K.Veeramani v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.12.2017

CORAM:

THE HONOURABLE MR. JUSTICE HULUVADI G.RAMESH AND THE HONOURABLE MR. JUSTICE R.SURESH KUMAR Writ Appeal Nos.1252 and 1253 of 2017 K.Veeramani ..Appellant in both the Writ Appeals Vs The Registrar University of Madras Chepauk Chennai-600 005 ..Respondent in both the Writ Appeals.

Prayer in W.A.No.1252 & 1253 of 2017:- Writ Appeal filed under Clause 15 of Letters Patent against the order dated 15.06.2017 made in W.P.Nos.12133 and 12134 of 2012. Prayer in WP.12133/2012: Writ petition filed under Article 226 of the Constitution of India, praying for issuance of the Writ of certiorarified mandamus,calling for the records of the respondent in his Official Communication No. FI(A)/ESTT/ 2003/3417 dt 8.7.2003 and to quash the same and consequently to direct the respondent to accord notional promotion to the petitioner as Junior Assistant with effect from 24.12.1983 with all service benefits and consequential promotions. Prayer in WP.12134 2012: Writ petition filed under Article 226 of the Constitution of India, Praying for issuance of a Writ of Certiorari calling for the records of the respondent in his Official Communication No. FI(A)/ESTT/ 2011/1361 dt 24.8.2011 and to quash the same.

For Appellant ::

Mr.T.M.Hariharan For Respondent :: Mr.Mani Sundaragopal Standing counsel

JUDGMENT

(Judgment of the Court was made by HULUVADI G.RAMESH, J.) The above Writ Appeals are directed against the order of the learned Single Judge passed in W.P.Nos.12133 and 12134 of 2012, dated 15.06.2017. Since the issue involved in the above appeals require common disposal, both the Writ Appeals are taken up together and disposed of by a common judgment.

2. Before the learned Single Judge, the appellant/writ petitioner has challenged the official communication of the respondent in No.FI(A)/ESTT/2003/3417 dated 08.07.2003 and sought to quash the same and for a consequential direction to the respondent to accord notional promotion to him as Junior Assistant with effect from 24.12.1983 with all service benefits and consequential promotion. The petitioner has also challenged the official communication of the respondent in No.FI(A)/ ESTT/2011/1361 dated 24.08.2011 and sought to quash the same.

3. The appellant/writ petitioner was appointed as a Lab Attender in a temporary capacity on 06.09.1982 and at the time of the said appointment, the qualification prescribed was SSLC, Typewriting Higher Grade (English and Tamil). On the ground that for the appointment of Junior Assistant, one has to have the qualification of SSLC with Typewriting Higher, the petitioner, who is possessing the said qualification, was repeatedly making representations to accommodate him as Junior Assistant.

4. The respondent, vide order dated 24.12.1983, had absorbed 175 Tabulators who have been appointed in temporary capacity as Junior Assistants and the grievance expressed by the appellant/writ petitioner is that before absorption, the respondent/University ought to have found out as to whether any other persons having prescribed qualification to be accommodated as Junior Assistant, was working or not and without doing the said exercise, had accommodated 175 Tabulators who were working in temporary capacity by way of permanent employment as Junior Assistants.

5. Be that as it may. It appears that the appellant/Writ Petitioner was promoted as Junior Assistant on 20.01.1992 subject to the requirement of necessary qualification and during October 1992, he had acquired Under Graduate Degree and also acquired Post Graduate Degree and on 31.03.2001, the petitioner was promoted as Assistant Section Officer.

6. However, the petitioner was repeatedly making requests to

consider his accommodation as Junior Assistant with retrospective effect from 24.12.1983 and the respondent / University has considered the same and accorded him promotion as Junior Assistant with retrospective effect from 06.05.1985 vide proceedings dated 01.02.2002.

7. Subsequently, on account of the objection raised by the Deputy Director of Local Fund Audit, for granting retrospective appointment to the appellant/writ petitioner on the ground that he was appointed as Lab Attender with effect from 06.09.1982 and it is also not a feeder post and considering the fact that his promotion as Junior Assistant with effect from 20.01.1992 in retrospective accommodation by creating a supernumerary post, was not in order and in the light of the said communication, the respondent/University was left with no other option except to revert the appellant/writ petitioner to the post of Junior Assistant and also ordered consequential recovery. Though the said order came to be passed on 08.07.2003, the appellant/writ Petitioner did not chose to make a challenge and it was challenged only in the year 2012.

8. The grievance of the appellant/writ petitioner expressed by the learned counsel for the appellant is that while the respondent Univeristy has accommodated Tabulators, who were employed in temporary capacity as Junior Assistants, vide proceedings dated 24.12.1983, the respondent has not taken into consideration the position of the appellant/writ petitioner, who was working as a temporary Lab Attender at the relevant point of time as he possessed required qualification.

9. It is to be pointed out that the learned Single Judge has not acceded to the said grievance expressed by the petitioner, by holding that the petitioner ought to have approached the concerned competent forum at the earliest point of time and he had failed to do so.

10. The further argument raised by the learned counsel for the appellant is that the appellant had required qualification as on 24.12.1983 for accommodating him as Junior Assistant, at which point of time, he was working as a Lab Attender. But that has not been done by the respondent-University. The learned counsel for the appellant also contended that even though the appellant/writ petitioner was making several representations for absorbing him as Junior Assistant, the respondent promoted the appellant as Junior Assistant on 20.01.1992 and subsequently promoted him as Assistant Section Officer on 31.03.2001 and also accorded him promotion as Junior Assistant with retrospective effect from 06.05.1985, but all of a sudden, without notice, he was reverted to the post of Junior Assistant by order dated 08.07.2003 along with order of recovery of excess payments.

11. The learned counsel for the appellant submits that the respondent has not given any concession to the appellant/writ petitioner for accommodating him in the post of Junior Assistant, but it is a matter of right of the appellant who possessed the necessary qualification for being accommodated as a Junior Assistant. He further submits that the appellant/writ petitioner had been discriminated in the matter of absorption of temporary employees to the post of Junior Assistant in the year 1983 and therefore, he was entitled for retrospective promotion, but the learned Single Judge has not taken into account the said fact in his order dated 15.06.2017.

12. On the other hand, the learned Standing counsel appearing for the respondent-University submits that though it is admitted that the appellant/writ petitioner has been given promotion to the post of Junior Assistant on 20.01.1992 and though he had acquired necessary qualification for the post of Junior Assistant at the time of absorption of temporary employees to the said post i.e., on 24.12.1983, the appellant/writ petitioner is not entitled for claiming arrears of salary for the said post that too with retrospective effect, as the appellant/writ petitioner had not worked in the said capacity at that relevant point of time.

13. There is no dispute with regard to the fact that the appellant possessed required qualification as on the date of absorption of 175 Tabulators as Junior Assistants and he has also made representations to that effect, however, he was not considered for promotion/absorption to the post of Junior Assistant. In any event, the appellant/writ petitioner cannot claim as a matter of right for absorption or appointment to the post of Junior Assistant from the cadre of Lab Attender. It is also to be noted that based on the Audit report, the respondentUniversity passed an order to demote the appellant/writ petitioner to the post of Junior Assistant from the post of Assistant Section Officer, with a consequential order of recovery and though the said order came to be passed on 08.07.2003, the petitioner made a belated challenge only during the year 2012 in respect of his claim that he was given promotion to the post of Junior Assistant from 24.12.1983, the date on which the temporary Tabulators were permanently accommodated as Junior Assistants.

14. On the ground of objection raised by the Directorate of Local Fund Audit, the order of recovery and demotion has been passed by the respondent and the said order has been passed by the respondent taking into consideration the fact that the entitlement of the benefit of promotion would not result in unjust enrichment. It is more specific in the case of the appellant herein, since he was discharging his duty as

Laboratory Attender till the date of promotion as Junior Assistant on 20.01.1992.

It is to be seen that the retrospective effect of accomodation of the appellant/Writ Petitioner as Junior Assistant for the period from 24.12.1983 to 20.01.1992, was reversed by the order of the respondent dated 08.07.2003.

15. In our considered view, the claim of benefit of accommodating the appellant/writ petitioner as Junior Assistant from 24.12.1983 on the basis that he possessed required qualification on the date of absorption of temporary employees to the post of Junior Assistant becomes unjust and the order of recovery and reverting him to the post of Junior Assistant holds good as it restrained the unjust enrichment. Further, it is seen that the petitioner had retired from service on attainment of the age of superannuation on 30.06.2015.

In view of the above findings, we do not find any illegality in the order passed by the learned Single Judge, not only on the ground of laches but also on the merits of the case. Accordingly, the order of learned Single Judge dated 15.06.2017 is confirmed. The Writ Appeals are dismissed. No costs. Sd/- Assistant Registrar(CS VII) //True copy// Sub Assistant Registrar nvsri To The Registrar University of Madras Chepauk, Chennai-600 005 +2cc to Mr.T.M.Hariharan, Advocate SR.No.91369 +2cc to Mr.Manisundar Gopal, Advocate SR.No.91220, 91219 W.A.Nos.1252 & 1253 of 2017 LRS(CO) GN(02/02/2018)