Madras High Court
G.Muthuvadivu vs Manonmaniam Sundaranar ... on 9 February, 2021
W.P(MD)No.5799 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P(MD)No.5799 of 2008
1.G.Muthuvadivu
2.R.Vimalanathan
3.M.John Bosco
4.A.Rajendran
5.S.Essakkipappa
6.S.R.Vijaya
7.M.Rani
8.I.Joy Mary
9.C.Asokan
10.J.Charlet
11.V.Ramasamy ... Petitioners
Vs.
1.Manonmaniam Sundaranar University,
Abishekapatti,
Tirunelveli,
Tirunelveli District,
represented by its Registrar
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2.S.Rajachandrasekar
3.P.Ganapathy
4.K.Mabel Rajasekari
5.G.Thilagarajan
6.S.Antony Selvam
7.P.Thenmozhi ... Respondents
[R2 to R7 impleaded as party respondents
as per the order of this Court, dated
10.02.2011 in M.P(MD)No.5 of 2008]
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, for issuance of a writ of certiorarified mandamus, calling for the
records relating to the impugned resolution passed by the 1st respondent's
University Syndicate dated 17.02.2001 as Item No.1 in chapter I (2) in
Petition No.5,10,11 and 16 and the consequent proceedings in Memo
No.MSU/Estt/Admn/Promotion/2005 dated 02.09.2005 (absorbing 11
Assistants) Designated into Assistant with effect from 18.08.2005 and
Memo No.MSU/R/Estt/Admn/2007 dated 09.07.2007 and Memo
No.MSU/R/Estt/Admn/2007 dated 18.10.2007 (Promoting two
Assistants into Superintendents) and the Respondent's University Memo
No.MSU/R/Estt/Admn/2008 dated 10.03.2008 (promoting as one into
Superintendent) the respondent University Memo
No.MSu/R/Estt/Admn/2008 and quash the same and further direct the
respondent's University to implement the Seniority List adopted as per
the University Syndicate Resolution dated 14.11.1997 and give all
attendant promotions and benefits to the petitioner's herein.
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W.P(MD)No.5799 of 2008
For Petitioners : Mr.S.Muthalraj
For Respondent : Mr.Mahaboob Athiff
No.1 for M/s.Ajmal Associates
For Respondent : Mr.Vijayakumar
No.2 to R7
ORDER
This writ petition has been filed seeking to quash the impugned
orders giving promotion to Assistants as Superintendent by the 1st
respondent University.
2.The case of the petitioners is as follows:
(i)The petitioners were appointed as Tabulators on a
consolidated pay with effect from 07.09.1994 and other various dates.
They were properly sponsored by the District Employment exchanges in
surrounding districts namely, Tirunelveli, Thoothukudi and Nagercoil.
In the year 1994 the 1st respondent University called for a list of
candidates from the Employment Exchange for filling up the post of
Tabulators on regular basis and further permitted the candidates, who
were working as daily wages in the 1st respondent University to attend
the interview on 25.08.1994 and the Selection Committee selected 40
candidates and the Syndicate accepted the selection list vide its
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W.P(MD)No.5799 of 2008
resolution dated 31.08.1994. Thereupon the temporary Tabulators were
appointed on regular basis with effect from 08.09.1994.
(ii) About one year thereafter, the 1st respondent University
vide Syndicate Resolution dated 16.09.1995 placed the petitioners as
Junior Assistants with effect from 08.09.1995. Out of 40 persons, only 35
persons remained in service and 5 were newly appointed as Junior
Assistants and therefore, the strength of the Junior Assistants became 40.
Their probation was declared vide order dated 28.09.1997 and the
seniority list of Junior Assistants was announced vide Syndicate
Resolution dated 14.11.1997 and the seniority was fixed based on the
basis of their appointments. Their services in the Junior Assistant post
have been regularised vide proceedings dated 24.03.1998. The said
regularisation was made with effect from their date of initial appointment
as Tabulators. However, no monetary benefits were granted to them.
(iii) While so, the petitioners made various representations
regarding their appointment, regularisation, seniority, pension, pay
revision and the 1st respondent University based on their representation
made one man commission, namely, Lakhmi Kandhan Bharathi, I.A.S.,
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W.P(MD)No.5799 of 2008
(Rtd) vide Syndicate resolution dated 10.10.1998 and the said
Commission had also submitted its report on 29.09.1999, recommending
the regularisation of the Junior Assistants to be done with effect from the
year 1994 along with monetary benefits. However, subsequently, the
University appointed Three Men Commission and it also submitted its
report on 06.11.2000 and the said Commission did not agree with the
recommendations made by the One Man Commission to regularise all the
candidates with effect from their dates of joining with monetary benefits
and it has prepared a new seniority list.
(iv) At this juncture, the University Syndicate vide resolution
dated 15.05.2000, decided to promote six senior most Junior Assistants
as Assistants and the said promotion was sought to be made on the basis
of the Seniority List adopted by the syndicate dated 14.11.1997. There
were several correspondence with regard to the promotion, regularisation
to the particular post and preparation of seniority list and the University
without following the procedure accepted the report of the Three Men
Commission and approved the refixation of seniority of the 40 Junior
Assistants vide its resolution dated 17.02.2001, where the petitioners
seniority was pushed back to the lower rank. Despite their
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W.P(MD)No.5799 of 2008
representations, the respondents has vide impugned order promoted three
of those Assistants as Superintendents vide proceedings dated
09.07.2007, 18.10.2007 and 10.03.2008. Challenging the same the
present writ petition is filed.
3.The learned Counsel appearing for the petitioners submitted
that the promotion was given based on the resolution dated 17.02.2001
and it is contrary to the seniority list prepared vide resolution dated
14.11.1997 and therefore, the petitioners are very much affected. Based
on their representations the syndicate resolved to rectify the
discrepancies in the seniority list, but it has not taken any steps to rectify
the same. In view of the impugned promotion orders, the petitioners have
been affected and their chances of being promoted to the said posts are
being affected and therefore, prayed for allowing this writ petition.
4.The learned Standing Counsel appearing for the University
submitted that there is resolution dated 17.02.2001 and subsequent
promotion was granted in favour of other persons. However, the persons,
who have been given promotion, are not added as parties in these
proceedings. Further the writ petition has been filed challenging the
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W.P(MD)No.5799 of 2008
syndicate resolution, which has no statutory effects and a challenge to the
syndicate's resolution is imperssible in law in view of the decision of
this Court in Shantha Srinivasan Vs The Secretary to Government,
Housing and Urban Development Department, reported in 2015 (2)
CWC 366. Therefore, the learned Standing Counsel prayed that this writ
petition be dismissed.
5.The facts of the case are not disputed. In the present case the
issue to be decided by this Court is whether the petitioners can challenge
the syndicate's resolution and whether it has any statutory force of law?
6.In this aspect it would be relevant to refer to the decision of
this Court in Shantha Srinivasan Vs The Secretary to Government,
Housing and Urban Development Department, reported in 2015 (2)
CWC 366, wherein this Court has held as follows:
3.It is a well settled proposition of law that a
resolution, by itself, is not an order and the same cannot be
given effect to, unless a proper formal order is passed on the
basis of such resolution by the competent authority. Thus, a
resolution, by itself, cannot have the force of law. Further, it
is pertinent to point out that a resolution is only an
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W.P(MD)No.5799 of 2008
expression of opinion in the form of recommendations, which
will have a binding effect, only after the same is accepted and
proper formal order is passed. It is also to be noted that a
resolution cannot be subjected to judicial review, inasmuch
as it is a simple minutes of the proceedings.
4. In this regard, it would be apposite to quote the
judgment rendered by one of us (Satish K. Agnihotri, J.) in
Chhattisgarh High Court in Payal Travels vs. State of
Chhattisgarh and Others, following a catena of decisions of
the Supreme Court. The relevant portion of the said judgment
reads thus:
“14. It is a trite law that a resolution is not an
order and the same cannot be given effect to unless a proper
formal order is passed on the basis of resolution by the
competent authority. It has been held in a catena of decisions
of the Supreme Court that resolution is a mere guideline or
recommendation and the same is not effective ipso facto."
5. The aforestated judgment in Payal Travels case
was subsequently followed by one of us in Vaswani Industries
Ltd. vs. Souther Eastern Coalfields Ltd. In the order dated
07.02.2012.
6. The Supreme Court, in New India Assurance
Company Ltd. vs. Nusli Neville Wadia and another 2008(3)
SCC 279 ,while examining the effect of guidelines, observed
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W.P(MD)No.5799 of 2008
that resolutions are mere guidelines and notcontrolled by the
statutory provisions. The relevant observation runs thus:
"23. Issuance of such guidelines, however, is not
being controlled by statutory provisions. The effect thereof is
advisory in character and thereby no legal right is conferred
upon the tenant."
7. Further, the Supreme Court, in Sethi Auto
Service Station and another vs. Delhi Development Authority
and Others2, observed thus:
"14. It is trite to state that notings in a
departmental file do not have the sanction of law to be an
effective order. A noting by an officer is an expression of his
viewpoint on the subject. It is no more than an opinion by an
officer for internal use and consideration of the other
officials of the department and for the benefit of the final
decision-making authority. Needless to add that internal
notings are not meant for outside exposure. Notings in the file
culminate into an executable order, affecting the rights of the
parties, only when it reaches the final decision-making
authority in the department, gets his approval and the final
order is communicated to the person concerned. "
8. Thus, applying the well settled principles of law,
as summarised above, to the facts of this case, we have no
hesitation to hold that the instant writ petition is premature,
at this stage.“
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W.P(MD)No.5799 of 2008
7.The above said decision is squarely applicable to the case on
hand and as held by the Hon'ble Supreme Court that a resolution is not
an order and the same cannot be given effect to unless a proper formal
order is passed on the basis of resolution by the competent authority and
resolution is a mere guideline or recommendation and the same is not
effective ipso facto and as such the resolution of the syndicate does not
have any statutory force of law and therefore, in the absence of any
statutory force of law the same cannot be challenged. Further as rightly
pointed by the learned Standing Counsel appearing for the University,
the petitioners without adding the persons, who have been given
promotion subsequent to the resolution, has challenged their promotion
in the writ petition and therefore, the non-joinder of necessary parties to
the lis is also fatal the case of the petitioners.
8.The issues are answered accordingly and in view of the same,
the writ petition is dismissed. No costs.
09.02.2021
Index : Yes / No
Internet : Yes/ No
dsk
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W.P(MD)No.5799 of 2008
To:-
The Registrar,
Manonmaniam Sundaranar University,
Abishekapatti,
Tirunelveli,
Tirunelveli District.
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W.P(MD)No.5799 of 2008
M.DHANDAPANI,J.
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W.P(MD)No.5799 of 2008
09.02.2021
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