IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.08.2010 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.3335 of 2001 Joyce Elizabeth Arokiamary 60, Arul Padayachi Street, Nellithope, Pondicherry – 5. .. Petitioner Vs 1.The Pondicherry University, Represented by its Registrar, Venkataraman Nagar, Kalapet, Pondicherry. 2.The Deputy Registrar (Administration), Pondicherry University, Kalapet, Pondicherry. .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records on the file of the second respondent relating to the impugned order dated 13.02.2001 bearing Ref.No.Pu/Estd/NT4/2000-01/683 and quash the same and consequently direct the respondents to regularise the service of the petitioner in the post of Office Manager with effect from 31.07.1997. For Petitioner : Mr.D.Bharatha Chakravarthy For Respondents : Mrs.A.V.Bharathi O R D E R Pondicherry University is a Central University established as per an Act of Parliament called as “the Pondicherry University Act, 1985”. The petitioner was appointed as Typist cum Clerk in the said University on 01.09.1987. She was promoted to the post of Junior Grade Stenographer with effect from 01.08.1990. Her service in the post of Junior Grade Stenographer was regularised with effect from 01.08.1990 by order dated 22.10.1991. According to the petitioner, https://hcservices.ecourts.gov.in/hcservices/ for Junior Grade Stenographer, the next avenue for promotion is to the post of Office Manager. During the year 1997, two Office Managers working in the Pondicherry University were sent on deputation for different departments and thus, there arose two vacancies. As against one such vacancy, with effect from 31.07.1997, the petitioner was duly considered and promoted on ad hoc basis. She continued to work only on ad hoc basis in the said post of Office Manager. 2. While so, with effect from 06.11.2000 Revised Recruitment Rules was brought into force by the University. As per the said Rule, the feeder category for the post of Office Manager was Assistant. The next avenue for promotion for Stenographer is to the post of Personal Assistant and then to Private Secretary. Thus, according to the Revised Recruitment Rules, a Stenographer cannot get promotion to the post of Office Manager/Senior Assistant. After coming into force of the said Rule, Departmental Promotion Committee was constituted. Based on the order of the Committee, the Deputy Registrar of the University issued a show cause notice to the petitioner as to why she should not be reverted back to the post of Stenographer since she was not eligible for promotion to the post of Office Manager and since she was all along working only on ad hoc basis. The petitioner submitted an explanation stating that she is entitled for regularisation in the post of Office Manager. Rejecting the same, an order of reversion was passed on 13.02.2001 thereby reverting the petitioner to the post of Stenographer. Before the said reversion order was passed, the petitioner filed the present writ petition seeking mandamus to direct the respondents to regularise the services of the petitioner in the post of Office Manager with effect from 31.07.1997. After the above order of reversion which was passed on 13.2.2001, on a petition filed by the petitioner in W.P.M.P.No.1336 of 2008, the prayer was amended. According to the present prayer, the petitioner has sought for quashing the said order of reversion dated 13.02.2001 and for consequential direction to the respondents to regularise her service in the post of Office Manager with effect from 31.07.1997. 3. In the counter filed by the respondents, it is stated that after coming into force of the Revised Recruitment Rules with effect from 06.09.2000, the petitioner is not eligible for being considered for promotion to the post of Office Manager as the post of Stenographer is not in the feeder category. According to the counter, the said post of Office Manager could be filled up by promoting only an Assistant which is the feeder category. It is further contended that the petitioner was all along working in the ad hoc basis in the post of Office Manager and therefore, she is not entitled for regularisation in the said post. 4. I have considered the rival submissions. https://hcservices.ecourts.gov.in/hcservices/ 5. There is no dispute in this case that prior to 06.09.2000, as per the Original Recruitment Rules, the post of Stenographer was one of the posts in the feeder category for promotion to the post of Office Manager/Senior Assistant. The said post of Office Manager was not a selection post but only a promotional post. As per the Original Recruitment Rules, as and when there occurred any vacancy in the post of Office Manager, as per the seniority list, a person would be promoted to the post of Office Manager from the post of Stenographer. 6. But it is the contention of the learned counsel for the respondents that though the petitioner was eligible for being promoted to the post of Office Manager on permanent basis prior to 06.09.2000, she was promoted only on ad hoc basis because the vacancy against which she was promoted, was only a temporary vacancy. It is further contended that regular promotion on permanent basis to the post of Office Manager could be made if only the said vacancy is a permanent vacancy. 7. But the learned counsel for the petitioner would submit that the vacancy against which the petitioner was promoted on ad hoc basis was only a permanent vacancy. The learned counsel would further submit that though Revised Recruitment Rules had come into force with effect from 06.09.2000, the permanent vacancy which arose prior to 06.09.2000 should be filled up only as per the Original Recruitment Rules and not as per the Revised Recruitment Rules. To substantiate the said contention, the learned counsel for the petitioner would rely on few judgments of the Hon’ble Supreme Court about which I would make reference at the appropriate place of this judgment. 8. From the rival contentions, two questions emerge for consideration. The first question is as to whether the vacancy against which the petitioner was promoted on ad hoc basis was a temporary vacancy or a permanent vacancy. Admittedly, the vacancy was caused due to the deputation of an Office Manager to some other department in the year 1997. The learned counsel has relied on the order of the Central Government in the Seniority and Promotion Book which reads as follows:- “2.Regular Promotions Assessment of vacancies.- Actual number of existing vacancies to be filled by promotion will be ascertained from Establishment Register, Incumbency Register, and Vacancy Register/Roster Register prescribed in D.P & Trg., O.M.No.35014/2/80, Estt.(D) dated 07.02.1986. Expected vacancies due to retirement, new posts, etc., will be added. Vacancies arising out of deputation for periods of more than a year will also be added, with reduction for deputationists https://hcservices.ecourts.gov.in/hcservices/ expected to return. Vacancies may be calculated on financial year wise where ACRs are written financial year wise and Calendar year wise where ACRs are written on Calendar year wise.” 9. There is no controversy before this Court that the person who went on deputation from the post of Office Manager never returned exercising his right of lien. The vacancy remained for more than one year and as a matter of fact, till today, he has not returned. Therefore, as per the direction of the Central Government, the said post should be treated as permanent vacancy on the date of expiry of one year from the date of departure of erstwhile Office Manager on deputation. Surely, the said period expired in the year 1998. Therefore, this vacancy should have been treated as the permanent vacancy at least in the year 1998 as per the above direction of the Central Government. 10. The next question is as to whether the said permanent vacancy which became permanent in the year 1998 could be filled up by following the Revised Recruitment Rules which came into effect on 06.09.2000, or the same should be filled up on the basis of the Original Recruitment Rules 06.09.2000. In this regard, the learned counsel would rely on a judgment of the Hon’ble Supreme Court in Arjun Singh Rathore v. B.N.Chaturvedi (2007 (11) SCC 605) wherein in paragraph No.6, it has been held as follows:- “6.....We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.” 11. In State of Punjab v. Arun Kumar Aggarwal (2007 (10) SCC 402) in paragraph No.30, the Hon’ble Supreme Court has held as follows:- “30.There is no quarrel over the proposition of law that normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case.” https://hcservices.ecourts.gov.in/hcservices/ 12. Similar view has been taken again by the Hon’ble Supreme Court in Manoharan, A v. Union of India (2008 (2) CTC 672) wherein in paragraph No.25, it has been held as follows:- “25.Furthermore, Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulation must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R.Dayal and others , 1997 (10) SCC 419, para 8)” 13. A perusal of the above judgments would go to show that the law has been well settled by the Hon’ble Supreme Court in this regard. Though it may be true that a permanent vacancy is kept vacant even after coming into force of the Revised Recruitment Rules, still the said vacancy should be filled up only by the rule which was in vogue when the permanent vacancy occurred. In this case, as I have already stated, the vacancy in the post of Office Manager temporarily occurred in the year 1997 and the same became permanent in the year 1998. Therefore, the said vacancy should be filled up only by following the erstwhile rules in vogue prior to 06.09.2000. 14. Now, coming to the claim of the petitioner as against the said vacancy there is no controversy that as per the said rule, which was in vogue prior to 06.09.2000 the post of Stenographer was a feeder category. Further the petitioner was the next in the seniority list in the post of Stenographer for the promotion to the post of Office Manager. 15. As I have already stated, the post of Office Manager as it stood thus was not a selection post but only a promotional post. Therefore, as per the seniority and as per the Original Recruitment Rules, the petitioner should have been promoted as against the said permanent vacancy which occurred in the year 1998. But the petitioner now seek a direction for regularisation from 31.07.1997. In my considered opinion, she is not entitled for such relief since the vacancy was made permanent only in the year 1998. Therefore, she should have been considered for promotion only after the said post had become permanent. The learned counsel for the petitioner across the bar would submit that the petitioner would confine her relief for regularisation with effect from 05.09.2000 i..e, one day prior to coming into force of the revised rule. The said statement is recorded. 16. From the above facts and legal position, there can be no doubt that the petitioner is entitled for such promotion atleast on the date of the report of the departmental committee dated 06.11.2000. Therefore, I am of the view that the petitioner should be https://hcservices.ecourts.gov.in/hcservices/ regularised in the post of Office Manager/senior assistant with effect from 06.11.2000. Thus the order of the reversion needs to be interfered with. 17. But the learned counsel for the respondents would submit that the person who went on deputation by causing a vacancy in the post of Office Manager was a direct recruit. As per the regulations, in the ratio of 75:25, the vacancies to the post of Office Manager should be filled up between the promottees and the direct recruitees. In this case, according to the learned counsel, the said vacancy was, since caused due to the deputation of the direct recruitment, the same should be again filled up only by direct recruitment and therefore, the petitioner cannot be promoted and regularised in the said post on promotion. This contention cannot be accepted at all. 18. Indisputably, roster system is followed by the University. When a vacancy is caused in a particular post, as per the roster , the vacancy is to be identified whether it is for promotion or for direct recruitment and accordingly, the same is to be filled up. It is immaterial as to whether the vacancy was caused by the direct recruit or by a rank promotee. In this case, there is nothing brought on record to say that the vacancy as against which the petitioner seeks regularisation as per the roster was meant for direct recruitment. Therefore, this contention is also rejected. 19. In the result, the writ petition is allowed in the following terms:- (i)The order of reversion dated 13.02.2001 is quashed. (ii)The respondents are directed to issue consequential order promoting the petitioner on permanent basis, with effect from 06.11.2000 and regularise her in the post from the said date and extend all the consequential service benefits. No costs Sd/- Asst. Registrar /True copy/ Sub. Asst. Registrar jbm https://hcservices.ecourts.gov.in/hcservices/ To 1.The Registrar, Pondicherry University, Venkataraman Nagar, Kalapet, Pondicherry. 2.The Deputy Registrar (Administration), Pondicherry University, Kalapet, Pondicherry. + 1 cc to D. Bharath Chakravarthy, Advocate SR.57207 + 1 cc to Mrs. A.V. Bharathi, Advocate SR.57235 W.P.No.3335 of 2001 BK(CO) EU 24.08.2010. https://hcservices.ecourts.gov.in/hcservices/