Dr. R.Balamurugan v. Annamalai University
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2019
CORAM:
THE HON'BLE Dr. JUSTICE S.VIMALA Writ Petition Nos.23287 & 6175 of 2018 & WMP Nos.7631 & 7632 of 2018 Dr. R.Balamurugan
...Petitioner in both W.Ps
Vs.
1. The Government of Tamilnadu Rep. the Principal Secretary to Government Department of Higher Education Secretariat Chennai-600 009.
2 Anna University Rep by its Registrar Sardar patel road Chennai- 600 025.
3 Annamalai university Rep by its Registrar Annamalai Nagar Chidambaram Tamilnadu- 608002.
4 University College of Engineering, Rep by its Principal Thirukkuvalai Nagappattinam District- 610 204. 5 All India Council for Technical Education, Rep by its Secretary, Nelson Mandala Marg, Vasant Kunj, New Delhi- 110 070.
6 University Grants Commission Rep by its Chairperson Bahadur Shah Zafar Marg New Delhi-110 002.
7 R.Sheela, Assistant Professor Annamalai University Plot No.87 II Main Road Sivasakthi Nagar Chidambaram.
8 Ravishankar N., Assistant Professor Annamalai University Plot No.16 Kalyani Srinivasapuram Nagar Pidari North Street Sirkali- 609 110.
9 Saravana Natarajan P.S.
Assistant Professor Annamalai University G-3 Adura Aurora Apartments Arul Nagar Road Palayamkottai Tirunelveli- 627 011.
...Respondents in WP No.6175/2018
Annamalai university Represented by its Registrar Annamalai Nagar Chidambaram Cuddalore District - 608002 ... Sole Respondent in W.P.No.23287/2018 Prayer in W.P.No.6175/2018:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the Writ of Certiorarified Mandamus Calling for the records pertaining to the impugned orders (i) G.O.Ms.N.270 Higher Education (H1) Department dated 19.09.2017 on the file of the Ist respondent II) Proces.No. 001/PR10 & 20/2017 dated 28.11.2017 on the file of 2nd respondent and III) Consequential impugned order in University Order No.1318/2017 (C) dated 18.12.
2017 on the file of the 3rd respondent and quash the same and consequentially direct the respondents 1 to 3 to correctly fix the petitioners seniority by retaining him in the 3rd respondent university itself with all monetary benefits. Prayer in W.P.No.23287/2018:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the Writ of Mandamus to process the petitioner's applications dated 30.08.2018 for Career Advancement Scheme submitted to the Respondent, by fixing the exact seniority list of the petitioner, by taking into consideration the entire service at the Respondent University to give promotion from Stage 2 to Stage 3 and from Stage 3 to Stage 4 as per Letter No. AU/ CAS/ 2018 dated 08.08.2018 issued by the Respondent. For Petitioner in both W.Ps.: Mr. R.Neelakandan, for, M/s.
Sreene Law Association.
For R-2 in W.P.No.6175/2018 : Mr. L.P.Shanmugasundaram, Standing Counsel.
For R-3 in W.P.No.6175/2018 : Mr. K.Satish Kumar, Standing Counsel.
For R-1 in W.P.No.6175/2018 & for sole respondent in W.P.No.23287/2018 : Mrs.P.Kavitha, G.A., ---
C O M M O N O R D E R The facts alleged, issue raised and the petitioner in both the writ petitions are one and the same, these writ petitions are taken together for common disposal.
2. The petitioner, who joined the Department of Civil Engineering at Annamalai University, on 05.02.2003 and had experience of 14 years 9 months, was appointed as Assistant Professor on deputation basis for a period of three years in the fourth respondent / Institution, with effect from 11.12.2017, by the proceedings dated 28.11.2017. Aggrieved over the same, Writ petition No.6175 of 2018 has been filed.
3. On 08.08.2018 the respondent / Annamalai University announced Career Advancement Scheme for which applications are invited from the qualified persons and the same have to be submitted on or before 31.08.2018, through proper channel. As per the notification, the petitioner is qualified for two stages namely stages 2 to 3 and stages 3 to 4. The petitioner has made applications for the above said two stages on 30.08.2018. This is sought to be done by fixing the seniority, by taking into account the entire service at the respondent / Annamalai University. As the request is not considered, W.P.No.23287 of 2018 has been filed.
4. The petitioner is an Assistant Professor in Civil Engineering. In the faculty of Engineering and Technology, in the respondent / Annamalai University, having been appointed on 03.02.2003 and after promotion as Assistant Professor in the year 2009, the petitioner has an uninterrupted service of 14 years and 9 months.
5. The respondent / Annamalai University released the seniority list on 15.11.2017 pertaining to the Teaching Staff in the Department of Civil Engineering. The petitioner's name was found in Sl.No.34, whereas the Teaching Staff, who are juniors to him, were placed above him in the same list. The petitioner submitted a representation on 15.11.2017 requesting the respondent / University to re-fix his seniority, claiming that there was an error in placing the seniority.
6. The petitioner is one of the project holder and therefore, his name was not originally included in the deputation list. However, the respondent / Annamalai University issued the impugned order, dated 18.12.2017, referring G.O.Ms.No.270, dated 19.09.2017 appointing the petitioner as Assistant Professor for a period of three years in the fourth respondent / Institution.
6.1. In the representation dated 29.11.2017 the petitioner has submitted that he has to apply for a research project entitled "study on health sanitation and hygiene practices of the women self help group members in Vellore District" and therefore, his project proposal must be sent to the District Collector, Vellore District.
6.2. The Project Director, namely, Tamil Nadu State Rural Livelihood Mission (Vellore) has responded to the Registrar, Annamalai University, on 30.11.2017 furnishing an information that the estimate amount of Rs.3,37,700/- was approved / sanctioned for a period of two years. The Annamalai University Teachers Association (AUTA) has expressed a grievance that teaching staff who are policy holders are not normally sent on deputation but the petitioner, who is the Project Holder, has been deputed, even though he had a project and this violation has to be rectified.
7. It is represented by the learned senior counsel appearing for the petitioner that the post to which the petitioner was deputed has been filled by another candidate by name Dr.Sankaran. It is also stated that one Mr.Kannan, Assistant Professor of Civil Engineering, died on 27.04.2018, thus, there is a vacancy available in the respondent / Annamalai University, in which place the petitioner can be accommodated.
8. Under the peculiar facts and circumstances, dual in nature, namely, the place to which the petitioner has to be accommodated having been filled up by some other candidate and the vacancy having arisen in the third respondent University on account of death of one Kannan and while the seniority issue raised by the petitioner had been placed under consideration and the petitioner being a project holder, the respondents are directed to accommodate the petitioner in the third respondent / University as a special case. Writ Petition No.6175 of 2018 is ordered accordingly.
W.P.No.23287 of 2018:
9. Yet another representation made by the petitioner dated 08.08.2018 is pertaining to the fixation of his seniority. The petitioner has submitted that the following aspects are relevant for the purpose of fixing the seniority:
1. The petitioner claims that he is entitled to get promotion in two stages, i.e., from Academic Grade Pay (AGP) Rs.70008000/- i.e., Sr. Assistant Professor to Selection Grade Assistant Professor and AGP 8000-9000/- from Selection Grade Assistant Professor to Associate Professor.
2. It is claimed that because of the incorrect ratio and improper seniority, the petitioner was put under surplus teaching staff. If the same is corrected, the petitioner would not be coming under the surplus list and he would not be liable to be sent on deputation.
3. It is claimed that according to UGC Rules, the teacher student ratio is not maintained as 1:15.
4. There is no authenticated seniority list available in the Department of Civil Engineering, Annamalai University.
5. The cadre ratio must be 1:2:6 (Professor : Associate Professor : Assistant Professor) as per UGC and AICTE norms, which is not followed.
10. The learned counsel appearing for the petitioner would submit that when the petitioner applied under the Right to Information Act seeking to provide seniority list, the third respondent / Annamalai University furnished a reply stating that there is no authenticated seniority list available at present and necessary action is being taken to prepare the seniority list, department wise.
10.1. The learned Standing Counsel appearing for the third respondent / Annamalai University submitted that the petitioner has been relieved from the University on 18.12.2017 and it is his mistake in not reporting to the second respondent University and not joining the duty at the fourth respondent College. It is submitted that the fourth respondent has informed the third respondent that the writ petitioner has not reported for duty. 10.2. The mere information that the writ petitioner did not report for duty would not imply that the post is remaining vacant when it is specifically alleged by this petitioner that the post has been filled up by one Dr.Sankaran, the contention that it is vacant cannot be accepted.
11. The learned standing counsels appearing on behalf of the respondents submitted that the petitioner has not chosen to challenge G.O.Ms.No.270, dated 19.09.2017 and therefore, this writ petition itself is not maintainable. It is pointed out that the petitioner earlier filed writ petition No.618 of 2018 challenging the reliving order, dated 18.12.2017, where-under the writ petition was dismissed and no liberty was given to file a fresh writ petition and therefore, for the very same relief, this writ petition cannot be filed.
12. A perusal of the order passed in writ petition No.618 of 2018 would go to show that, on an earlier occasion the writ petition has been dismissed for not challenging G.O.Ms.No.270, dated 19.09.2017.
12.1. When this was pointed out, the learned counsel appearing for the petitioner would submit that even assuming the Government Order to be correct, the seniority of the petitioner has not been fixed in accordance with the rules and regulations and that was one of the grounds for his deputation and thus, the claim for seniority must be considered in the light of his representation.
13. Under the circumstances, the earlier writ petition having been dismissed on technical grounds and this writ petition giving reasons as to why the Government Order need not be challenged, this Court is of the view that this writ petition is maintainable.
14. As already pointed out, considering the peculiar facts and circumstances, this petition is ordered. Therefore, this cannot be relied upon as a precedent.
15. The respondents are directed to consider the claim of the petitioner for fixation of seniority and it is open to the respondents to pass consequential orders.
16. With the above directions, both these writ petitions are disposed of. No costs. Consequently, the connected WMPs are closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar srk To
1. The Principal Secretary to Government , Government of Tamilnadu Department of Higher Education Secretariat Chennai-600 009.
2 The Registrar, Anna University Sardar patel road Chennai- 600 025.
3 The Registrar, Annamalai university Annamalai Nagar Chidambaram Tamilnadu- 608002.
4 The Principal, University College of Engineering, Thirukkuvalai Nagappattinam District- 610 204. 5 The Secretary, All India Council for Technical Education, Nelson Mandala Marg Vasant Kunj New Delhi- 110 070. 6 The Chairperson, University Grants Commission Bahadur Shah Zafar Marg New Delhi-110 002.
+1 cc to Mr.K.Sathish Kumar, Advocate, S.R.No.1265. +1 cc to the Government Pleader, S.R.No.1425. Writ Petition Nos.23287 & 6175 of 2018 & WMP Nos.7631 & 7632 of 2018 GJ-II(CO) SSM(30/01/2019)