IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 05.11.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.8063 of 2001 S.Saraswathi Ammal .. Petitioner Versus 1. Manonmaniam Sundaranar University, represented by its Registrar, Tirunelveli – 12. 2. Tmt. Mabel Rajasekaran 3.G. Thiagarajan 4.Rajachandrasekar 5.P.Ganapathy 6.Tmt.P.Thenmozhi 7.A.Sivanandam 8.S.Anthony Selvan 9.K.Rukmani 10.Tmt.I.Joy Mary 11.A.Rajendran 12.M.John Bosco 13.Tmt.V.Suganthi 14.Tmt.S.Vanaja 15.Tmt.S.Vasanthi 16.Tmt.Diana Peerez 17.P.Asokaraj 18.Alex Sahayaraj 19.Tmt.G.Muthuvadivoo 20.B.Renganathan 21.Tmt.M.Rani 22.Tmt.S.R.Vijaya 23.Tmt.C.Muthukumari 24.Tmt.M.Ramaretnam 25.S.Verghese 26.R.Vimalanathan 27.Tmt.Esakipappa 28.Tmt.S.Kumari .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, calling for the records relating to Resolution Item No.1, Chapter I, (2) Petition No.5, 10, 11 and 16 dt.17.2.2001 of the 1st respondent and quash the same and consequently direct the First respondent to promote the petitioner as Assistant based on the seniority, award costs. For Petitioner : Mr.V.Selvaraj For Respondents : Mr.V.Govardhan (for R1) for M/s. Row & Reddy Mr.V. Vijayashankar (for R2 to R28) O R D E R The challenge in this writ petition is with reference to a Resolution passed in the syndicate of Manonmaniam Sundaranar University in Item No.1, Chapter I, (2) Petition No.5, 10, 11 and 16 dt.17.2.2001 by which the syndicate has resolved to approve the refixation of seniority of 40 Junior Assistants on Merit-cum- Communal rotation as per the recommendation of the review committee. 2. The facts of the case are as follows: The petitioner was appointed as Tabulator on a daily wages basis in the University in the year 1992. In 1994, the University decided to fill up the regular posts of Junior Assistants and the petitioner was also permitted to appear for the selection. The University conducted typewriting test, written test and interview on 24.08.1994 and 25.08.1994. Based on the performance in the written test and interview, she was appointed as permanent Tabulator on a consolidated pay of Rs.1,000/- per month on 06.09.1994. 3. According to the writ petitioner, she was the first person to join as Tabulator. Thereafter, she was regularly appointed as Junior Assistant on 07.09.1995. By order dated 28.10.1997, her probation was declared as completed on 20.10.1997. By Resolution No.54, dated 14.11.1997, the university fixed her seniority in the post of Junior Assistant and that she was placed at Serial No.1, on the basis of length of service and date of joining. Subsequently, by a letter dated 23.04.1998, the 1st respondent regularised her services in the post of Junior Assistant from 07.09.1994. Thereafter, by Resolution No.47 dated 15.05.2000, the University resolved to promote the senior most Junior Assistants as Assistants. As the petitioner was placed at Serial No.1, in the list of Junior Assistants, she made a representation dated 15.11.2000 to promote her as Assistant based on the Resolution No.47 dated 15.05.2000, but she was not promoted. 4. While so, the University appointed a One Man Commission to look into the representations said to have been given by certain non-teaching staff. The report of the One Man Commission was also reviewed by a Review Committee based on the Syndicate's resolution dated 15.05.2000. On the basis of the said committee's recommendations, the Syndicate passed the impugned resolution. 5. Assailing the resolution of the University, Mr.V.Selvaraj, learned counsel appearing for the writ petitioner, submitted that on the basis of the performance of the writ petitioner, she was placed at Serial No.1 and that she was selected and appointed as Tabulator on 06.09.1994 and that she joined the said post immediately. Her probation was also declared on 20.10.1997 in the post of Junior Assistant and that the Syndicate in the meeting held on 14.11.1997 have considered the seniority of 35 individuals who were appointed as Junior Assistants from the grades as noted against each in accordance with the earlier resolution dated 16.09.1995. He further submitted that when the services of the writ petitioner along with others were regularised with effect from 16.05.1995 and that when the petitioner was placed as Serial No.1 in the list of Junior Assistants, re-fixation of seniority of Junior Assistants, after four years is illegal and therefore the resolution has to be set aside. 6. Inviting the attention of this Court to the Tabular Columns wherein marks were entered by the Selection committee, for the post of Tabulators, recorded in the year 1994 and the observations of the One Man Commission that an authoritative merit list was not available on the date of scrutiny by the Committee, learned counsel for the writ petitioner submitted that the gradation list now produced before this Court should not be accepted for the reason that they are prepared to suit the convenience of the University, as if they had prepared the merit list, as on date of selection itself. He further submitted that there are chances for creating the merit list and therefore no credence should be given. He submitted that the date of appointment should alone be taken into consideration for the purpose of fixing inter-se seniority. 7. Learned counsel for the writ petitioner submitted that the procedure adopted by the University in awarding the marks for the written test that the nearest of marks awarded by two examiners out of three, has not been done properly and therefore the resolution to approve the re-fixation of seniority of the Junior Assistants based on the Merit-cum-Communal rotation, as per the recommendations of the committee is illegal, arbitrary and liable to be set aside. Learned counsel for the writ petitioner further submitted that unless the original records are produced, this Court should not place any credence on the xerox copy of the gradation list. For the above said reasons, he prayed that the impugned resolution has to be set aside. 8. The Registrar of the Manonmaniam Sundaranal University has filed counter and additional counter affidavits. Based on the averments made in the affidavits, Mr.V.Govardhan, learned counsel appearing for the 1st respondent University, submitted that in 1994, the University had called for a list of eligible candidates from the Employment Exchange for appointment to the post of 40 Tabulators on consolidated pay with a view to put them on probation and to regularise them as Junior Assistants on successful completion in the existing vacancies. 40 Tabulators were selected based on the marks obtained by them in the written test, Typewriting test and the interview held on 24th and 25th August 1994. In the merit list drawn, the petitioner was placed as Serial No.25. All the selected candidates were issued with appointment orders by Memo dated 06.09.1994. Out of the 40 selected candidates, about 10 of them were already working in the University on daily wages. On receipt of the communication dated 06.09.1994, the Tabulators working in the University joined the posts immediately. Other candidates were residing outside the University and therefore orders of appointment were sent to them by Registered Post. 9. Answering the allegations of creation of a merit list to suit the convenience of the university, learned counsel for the 1st respondent submitted that the marks were awarded by the examiners based on the procedure adopted in 1994, by taking into account the proximity of the marks awarded by two examiners, out of three in the written test and the performance of the candidates in the skill test, namely, typewriting and interview, a tabular column was prepared and produced before this Court for the purpose of easy reference. He submitted that the marks secured by each of the selected candidates were entered centrewise and the respective mark lists were also signed by the Chief Examiners of the centres. The University has also produced the original records before this Court. 10. Perusal of the same, I find that at the end of each mark list, the Chief Examiners, of the respective centres have signed the list, which shows the marks secured by the candidates. Though, the petitioner has contended that the gradation list, has been created for the purpose of this case, perusal of the affidavit does not disclose that the petitioner, has made any allegation regarding the same. 11. Learned Counsel for the 1st respondent has further submitted that as long as there is no grudge or bias against the petitioner, there is no need for creation or manipulation of the gradation list and he therefore prayed that it is not open to the petitioner to raise any contention in this regard. Learned counsel for the 1st respondent further submitted that the petitioner is aware of the selection process and having participated, it is not open to him to question the method by which the marks were awarded for the written test. 12. Inviting the attention of this Court to the examination made by the One Man Commission, Mr.K.Lakshmikanthan Bharathi, I.A.S., (Retd.), into the objections raised in the matter of fixation of seniority and the findings recorded thereunder, and also the recommendations of the review committee, constituted by the University, learned counsel for the 1st respondent submitted that all these objections raised by the writ petitioner in the present writ petition, have been duly considered by the two committees, with reference to the statutory rules, the procedure followed in State / Central and other institutions in the matter of fixation of seniority and only thereafter, the seniority was revised. He therefore submitted that the impugned resolution is in consonance with the settled procedure, followed in Government also. 13. Learned counsel for the 1st respondent further submitted that on receipt of the committee's recommendations, a circular memorandum dated 17.04.2001 was circulated to all the 40 Junior Assistants with a request to submit their objections, if any, with regard to the refixation of the seniority, to the Registrar-in- charge on or before 25.04.2001. But the writ petitioner, has not made any objections to the report. He submitted that the petitioner was given adequate opportunity before the One Man Commission as well as in the review committee and all the 40 Junior Assistants were heard, before finalisation of the seniority list in the post of Junior Assistant. He therefore submitted that the contention of the Writ petitioner that the gradation list was not made available to the writ petitioner is not correct and for the above said reasons, prayed for dismissal of the writ petition. 14. Reiterating the averments made in the counter affidavit filed on behalf of the respondent 2-8, 17,20 and 24, Mr.Vijayashankar, learned counsel for the respondents 2 to 28, submitted that since some of the selected candidates including the petitioner were working in the University on daily wages basis, they were able to report for duty immediately on coming to know of their selection. Other selected candidates including respondents 2 to 28 were all living in different places. Therefore, it took some time for them to receive the appointment orders and thereafter they have reported for duty. According to private respondents, it is a well settled principle that where a number of candidates are selected in a common selection, the seniority has to be determined on the basis of the merit list, that is, on the basis of the ranking given by the selection committee. According to the learned counsel for private respondents, the petitioner was placed at Sl.No.25 in the merit ranking done in the year 1994 and therefore, the refixation done by the university after considering the recommendations of One Man Commission, Mr.K.Lakshmikanthan Bharathi, I.A.S. (Retd.) and the review committee, is in order. 15. As regards the delay in taking up the issue of re- fixation of seniority in the post of Junior Assistants, learned counsel for the contesting respondents submitted that though petitioner and others were selected to the post of Tabulators in the year 1994, the private respondents came to know about their respective positions in the seniority list only in the year 1997, when the seniority list was drawn up by the 1st respondent University and therefore, the cause of action had arisen only in the year 1997. Immediately thereafter, the private respondents submitted their objections as regards fixation of seniority, and therefore there is no inordinate delay on the part of the university or the contesting respondents in initiating the process for re-fixation of seniority. 16. Taking this Court through the averments made in the affidavit filed in support of the writ petitioner, learned counsel for the private respondents 2 to 28, submitted that in the absence of any averments made in the affidavit, the process of selection and the method of awarding marks in the written examination and the preparation of the gradation list cannot be questioned at this stage and in the absence of any allegation of malafides in preparation of the gradation list, it is not open to the writ petitioner to advance arguments in that direction. 17. Placing reliance on the decisions of the Hon'ble Supreme Court in P.Srinivas Vs. M.Radhakrishna Murthy and Others, reported in (2004) 2 SCC 459, Chairman, Puri Grramya Bank and Another Vs. Ananda Chandra Das and Others, reported in (1994) 6 SCC 301 and G.Deenadayalan Ambedkar Vs. Union of India and Others, reported in (1997) 2 SCC 638, he submitted that if more than one persons are selected, the seniority has to be only on the basis of the merit and applying the rule of reservation and roster and therefore the resolution passed by the University, ratifying the recommendations of the two committees, is legal and does not require any interference. He also pointed out that on the basis of the seniority list impugned in this writ petition, further promotion to the post of Assistants have been made and some of them were also promoted as Superintendents in the University. For the above said reasons, he submitted that there is no illegality in the impugned resolution. 18. Heard the learned counsel for the parties and perused the materials available on record. 19. As regards the first contention of the learned counsel for the writ petitioner that the gradation list / merit list is created to suit the convenience of the University, I have perused the original records produced by the University. Perusal of the records shows that, written test for the 40 posts of Tabulators in the University have been conducted at three different centres, namely, Tuticorin, Nagercoil and Tirunelveli respectively. The marks secured by the candidates who have appeared in the written examination have been entered and that the signatures of the Examiners and Chief Examiners in respect of each of the centres are also affixed. The marks secured by the selected candidates arranged in the order of merit following the rule of reservation has been placed before this Court, for reference. 20. Perusal of the One Man Commission's report shows that representations have been received regarding fixation of seniority in the post of Tabulators. Examining the said issue, the One Man Commission which has gone into the dispute of inter-se seniority has noted as follows: "The question for decision is whether the principle adopted for fixing the seniority on the basis of the date of joining (in case several candidates joined on the same date, the date of birth was taken) is a sound principle in fixing the seniority in this case. On perusal of the records it is seen that the orders of appointment dated 06.09.1994 were despatched to the candidates on 07.09.1994. The communication informing the candidates of the appointment was despatched on 07.09.1994. Several candidates were in different places and they could receive the communication only a few days after the despatch of the order. Some of the candidates who were working in the University itself joined immediately. Five such persons on receipt of the communication joined duty immediately on 07.09.1994. In my view it is not fair to fix the seniority on the basis fo the date of joining, because it does not give equal opportunities to all the persons. The persons who are outside Tirunelveli could join only on receipt of the communication, it is not a sound principle to determine the seniority with reference to the date of joining of appointment as the communication of orders could reach some later than other persons. The present method of fixing the seniority according to the date of joining gives undue advantages to the persons who were working in the university and could report for duty immediately on receipt of the order. It will be seen that the orders of appointment were issued on 06.09.1994 and 5 person who were working in the University joined on 07.09.1994 itself and another 4 persons who were working in the University joined duty on 08.09.1994. It is neither just nor fair nor proper to fix seniority on the basis of date of joining when the appointment orders were issue don 07.09.1994 and when persons in different places could join only at a later date on receipt of the communication but when some persons who were working in the University could join immediately. It is unfair to fix the date of joining as the basis of fixing the syndicate in these circumstances. The following factors are to be taken into consideration: i. The selection was made on the basis of a rigorous screening test a written test (3 valuations) and interview. ii. a merit list based on the above 3 tests was actually drawn up. The list of candidates selected was arranged according to the merit list. iii. The note to the syndicate in which the list was approved gives details of the examination held to select the candidates. iv. it is this list arranged according to merit, that was approved by the syndicate for the appointment in its resolution dated 31.08.1994. v. The list applying communal rotation to this merit is also available in the file. The Seniority list based on the merit list and applying the principle of reservation is to be prepared for the first set of persons. After fixing the seniority on the basis of merit and applying the principle of reservation for the first set of persons, the seniority of the second set of persons may be arranged below them applying the same principles of merit and communal reservations." 21. Though the report of the One Man Commission, indicates that an authoritative merit list was not available, it cannot be said that the University had awarded marks indiscriminately to the selected candidates to suit their convenience. No allegations of malafide or bias have been levelled against the members of the selection committee. Besides, the One Man Commission has also considered the fact that the selection committee for the post of Tabulators has selected 40 candidates, on the basis of the marks secured by them. The Committee at Paragraph No.14 has noted as follows: "that the names are arranged as per the merit list. The syndicate in its resolution dated 31.08.1994 approved the list of 40 persons to be appointed." 22. After the recommendation of Mr.K.Lakshmikanthan Bharathi, I.A.S.(Retd.), for refixation of seniority on the basis of the merit list and following the rule of reservation, the University has constituted a review committee for the purpose of regularisation and for correct fixation of the seniority. The demands made by the petitioner and others regarding the fixation of seniority are as follows: "1.Publication of merit list 2. Re-fixation of seniority either on the basis of merit or age." 23. While considering, the demands and objectives, the review committee, having regard to the notes recorded in the office records maintained by the University has observed that out of 40 candidates to whom appointment orders were sent, 36 candidates joined duty on different dates ranging from 07.09.1994 to 14.09.1994. Subsequently, 7 candidates joined duty on dates ranging from 09.11.1994 to 15.02.1995. Out of this total of 43 Tabulators, one belonging to the first batch of 36 and 2 belonging to the second batch of 7, had left the service on different dates, thus leaving a total of 40 Tabulators in service. The review committee have also considered the rules followed in Central / State Government, in the matter of preparation of the seniority list. The review committee has recorded as follows: "5.Relevant Government/University rules and / or conventions (i) Since all the 40 candidates have been appointed following the direct recruitment method (in which 3 rigorous tests were conducted) where a merit list has been prepared, seniority can be decided only based on merit, and not based on the date of appointment/joining duty, as evident from the following rules on the subject. Fundamental rules prevailing in the Central Government: Direct recruits Seniority of a person regularly appointed to a post would be in the order of merit indicated at the time of initial appointment and not according to the the date of his confirmation. In case of delayed reporting for duty – no depression of seniority, if the candidate joins within the stipulated period / extended period, which should not exceed nine months. State Government Rules: Seniority is fixed based on the rant assigned by the TNPSC or the appointing authority. The seniority is not fixed based on the date of joining duty – Rule 35(a) State and Subordinate Service rules. The candidate selected by TNPSC shall join duty within six months from the date of selection. If he fails to join duty due to extraordinary circumstances, specific orders of the Government or to be obtained. In that case, he will loose seniority – G.O.Ms.No.353 P & AR dated 20.06.1989. (ii) Following the above rules, it is invariably the practice with all selection agencies lie the TNPSC and UPSC to base the interse seniority on merit alone in all direct recruitment cases." 24. After examining the relevant rules in the matter of preparation of seniority list of direct recruits, the review committee, has observed as follows: "(i) This Review Committee fully endorses the recommendation of the One Man Commission regarding the refixation of seniority given in 6 (1) above. Accordingly the revised seniority list is furnished below. This committee is of the view that the statement "Authoritative Merit list is not available. This was ratified by the then Vice-Chancellor and Syndicate", made under the caption "Recommendations/Remarks" on the "Report of the One Man Commission" against Sl.No.IV for Petitions No.5, 10, 11 and 16 attached to the copy of One Man Commission Report furnished to the Review Committee, is both irrelevant and misleading." 25. Perusal of the One Man Commission recommendation report and that of the Review Committee, shows that both the authorities have given full opportunity, to the writ petitioner as well as to others, before re-fixing the seniority. 26. In P.Srinivas Vs. M.Radhakrishna Murthy and Others reported in (2004) 2 SCC 459, the Supreme Court considered a dispute over the seniority of persons who were selected on the same day, but joined on different dates. In this case, admittedly, the Government extended time to the appellant to join duty in the post. Respondent No.1 questioned the seniority in which the appellant was placed above him. The stand of the respondent therein was that since the appellant had joined the duty after the prescribed period of 60 days indicated in the appointment order, he had to be ranked junior to the respondent No.1, who had joined earlier. The Tribunal did not accept his plea. The decision, was challenged in Writ proceedings and the High Court granted the relief in favour of respondent No.1. Testing the correctness of the decision, the Supreme Court at Para 11, held as follows: "It is undisputed that both the appellant and Respondent 1 were selected in the same selection and the appellant was more meritorious in terms of marks secured by him in the selection process and ranked above the 1st respondent and the inter se ranking and consequent inter se seniority cannot be disturbed and rights flowing from such ranking cannot be denied merely because there was some delay in joining, all the more so when such delay was only of eight days and also on account of getting relieved from the Central Government, for reasons beyond his control, which only seems to have weighed with the State Government to accord extension of time