K. Ramachandran vs Central University of Pondicherry

M.M. Sundresh, J.—The Writ Appeal has been preferred by the Appellant challenging the order of the learned single Judge, whereby the

Writ Petition filed was dismissed upholding the orders impugned dated 01.06.1992 and 17.05.1995.

The Appellant herein was appointed by the first Respondent as a Junior Assistant cum Typist on 22.06.1987. The second Respondent was

appointed as Junior Assistant cum Typist on 02.06.1986 and the third Respondent was appointed in the said post on 15.05.1987. The post of

Junior Assistant cum Typist is a feeder category to the post of Assistant. The criteria which was adopted by the Department of Promotion

Committee for the recruitment to the post of Assistant from the feeder cadre of Junior Assistant cum Typist is that, an employee should be a

Graduate with three years experience in the cadre of Junior Assistant. There were 14 posts which were vacant for the post of Assistant as on

01.12.1989. 11 posts were filled up by promotion in the year 1989 and 3 posts which were inclusive of 2 posts for the category of Scheduled

Castes, have been kept vacant.

Admittedly, the Appellant was a Scheduled Caste candidate having a Degree qualification. He became qualified to be considered for the post of

Assistant on 21.06.1990. In the meanwhile, the Finance Committee of the first Respondent University resolved to constitute a Man Power

Committee for assessing the recruitment of Non-Teaching Staff in various cadres by a meeting held on 24.10.1989. In view of the said

development, no vacancy was filled up, inasmuch as the Executive Council of the first Respondent University resolved to scrutinise the

recommendation of the Man Power Committee''s assessment while filling up the vacancies in any given cadre. Only in the month of June 1991, the

Man Power Committee has submitted its report.

The instructions contained in the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and

Training, dated 18.02.1988, stipulated that until and unless there was a specific ground available, the age limit prescribed for the direct recruitments

shall not be insisted upon in the case of promotees. Regarding the educational qualifications, it was also decided not to insist upon the qualification

in the case of promotion to the post of Non-Technical nature. In order to implement the same, a Committee was constituted and it recommended

the appointment of Respondents 2 and 3 for promotion to the post of Assistant. Similarly, it was proposed by the Executive Council to amend the

recruitment rules that were framed in the year 1989 and the said amendment was approved by the Executive Council in its resolution dated

26.11.1991 resolving to remove the educational qualification fixed earlier to the post of Assistant. The first Respondent University based upon the

decision of the Honourable Apex Court dated 02.05.1990, wherein it was held that, the seniority should be reckoned from the date of the initial

appointment and not confirmation of a employee concerned in a particular cadre which followed the Government of India instruction, has decided

to give up the seniority fixed earlier based upon the date of confirmation.

Challenging the appointment made by way of promotion to Respondents 2 and 3 with effect from 11.05.1992, the Writ Petitioner has filed the

Writ Petition on 09.11.1995, after a period of 3 years and 5 months. The learned single Judge was pleased to dismiss the Writ Petition by holding

that inasmuch as the amendment by which the Respondents 2 and 3 have been promoted as Assistants is retrospective in nature, coupled with the

fact that admittedly they are seniors in the post of Junior Assistant to the Appellant, the grievance of the Appellant cannot be considered.

Challenging the order passed by the learned single Judge, the present Writ Appeal has been filed.

Mr. Balan Haridoss, learned Counsel for the Appellant submitted that, admittedly the Appellant was eligible to be considered for the post of

Assistant with effect from 21.06.1990. The decision to fill up the vacancies to the post of Assistant was made only in the year 1992. There is no

reason for not considering the Appellant, when he was made eligible to the post of Assistant. The inaction on the part of the first Respondent is

arbitrary. The right accrued to the Appellant to be considered for the promotional post cannot be taken away. The amended rules cannot be made

applicable to the case of the Appellant who has got an accrued right on the date of his eligibility to be considered for the post of Assistant. The

question of laches cannot be put against the Appellant when his specific right is involved.

In support of the said contention, the learned Counsel has made reliance upon the judgments of the Honourable Apex Court in Y.V. Rangaiah

and Others Vs. J. Sreenivasa Rao and Others, , P.Ganeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. 1989 SCC 123, P. Mahendran

and Ors. v. State of Karnataka and Ors. 1990 SCC 163, N.T.Devin Katti and Ors. V. Karnataka Public Service Commission and Ors. 1990

SCC 446 B.L.Gupta and Anr. v. M.C.D. 1998 SCC 532 the order passed by the Division Bench in W.A. No. 590 of 1998 etc., dated

02.04.2008, the order passed by the Division Bench in W.A. Nos. 773 of 2009 etc., dated 14.09.2010, the order passed in W.P. No. 3335 of

2001, dated 05.08.2010 and an order dated 03.12.2010 passed by the first Respondent implementing the order of the learned single Judge

passed in W.P. No. 3335 of 2001. Therefore, Mr. Balan Haridoss, learned Counsel for the Appellant submitted that, the appeal will have to be

allowed.

Per contra, Mrs. A.V. Bharathi, learned Counsel appearing for the first Respondent submitted that the Appellant does not have a vested right to

claim promotion as Assistant. Admittedly, the Respondents 2 and 3 are seniors to him. The Appellant''s case was not considered earlier, since he

was not eligible. After the Appellant became eligible, no post has not been filled up, since a decision has been taken by the first Respondent to

review the selection process by appointing an One Man Committee. The appeal is not maintainable, considering the fact that, the Writ Petition has

been filed after a period of 3 years. The amended rules are applicable for the post to be filled up at that relevant point of time. The Appellant has

not given any proper reasons for not coming to the Court to challenge the orders of promotions made in favour of Respondents 2 and 3 within the

stipulated time. Therefore, the learned Counsel submitted that, the appeal will have to be dismissed.

Mr. T.P. Prabhakaran, learned Counsel appearing for the third Respondent adopting the arguments of the learned Counsel appearing for the

first Respondent submitted that, the appeal will have to be dismissed.

Heard Mr. Balan Haridoss, learned Counsel appearing for the Appellant, Mrs.A.V. Bharathi, learned Counsel appearing for the first

Respondent as well as Mr. T.P. Prabhakaran, learned Counsel appearing for the third Respondent.

The facts involved in the present case on hand are not in dispute. Admittedly, the Appellant was junior to Respondents 2 and 3 in the feeder

category of Junior Assistant. The Appellant was appointed on 22.06.1987 whereas the Respondents 2 and 3 were appointed on 02.06.1986 and

15.05.1987 respectively. Out of the 14 posts available in the cadre of Assistant, 11 of them have been filled up in the year 1989, when the

Appellant was not qualified. Thereafter, a decision was taken by the first Respondent to constitute a Man Power Committee for assessing the

recruitments of Non-Teaching staff of various cadres. In pursuance to the said decision, no vacancy was filled up by the first Respondent.

Thereafter, in pursuance to the recommendations of the Man Power Committee, a resolution was passed on 26.11.1991 proposing to amend the

relevant rules. As per the said resolution, the earlier qualification fixed for the promotional post of Assistant was removed.

The said decision made by the first Respondent being a policy decision cannot be challenged in the Court of law. It is a settled principle of law

that, a policy decision made by a competent authority cannot be reviewed unless the same is totally arbitrary and unconstitutional. A decision made

by the first Respondent being a policy decision cannot be interfered with by this Court by exercising the power under Article 226 of the

Constitution of India.

Admittedly, the Appellant has not been qualified as in the year of 1989. The mere fact that the Appellant was eligible subsequently with effect

from 21.06.1990 will not entitle him to get the said promotional post. No doubt the Appellant has got a right to be considered for promotional

post. The said post can only be considered on the date, the rules and regulations were available at that relevant point of time of actual

consideration. As submitted by the learned Counsel for the first Respondent, Mrs. A.V. Bharathi, the Appellant was not considered due to the ban

imposed in pursuance to the decision made to constitute a Man Power Committee. When the Appellant could not be considered when he was

eligible, it cannot be contended that, the old rules available earlier should be made applicable to him and the amended rules shall not be made

applicable to him.

We have also perused the rules amended. A perusal of the said rules would make it clear that they are applicable to the case of the Appellant

as well. By the said rules, the restrictions imposed earlier have been removed. The question regarding the applicability of the rules will have to be

seen on a reading of the rules themselves. The qualification prescribed for direct recruitment was not made applicable to the promotees. Therefore,

the Appellant cannot insist that, the said qualification will have to be made applicable to him much to the exclusion of Respondents 2 and 3. Such a

conscious decision taken by the first Respondent cannot be ignored by this Court which has been made by appointing a Committee and after going

through the relevant materials placed before it. The judgments relied upon by the learned Counsel for the Appellant are not applicable to the

present case on hand. In the judgment relied upon by the learned Counsel for the Appellant rendered in Y.V. Rangaiah and Others Vs. J.

Sreenivasa Rao and Others, a panel was supposed to be prepared under the old rules. Therefore, the Honourbale Apex Court was pleased to

observe that, there was a failure on the part of the authorities to prepare the panel under the old rules which was mandatory. Admittedly, in the

present case on hand, there is no rule which stipulates the preparation of the panel. Therefore, the Appellant did not have any vested right to be

considered under the old rules.

Similarly, in P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. 1989 SCC 123 the Honourable Apex Court was dealing with

the vacancies that would be arising. The Honourable Apex Court considered the scope of the word ''arising''. As observed above, the reading of

the amendment made would make it clear that, it is applicable to all the employees concerned. The question of retrospective or prospective of a

rule will have to be seen from the rules themselves. It can be either express or implied. When the rules are very specific and clear, then it cannot be

said that until and unless they are made with retrospective effect such an effect cannot be given. The judgment relied upon by the learned Counsel

for the Appellant in P.Mahendran and Ors. v. State of Karnataka and Ors. 1990 SCC 163 in fact makes the position clear, wherein the

Honourable Apex Court was pleased to observe that when the rules are very clear showing the intention to affect existing rights then it cannot be

said that such rules cannot be made applicable to the vacancies available at the earlier point of time.

As discussed earlier, admittedly the Appellant case was not taken up for consideration. In all the judgments relied upon by the learned Counsel

for the Appellant, the Honourable Apex Court was dealing with the case in which the case of the employee was taken up for consideration when

the old rule was in force. While the said consideration was pending an amendment was made seeking to take away the said right. However, in the

present case on hand, the facts would reveal that, the Appellant was not at all considered earlier. Even in the judgment relied upon by the Division

Bench, it has been clearly stated that the vacancies will have to be filled up only by following the rules existing on the date of the vacancies are filled

up. The first Respondent has filled up the vacancies by applying the rules available at that date.

The learned Counsel has made reliance upon the judgment of the learned single Judge rendered in W.P. No. 3335 of 2001, dated

05.08.2010, we have also gone through the said judgment. We are of the view that, the said judgment has no application to the present case on

hand. In the said judgment, the Petitioner therein was admittedly promoted awaiting confirmation and permanency in the post sought to be

promoted. The said right was sought to be taken away by the amended rules. Therefore, considering the said factual position, the learned single

Judge was pleased to allow the Writ Petition which was also implemented by the first Respondent.

It is further to be seen that the Appellant cannot insist that he has got an accrued right to be considered for promotion on the date of his

eligibility. It is always open to the first Respondent to consider the employees for promotion depending upon the facts and circumstances of each

case. Moreover, the Appellant cannot have any grievance against the amended provision which did not take away the right of the Appellant, but

merely enables the Respondents 2 and 3 to be considered on par. Such an action on the part of the first Respondent is neither arbitrary nor illegal.

The prescription of qualification for promotion is a matter of policy. Until and unless the said policy decision is perverse or arbitrary, vitiated by

malafides and contrary to the constitutional as well as the statutory provision, it is not amenable to the judicial review as held by the Honourable

Apex Court in Union of India v. Pushpa Rani (2008) 9 SCC 242.

The second Respondent has been promoted by the first Respondent with effect from 11.05.1992. The promotional orders have been given

effect to and the Respondents 2 and 3 have joined the duty as Assistant. It is not the case of the Appellant that he was not aware of the

promotions made in favour of the Respondents 2 and 3. In a case of promotion the employee concerned after knowing the order of promotion

cannot sleep over his rights and thereafter challenge the same. In such a case, the discretionary and extraordinary relief under Article 226 shall not

be extended. As found by the learned single Judge the Appellant has not given any proper reason for not approaching this Court within a

reasonable time. Even though the learned Counsel for the Appellant submitted that the Appellant has approached the first Respondent, there is

nothing on record to show that any such representation has been made. The mere fact that, a representation is made by itself cannot be a ground to

get over the laches on the part of the Appellant.

In City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and Others, , the Honourable Apex Court has held as

follows:

It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue

appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing

relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is

an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims

and exhuming matters where the rights of third parties may have accrued in the interregnum.

Similarly in Basanti Prasad Vs. The Chairman, Bihar School Examination Board and Others, , the Honourable Apex Court has held as follows:

We do not think it necessary to burden this judgment with reference to various decisions of this Court, where it has been emphasized time and

again, that, where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would

decline to interfere. However, if the delay is properly explained, and if the third party rights is not going to be effected, the High Court may

entertain the petition and consider the case of the aggrieved person on merits.

In the present case on hand, the second Respondent has been promoted ahead of the Appellant as early as on 01.06.1992. Therefore, we are

of the view that the Writ Appeal is liable to be dismissed on the ground of delay and laches.

The learned Counsel for the Appellant has relied upon the judgment of the Honourable Apex Court rendered in K. Prasad and Others Vs.

Union of India (UOI) and Others, , the said judgment in our considered view does not apply to the present case on hand, since a factual finding

has been given therein about the non consideration of the representation by the authorities. In fact in the said judgment, the Honourable Apex

Court was pleased to hold that, the Appellant was guilty of laches but having regard to the decision arrived, the said issue has not been taken up

seriously. However, considering the facts involved in the present case on hand and considering the ratio laid down by the Honourable Apex Court

in the judgment referred supra, we do not find that any justification to condone the delay on the part of the Appellant in not approaching this Court

without giving any explanation for the same. Hence, we do not find any merits in the Writ Appeal and accordingly, the same is dismissed. No

costs.