Dr. N. Nagarajan vs University of Madras

T. Raja, J.—The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the order passed by the respondent/the

Registrar, University of Madras, Chennai, in his proceedings No. D1/(B)/TE/CAS PROMOTION/2006//278R, dated 12.01.2006, as confirmed

in office communication No. D1/(A)/TE/2007/41, dated 04.12.2007, insofar as it has not counted the period of regular services from 05.08.1989

to 31.03.1995 for the purpose of promotion to the post of Reader under Career Advancement Scheme, by calling for the records connected

thereto and consequently, to direct the respondent to give promotion to the petitioner as Reader from 05.08.1998 instead of 01.04.2004 and

confer all the consequential benefits. The petitioner was initially appointed as Technical Assistant in the Department of Adult and Continuing

Education, Madras University, on 20.11.1987. Subsequently, he was selected to the post of Project Officer in the same department by the

Selection Committee on 05.08.1989 and thereafter, he was confirmed in the said post with effect from 05.08.1991. While so, as per the

recommendation of the University Grants Commission (UGC), Career Advancement Scheme was introduced and as per the said Scheme, a

Senior Grade Lecturer on completion of 5 years, is entitled to be considered for promotion as Reader. Hence, he made a representation

requesting to consider him for promotion under the Career Advancement Scheme as Reader with effect from 05.08.1994. But, the respondent,

while considering the request of the petitioner, gave promotion to the post of Reader only with effect from 01.04.2004, instead of 05.08.1998.

Challenging the same, he filed a writ petition in W.P. No. 2535 of 2006 insofar as the refusal to count the period of services rendered by him from

05.08.1989 to 31.03.1995. This Court, by order dated 22.11.2006, directed the petitioner to give a representation to the University and

thereafter, in turn, the respondent University was also directed to consider the same in accordance with law. Pursuant to the said order, the

respondent University has passed the impugned order negativing the request of the petitioner. Aggrieved by the same, the present writ petition has

been filed with the aforesaid prayer.

Assailing the impugned order, Mr. C. Selvaraj, learned Senior counsel appearing for the petitioner submitted that, as per the Career

Advancement Scheme framed by the State Government, if any person completes 9 years of service as Lecturer, he is entitled for promotion to the

post of Reader, while so, the petitioner, who joined as Project Officer-cum-Lecturer on 05.08.1989, is entitled for promotion to the post of

Reader with effect from 05.08.1998. However, the respondent passed the present impugned order, that too, without assigning any reason for

abandonment of the period of service form 05.08.1998 to 01.04.2004, giving promotion only with effect from 01.04.2004. Therefore, it was

contended that the denial of promotion to the post of Reader with effect from 05.08.1998 is arbitrary and illegal.

Contending further, it was pleaded that the University Grants Commission introduced a scheme of Population Education Resource Centre and

offered to all the Universities throughout India as to whether the Universities are accepting the scheme and in the event of accepting the said

Scheme, the UGC would give financial assistance to all the Universities for the five years and thereafter, either the State Government or the

University must bear the financial commitment. Accepting the said condition imposed by the UGC, the University appointed the required staffs

thereof, whereby the petitioner and other similarly placed person came to be appointed in the above scheme. By pointing out so, the learned

Senior Counsel contended that had the University refused to take over the scheme on completion of 5 years, the UGC would not have

implemented the scheme in the University. Having accepted and implemented the scheme, now the respondent has even passed a resolution to that

effect to regularise the services of the staff appointed under the scheme from the date of initial appointment and also other benefits including the

seniority, hence, the respondent has no right in refusing to count the period of service rendered under Career Advancement Scheme, by passing

the impugned order and on that basis, the learned Senior Counsel prayed for interference by this Court.

In his further submission, it was further stated that, in the case of one Dr. Mrs. Nazeem Akthar, the University counted the temporary services

rendered by her in another Center-State Resource Center for Non Formal Adult Education, which is non-governmental organisation and therefore,

he pleaded, when the above non-government service was counted in the case of the above said person, there is no justification in refusing to count

the services rendered by the petitioner in a scheme, which was functioning under the control of the University. On these basis, it was prayed for

allowing the writ petition.

Per contra, Mrs. G. Thilakavathy, learned counsel appearing for the respondent University submitted that the service of the petitioner in the post

of Project Officer from 05.08.1989 to 01.04.1995 should be taken into account by the University and consequently, he should be given the benefit

of promotion under the Career Advancement Scheme from the date of his appointment is thoroughly impermissible in law, for the reason that he

cannot be brought under a Career Advancement Promotion as on 05.08.1989, since he was not holding the post equivalent to the grade or scale

of pay as Lecturer on 05.08.1989, because the scale of pay of the Project Officer was at Rs. 2200-75-2800-100-4000, whereas the scale of pay

of Lecturer was at Rs. 3700-125-4950-150-5700, as per the UGC approved scale of pay. Therefore, she pleaded, the petitioner cannot seek a

relief as sought for.

Learned counsel for the respondent further contended that the UGC introduced a scheme in the respondent University with a condition that for

the first five years, the recurring liability of the staff involved in the scheme would be borne by the Commission and thereafter, the same should be

taken over either by the State Government or the University, therefore, after the expiry of the scheme of five years, when the University wrote a

letter to the State Government to take over the financial aspect of the said scheme, the State Government accepting the liability of Dr. Nazeem

Akthar in the post of Project Officer from 01.04.1990, refused to accept the recurring liabilities of other staffs. In view of this impediment shown

by the State Government in taking over the recurring liabilities of other staffs, including the petitioner, the Syndicate of the University of Madras, in

its meeting held on 12.08.2002, approved the minutes of the Finance Committee dated 22.07.2002, and thereby, resolved to recommend the

absorption of the petitioner-Dr. Nagarajan, Dr. Naseem Akthar and Dr. N.V.R. Kapali, on 01.04.1997, 01.04.1990 and 01.04.1997

respectively. But, this has not been protested by the petitioner. When that being so, now the petitioner cannot come and seek a prayer for

promotion as Reader with effect from 05.08.1998. It was further stated that since the petitioner has been given the benefit of promotion to the post

of Reader from 01.04.2004, after receipt of the representation from the petitioner to count his services from 05.08.1989, as it has been done in

the case of one Dr. Mrs. Nazim Akthar, the respondent University has already sent a letter to the UGC seeking their approval as to whether the

petitioner is entitled to receive the benefit of promotion to the post of Reader from 05.08.1989, therefore, she pleaded, if any favourable order is

passed by the UGC, the same would be given effect to. On that basis, she pleaded for dismissal of the writ petition.

Heard both sides.

It is no doubt true that, in the year 1986, the University Grants Commission (UGC) had approved the posts--Assistant Director, Project

Officer, Technical Assistant and Driver--for setting up a Population Education Resource Centre (PERC) at the respondent Madras University for

providing technical resource support to other institutions assigned to it and to facilitate implementation of the project on Population Education.

Though the UGC agreed to provide the financial assistance only upto 31.03.1991, it was subsequently extended upto March, 1995. The UGC

initially agreed to provide the financial assistance for five years with an assurance that the State Government should take over the recurring liability

of the staffs involved in the scheme after the VIII plan period and this could be seen from the proceedings dated 26.03.1993 of the UGC. For

better appreciation, relevant paragraph of the said proceedings is extracted hereunder:

The Commission has considered the continuation of these posts for the PERCs in the Universities at its meeting held on 23.02.1993. The UGC has

agreed that the staff working in the Population Education Resource Centres may be regularised and the Commission would continue assistance for

these posts in the usual way during the project period or for five years in any case with the assurance that the State Government should take over

the liability after the VIII plan period.

In the above said scheme, the petitioner was selected to the post of Project Officer on 05.08.1989 in Population Education Resource Centres

(in short ""PERC""), Department of Adult and Continuing Education, by the Statutory Selection Committee, and thereafter, his probation was also

declared on 04.08.1991, and this could be seen from the extract of the minutes of the meeting of the Syndicate of the Madras University held on

22.08.1994. A relevant portions of the minutes of meeting is extracted hereunder:

RESOLVED that Dr. N.V.R. Kapali and Dr. N. Nagarajan be regularised in their services with effect from 05.08.1989 and probation be

declared two years from the date of appointment, i.e., 05.08.1989, to 04.08.1991 and their services be confirmed from 05.08.1991.

RESOLVED FURTHER that the State Government be requested to honour their commitment in taking over the liability of the Population

Education Resource Centre with effect from 01.04.1995 as agreed to in their letter.

From the above said extract of the minutes of meeting, it is clear that the State Government had agreed to take over the financial assistance of

the said project, on completion of five years of financial assistance by the UGC. Even the State Government by passing G.O. Ms. No. 389,

Education (H1) Department, dated 15.04.1985, had accepted to take over the recurring liability of the post of Project Officer, after cessation of

the assistance from the UGC on 31.03.1991. The relevant portion of the said GO is extracted hereunder:

The Government after careful examination of the request of the Registrar, University of Madras, accept to take over the recurring liability of the

posts--Project Officer, Accounts Clerk, Co-ordinator, Programme Officers, Secretary, Accountant-Typist Clerk--in principle, after cessation of

the assistance from the UGC on 31.03.1990. The actual quantum of assistance will be decided at the time of sanctioning of grants towards this

purpose.

In view of the above, the argument of the learned counsel for the respondent that the State Government has not come forward to provide the

financial assistance to the petitioner cannot be accepted.

With regard to the argument of the learned Senior counsel for the petitioner that the respondent, by passing the impugned order had given the

promotion to the post of Reader only with effect from 01.04.2004 instead of 05.08.1998, it is relevant to extract UGC guideline under Career

Advancement Scheme for promotion to the post of Reader and the same is stated below:

READER (Promotion)

A lecturer in the Senior scale will be eligible for promotion to the post of Reader if she/he has:

i. Completed 5 years of service in the senior scale.

ii. Obtained a Ph.D., degree or has equivalent published work;

iii. Made some mark in the areas of scholarship and research as evidenced by self-assessment, reports of referees, quality of publications

contribution to educational innovation, design of new courses and curricula and extension activities.

iv. After placement in the senior scale participated in two refresher courses/summer institutes of approved duration, or engaged in other

appropriate continuing education programmes of comparable quality as may be specified or approval by the UGC; and v. Possesses consistently

good performance appraisal reports. Promotion to the post of Reader will be through a process of selection by a selection committee to be set up

by the appointing authorities.

From the above said guideline of the UGC, it is clear that for the promotion to the post of Reader, one should have completed five years of

service in senior grade of Lecturer. Admittedly, in the present case, as stated above, the petitioner was appointed as Project Officer on

05.08.1989, which is equivalent to the post of Lecturer and thereafter, he was also granted Senior Grade Scale with effect from 05.08.1994 and

this was even admitted by the petitioner in his representation sent to the Registrar of Madras University on 03.01.2007. Therefore, he was eligible

to be considered for the post of Reader from 05.08.1999, as per the Guidelines of the UGC for promotion to the post of Reader, whereas the

respondent University had given promotion to him to the post of Reader only with effect from 01.04.2004. In view of these admitted facts, the

claim of the petitioner seeking to give him the promotion to the post of Reader with effect from 05.08.1999, but not from 05.08.1998, cannot be

refused.

Further, it is settled law that all the services rendered, whether it is temporary or regular in the same institution or even in other Colleges, are

eligible to be counted for promotion, therefore, there is no justification in refusing to count the services rendered by the petitioner from 05.08.1989

to 01.04.1995 for the purpose of promotion to the post of Reader under Career Advancement Scheme, especially, when two years of temporary

service of Dr. Mrs. Nazeem Akthar rendered in Voluntary Agency State Resource Centre for Non Formal Education also was taken into

consideration for promotion.

Almost in a similar circumstances, the Hon''ble Division Bench of this Court in W. Suryapushpam v. The Government of Tamil Nadu (W.P.

No. 31244 of 2004, dated 20.09.2007), while dealing with the modification of the date of regularisation of service of a Government Servant, held

that once the service of any person is regularised at an early date by any proceeding, the same cannot be modified without affording any

opportunity of hearing to the aggrieved person, as it is prejudicial to the interest of the same person. Admittedly, in this case, when the respondent

University has regularised the service of the petitioner in the post of Project Officer on 05.08.1989 in Population Education Resource Centre and

subsequently, his probation was also declared on 04.08.1991, the action of the respondent University in re-designating the post of the petitioner as

Project Officer-cum-Lecturer with effect from 01.04.1995 and again absorbing him in the post of Project Officer on 01.04.1997, is neither tenable

nor justifiable, for the reason that the period of qualified and confirmed service from 05.08.1998 to 01.04.2004 would go in vain.

In yet another communication dated 16.02.1993 sent to the Registrar, the UGC made it clear that the incumbents working in the department of

Adult Education should have the same status and facilities as admissible to those working in other departments of the University except that Adult

Education Department. Further, in the said proceedings, it was also decided by the Commission that the posts of Project Officers for the Adult

Continuing Education and Extension (including Population Education) in the Universities shall also carry the scale of pay of Rs. 2200-4000 with the

benefit of Senior Grade and Selection Grade as admissible to Lecturers working in the Universities, subject to the same condition. Again, it has

been made it clear that the grant of the Senior Grade and Selection Grade of pay to the Project Officers shall be subject to fulfilment of the same

terms and conditions as are applicable for Lecturers working in the Universities. The above said communication depicts that the post of Lecturer as

well as Project Officer are one and the same, therefore, the respondent University should not have re-designated the post of Project Officer into

Project Officer-cum-Lecturer, with an intention to count his service from the date of re-designation, hence, the impugned order passed by the

respondent University, refusing to take into account the services rendered by the petitioner from 05.08.1989 (the date of appointment in the post

of Project Officer) to 01.04.1995 (the date of re-designation as Project Officer-cum-Lecturer), for the purpose of promotion to the post of

Reader under Career Advancement Scheme inasmuch as a Lecturer in the Senior Scale will be eligible for promotion to the post of Reader if he

completes 5 years of service in the Senior Scale, is unjustified.

For the reasons stated above, the impugned order passed by the respondent is set aside, insofar as it declined to count the period of service

rendered from 05.08.1989 to 31.03.1995 for the purpose of promotion to the post of Reader under Career Advancement Scheme.

Consequently, the respondent is directed to give promotion to the petitioner as Reader with effect from 05.08.1999 and thereby confer all the

consequential benefits thereof. The respondent is directed to complete the said exercise within a period of six weeks from the date of receipt of a

copy of this order. The writ petitions is order in the above terms. No Costs.