Madras High Court
S.Murali vs The Secretary on 21 August, 2023
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.09.2023
PRONOUNCED ON : 08.11.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.7304 and 8521 of 2020 & 12687 of 2023
and
W.M.P.(MD)Nos.6756 and 7899 of 2020 and 10704 & 10705 of 2023
W.P.(MD)No.7304 of 2020 :-
S.Murali ... Petitioner
Vs.
1.The Secretary,
University Grants Commission,
BhadhurSha Zafar Marg,
New Delhi 110002.
2.The Madurai Kamaraj University,
Represented by its Registrar,
Palkalai Nagar,
Madurai 625 021.
3.The Vice Chancellor,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai 625 021.
1/54
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
4.The Deputy Director,
Local Fund Audit,
Madurai Kamaraj University,
Madurai – 625021. ... Respondents
(R4 is suo moto impleaded vide
Court order dated 21.08.2023 in
W.P.(MD)No.7304 of 2020 by LVGJ)
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, calling for the
records of the second respondent in its proceedings No.ESTT-
II/EMRC/SM/2019-2020 dated 16.03.2020 and quash the same and
consequently direct the respondents to restore the benefits granted under
Career Advancement Scheme and the revision of pay to the petitioner.
For Petitioner : Mr.V.Vijayshankar
For R1 : Mr.P.Karthick
For R2 & R3 : Mr.T.Cibi Chakraborthy, Senior Counsel
For R4 : Mr.M.Prakash
Additional Government Pleader
W.P.(MD)No.8521 of 2020 :-
Dr.R.Sayeelakshmi ... Petitioner
Vs.
1.The Registrar,
Madurai Kamaraj University,
Madurai 625 021.
2.University Grants Commission,
Bhadhurshah Zafar Marg,
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
New Delhi 110002.
(R2 is suo moto impleaded vide
Court Order dated 02.12.2022 in
W.P.(MD)No.10304 of 2019 and 8521 of 2020 by GRSJ)
3.The Deputy Director,
Local Fund Audit,
Madurai Kamaraj University,
Madurai – 625021. ... Respondents
(R3 is suo moto impleaded vide
Court order dated 21.08.2023 in
W.P.(MD)No.8521 of 2020 by LVGJ)
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorari, calling for the records
pertaining to the order passed by the respondent in his proceedings in
Memo No.Estt-II/EMRC/R.S./2019-2020 dated 16.03.2020 and quash
the same.
For Petitioner : Mr.V.Panneer Selvam
For R1 : Mr.T.Cibi Chakraborthy, Senior Counsel
For R2 : Mr.P.Karthick
For R3 : Mr.M.Prakash
Additional Government Pleader
W.P.(MD)No.12687 of 2023 :-
Dr.R.Sayeelakshmi ... Petitioner
Vs.
1.The Registrar,
Madurai Kamaraj University,
Madurai 625 021.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
3.The Deputy Director,
Local Fund Audit,
Madurai Kamaraj University,
Madurai – 625021.
3.The Director,
Educational Multimedia Research Centre (EMRC),
Madurai Kamaraj University,
Madurai – 625021. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, calling for the
records pertaining to the order passed by the third respondent in his
proceedings in Ref. No.EMRC/MKU/ADMN/2023-2024 dated
28.04.2023 and quash the same and direct the respondents to settle all the
retirement benefits without any deduction with admissible interest.
For Petitioner : Mr.V.Vijayshankar
For R1 & R3 : Mr.T.Cibi Chakraborthy
For R2 : Mr.M.Prakash
Additional Government Pleader
COMMON ORDER
The prayer in all the writ petitions reads as follows:-
“(i)W.P.(MD)No.7302 of 2020 has been filed for issuance
of a Writ of Certiorarified Mandamus, to quash the impugned
order of the second respondent in its proceedings No.ESTT-
II/EMRC/SM/2019-2020 dated 16.03.2020 and to direct the
respondents to restore the benefits granted under Career
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Advancement Scheme and the revision of pay to the petitioner.
(ii)W.P.(MD)No.8521 of 2020 has been filed for issuance
of a Writ of Certiorari, to quash the impugned order passed by
the respondent in his proceedings in Memo No.Estt-
II/EMRC/R.S./2019-2020 dated 16.03.2020.
(iii)W.P.(MD)No.12687 of 2023 has been filed for issuance
of a Writ of Certiorarified Mandamus, to quash the impugned
order passed by the third respondent in his proceedings in Ref.
No.EMRC/MKU/ADMN/2023-2024 dated 28.04.2023 and to
direct the respondents to settle all the retirement benefits without
any deduction with admissible interest.
2.The case of the petitioner in W.P.(MD)No.8521 of 2020 is as
follows :-
2.1.The petitioner was appointed as Office Assistant in the Audio
Visual Research Centre (AVRC) in the first respondent University on
07.06.1989. She was qualified in MA at the time of her appointment. The
post of Office Assistant is equivalent to Assistant Section Officer post.
While so, the petitioner passed M.Com, M.Phil, P.hd., M.C.A., M.Ed.,
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
MLIS., and she has also cleared National Eligibility Test (NET)
conducted by UGC directly in the year 1996 in Library and Information
Science. While so, one post of Media Librarian became vacant in the
Educational Multimedia Research Centre (EMRC). Being full qualified
and eligible for the said post, the petitioner made a request to the second
respondent Commission (UGC) as well as the first respondent University
to elevate her to the post of Media Librarian.
2.2.The petitioner was selected by the first respondent University
and was appointed as Media Librarian/Assistant Librarian in EMRC with
effect from 26.06.2009. Later the said post was re-designated as Assistant
Librarian as per UGC guidelines. On 10.09.1990, UGC had sent a letter
to the first respondent University mentioning that the post of Media
Librarian is an academic non vacation post. The same was approved by
the Syndicate of the respondent University on 24.11.1990 treating the
Media Librarian post as an academic non vacation post. The second
respondent UGC had sent another letter on 03.04.1997 reiterating once
again that the Assistant Librarian post is an academic non vacation post.
Therefore, the post of Media Tape Librarian was re-designated as
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Assistant Librarian. Therefore, Media Librarian, Media Tape Librarian
and Assistant Librarian are one and the same. Under such circumstances,
UGC issued guidelines for staffing pattern and procedure for recruitment
and assignment of the personnel of UGC Media Centres. In the said
guidelines, it was clearly mentioned that the post of Assistant Librarian is
an academic non vacation post. The Government also issued
G.O.Ms.No.145 Higher Education Department (H1) dated 06.07.2018
mentioning that the post of Assistant Librarian is an academic post in
furtherance to that the UGC also issued regularise in February 2018
mentioning that the post of Assistant Librarian is an academic post.
Therefore, the post of Assistant Librarian is certainly an academic non
vacation post. While the petitioner was continuing as Assistant Librarian
in the academic non vacation post, the first respondent University issued
a letter dated 22.04.2019 converting the petitioner's post of Assistant
Librarian from academic to non academic.
2.3.Assailing the same, the petitioner filed a Writ Petition in W.P.
(MD)No.10304 of 2019 and this Court was pleased to grant an interim
order. Thereby, the impugned order was kept in abeyance as per this
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Court's order dated 26.04.2019. Thereafter, the first respondent
University issued a Show Cause Notice on 14.05.2019, for which the
petitioner had submitted detailed explanation by enclosing all the
relevant materials on 26.08.2019. However, without considering anything
properly, the respondents passed an order on 06.03.2020 cancelling the
academic non vacation status to the post of the Assistant Librarian and
passed the re-fixation order by cancelling the academic Grade Pay and
academic non vacation service given to the petitioner. Challenging the
same, W.P.(MD)No.8521 of 2020 came to be filed.
3.The case of the petitioner in W.P.(MD)No.12687 of 2023 is as
follows :-
3.1.In the meanwhile, on 31.01.2023, the petitioner attained
superannuation and she was relieved from service on 31.01.2023 on
attaining her age of superannuation. The relieving order was enclosed
with a letter dated 24.01.2023 sent by the Deputy Director, Local Fund
Audit, Madurai Kamaraj University, Madurai dated 24.01.2023 to the
first respondent. The said letter relates to the audit objection raised from
1995 – 1996 to 2022 – 2023 audit slips. Pursuant to the same, the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
petitioner's personal benefits were not disbursed by the respondents.
Despite the petitioners' remainders in this regard nothing fruitful
happened. While so the third respondent sent a communication through
email on 28.04.2023 in which it was stated that the terminal benefits like
DCRG, commutation and encashment of EL has been withheld by the
establishment section quoting the audit objection to recover the excess
pay paid from 07.06.1989 to 31.01.2023 and that the petitioner has been
sanctioned with a revised monthly pension reducing more than Rs.
20,000/- and the same came to be issued vide impugned proceedings
dated 28.04.2023 on the petitioner. Challenging the same, the petitioner
filed W.P.(MD)No.12687 of 2023.
4.The case of the petitioner in W.P.(MD)No.7304 of 2020 is as
follows :-
4.1.The petitioner was initially appointed as Assistant Engineer in
A V Research Centre in the second respondent University on 02.03.1988
purely on temporary basis. The said Centre is the fully funded project of
the University Grant Commission first respondent and the second
respondent University was selected as a Centre for carrying out the said
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
project, pursuant to the Memorandum of Understanding signed by the
UGC with the second respondent. At the first instance, the petitioner's
pay was fixed in pay scale of Rs.700 – 1600/-. On 10.03.1989, his pay
was revised from Rs.700 – 1600/- to Rs.2200 – 4000/- on par with the
teaching staff of the University.
4.2.The first respondent UGC in his communication dated
10.09.1990 addressed to the second respondent University that certain
posts in Audio Visual Research Centre should be treated as academic non
vacation post and one such post so categorised by the UGC is the post of
Assistant Engineer. Pursuant to the communication of UGC dated
10.09.1990, the Syndicate in its meeting held on 24.11.1990 accepted the
categorization made by the UGC and treated the post of Assistant
Engineer, in which the petitioner was serving as academic non vacation
post. There are several communications thereafter between the 1st and 2nd
respondents to the effect that the post of Assistant Engineer held by the
petitioner was an academic non vacational post. At this point of time, the
second respondent University vide proceedings dated 31.03.1992 had
regularized the services of petitioner and other similarly placed persons
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
with effect from the date of original appointment. The said regularisation
order was passed by the University by considering the post held by the
petitioner as an academic non vacation post. Further in the proceedings
of the second respondent dated 15.03.1993, on the basis of Syndicate
resolution dated 24.11.1990, it was held that the Media Centre is an
academic Department without any vacation facilities among five posts
mentioned in the said communication as academic post, Sl.No.3 pertains
to posts of Assistant Engineer held by the petitioner.
4.3.The first respondent UGC in the year 1996 introduced a policy
of staffing pattern by revising the qualification and pay scales for all
future appointments. Clause A4 of the said policy specifically stated that
any post which is not listed above but has already been filed on regular
basis, would continue to exist as personal to the existing incumbent and
will stand abolished on being vacated by the incumbent. As a result of
which, the post of Assistant Engineer held by the petitioner from the year
1988, would be deemed to continue to exist as academic non vacation
post till he attains the age of superannuation.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
4.4.Meanwhile, the petitioner submits that the Career
Advancement Scheme (CAS) was made applicable to all Media Centres
of UGC including the second respondent University. In consonance with
the second respondent University at its Syndicate meeting held on
26.03.2009 and 17.04.2009 approved grant of Senior scale and Selection
Grade to the petitioner. However the said exercise was done only
pursuant to the order passed by this Court in W.P.No.4711 of 2009.
Thereafter, the staffing pattern introduced by the UGC in the year 1996
classified the post of Producer and Assistant Engineer under Technical
category. While so, the Local Fund Audit, Madurai Kamaraj University,
Madurai raised objections for grant of senior scale and Selection Grade
benefits under Career Advancement Scheme with respect to the petitioner
and another person who held the post of Producer. After a series of
communication, the second respondent University took up the case of the
petitioner and another with the UGC seeking clarification with regard to
the objections raised by its audit team.
4.5.While so, on the basis of the proceedings of UGC, the
Syndicate in its meeting held on 05.02.2019 resolved to withdraw the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Carrier Advancement Scheme promotion and academic Grade Pay was
given to the petitioner. Acting on the resolution of the Syndicate, the
second respondent University issued the proceedings dated 22.04.2019
stating that the petitioner is placed in non academic position with
retrospective effect from 02.03.1988. Since the said proceedings has civil
consequences, even the minimum requirement of issuing show cause
notice to ascertain the views of the petitioner was not followed and
straight away an order came to be passed having cascading effect on the
post held by him and the pay and allowances received by him, the
petitioner filed W.P.(MD)No.10989 of 2019 to quash the said order. The
said writ petition was disposed of recording the submission made by the
learned counsel for the respondents 2 and 3 to the effect that they will
follow the procedures in the proper manner. Thereafter, a show cause
notice came to be issued on 14.05.2019, for which the petitioner had sent
a detailed explanation on 27.08.2019. However, the impugned order
dated 16.03.2020 came to be passed cancelling the academic non
vacation service status given to the petitioner and academic pay scale
given to the petitioner and consequently promotions given under Career
Advancement Scheme that is, senior and selection grade also stood
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
cancelled. As the result of the same, the respondents wanted to recover
everything which was granted to the petitioner from the date of his
appointment. Hence, challenging the same, the writ petition came to be
filed.
5.Submissions :-
5.1.The learned counsel Mr.V.Vijayashankar appearing for
Thiru.S.Murali/petitioner, vehemently submitted that the impugned
proceedings of the second respondent in straight away re-categorising the
post held by the petitioner as non academic with retrospective effect from
02.03.1988 is highly illegal, arbitrary and discriminatory and the same
affects the petitioner's constitutional rights guaranteed under Articles 14
and 16 of the Constitution of India. Though the petitioner was appointed
in the year 1988 on temporary basis, the post held by him was
categorized as academic non vacation post by no other than the first
respondent UGC. It was only thereafter, in the year 1992, the petitioner
was made regular with effect from 1988 following which, he was also
granted with Senior Grade Pay and Selection Grade pay under the Career
Advancement Scheme of the second respondent University. Thus having
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
classified the post as the academic non vacation post as per UGC norms,
which was also approved in the Syndicate resolution of University, there
cannot be any stretch of imagination after 31 years of service re-
classifying the post to the petitioner's disadvantage. That apart during
this period, vested rights accrued to the petitioner in the form of Senior
Scale and Selection Grade which cannot be reversed at this stage. Such
reversion is highly unjustifiable and illegal and certainly require
interference of this Court. The staffing pattern for Media Centres
introduced by UGC in the year 1966 is a prospective one and the same is
applicable only in respect of future appointments. However, UGC
appears to have lost sight of the said policy of staffing pattern for Media
Centres. In addition to that Clause A.4 of the said policy explicitly states
that existing incumbents would retain the post as personal till the same is
vacated by them. Ignoring their own norms and its prospective
applicability, the UGC appears to have selectively targeted the staff of its
Media Centre in a manner, which is detrimental to the petitioner's interest
and right. The petitioner is an employee of the second respondent
University, which is a statutory body governed by Madurai Kamaraj
University and such a statutory body at the whims and fancies of UGC,
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
functions to the detriment of this employees. In view of the same, the
learned counsel for the petitioner pressed for allowing the W.P.(MD)No.
7304 of 2023.
5.2.The learned counsel appearing for the
Tmt.Dr.R.Sayeelakshmi/petitioner Mr.V.Panner Selvam submitted that
the post of Assistant Librarian is an academic non vacation post and it is
only without assigning any valuable reason, the same has been converted
from the category of academic to non academic and the same is liable to
be set aside. As per the guidelines, the post of Assistant Librarian in
EMRC is an academic non vacation post and the second respondent
University has no power to violate the guidelines issued by the UGC.
Therefore, the impugned order came to be passed converting the post of
Assistant Librarian from academic to non academic without jurisdiction.
The respondent University having passed resolution on 24.11.1990
treating itself Assistant Librarian post as an academic post shall not make
an U turn terming the said post as non academic. A post of Assistant
Librarian is still in force and hence, the conversion of the same from
academic to non academic is per se illegal. In view of the same, the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
learned counsel for the petitioner called for allowing the writ petitions.
5.3.All the respondents have filed their respective counters and the
learned counsel appearing for the University, Mr.Cibi Chakraborthy took
me through the various contentions raised in this counter affidavit. The
learned Government Advocate, Mr.Prakash took me through the various
contentions of the counter affidavit filed by him and the learned counsel
appearing for the UGC, Mr.Karthick took me through the various
contentions of the counter filed by him and pressed for dismissal of the
writ petition.
6.Analysis :-
6.1.The University Grants Commission took great initiative in
utilising the satellite and emerging information and communication
technologies for the purpose of enhancing the quality of higher education
in the Country. The Consortium for Educational Communication
popularly known as CEC is one of the Inter University Centres set up by
the UGC of India. A significant attempt was made in the year 1984 to
take education beyond classrooms through the UGC Countrywide
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Classroom (CWCR) by telecasting Educational Television programmes
in Colleges and Universities.
6.2.For the production of such programmes, Audio Visual
Research Centres (AVRC) were set up across various Universities in
India and one of such Centre is in the second respondent Madurai
Kamaraj University, at Madurai. Thus, Audio Visual Centre of UGC
commenced at Madurai. Based on the performance, the Centre was
upgraded to Educational Media Research Centre (EMRC) in the year
1991 by UGC. Later the Centre was re-designated as Educational
Multimedia Research Centre (EMMRC) in the year 2005. The Centre has
a professional TV studio, production control room, NLE edit suits,
Multimedia lab, Virtual classroom-EDUSAT satellite interactive terminal
with smart classroom facility and a Media Library. The EMMRC,
Madurai has produced 3713 Educational Programmes so far which were
telecasted through Doordarshan, Gyandarshan, Vyas (Higher Educational
channel of UGC) and has hosted the Consortium for Educational
Communication (CEC) website.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
6.3.The petitioners Thiru.S.Murali and Tmt.Dr.R.Sayeelakshmi
were appointed in the service of AVRC and EMRC on 02.03.1998 and
23.09.2009 in the course of Assistant Engineer and Assistant Librarian
respectively. AVRC which was later renamed as EMRC and subsequently
as EMMRC is a fully funded project of UGC and the second respondent
University was selected as a Centre for carrying out the project UGC for
which, a Memorandum of Understanding was signed by the UGC with
the second respondent University. At the time of appointment
Thiru.S.Murali was fixed in the pay scale of Rs.750 – 1,600/-. Thereafter,
for his post of Assistant Engineer on 10.03.1989, his pay scale was
revised from Rs.700–1,600 to Rs.2,200–4,000/- on par with the teaching
staffs of the University.
6.4.Further Tmt.Dr.R.Sayeelakshmi was appointed as Office
Assistant in Audio Visual Research Centre on 07.06.1989. Thereafter, she
passed various higher qualification including NET conducted by UGC
and further she was appointed as Assistant Librarian with effect from
26.06.2009 in EMRC. Her scale of pay was revised from Rs.905 – 45 –
1175 – 50 – 15252 to Rs.1640 – 60 – 2600 – 75 - 2900 by following the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
UGC proceedings on 04.10.1990. Only thereafter when a post of
Assistant Librarian in EMRC became vacant, she was elevated to the
post of Assistant Librarian on 26.06.2009 and the said post of Assistant
Librarian is an academic non vacation post. The post of Assistant
Engineer and Assistant Librarian served by both the petitioners were
categorised by the UGC vide order dated 10.09.1990 as an academic non
vacation post. UGC vide its proceedings dated 10.09.1990 issued
directions to the Registrar of the second respondent University to treat
the following posts as academic non vacational post:-
(I)Director/Joint Director, Co-ordinater, Project Officer and
Assistant Project Officer
(II)Professor/Reader/Lecturer
(III)Projection/Programme Engineers/Maintenance Engineer/Assistant
Engineer.
(IV)Research Scientist/Research Officer
(V)Librarian
6.5.Accepting the said recommendation of the UGC, on
24.11.1990, the second respondent University resolved to treat the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
aforesaid posts as academic non vacation post, following which, by the
order of second respondent University, Thiru.S.Murali was regularised in
service on March 1988 ie., from the original date of appointment. In the
meanwhile following UGC letter dated 25.07.1986, EMRC came to be
treated as separate entity and the second respondent University vide
memo dated 15.03.1993 informed that EMRC staffs would be treated on
par with other regular University staffs and they are governed by
University regulations. Thereby, permitting the privilege such as GPF,
pension admissible to other regular staffs of the University applicable to
the EMRC staffs also. On the basis of the Syndicate resolution dated
24.11.1990, the EMRC came to be treated as an academic department
with no vacation facilities and posts of Co-ordinator, Producer, Assistant
Engineer, Research Scientist 'A', Production Assistant were treated as
academic posts. Under such circumstances, the petitioners made
representations for grant of Senior Scale and Selection Grade to them. On
the basis of which, Thiru.S.Murali was granted with Senior Scale and
Selection Grade by the resolution of the second respondent University
Syndicate dated 01.07.2009 and the order of the University fixing pay to
him in Senior Scale and Selection Grade with effect from 02.03.1996
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
came to be passed on 13.12.2009. In the meanwhile, on the basis of the
various directions of the University Grant Commission, the Local Fund
Audit, Madurai Kamaraj University raised certain audit objections with
respect to the scale of pay of the petitioners. On the basis of which, the
second respondent University passed the impugned orders as against the
petitioners on 16.03.2020 cancelling their pay fixation with effect from
02.03.1988 and re-fixing the Senior Grade and Selection Grade benefits
with directions for consequent recovery.
6.6.Another issue revolving around the facts and circumstances of
this case is as to whether the service rendered by the petitioners are of
academic nature or non academic nature. It is needless to state that the
Audio Visual Research Centre which was established in the year 1988
later converted into Educational Media Research Centre in the year 1991
and was further re-designated as Education Multimedia Research Centre
(EMMRC) in the year 2005 and a Centre is fully funded by UGC as
functioning under the second respondent University since 1988. At the
time of establishment of AVRC, in the second respondent University, 11
posts were sanctioned by the University namely, (i)Coordinator - 1,
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
(ii)Producer - 1, (iii)Production Assistant - 1, (iv)Assistant Engineer - 1,
(v)Technical Assistant - 1, (vi)Technicians - 1, (vii)Cameraman (Gr-I) - 1,
(viii)Cameraman (Gr-II) - 1, (ix)Office Assistant - 1, (x)Typist - 1,
(xi)Attendant - 2.
6.7.The Selection Committee consisting of Registrar, Special
Officer at Planning & Development and the Honorary Director of the
Centre selected and appointed the candidates in the said posts on
24.07.1987 and 05.02.1988. Thiru.S.Murali/petitioner was appointed as
Assistant Engineer.
6.8.In the year 1996, the Consortium for Educational
Communication of UGC issued staffing pattern for Media Centres and in
the said staffing pattern, the post of Coordinator was changed as Joint
Director and the staffing pattern did not have the post of Coordinator. It
was also stated in the said staffing pattern under Clause A.4 that “ any
existing post which is not listed in the staffing pattern, but has already
been filled on regular basis, will continue to exist as personal to the
present incumbent and will stand abolished on being vacated.” Further
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
on re-designation of EMRC as EMMRC (Level 1), the posts of Director,
Joint Director, Research Scientist and Assistant Librarian were classified
as an academic non vacation post and post of Assistant Engineer was
classified as Technical post. The said classification was effected for the
reason that the staffs of EMMRC do not performance or discharge any
duties and responsibilities attached to that of teaching staffs in a college
or University. In continuation to the same, in the year 1997, the UGC
framed promotional policy to the staffs in Media Centre. The UGC
classified the staffs under 3 categories namely academic staffs, Media
Technical staffs and Administrative Staffs. However the post of Assistant
Engineer was not found in the said policy. But the post of Assistant
Librarian was found under category of academic non vacation post.
However, the policy permitted all the existing staffs to continue till their
superannuation and it is pertinent to mention here that UGC did not issue
any direction as to if academic non vacation staffs are equivalent to the
teachers in the University in as much as no teaching activities are done in
EMMRC. Thus the post of Assistant Engineer came to be treated as
Technician post and the post of Assistant Librarian came to be treated as
an academic non vacation post. Following which, the UGC directed the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
second respondent University to implement the said promotion policy
strictly. While so, in view of the implementation of the Fifth Pay
Commission, UGC vide letter dated 08.04.1998 and 10.04.1998 had
withdrawn the promotion policy issued on 13.01.1997. Hence, the
Consortium for Educational Qualification (CEC) vide proceedings dated
29.05.1998 confirmed the withdrawal of promotion policy of EMMRC.
6.9.When the promotion policy itself was withdrawn by UGC, the
letter of the Consortium for Educational Communication (CEC) dated
30.04.1997 providing option to the existing staffs to exercise option
either to continue as academic or non academic also stood cancelled
automatically. It is ridiculous to understand by the way the second
respondent University has concealed in it's paragraph No.23 of the
counter affidavit that the said proceedings was not brought to the
knowledge of the second respondent University.
6.10.In the meanwhile, the second respondent University requested
the UGC to give concurrence for implementing higher pay on par with
University teachers. However, the UGC declined to give higher pay to
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
the staffs of EMMRC on par teachers of the University vide proceedings
dated 09.08.2001. While so, the coordinator of EMMRC, one
Dr.Govindatan attained the age of 58 years in the month of February
2006. He was the first person who reached the age of superannuation in
the said Centre and the second respondent University relieved him vide
proceedings dated 27.02.2006. Challenging the same, he filed W.P.
(MD)No.2166 of 2006 before this Court on the ground that he ought to
have been treated at par with the teachers of the University should be
allowed to continue in service till the age of 60 years on par with other
teachers of the University. This Court was pleased to allow the Writ
Petition vide order dated 08.04.2011. As against the same, the second
respondent University has preferred a Writ Appeal in W.A.(MD)No.201
of 2012 and the Hon'ble Division Bench of this Court has passed an
order of interim stay on 17.12.2019 and the same is still pending.
6.11.During the pendency of the said writ petition, the Consortium
for Educational Communication (CEC) vide proceedings dated
21.07.2008 clarified that the promotion policy treating them as academic
was withdrawn and with regard to the retirement age of Media Centre
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
staffs/EMMRC, the University was directed to approach the UGC. While
so, few of the employees of EMMRC kept on insisting the second
respondent University to give them Career Advancement Scheme
promotion in compliance of the already cancelled promotion policy.
6.12.It is contended by the second respondent University that since
all the communications from UGC were directly addressed to the
EMMRC Centre, the employees suppressed the subsequent
communication with regard to the withdrawal of promotion policy and
continued making representations to the second respondent University
seeking promotion. Hence, the University Syndicate in its meeting dated
26.02.2009 resolved to give Career Advancement Scheme promotion to
the employees of EMMRC and it is only at this point of time,
Tmt.Dr.R.Sayeelakshmi/ petitioner was promoted as Assistant Librarian
vide order dated 01.07.2009 and pay for post of Assistant Librarian under
Fifth Pay Commission was sanctioned as Rs.8000–275–1350. By that
point of time, the Government implemented the Sixth Pay Commission
vide G.O.Ms.No.234 Finance (Pay Cell) Department dated 01.09.2009.
As per Sixth Pay Commission, the Government ordered the scale of pay
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
of Rs.8000-275-1350 to be revised as Rs.15600-39100+5400 (Grade
Pay). However at the time of appointment of Tmt.Dr.R.Sayeelakshmi as
Assistant Librarian, her pay was fixed as Rs.8000-275-1350 only. While
it is being so, the salary of Thiru.S.Murali/petitioner was also upgraded
as Assistant Engineer Senior Grade and Assistant Engineer Selection
Grade and the same was intimated to him on 01.07.2009. However, the
second respondent University contended that, the entire communication
from UGC cancelling the promotion policy was suppressed by the
employees and thereby, the University was kept in dark about the
subsequent guidelines and directions of UGC and only as a result of the
continuous misrepresentation of the employees, the University Syndicate
was constrained to resolve in its meeting dated 26.02.2009 giving Career
Advancement Scheme promotion to the employees of EMMRC.
6.13.But a careful perusal of the materials available on records
would reveal that the communications of the University Grant
Commission were made not only to the Director to EMMRC but also to
the Registrar of the Madurai Kamaraj University directly. In view of the
same, the arguments of the second respondent University that the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
University was kept in dark by the employees of EMMRC as to the
various guidelines and directions regarding the cancellation of the
promotion policy and the classification of the staffs of EMMRC into
academic, Media, Technical and Administrative categories has to be held
farce. It is only after the point of time, when the Director of Local Fund
Audit, Chennai raised audit objections for awarding Career Advancement
Scheme promotion to the staffs of EMMRC vide proceedings dated
23.03.2010, the second respondent University woke up. It is needless to
say that once the Syndicate has resolved vide its meeting dated
26.02.2009 to give Career Advancement Scheme promotion to the staffs
of EMMRC, automatically and obviously the second respondent
University ought to have sought for ratification of the same by the UGC,
since the EMMRC Centre is fully funded by UGC. However, such an
exercise was not done and the same was rightly objected by the Director
of Local Fund Audit, Chennai vide proceedings dated 23.03.2010. While
so, UGC also communicated another proceedings dated 23.03.2010
stating that the various posts of EMMRC cannot be equivalent with that
of the teachers for Career Advancement Scheme as the said posts did not
fulfil the parameters set by the Ministry of Human Resource
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Development.
6.14.In view of the said audit objection, the University vide letter
dated 15.07.2010, requested the UGC to approve the promotion given to
the petitioners and others. However, there is no response from the UGC.
Vide letter dated 30.05.2013, the UGC directed the University to submit
explanation with regard to the promotions given to the staffs of EMMRC.
Though the second respondent University with detailed explanation
sought for approval of promotions of the staffs, UGC did not pass any
orders on the same. Later UGC vide proceedings dated 24.11.2014 has
intimated that the staffs of Media Centre are not academic staffs as there
are no teaching activities in the said institutions and hence, they are not
eligible for any benefits available to the teachers as per the UGC
regulations and further directed the University to withdraw all such
benefits if already allowed without the consent of the UGC immediately
and the operative portion of the same is as follows:-
“Kindly refer to you letter No.EMMRC/MKU/R.S./2014
dated 22.09.2014 seeking concurrence for settlement of
entitlement benefits for Mr.R.Seshadrirajan, Producer (Sr.Grs)
(Retd.,). The Commission regrets its inability to accord
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
concurrence on the ground that the staff of IUC/NFCs/MCs
are not academic staff as there are no teaching activities in
these institutions. Hence, they are not eligible for any benefits
such as AGP or CAS etc as available to teachers as per UGC
Regulations. In the past also, the UGC has not extended such
benefits to the staffs of any of these institutions.
Accordingly, you are requested to withdraw all such
benefits, if already allowed, without the consent of UGC
immediately.”
6.15.That apart, the Local Fund Audit vide proceedings dated
18.05.2015 insisted the University to act upon the instruction of UGC for
the wrong promotion given to the petitioners and others. Accordingly, the
matter was placed before Syndicate of the second respondent University
in its meeting held on 05.02.2019 and it was resolved to withdraw the
Syndicate resolution dated 26.06.2009 giving promotion to the
petitioners and others treating the respective posts as academic non
vacation by following due procedure of law, after issuing prior show
cause notice to the petitioners and others. However, before issuing any
show cause notice as resolved by the Syndicate, the position of the
petitioners were reverted as non academic with effect from original date
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
of appointment vide proceedings dated 22.04.2019. Challenging the
same, the petitioners filed Writ Petitions in W.P.(MD)No.10989 of 2019
and 10304 of 2019 before this Court and this Court was pleased to close
the Writ Petitions on the submission of the second respondent University
that the proceedings dated 22.04.2019 were wrongly issued and the
University would recall the same. Only after that the University issued
show case notice to the petitioners dated 14.05.2019 calling for their
explanation as why the academic non vacation service status and
consequent benefits given to them shall not be cancelled.
6.16.Having furnished the relevant documents to the petitioner, the
petitioners submitted explanation to the second respondent University on
the basis of which the impugned final order dated 16.03.2020 came to be
passed and the relevant portion of impugned order with respect to
Tmt.Dr.R.Sayeelakshmi is extracted is as follows:-
“Therefore, the following orders are issued as resolved in
the Syndicate meeting held on 05.02.2019.
1.The Academic non vacation service status given to
Dr.R.Sayeelakshmi, Assistant Librarian is cancelled.
2.The services of Dr.R.Sayeelakshmi, Assistant Librarian
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
is regularised as non academic category.
3.The Academic Grade Pay given to Dr.R.Sayeelakshmi,
Assistant Librarian are cancelled.
4.The revised pay as per the G.O.Ms.No.350 and 145
Higher Education (H1) Department, dated 09.09.2009 and
06.07.2018 given to Dr.R.Sayeelakshmi, are cancelled.
5.The pay is fixed under non-academic service status with
appropriate pay scale and subsequent increment thereon as
mentioned below:
Assistant Librarian on 26.06.2009 (Rs.15600-39100+Rs.
5400/-G.P.)
Pay fixed at (BP Pay fixed at (BP+GP)
+GP) Monitory effect
Notional effect
26.06.2009 Rs.22330+5400 G.P. Rs.21560+5400 G.P.
01.04.2010 Rs.23170+5400 G.P. Rs.22370+5400 G.P.
01.04.2011 Rs.24030+5400 G.P. Rs.23210+5400 G.P.
01.04.2012 Rs.24920+5400 G.P. Rs.24070+5400 G.P.
01.04.2013 Rs.25830+5400 G.P. Rs.25830+5400 G.P.
01.04.2014 Rs.26770+5400 G.P.
01.04.2015 Rs.27740+5400 G.P.
Pay fixation in the scale of pay of Rs.15600-39100+Rs.
5400/-G.P. as per G.O.Ms.No.303, Finance (Pay Cell)
Department, dated 11.10.2017
01.01.2016 Rs.87400
01.04.2016 Rs.90000
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
01.04.2017 Rs.92700
01.04.2018 Rs.95500
01.04.2019 Rs.98400
26.06.2019 (two Rs.104400
increments for SI.
Gr. Promotion)
6.The excess salary received by her will be recovered from
her monthly salary.
7.The excess pension contribution remitted in EMRC
pension account on her time scale will be transferred to EMRC
Non-Plan Account.
8.The pay fixation ordered above are subject to approval
of Local Fund Audit, Madurai Kamaraj University and excess
amount, if any, will be summarily recovered from her.
9.The individual is directed to acknowledge the receipt of
this order in the duplicate copy and return the same to the
undersigned.”
6.17.For better understanding, the relevant portion of the
impugned order with respect to Thiru.S.Murali is extracted as follows:-
“Therefore, the following orders are issued as resolved in
the Syndicate meeting held on 05.02.2019.
1.The Academic non vacation service status given to
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Mr.S.Murali, Assistant Engineer (Sl. Gr.) are cancelled.
2.The promotion given to Mr.S.Murali, Assistant Engineer
under CAS as Assistant Engineer (Senior Scale ) and Assistant
Engineer (Selection Grade) as decided in the Syndicate meeting
held on 22.04.2009, 7th BOM of EMRC held on 23.06.2009 and
Syndicate at its meeting held on 26.06.2009 are cancelled.
3.The Academic Grade Pay given to Assistant Engineer
(Sl. Gr.) are cancelled.
4.Mr.S.Murali Assistant Engineer, EMRC will be
considered as non academic category.
5.The revised pay as per the G.O.Ms.No.112, 350, 145
Higher Education (H1) Department, dated 24.03.1999,
09.09.2009 and 06.07.2018 given to Mr.S.Murali, Assistant
Engineer (Sl. Gr.) are cancelled.
6.The pay is fixed under non-academic service status with
appropriate pay scale and subsequent increment thereon as
mentioned below:
02.03.1998 – Rs.700-40-1100-50-1600
Pay fixation in the scale of pay of Rs.2200-75-2800-14000
01.01.1988 - Rs.2200/-
01.01.1989 - Rs.2275/-
01.01.1990 - Rs.2350/-
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
01.01.1991 - Rs.2425/-
01.01.1992 - Rs.2500/-
01.01.1993 - Rs.2575/-
01.01.1994 - Rs.2650/-
01.01.1995 - Rs.2725/-
01.01.1996 - Rs.2800/-
Pay fixation in the scale of pay of Rs.8000-275-13500 as per
G.O.Ms.No.162, Finance (Pay Cell) Department dated
13.04.1999 w.e.f. 01.01.1996
01.01.1996 - Rs.8550/-
01.01.1997 - Rs.8825/-
01.01.1998 - Rs.9100/-
7.He will be promoted as Assistant Engineer (Selection Grade)
on completion of 10 years of service on 02.03.1998 in the time
scale of (Rs.9100-275-14050) and subsequent increment thereon
as mentioned below:
Selection Grade Assistant Engineer on 02.03.1998 (Rs.
9100-275-14050)
02.03.1998 - Rs.9375/-
01.01.1999 - Rs.9650/-
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
01.01.2000 - Rs.9925/-
01.01.2001 - Rs.10200/-
01.01.2002 - Rs.10750/-
01.01.2003 - Rs.10750/-
01.01.2004 - Rs.11025/-
01.01.2005 - Rs.11300/-
01.01.2006 - Rs.11575/-
8.He will sanctioned Pay revision in the scale of pay of Rs.
15600-39100+5700 G.P. And subsequent increment thereon as
per G.O.Ms.No.234, Finance (Pay Cell) Department, dated
30.06.2009 as mentioned below:
01.01.2006 -Rs.21530+5700 G.P.
01.01.2007 -Rs.22350+5700 G.P.
01.01.2008 -Rs.23200+5700 G.P.
9.He will be promoted as Assistant Engineer (Special Grade) on
completion of 20 years of service on 02.03.2008 in the time
scale of Rs.15600-39100+5700 G.P., and to sanction one
additional increment for the promotion of Assistant Engineer
(Special Grade) with notional benefit w.e.f.02.03.2008 and
monitory benefit w.e.f.01.04.2013 under non-teaching category
as per Tamil Nadu Government Order No.237 dated 22.07.2013
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
and subsequent increment thereon as mentioned below:
Spl. Gr.Assistant Engineer on 02.03.2008 (Rs.
15600-39100+5700 G.P.)
02.03.2008 Rs.24940+5700 G.P. Rs.24940+5700 G.P. 3%
(3%+3%) (Rs.23200+5700 GP)
For the award of Special
Grade and one Additional
increment
01.01.2009 Rs.25860+5700 G.P. Rs.24970+5700 G.P.
01.01.2010 Rs.26810+5700 G.P. Rs.25890+5700 G.P.
01.01.2011 Rs.27790+5700 G.P. Rs.26840+5700 G.P.
01.01.2012 Rs.28800+5700 G.P. Rs.27820+5700 G.P.
01.01.2013 Rs.29840+5700 G.P. Rs.28830+5700 G.P.
01.04.2013 Rs.29840+5700 G.P.
01.01.2014 Rs.30910+5700 G.P.
01.01.2015 Rs.32010+5700 G.P.
Rs.33150+5700 G.P.
10.Pay fixation in the scale of pay of Rs.15600-39100+Rs.
5700/-G.P. as per G.O.Ms.No.303, Finance (Pay Cell)
Department, dated 11.10.2017
01.01.2016 Rs.101800
01.01.2017 Rs.105900
01.01.2018 Rs.109100
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
11.Pay fixation in the scale of pay of Rs.15600-39100+Rs.
5700/-G.P. as per G.O.Ms.No.303, Finance (Pay Cell)
Department, dated 11.10.2017
02.03.2018 Rs.112400
(For bonus
increment )
01.01.2019 Rs.115800
01.01.2020 Rs.119300
The excess salary received by him may be recovered from his
monthly salary. The excess pension contribution remitted in
EMRC pension account on his time scale of pay may be
transferred to EMRC Non-Plan Account.
12.The above pay fixation will be modified after approval
of the (Promotional Policy) financial estimate by CEC, BOM
and Syndicate of M.K. University.
13.The pay fixation ordered above are subject to approval
of Local Fund Audit, Madurai Kamaraj University and excess
amount, if any, will be summarily recovered from him. ”
6.18.The second respondent University has passed detailed
impugned orders cancelling the academic non vacation service status
given to the petitioners and cancelling the Career Advancement Scheme
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
promotion and revision of pay and other benefits extended to them and
that apart has directed to recover the excess salary paid to them.
6.19.In the meanwhile Tmt.Dr.R.Sayeelakshmi on attaining age of
superannuation was relieved from the service with effect from afternoon
of 31.01.2023. The other petitioner Thiru.S.Murali is in verge of
retirement. All the benefits granted to the petitioners treating the post of
Assistant Engineer and Assistant Librarian under academic non vacation
category came to be withdrawn over night by treating the said post as
non academic category. The said exercise has had a cascading effect of
stopping the entire retirement benefit of Tmt.Dr.R.Sayeelakshmi and the
respondents have not released even a single paise from her hard earned
money and she was relieved from service with empty hands. Can the
impugned order of recovery after retirement and after 34 years of service
be sustainable ? In the case of Tmt.Dr.R.Sayeelakshmi, the impugned
order of recovery has been passed after retirement after discharge of 34
years of service and in the case of Thiru.S.Murali while he is in verge of
retirement after a service of more than 31 years, the impugned order of
recovery has been passed by the second respondent University.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
6.20.Under the facts and circumstances of of the instant case, now
it is necessary to test the impugned orders with the touchstone of the
various UGC guidelines and directions, which has been issued from time
to time since 1998 keeping in mind, that EMMRC is a Centre of the
University Grants Commission functioning under the second respondent
University as fully funded by the UGC. Hence, any significant decision
with respect to the service and administration of EMMRC ought to have
been resolved by the Syndicate of the second respondent University only
with the concurrence and ratification of UGC. Considering the nature of
service which is rendered by the staffs of EMMRC, it is crystal clear that
the duties carried out by the various staffs in EMMRC cannot be fully
negated as an non academic. That apart various projects which are done
by EMMRC, Madurai Campus right from the year 1998 till now
includes:-
(i)Enrichment Programs
(ii)EDUSAT
(iii)E-contents (Media Library)
(iv)Massive Open Online Courses (MOOCs)
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
6.21.In an era of Multimedia and Satellite interactions, the
programmes conceived by the staffs of EMMRC are definitely unique
Education Programmes imparting Multi disciplinary educational
information to all sections of Society. After the launch of EDUSAT
during the year 2005 – 2014, an exclusive educational satellite by the
Indian Space Organisation, a new scenario is propelled in the Education
system in India. Thereby, the satellite EDUSAT which was used by
Consortium for Educational Communication to deliver live lectures on
various topics for the students of higher education through its Media
Centres, later expanded its network through academic staff colleges,
Universities and Colleges of potential excellence. In short the EMMRC's
Satellite Interactive Terminal facility became the teaching and classroom
end for the EDUSAT programme.
6.22.That apart e-contents introduced by the Ministry of Human
Resource Development during the year 2008 – 2016 brought in a big leap
to the National Mission on Education through Information
Communication Technology resulting in development of e-contents for
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
undergraduate courses in several subjects for e-learning. E-contents are
self-learning materials packed in an electronic format in a well-designed
template exclusively made for the National Mission on Education
through Information Communication Technology project of Ministry of
Human Resource Development. The contents are integrated in
multimedia format with Video, Audio, Text, Graphics and Animation
with components like Objectives, Summary, Academic, Script, Glossary,
Quiz, Reference, Assignments, Tutorials and Case studies, which are
downloadable. The e-contents ensure and enhance learning at anytime,
anywhere, any place without any cost improving self-learning. The
cumulative understanding of the nature of the functions of EMMRC
would portrait the same as discharge meticulous service in the field of
education academically in this era of technical and technological
excellence. Hence, the duty of the petitioners cannot be negated as non
academic outrightly. However, UGC while responding to the
communication of the second respondent University on revision of pay
scale of employees of EMMRC has time and again clarified that the
benefit of teaching category of Universities and Colleges are not
applicable to the staffs of EMMRC in view of the nature of the work
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
undertaken by the staffs of EMMRC specifically the nature of work do
not involve direct teaching activity. That apart the UGC had already
examined the request of the second respondent for grant of higher pay
scale in detail and had clarified that conversion of EMMRC course into
academic stream is not permissible.
6.23.Inadvertence on the part of the second respondent University
has resulted in the commotion of grant of academic Grade Pay vide
Career Advancement Scheme promotions to the petitioners and others of
EMMRC at Madurai. Since UGC had started up 17 Media Centres in the
year 1984 onwards across India in various Universities and since all the
staffs of the various EMMRC are considered as non academic, at this
point of time, if the petitioners and others working in EMMRC, Madurai
are directed by this Court to be considered as academic staffs of UGC
that will have wide repercussion across India causing unforeseen
difficulty to UGC, which has promptly issued guidelines and directions
from time to time on the administration of EMMRC at various levels.
6.24.In view of the same, I am not inclined to interfere with the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
decision of UGC negating the second respondent University's request to
convert EMMRC post to academic stream.
6.25.As far as the order of recovery is concerned, it is no more res
integra. This Court has time and again dealt with various cases of
recovery and has passed favourable orders to the petitioners. The Hon'ble
Apex Court in 2015 4 Supreme Court Cases 334 in the case of State of
Punjab and Others v. Rafiq Masih (White Washer) and others, while
dealt with the case of recovery has passed the following order:-
“12. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may, based
on the decisions referred to herein above, we may, as a ready
reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due
to retire within one year, of the order of recovery.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
(iii) Recovery from employees, when the excess payment has
been made for a period in excess of five years, before the order
of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been
required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover.”
6.26.The Hon'ble Division Bench of this Court in a case of
P.Arumugan v. Registrar, Tamil University, Thanjavur reported in
(2006) 3 MLJ 1025, while dealing with the case of recovery has held as
follows:-
“11.5.In the above stated circumstances, the question
that remains to be considered is as to whether the respondent
can be permitted to re-work the fixation of pay and the excess
payment, if any, paid to the appellant based on wrong fixation
of pay right from 01.02.1984 and seek for recovery of a huge
sum of Rs.3,95,093/- from the terminal benefits payable to the
appellant. It is relevant to state that between 01.02.1984 i.e.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
the date of appointment of the appellant as Superintendent in
the respondent University, till he was allowed to retire from
service on 31.12.2001, the respondent did not raise its little
finger as regards the alleged excess payment paid to the
appellant. On the other hand, knowing fully well about the
previous employment of the appellant, the respondent
University in its offer of appointment, dated 13.06.1983 as well
as the order of appointment dated 21.0.1983, specifically
mentioned that the pay of the appellant was being fixed in a
particular scale ensuring the pay last drawn by the appellant
in his previous employment. That apart, it is not known why
inspite of the Audit Objections raised as early as in the year
1984-85, the respondent did not intimate the same to the
appellant nor taken any proceedings for suitably re-fixing the
pay fixed at the time of issuance of the order of appointment in
accordance with Rule 44(4)(i) of the Tamil Nadu Pension
Rules. The respondent thus, with its eyes wide open, fixed the
pay of the appellant in a particular scale of pay applicable to
him and also allowed him to draw that pay throughout his
service in the respondent university till the date of his
retirement. Therefore, while the respondent was squarely
responsible for the wrong fixation of pay, if any, of the
appellant, the appellant was never to be blamed as regards his
pay fixation. Neither in the offer of appointment nor in the
appointment order, the appellant was ever reminded about any
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
intimation required as regards the receipt of pension in the
erstwhile service rendered by him in the State Government.
11.6.Having regard to all the above factors, we are of the
considered opinion that the respondent are now estopped from
attempting to reverse the whole process of pay fixation made
and the payment of salary made to the appellant right from the
date of his appointment till the date of his superannuation. For
whatever excess payment made to the appellant, even if the
same was due to wrong fixation of pay contrary to the
provisions contained in Rule 44(4)(i) of the Tamil Nadu
Pension Rules, the whole liability will have to be borne by the
respondent or if need be, the said liability to be recovered from
the concerned authorities who was/were responsible for the
commission of such lapses which resulted in any excess
payment of salary. Certainly, in our considered view, the
appellant cannot be made to bear such a huge liability and
recovery of the same to be permitted, that too from the terminal
benefits payable to the appellant. Such a course, as rightly
held by the Single Judge, would be highly inequitable and will
be totally unjustified.”
6.27.The Apex Court in the case of J.S.Yadav v. State of U.P. And
another reported in (2011) 6 MLJ 998 (SC), has dealt with the case of
recovery has held as follows:-
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
“20. “The word 'vested' is defined in Black's Law
Dictionary (6th Edition) at page 1563, as vested; fixed;
accrued; settled; absolute; complete. Having the character or
given the rights of absolute ownership; not contingent; not
subject to be defeated by a condition precedent.' Rights are
'vested' when right to enjoyment, present or prospective, has
become property of some particular person or 15 persons as
present interest; mere expectancy of future benefits, or
contingent interest in property founded on anticipated
continuance of existing laws, does not constitute vested rights.
In Webster’s Comprehensive Dictionary (International Edition)
at page 1397, 'vested' is defined as (law held by a tenure
subject to no contingency; complete; established by law as a
permanent right; vested interest.” (See: Mosammat Bibi
Sayeeda & Ors. etc. v. State of Bihar & Ors. etc., AIR 1996 SC
1936).
21. The word “vest” is normally used where an
immediate fixed right in present or future enjoyment in respect
of a property is created. With the long usage the said word
“vest” has also acquired a meaning as “an absolute or
indefeasible right”. It had a “legitimate” or “settled
expectation” to obtain right to enjoy the property etc. Such
“settled expectation” can be rendered impossible of fulfilment
due to change in law by the Legislature. Besides this, such a
“settled expectation” or the so-called “vested right” cannot be
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
countenanced against public interest and convenience which
are sought to be served by amendment of the law. (Vide:
Howrah Municipal Corpn. & Ors. v. Ganges Rope Co. Ltd. &
Ors., (2004) 1 SCC 663).
22. Thus, “vested right” is a right independent of any
contingency. 16 Such a right can arise from a contract, statute
or by operation of law. A vested right can be taken away only if
the law specifically or by necessary implication provide for
such a course.
23. The appellant had been appointed under the
provisions of the Act 1993 which did not require seven years’
experience as a District Judge. In the instant case, the
Amendment Act 2006 came into force on 23.11.2006. The State
of U.P. did not take any step for discontinuation of the
appellant upto May 2008 on the ground that he did not possess
the eligibility as per the Amendment Act 2006.
24. The Legislature is competent to unilaterally alter the
service conditions of the employee and that can be done with
retrospective effect also, but the intention of the Legislature to
apply the amended provisions with retrospective effect must be
evident from the Amendment Act itself expressly or by
necessary implication. The aforesaid power of the Legislature
is qualified further that such a unilateral alteration of service
conditions should be in conformity with legal and
constitutional provisions. (Vide: Roshan Lal Tandon v. Union
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
of India & Ors., AIR 1967 SC 1889; State of Mysore v. Krishna
Murthy & Ors., AIR 1973 SC 1146; Raj Kumar v. Union of
India & Ors., AIR 1975 SC 1116; Ex-Capt. K.C. Arora & Anr.
17 v. State of Haryana & Ors., (1984) 3 SCC 281; and State of
Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR
1984 SC 161).
25. In Union of India & Ors. V. Tushar Ranjan Mohanty
& Ors., (1994) 5 SCC 450, this Court declared the amendment
with retrospective operation as ultra vires as it takes away the
vested rights of the petitioners therein and thus, was
unreasonable, arbitrary and violative of Articles 14 and 16 of
the Constitution. While deciding the said case, this Court
placed very heavy reliance on the judgment in P.D. Aggarwal
& Ors. v. State of U.P. & Ors., AIR 1987 SC 1676, wherein this
Court has held as under: “…the Government has power to
make retrospective amendments to the Rules but if the Rules
purport to take away the vested rights and are arbitrary and
not reasonable then such retrospective amendments are subject
to judicial scrutiny if they have infringed Articles 14 and 16 of
the Constitution.”
6.28.As far as the instant cases are concerned, the impugned
proceedings of the second respondent has put the petitioners into severe
hardship both financial and mental. Though the UGC has introduced the
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
policy called staffing pattern for Media Centres, thereby concluding that
the EMMRC posts are non academic. The said pattern could be only
prospective and the same is applicable only in respect of further
appointments. That apart Clause A.4 of staffing pattern of UGC
explicitly states that the existing incumbents will retain the posts as
personal till the same is vacated by them.
6.29.In view of the said Clause A.4 and the directions of the
Hon'ble Apex Court in White Washer's case, curbing recovery from
employees when the excess payment was made for a period of five years
before the order of recovery is issued, this Court is inclined to quash the
impugned orders with respect to the recovery portion alone. The excess
salary whatever has been received by the petitioners shall not be
recovered from both the petitioners in view of the mandates of White
Washer's case and Clause A.4 of the Staffing pattern for EMMRC as
issued by the UGC. Since the post of Assistant Engineer is no more
available in the staffing pattern for EMMRC, the post of Thiru.R.Murali
would lapse on his retirement. Placing that the post of Assistant Librarian
is included in the staffing pattern of EMMRC as provided by UGC, this
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
Court is inclined to validate the resolution of the second respondent
University Syndicate withdrawing its resolution dated 20.06.2019 and its
meeting held on 05.02.2009. The respondents are directed to settle the
retirement benefits of the petitioner in W.P.(MD)No.12687 of 2023, in
terms of this order, within a period of 16 weeks from the date of receipt
of copy of this order.
6.30.Accordingly, all the Writ Petitions are partly allowed. There
shall be no order as to costs. Consequently connected miscellaneous
petitions are closed.
.11.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Deputy Director,
Local Fund Audit,
Madurai Kamaraj University,
Madurai – 625021.
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.7304 and 8521 of 2020 and 12687 of 2023
L.VICTORIA GOWRI, J.
Mrn
W.P.(MD)Nos.7304 and 8521 of 2020 & 12687 of 2023
08.11.2023
https://www.mhc.tn.gov.in/judis
