Madras High Court

S.Usha vs The Bharathidasan University on 22 February, 2021

                                                                      W.P.(MD)No.5548 of 2012


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED:22.02.2021

                                                        CORAM:

                             THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                            W.P.(MD)No.5548 of 2012

                      1.S.Usha
                      2.A.K.Varadharajan
                      3.J.Chandrasekaran
                      4.M.Rajalakshmi
                      5.A.Balaji
                      6.P.Gandhimathi
                      All working as Assistants (SC),
                      Bharathidasan University,
                      Tiruchirapalli 24.

                                                                            ... Petitioners
                                                           Vs.

                      1.The Bharathidasan University,
                        Tiruchirapalli 24,
                        represented by its Registrar.

                      2.T.Rajaram
                      3.Mr.Prem Nawaz
                      4.T.Subramanian
                      5.M.Tamilvanan
                                                                          ... Respondents




                      1/12


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                                                                              W.P.(MD)No.5548 of 2012




                      Prayer: Writ Petition is filed under Article 226 of the Constitution of
                      India, to issue a Writ of Certiorarified Mandamus to call for the records
                      relating to the impugned resolution passed by the first respondent in its
                      Agenda No.2009.154 in the Syndicate Meeting held on 01.10.2009 and
                      quash the same as illegal and consequently to consider the petitioners
                      herein for promotion to the post of Assistant Sections Officers.


                                   For Petitioners            : Mr.Jerin Mathew
                                                               for Mr.M.E.Ilango
                                   For R1                     : Mr.V.R.Shanmuganathan
                                                                Standing counsel
                                   For R2 to R5              : Mr.F.X.Eugene



                                                      ORDER

This writ petition has been filed challenging the impugned

resolution passed by the first respondent in its Agenda No.2009.154, in

the Syndicate Meeting held on 01.10.2009 and to quash the same and

consequently, direct the first respondent to consider the name of the

petitioners, for promotion to the post of Assistant Section Officers.

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2. The case of the petitioners is that initially they were appointed

as Junior Assistants in the first respondent University on daily wage basis

in the year 2000. Thereafter, their services were regularised in the post of

Junior Assistants with effect from the date of their initial appointment

and they were granted selection grade. Thereafter, in the year 2007, the

post of Junior Assistant was upgraded as Assistant and the post of

Assistant was upgraded as Assistant Section Officer. The petitioner

further averred that the post of Assistant is the feeder category for being

considered for promotion to the post of Assistant Section Officer. The

qualifications prescribed under the University Statute for promotion to

the post of Assistant Section Officer are (i) at least three years of service

in the cadre of Assistant, (ii) degree with typewriting higher and (iii) a

pass in Account Test Part – 1 conducted by the Tamil Nadu Public

Service Commission. The person, who possessed all the above said three

qualifications would be considered for promotion to the post of Assistant

Section Officer. But the respondents 2 to 5 have not passed the Account

Test Part – 1 as prescribed by the Statute. However, they prevailed upon

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the first respondent for relaxing the third condition ie., a pass in Account

Test Part - I conducted by TNPSC and thereby the first respondent

University has passed the resolution, in order to favour the private

respondents. Challenging the same, the present writ petition has been

filed.

3. The learned counsel appearing for the petitioners would submit

that Assistant is the feeder category for promotion to the post of Assistant

Section Officer. The petitioners and the respondents 2 to 5 are in the

feeder category and they are eligible for promotion to the post of

Assistant Section Officer. The prescribed qualifications under the

University Statute for promotion to the post of Assistant Section Officer

are (i) three years service in the cadre of Assistant, (ii) degree with

typewriting higher and a pass in Account Test Part - I conducted by

TNPSC. However, the respondents 2 to 5 have not passed the Account

Test Part - I as prescribed by the Statute. Thus, the first respondent

University had passed the impugned resolution relaxing the third

condition. He would further submit that in a similar circumstances, this

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Court, in W.P.(MD).Nos.8032 of 2015 etc., batch, dated 14.06.2019, has

held as follows:

“22. As per sub-section (2) Section 28 of Chapter IV of the Bharathidasan University Act of 1981, "the University should carryout such instructions as may be issued by the Government based on the Audit Report". But the University failed to adhere to the objections raised in the audit and carryout such instructions. On the other hand, based on One Man Commission's report, Thiru K.Gunalan was given promotion on 09.06.2001 as Deemed Superintendent. On 03.03.2003, the then Assistant Director of Bharathidasan University / fourth respondent has clarified that exemption given for not passing the Account Test for Subordinate officers Part I and the award of selection grade in the cadre of ASO to Mr.K.Gunalan is an action against the rules of the University and not valid. Towards avoiding future financial burden of the fourth respondent / University, the order of the Vice- Chancellor dated 09.02.2010 also came to be issued. Thus, the administration of the fourth respondent / University is solely responsible for the violation of the Rules, which resulted in exorbitant financial crunch to the University in the subsequent years.

23. A perusal of the materials available on record would disclose that Thiru K.Gunalan is senior to all the Junior Assistants, who have

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claimed anomaly in the post of Assistants and Assistant Section officers. The actual senior, Gunalan, was overlooked for promotion to the higher post due to non-possession of the qualification, i.e., a pass in Accounts Test for Subordinate Officers Part I. The discrepancy was removed when he was given exemption, promotion and further promotion. In view of the above, the award of exemption from passing the qualifying examination for promotion and then rectifying the so called anomaly arising out of such wrong promotion are not tenable.”

4. Further, in W.P.Nos.13520 of 2018 etc., batch, dated 13.03.2019

this Court has held as follows:

“9. The learned counsel, appearing on behalf of the writ petitioners, states that the writ petitioners are not at fault and they cannot be penalised for the administrative exigencies, which caused reasons for not sending them for clerical training to the post of Junior Assistants for a period of one year as per the Rules. Further, these typists/steno-typists were promoted to the post of Assistants, which is also the Ministerial Service. In the post of Assistants, they have already served about four years. Thus, their completion of one year training in Junior Assistant posts become an empty formality as far as the writ petitioners are concerned. This apart, on account of the administrative reasons admittedly, the writ petitioners were not provided an opportunity to undergo the training of one year in the post of Junior Assistants.

14. In the case of S.Sasisivanandam vs. District Collector [2012 (1) MLJ 634], this High Court held in paragraph 16, which reads as under:-

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“16. The learned counsel for the petitioner has rightly contended that the judgment of this Court dated 4.9.2007 in W.P. Nos. 47872 and 47885 of 2006 and 7791 of 2007 is squarely applicable to this case. The relevant portion of the above said judgment reads as follows:

“8. Under these circumstances, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification. After all, the service qualification cannot be equated to the qualification of a pass in the departmental test. While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. Therefore, the respondents ought to have formulated and implemented a policy providing equal opportunity to all persons to http://www.judis.nic.in acquire the service qualifications. Since the respondents have failed to do so, the petitioners were not at fault and on that ground, they should not have been omitted to be included in the panel.”

15. In the order passed in WP No.9354 of 2012 dated 17.4.2012, again this Court in paragraphs 6 and 7 observed as under:-

“6. The issue arises for consideration herein is as to whether the petitioner can be blamed for non-possessing of required service in the post of Assistant on the clerical side.

7. The power of posting in a particular department is vested with the authority concerned. The petitioner has no control over the said aspect.

It is not the case of the respondents that the petitioner was offered the posting as Assistant and he declined to work in the same. In the absence of any such averments, the decision relied on by the learned

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counsel for the petitioner is squarely applicable to the facts of this case.”

16. In identical circumstances in WP No.15180 of 2013 dated 14.6.2013, this Court held in paragraph-12 which reads as under:-

In view of these decisions, I am of the view that the writ petitioners are entitled to succeed in the writ petition and the respondents cannot reject the petitioners for promotion to the post of Assistant on the ground that they did not have service qualification as Junior Assistant for one year.”

5. The learned Standing counsel appearing for the first respondent

University wold submit that the first respondent University have a power

to give exemption, if any anomaly arises for promotion in between the

junior and the senior. Exercising such a power, the first respondent gave

relaxation to the respondents 2 to 5 and this Court cannot interfere with

the same, under Article 226 of the Constitution of India. He would

further submit that the order passed in W.P.(MD).Nos.8032 of 2015 etc.,

batch was challenged before the Division Bench of this Court in W.A.

(MD).N.684 of 2019 and the same is still pending. Accordingly, he

prayed for dismissal of this writ petition.

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6. The learned counsel appearing for the private respondents

adopted the arguments advanced by the learned standing counsel for the

first respondent.

7. Heard the learned counsel for the petitioners, learned Standing

counsel for the first respondent University, the learned counsel for the

private respondents and perused the materials available on record.

8. The facts in the present case are not in dispute. The petitioners

challenged the Resolution dated 01.10.2009, after lapse of 2 ½ years.

Admittedly, the petitioners are the juniors to the private respondents and

they are in the feeder category and they are also eligible for promotion to

the post of Assistant Section Officer. In the present case, the petitioners

claimed that they were passed the Account Test Part - I conducted by the

TNPSC, prior to the impugned resolution. However, the private

respondents have not passed the said qualification. Accordingly, they are

not eligible for promotion and in order to make the private respondents

as eligible to the next level promotion, the impugned resolution is

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passed, by exercising the power under Clause - 3 of Chapter - VI of the

Service Conditions of the Establishment of the Bharathidasan University.

For better appreciation, the Clause - 3 is reads as follows:

“The Syndicate may relax any of the provisions of these Statutes in exceptional cases in favour of an individual or a group of individuals as the Syndicate may deem fit.”

9. A perusal of the above said provision makes it clear that the

Syndicate may relax any of the provisions of these Statutes in

exceptional cases in favour of an individual or a group of individuals as

the Syndicate may deem fit. In the present case, the petitioners and the

respondents 2 to 5 are the non - teaching staffs in the educational

institution viz., the Bharathidasan University and they were expected to

qualify themselves for the next level promotion. Admittedly, the

respondents 2 to 5 have not passed the Account Test Part - I conducted by

the TNPSC and for granting relaxation, no reason was assigned and the

simple reason assigned by the first respondent University is that the

private respondents are seniors to the petitioners and that is not the

criteria for granting exemption and that exemption is not coming under

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the category of exceptional cases. The above cited decision also makes it

clear that in a similar circumstances, the same qualification was relaxed

by the very same University and the said relaxation was objected by the

audit report and based on the audit report, the issue was came up for

consideration.