.219/78, Education Department, dated 26.12.1978, there weredifferent academic posts in various colleges such as Professor,Assistant Professor, etc. The post of Professor could be appointedeither by direct recruitment or by promotion from the post ofAssistant Professor. The University Grants Commission (in short“UGC”) has prescribed revised scale for educationalists which wasaccepted by the Central Government. Subsequently, the UGC scale ofpay along with other recommendations, accepted by the CentralGovernment, were also accepted and implemented by the Government ofPondicherry by issuing G.O.Ms.No.219/78 dated 26.12.1978. Therecommendation of the UGC for amalgamation of all posts of AssistantProfessors and Professors and redesignating those posts as a commoncadre of Lecturers was implemented by the said G.O. with effect from1.4.1976 with monetary benefit to be given effect from 1.1.1977.Subsequently, however, the Government of India revised the cut-offdate, which was adopted by the Pondicherry Government, by https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.29 dated 1.9.1985, whereunder it was indicated that scaleof pay would be effective with effective from 1.4.1974. On the basisof G.O.Ms.No.219/78 dated 26.12.1978 restructuring took place. Sincethe question of seniority is very much intertwined withinterpretation of such G.O., it is appropriate at this stage toextract the relevant portion of G.O.Ms.No.219/78 dated 26.12.1978.“ORDER:-The Government of India have sanctioned vide theirletters cited, the scales of Pay recommended by theUniversity Grants Commission to the teaching posts andother posts like Librarians, Physical Education Directors(both gazetted and Non-Gazetted) and Tutors andDemonstrators in colleges in this Union Territory whichcome under the purview of the Universities as detailed inthe Schedule-I annexed hereto. The extension of theUniversity Grants Commission Scales to those posts has beenmade by the Government of India with the stipulations thatthe posts of Professors and Assistant Professor should beredisignated as Lecturer and there should not be any moreappointment as Tutors and Demonstrators in the Colleges.Consequently, the Lieutenant Governor has been pleased toredesignate as Lecturer the posts of Professor andAssistant Professor in the Arts Colleges and the post ofJunior Professor in the Law College in the Union Territoryof Pondicherry to whom those orders apply and also directthat there will not be any appointment of Tutors andDemonstrators in those colleges in future.The Lt. Governor has also been pleased to make thefollowing orders in connection with the implementation ofthe University Grants Commission Scales, namely:-i) to v) omitted as not necessaryvi) As a result of the redesignation of the posts ofProfessor and Assist Professor as Lecturer with theidentical scale of pay the existing incumbents of the postswill be dealt with as follows :a) Such of the Professors who hold posts in asubstantive capacity will continue to hold the redisgnatedposts of Lecturer without prejudice to their inter-seseniority. Such of the Professors who were appointed on aregular basis prior to 1-4-1976 will also continue to holdthe redesignated posts of Lecturer without prejudice totheir inter-se seniority. Such of the Professors who holdthe posts in a substantive capacity will en-bloc be seniorto the officiating Professors who hold the posts on regularbasis and both the said categories of Professors will en-bloc be senior to the Assistant Professors redesignated asLecturers.(b) to (f) omitted as not necessary . . .” https://hcservices.ecourts.gov.in/hcservices/

5. In the above background, it is now necessary to noticethe relevant factual backdrop in respect of the private partiesconcerned in the present writ petiton.6. Petitioner No.1, namely K. Uma, was appointed asProfessor of Economics 19.6.1978 and the UPSC had regularized theselection in the post of Professor and notification was published inthe State Gazette on 22.8.1978. Petitioner No.2, namely Babu RaoGodi, was appointed as Professor of Chemistry on 29.9.1978 and theUPSC regularized such selection and notification was issued on21.11.1978. Petitioner No.3, namely A. Vimala, was appointed asProfessor of Mathematics on 31.8.1977 and such selection wasregularized by the UPSC and notification was published on 14.2.1978.Respondent No.3, who was the applicant before the Tribunal, wasappointed as Assistant Professor in English on 8.9.1965 and wascontinuing as such when G.O.Ms.No.219/78, dated 26.12.1978, wasissued.7. In the above background, the contention of the applicantin the Original Application filed by him was to the effect that asper G.O.Ms.No.219/78 dated 26.12.1978, the cut-off date 1.4.1976 hasbeen fixed with monetary benefit available from 1.1.1977 and,subsequently, such cut-off date has been revised to 1.1.1974 insteadof 1.4.1976 and the monetary benefit has been made available witheffect from 1.4.1977. The specific assertion of the applicant(Respondent No.3 in the present writ petition) was to the effect thatit was the duty of the Government to publish the seniority on thebasis of G.O.Ms.No.219 by taking 1.1.1974 as cut-off date and if sucha common list of seniority would have been published as indicated inthe G.O., the applicant would be slotted in 20th place and RespondentNos.3 to 11 in the Original Application (some of whom are thepetitioners) would have been shown much below the applicant. It wasfurther stated that O.A.No.1586 of 1993 was filed on account of non-publication of the seniority list and challenging the promotion tothe post of Principal on the basis of seniority list, which was void.The Central Administrative Tribunal had directed the presentrespondents 1 & 2 to publish the seniority list on the basis ofG.O.Ms.No.219/78 dated 26.12.1978. Since such direction had not beenimplemented, the applicant himself had filed O.A.No.1339 of 1995,wherein there was a direction to the present Respondent Nos.1 and 2to publish the final seniority list of Lecturers on the basis ofG.O.Ms.No.219/78 dated 26.12.1978. Thereafter, a seniority list waspublished, wherein the applicant was shown at Sl.No.34, whereas theopposite parties 3 to 9 were shown respectively at S.Nos.20, 21, 24to 28, which was contrary to the G.O. It was further contended thatsince 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 tothe applicant.8. In the reply statement filed by present Respondent Nos.1and 2, who were also Respondent Nos.1 and 2 in the O.A., apart from https://hcservices.ecourts.gov.in/hcservices/ referring to the contents of G.O.Ms.No.219/78 dated 26.12.1978 andgiving details of the appointment of different persons, which we havealready noticed, it was contended that such persons were shownseniors in accordance with para (vi) of the G.O., as all of them werefunctioning as Professors on the date of issuance of G.O. Acontention was also raised by the Respondent Nos.1 and 2 before theTribunal that the list of Professors had been circulated in the year1982, wherein the name of the applicant did not figure and such listhaving not been challenged, had become final.9. The private opposite parties did not file any separatecounter as the reply filed by the Government reflected their stand.10. The Tribunal repelled the last contention of theRespondent Nos.1 and 2 by observing that as on 1982 there was no postof Professor or Assistant Professor and, therefore, such list wasagainst the direction in G.O.Ms.No.219/78 dated 26.12.1978. TheTribunal further interpreted the G.O.Ms.No.219/78 dated 26.12.1978 tomean that seniority list was to be prepared on the basis of length ofservice as Lecturers and not of Professors or Assistant Professors,but the seniority list published in 1982 was prepared on the basis ofappointment to the post of Professor. On the aforesaid basis, theTribunal allowed the Original Application by observing that exceptOpposite Party No.3, all other opposite parties were juniors to theapplicant as they had joined the service much after the applicant.The other directions given by the Tribunal have been alreadyextracted above.11. The basic question is relating to seniority in therestructured cadre of Lecturer and the interpretation to be given topara (vi) of the G.O.Ms.No.219/78 dated 26.12.1978. We have alreadynoticed that there is no dispute regarding the fact that before theUGC suggestion was accepted and implemented by the PondicherryGovernment by G.O.Ms.No.219/78 dated 26.12.1978, the persons werebeing appointed as Professors, Assistant Professors or other teachingposts in Colleges. It is not in dispute that before suchrestructuring the post of Professor was a promotional post for theAssistant Professor. As a matter of fact, the applicant himself hadcategorically so admitted in his Original Application filed beforethe Tribunal as apparent from the avements made in para 2 of suchO.A., to the following effect :-“2. . . . Prior to the implementation of UGCrecommendation the nomenclature of the posts in thecolleges was Assistant Professor and Professor. The nextpromotional post of Assistant Professor was the post ofProfessor and from Professors, appointment will be the sameto the post of Principal.”11.1 Similarly from the reply filed by the present RespondentNos.1 and 2 before the Tribunal, it is apparent that before 1.1.1974there was category of Professors with Group ‘A’ classification in thescale of pay of Rs.700-1600 and Assistant Professors with Group ‘C’ https://hcservices.ecourts.gov.in/hcservices/ classification in the scale of pay of Rs.650-900. In other words,before such restructuring took place, the post of Professor wasdefinitely in a superior category as compared to the post ofAssistant Professor. It is also apparent from the reply filed beforethe Tribunal by Respondent Nos.1 and 2 that appointment to thepresent petitioners were on regular basis through UPSC. In the abovebackground, the specific provision contained in para (vi)(a) of theG.O., to the effect that “Such of the Professors who hold posts in asubstantive capacity will continue to hold the redesignated posts ofLecturer without prejudice to their inter-se seniority” and similarlythe specific provision “Such of the professors who hold the posts ina substantive capacity will en-bloc be senior to the officiatingProfessors who hold the posts on regular basis and both the saidcategories of Professors will en-block be senior to the AssistantProfessors redesignated as Lecturers”, have to be given effect. Itis not in dispute that since the applicant continued in the post ofAssistant Professor till restructuring of the G.O., and the presentpetitioners were holding the post on substantive capacity, they haveto be treated as en-bloc senior to the Assistant Professors afterredesignating all of them as Lecturers as per the UGC Scheme.12. Unfortunately, however, the Tribunal had completelymissed the above vital and important aspect and simply gone by theinitial date of appointment, clearly ignoring the fact that theappointment of the applicant before the Tribunal was an AssistantProfessor, whereas the opposite parties were Professors.13. In such view of the matter, the order passed by theTribunal cannot be upheld and both the writ petitions are accordinglyallowed. The order passed by the Tribunal on 2.7.2001 is quashed andthe Original Application is dismissed. There would be no order as tocosts. Consequently, the connected miscellaneous petitions areclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. Union of India, Rep. by the Govt. of Pondicherry, Through the Chief Secretary to Govt., Secretariat, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/

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.+ 1 CC to the Government Pleader SR NO 3879,3880+ 1 CC To Mr.P.V.S. Giridhar, Advocate SR NO.3860W.P.Nos.15270/2001 &11012 of 2002rsi(co)pmk/5.2.2009.