Lakshmi and Others vs Manonmaniam Sundaranar University

T. Raja, J.—The petitioners herein, who were engaged as the Non-Teaching Staff like Steno-Typist, Plumber, Electrician, Data Entry Operator, Skilled and Unskilled NMR Employees by the respondent-Manonmaniam Sundaranar University (in short ''University'') on temporary daily wages basis, seek to quash Memo No. MSU/R/Estt./Admn/2014, dated 12.11.2014, issued by the University, in and by which, the service of the petitioners with the University was disengaged; and they further seek this Court to direct the University to regularize their services from the date of their appointment.

Since all these writ petitions are interconnected and require joint disposal, they have been heard together and decided by this Common Order.

Learned counsel for the petitioner would submit that, in the year 2010, pursuant to the request made by the respondent-University, the Employment Exchange sponsored the names of the petitioners for engaging them as Non-Teaching Staff to serve in the University against the posts of Steno-Typist, Plumber, Electrician, Data Entry Operator, Skilled NMR and Unskilled NMR. According to her, even though it was specified by the Employment Exchange that the appointment was on daily-wage temporary basis, even at the time of sponsorship by the Employment Exchange, there were permanent vacancies in the University, however, the University, for the reasons best known to them, chose to appoint the petitioners only on daily-wage basis. By pointing out that the selection of the petitioners herein, subsequent to sponsoring of their names by the Employment Exchange, was based on their performance before the Selection Committee; that the appointment of the petitioners were made strictly following the 200 point communal roster in terms of G.O. Ms. Nos. 101 and 61 dated 30.05.2008 and 22.05.2009 respectively; and that the Syndicate/competent appointing authority itself, in its Meeting held on 03.01.2011, had approved the selection and appointment of the petitioners to different posts, learned counsel would submit that, even though it is the practice of the University to bring the temporary/daily-wage employees into the fold of ''consolidated-wages pattern'' on completion of 3 years in terms of the Syndicate Resolutions and, in fact, such transformation was done in respect of the previous set of employees who were given such benefit within a short span of 1 1/2 years, unfortunately, even after completion of about 3 1/2 years of service, the petitioners alone were left to continue only as daily-wage employees despite their repeated representations including the one dated 14.05.2014, seeking regularization of their services. Almost all the petitioners, having crossed the age-limit for appointment to any other job to be sponsored by the Employment Exchange and therefore, not having any other source of livelihood except that of the present employment, if the impugned Memo is given effect to, the petitioners and their families would have no scope of survival at all, she further pointed out. In an endeavour to demonstrate that the case of the petitioners is squarely covered by the Judgment, dated 29.04.2014, rendered in W.A. MD. Nos. 351, 911 and 908 of 2012, learned counsel would specifically submit that the said appeals arose from W.P. MD Nos. 540 and 14015 of 2011 filed by similarly placed employees of the University and, on those writ petitions having been allowed, the matter was taken in appeal by the University and while allowing those appeals in part, a Division Bench of this Court had confirmed the order passed in the Writ Petitions in granting the benefit of absorption however with a modification that such absorption should be given effect to, from the date of the order passed in the writ petitions and not from the date of appointment as directed. Learned counsel, with all assertion, would further submit before this Court that the respondent-University is misapplying the provisions of the Statutes applicable to recruitment of non-teaching staff and, in this regard, would elaborate that, under the Statutes of the University, the Vice Chancellor has authority to engage temporary employees in emergency situations when regular recruitment would get delayed; or in other words, employing someone temporarily due to emergency is only an exception to the general rule that any recruitment should be by way of direct recruitment only. While so, by taking such rule of exception for granted, the respondent-University started engaging temporary employees of their own choice and granting regularisation to them while keeping the petitioners, who are already working, stagnant as temporary workers and endeavouring to somehow send them out. According to her, during the past 10 years, when there has been no recruitment relating to any Non-Teaching post as per the procedure under the Statutes, now, the University is engaging persons through back-door using the emergency provision and, after a period of time, absorbing those employees engaged through back-door into regular vacancies by passing resolutions in the Syndicate. To substantiate the veracity in such claim, she produced the resolutions passed by the Syndicate in respect of about 30 back-door entrants. In that scenario, when it is crystal-clear that the impugned memo has been issued only to oust the petitioners in order to facilitate the University to bring in back-door entrants, if proper direction is not issued by quashing the impugned memo, the survival of the petitioners, whose only source of livelihood is the present employment, would be truly jeopardised. So stating, she prayed for grant of the prayer sought for.

Per contra, learned counsel appearing for the respondent-University, by denying the claim of the petitioners that their appointment was made against regular vacancies on the basis of the sponsorship of the Employment exchange, would submit that the petitioners, even at the time of their appointment, were well aware of the fact that their employment was a purely contractual & temporary one on daily wage basis. Further, the resolution of the Syndicate dated 03.01.2011 by which the petitioners were appointed also runs in specific terms that the petitioners were engaged on temporary daily wage basis. According to him, in the case of engaging the services of any person by contract, like the petitioners herein, the University need not apply its Statutes in strict sense. Among various decisions cited, by referring to a judgment of the Hon''ble Apex Court in State of Orissa and Another Vs. Mamata Mohanty, , the ratio has been pointed out that any appointment made purely from the names sponsored by Employment Exchange without inviting applications from all eligible candidates is illegal and violative of Articles-14 and 16 of the Constitution of India. When admittedly the appointments of the petitioners was made without advertising the vacancies and calling for applications from eligible candidates in the open market, now, the petitioners cannot further build up their case for absorption when their appointment itself has no legal sanctity with reference to Articles 14 and 16 of the Constitution of India. He would argue further that the posts against which the petitioners were appointed have not been contemplated under Appendix II of the Statutes, therefore, the appointments made against posts not falling under Appendix-II are illegal and as a consequence, it follows that the petitioners cannot claim regularization. By relying upon a Constitution Bench decision of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and highlighting the ratio laid down therein to the effect that temporary employees have no right to post and to claim regularization, learned counsel would submit that even if a temporary appointee was allowed to continue for a long spell of time, if his or her appointment was not made as per the mandate of Articles-14 and 16 , such appointee has no right to claim regularization or absorption. As regards the simile with reference to the Judgment, dated 29.04.2014, rendered in W.A. (MD) Nos. 351 of 2012, etc. arising from the orders, dated 23.11.2011. made in W.P. (MD) Nos. 540 of 2011, learned counsel would reply that the present petitioners cannot claim parity with the petitioners in W.P. No. 540 of 2011 for the reason that they were recommended by the Employment Exchange for the post of Junior Assistant and were fully qualified for being appointed to the said post, whereas, the petitioners were neither appointed as Junior Assistants nor any vacancy is available as on date against such post. Further, the allegation that favouritism is shown to the back-door entrants is denied by the learned counsel by stating that the said allegation is nothing but a misinterpretation made to the resolution of the Syndicate in resolving that the absorbed individual concerned, who had the graduation certificate awarded by the Indian Army, should obtain the formal degree from the regular University within three years. At any rate, according to him, the petitioners, who were never in continuous employment, are not eligible for the relief they seek for and hence, the writ petitions which are completely misdirected may have to be dismissed in threshold.

I have carefully considered the rival submissions advanced on either side and meticulously perused the materials available on record.

The only issue needs to be answered in these batch of Writ Petitions is as to whether the writ petitioners, who are the Non-Teaching Staff appointed through Employment Exchange after assessment of their performance and who were allowed to continue in service right from their appointment in 2011 on proper approval by the Syndicate, can be disengaged from the service on the ground that their services are no more required when similarly placed persons of previous batch, who rendered services for a lesser period than the petitioners, were brought within the realm of ''consolidated pay pattern'' within one and half years of their appointment and later absorbed subsequent to the orders/Judgment of this Court and as to whether, under the cloak of the rule of exception and emergency, back-door entrants engaged without even reference to the employment exchange can be whimsically absorbed by the University at the cost of the survival of the petitioners, who are already in service of the University on temporary basis even before the engagement and absorption of those back-door entrants?

Even though elaborate submissions have been made by the learned counsel for the respondent-University and very many decisions relied on to justify their stand in disengaging the services of the petitioners, unfortunately, no plausible explanation could be put forth by the University before this Court as regards the strong allegation made by the petitioners that even when there were regular vacancies available during the sponsorship and appointment of the petitioners, the University did not take any pain to follow the regular selection mode as provided in the Statues. The records show that in the past 10 years, only on two occasions, the University had called for candidates from the Employment Exchange relating to the Non-Teaching Staff, that is, during 2005 relating to the previous batch of the petitioners and thereafter, in the year 2010 pertaining to the petitioners'' batch. The said batch of 2005, who were appointed in 2007 on temporary basis, as mentioned before, had filed W.P. MD. Nos. 540 and 14015 of 2011, seeking absorption on regular basis and the said writ petitions were allowed and the Writ Appeals filed against the said Orders by the University in W.A. MD. Nos. 351 of 2012, etc. came to be allowed partly vide Judgment, dated 29.04.2014, and the relevant portion from the said Judgment is extracted below:--

"16. It is true (i) that the respondents were appointed by invoking the emergency provisions (ii) that they were appointed temporarily on daily wages basis (iii) that they were placed originally on consolidated pay, without any assurance about regularization and (iv) that all of them accepted such appointments.

But at the same time, 60 posts of Junior Assistants were sanctioned by the Finance Committee of the University, which was accepted by the Syndicate, which is the appointing committee for non teaching staff. Out of those 60 sanctioned posts, 40 posts were to be filled up during 2007-2008 and the balance after studying the impact of pay commission. Out of these 40 posts to be filled up during 2007-2008, 25 posts were to be filled up from and out of the Tabulators (NMRs) and balance 15 posts to be filed up by direct recruitment.

If the posts sanctioned by the Finance Committee are to be filled up by the University on a regular basis, the University would have to go in for a fresh direct recruitment. As per the statutes of the University such regular process of selection will be through a written examination followed by viva voce. The respondents in these cases, were actually sponsored through employment exchange. They were made to appear for written examination. Those who were short listed in the written examination were interviewed and the respondents were selected. Therefore, despite the fact that they were appointed temporarily on daily wage basis, the respondents herein have fulfilled the qualifications prescribed for the posts and they were selected by the very same method of recruitment prescribed for regular selection."

When the petitioners endeavoured to fortify their claim based on the above judgment rendered in favour of similarly placed employees of the previous batch, it is the objection of the learned counsel for the University that there was no impediment in that case for absorption since the posts were approved by the finance committee of the University and the sub-committee of the Syndicate had also approved for creation of the posts and regularization of those employees concerned, whereas, in the case of the petitioners herein, no approved post is available as on date and further, their appointment itself was illegal since there was no specified post as held by the petitioners available under Appendix-II of the Statutes.

This Court is not able to find any logic behind the said submissions of the learned counsel for the respondents, for the reason that the appointment of the petitioners against the respective categories, even according to the University, was made only after the sponsorship made by the Employment Exchange on receiving the request of the University and, for more than three years, work was being extracted from them in the respective capacities, of course, with artificial break. That is why, when the University cleverly interpreted that the posts held by the petitioners did not fall under Appendix-II, the petitioners made a sincere request to treat them as ''Junior Assistant'' for the purpose of regularization. Further, once the University had utilised the services of the petitioners in their respective cadres for more than three years and also admittedly, they are going ahead with appointments relating to similar posts as held by the petitioners by invoking the exception rule and emergency clause, the present attempt to brand the appointment of the petitioners as illegal and contrary to Articles-14 and 16 of the Constitution of India with reference to the factual scenario is nothing but farce.

It is also the claim of the University, as could be seen from para No. 5 of the counter affidavit filed in W.P. MD. No. 19043 of 2014 herein, that the Judgment of this Court passed in favour of the previous batch cannot be applied to the petitioners for the reason that the employees of the previous batch were in continuous employment and had served for a very long period on consolidated pay in the University, whereas, the petitioners who were appointed on daily wage temporary contract basis cannot claim parity with other persons, absorbed in pursuance of the order made in W.A. (MD) No. 351 of 2012. In other words, in the counter affidavit, it is projected as if the petitioners were appointed on daily wage temporary basis whereas the previous batch stood on a different footing. Such claim by the University is apparently falsified from a reading of the judgment rendered in W.A. No. 351 of 2012, wherein, the submissions of the learned counsel for the University relating to the said previous batch of employees have been recorded in paragraph No. 11 to the effect that the respondents therein/previous batch employees were not entitled to regularisation as they were appointed only on daily wages by invoking emergency provisions; that their appointment was on temporary basis; that when they were brought on consolidated pay, they were put on notice stating that the appointment is purely a temporary appointment and that they cannot claim any right and that they can be terminated at any time without any prior notice; and that the respondents/previous batch employees have not been recruited and appointed by the Syndicate, which is the competent authority under the Statute. Further submission of the learned counsel for the University was recorded therein to the effect that the Syndicate/Appointing Authority had rejected the recommendation of the Syndicate sub-committee for absorption of the respondents/previous batch employees. Now, on comparing the said stand of the University in the said matter and the present case, one can hardly see any difference between the case, claim and status of the two group of people viz., the batch who came prior to that of the petitioners'' and ultimately got the benefit through the orders of this Court and that of the petitioners themselves. One striking feature this Court could see is that the University is not resolute about its own case and it is interested only in somehow sending out the petitioners from employment. The prevaricating stand of the University relating to two same set of people standing on similar footing only portrays a negative picture about the arbitrary exercise of powers by the authorities at the top. Therefore, the allegation made by the petitioners about the back-door appointments and subsequent absorptions cannot be just brushed aside. On the face of the self-speaking records in the form of Resolutions relating to 30 instances of back-door appointments, this Court is not able to see any justification for disengaging the services of the petitioners and in the hard efforts of the University to go in search of new candidates in the place of the petitioners again by invoking the exception rule. The faint explanation offered for the back-door appointments by citing validity of graduation certificate in respect of certain individuals is not convincing at all. The petitioners having entered into service just like their previous batch seniors through Employment Exchange, even after three and half years of service, were not even allowed the benefit of consolidated pay which was given to their previous batch within one and half years of their entry into service.

Another glaring factor is even though it is the case of the University itself in the Writ Appeal proceedings that the previous batch was not recruited and appointed by the competent Authority/Syndicate, it is the admitted fact that the present petitioners were recruited and appointed by the proceedings/Minutes of Syndicate dated 03.01.2011. It must also be underlined here that Clause-5 in Statute No. 4 of the University''s Statutes with the caption ''Recruitment'' clearly specifies the mode relating to temporary appointment by Vice-Chancellor by providing thus:

"Temporary Appointment by Vice-Chancellor:--

Where it has become necessary owing to an emergency to fill immediately a vacancy in any non-teaching post, directly or by promotion and there would be undue delay in making such appointment in accordance with the Statutes, the Vice-Chancellor may promote or appoint a person temporarily for a period not exceeding 3 months at a time but not exceeding one year in total or such appointee is regularised or replaced by a regularly selected candidate whichever is earlier, pending such promotion or appointment in accordance with the Statutes, subject to the fact that such temporary appointees shall have all qualifications prescribed for that post."

The above provision empowers the Vice Chancellor to engage an employee on temporary basis for a period of 3 months at a time and such appointment can be extended only upto one year. In parallel, Clause-6 of Statute-4 clearly says that all the non-teaching appointments should be made only by notifying the vacancies to the Employment Exchange. While so, once the petitioners were engaged through employment exchange and before their appointment, they underwent the selection process and the communal roster point was also adhered to, their engagement and continuation in service on temporary basis with artificial breaks, even while regular vacancies were very much available as could be seen from the details obtained under the RTI Act, would only exhibit the mala fide attitude of the University towards the petitioners and therefore, the arguments advanced by the learned counsel for the University are unfounded. The petitioners have filed materials to show that there are 28 skilled NMRs and 47 Unskilled NMRS employed through the orders of the Vice-Chancellor and those employees are continuing in service as on date. It is also brought to the notice of this Court that such employees appointed by the orders of the Vice Chancellor, without being sponsored by Employment Exchange, have been regularized and absorbed in regular vacancies and presently, they are working as Junior Assistants without even possessing typewriting qualification. But, despite the positive and outweighing factors in favour of the petitioners as pointed out above, the University, which is an instrumentality of the State, is anxious only to somehow cripple the employment prospects of the petitioner which attitude is absolutely unwarranted. Inasmuch as abuse of process and arbitrary exercise of powers being rampant in the instant case and further, the citations relied on by the learned counsel for the University are distinguishable on facts and also, the petitioners absolutely deserve the benefit of absorption as extended to the previous batch of employees/respondents in W.A. MD Nos. 351 of 2012, this Court is inclined to grant the relief sought for, however, such benefit cannot be granted from the date of appointment but it shall take effect only from the date of this order.

Thus, When the Vice Chancellor of the University, after appointing a number of persons on temporary basis without reference to employment exchange, regularised their Services, the petitioners, who had already been sponsored through Employment Exchange and who underwent the selection process as prescribed in the Statutes and subsequently appointed based on their performance and as per roster points, thereby, already they fulfilled the qualification criteria, deserve the benefit of regularisation. Accordingly, the University is hereby directed to absorb them against the respective cadres like Steno (if not holding Tamil stenography, with condition to complete the same within a period of time to be stipulated)/Junior Assistant/Plumber/Electrician/Office Assistant, as readily done in the case of many back-door entrants which aspect is evident from the Resolutions of the Syndicate, annexed to the common re-joinder affidavit, by passing appropriate proceedings within one week from the date of receipt of a copy of this order.

Writ Petitions are disposed of in the above terms. No costs. Connected Miscellaneous Petitions stand closed.