IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 / 10 / 2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.13540 OF 2009 & M.P.NOS.1 TO 3 OF 2009 Dr.Parimal Roy ... Petitioner Versus 1. The Registrar, Tamil Nadu Veterinary and Animal Husbandry Sciences University, Chennai – 600 007. 2. The Secretary to the Government, Department of Animal Husbandry and Fisheries, State of Tamil Nadu, Fort St. George, Chennai – 600 009. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of certiorarified mandamus, calling for records of the first respondent in U.S.O.No.20116/A1/2004, F.No.24436/A1/2004 dated 25.06.2004 and to quash the same following the order passed by this Court in W.P.No.1620 of 2006 and as confirmed in W.A.No.775 of 2008 and consequently direct the respondents to confer Career Advancement as Professor with effect from the date of eligibility as per the proceeding of the first respondent in U.S.O.No.20014/A1/2002 No.5803/A1/2002 dated 11.04.2002 with all consequential benefits including seniority, arrears of pay and other benefits and pass such other further as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice. For Petitioner : Mr.R.Syed Mustafa For Respondent-1: Mr.S.Vijayakumar For Respondent-2: Mrs.Lita Srinivasan Government Advocate - - - https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner joined the first respondent-University as Assistant Professor on 16.02.1989. He was promoted as Associate Professor on 07.08.1997, after proper selection. 2. In the year 1999, the petitioner sought permission from the first respondent-University to undergo Post Doctoral Specialized Training in the University of Alabama at Birmingham, USA. The first respondent granted permission vide the order dated 11.03.1999 for a period of two years to undergo the Post Doctoral Specialized Training at USA. 3. The petitioner successfully completed the Post Doctoral Specialized Training Programme within the stipulated period and rejoined the first respondent-University on 11.04.2001. Thereafter, he made a representation on 19.03.2002 to the first respondent-University to treat the period of Extra-Ordinary Leave (EOL) availed for Post Doctoral Specialized Training as qualifying service to count for pension as well as Career Advancement scheme. The first respondent passed an order dated 11.04.2002 counting the period of Extra-Ordinary Leave from 06.05.1999 to 10.04.2001, for Post Doctoral Fellowship-Specialized Training in the University of Alabama in USA, as qualifying service for the purpose of pension and also for elevation to next cadre in the Career Advancement Scheme. 4. Whiles so, the first respondent-University passed the impugned order dated 25.06.2004 cancelling the earlier orders issued to individual teachers permitting them to include the Extra- Ordinary Leave without pay and allowances availed by them for prosecuting Higher Scientific and Technical Studies including Ph.D., as qualifying service for the purpose of elevation under Career Advancement Scheme. 5. On completion of 8 years of service as Associate Professor, the petitioner is entitled to avail the Career Advancement Scheme and to move to the post of Professor. The first respondent issued a notification dated 31.12.2005 calling for applications from the qualified candidates through Head of the Department for consideration for Career Advancement of Professor for the year 2006. The petitioner applied for the same. 6. One Dr.Sree Kumar, Assistant Professor underwent Ph.D., course availing the Extra-Ordinary Leave and he was aggrieved over the order dated 25.06.2004, referred to above. Hence, he filed W.P.No.1620 of 2006 before this Court and https://hcservices.ecourts.gov.in/hcservices/ questioned the said order dated 25.06.2004 of the first respondent- University. This Court granted interim stay on 23.01.2006. 7. In these circumstances, the first respondent sent interview card dated 02.06.2006 to petitioner to appear for interview on 15.06.2006 relating to Career Advancement to Professor for the year 2006. He participated in the interview. However his result was not published and the same was put in a sealed cover. 8. The petitioner also applied for the post of Professor under Career Advancement Scheme for the year 2007. He was called for interview by the letter dated 15.06.2007 issued by the first respondent-University to appear for interview on 25.06.2007. Accordingly, he appeared for interview. The selection was withheld, as in the case of previous year. 9. In the year 2008, the petitioner was promoted as Professor under the Career Advancement Scheme, as he completed 8 years of service, without taking into account the Extra-Ordinary Leave of 2 years. 10. This Court allowed the Writ Petition in W.P.No.1620 of 2006 on 19.02.2007. Thereafter, the first respondent-University preferred Writ Appeal in W.A.No.775 of 2008. On 18.08.2008, the first respondent-University submitted before this Court that the authorities decided to treat the period of EOL availed by the respondent therein as qualifying service for the purpose of Career Advancement Scheme and the first respondent-University did not wish to press the appeal. In those circumstances, recording the statement, the Writ Appeal was closed. 11. Later, the fist respondent-University moved a Modification Petition in M.P.No.2 of 2008 in W.A.No.775 of 2008. An order was passed on 29.10.2008 in the Modification Petition that the order dated 18.08.2008 in W.A.No.775 of 2008 would not be treated as precedent by others. 12. Since the first respondent-University did not promote the petitioner as Professor on completion of 8 years of service by taking into account Extra-Ordinary Leave, the petitioner has filed the present writ petition to quash the aforesaid order dated 25.06.2004 of the first respondent-University and for a direction to the respondents to confer Career Advancement as Professor with effect from the date of eligibility as per their earlier order dated 11.04.2002 of the first respondent, with all consequential benefits including seniority, arrears of pay and other benefits. 13. Notice of motion was ordered on 17.07.2009. https://hcservices.ecourts.gov.in/hcservices/ 14. The first respondent filed counter affidavit. 15. The first respondent pleaded that the writ petition was filed belatedly. Since the relief was claimed based on the orders passed in W.P.No.1620 of 2006 and W.A.No.775 of 2008, the same could not be granted, as the Division Bench of this Court had made it clear that the order could not be treated as a precedent. 16. The first respondent averred that the Local Fund Audit raised serious objections for counting the EOL period availed to undergo Ph.D., Programme for the purpose of Career Advancement Scheme and that therefore it was decided in the Meeting of Board of Management of the University in its 51st Meeting held on 24.06.2004, not to count the period undergone for higher studies including in Ph.D., Programme for the purpose of Career Advancement Scheme. The order dated 25.06.2004 of the first respondent-University impugned in the writ petition was pursuant to the decision of the Board of Management referred to above. Hence, the first respondent- University sought for dismissal of the writ petition. 17. Heard Mr.R.Syed Mustafa, learned counsel for the petitioner; Mr.S.Vijayakumar, learned counsel for the first respondent and Mrs.Lita Srinivasan, learned Government Advocate for the second respondent. 18. The petitioner joined the first respondent-University as Assistant Professor on 16.02.1989. Thereafter, he was promoted as Associate Professor on 07.08.1977, after he underwent proper selection process. He possessed Phd., Degree. He sought permission from the first respondent-University to undergo Post Doctoral Specialized training, in the University of Alabama at Birmingham, USA. The first respondent-University granted permission in their order dated 11.03.1999 to undergo Post Doctoral Specialized Training in USA for 2 years. He successfully completed the Post Doctoral Specialized Training Programme within the stipulated period. He rejoined duty on 11.04.2001. He was on EOL for the period from 06.05.1999 to 10.04.2001, as he had undergone Post Doctoral Specialized Training in USA. 19. The petitioner made a representation to count the EOL period availed for Post Doctoral Specialized Training as qualifying service for the purpose of pension and Career Advancement Scheme. The first respondent passed an order dated 11.04.2002 as per Clause 13 (2)(h) of the Statutes of the first respondent-University and also as per the orders of the 10th Board of Management Meeting of the first respondent-University held on 24.09.1992, permitting to count the period of EOL for the purpose of pension and Career Advancement. https://hcservices.ecourts.gov.in/hcservices/ 20. From the counter affidavit, it is clear that the Registrar of the first respondent-University issued a circular dated 26.05.1989 counting the EOL availed for prosecuting higher studies for fixation of revised UGC scale and also for Career Advancement. The staff of the University sought benefits under the circular. Thereafter, the matter was placed before the 10th Meeting of the Board of Management held on 24.09.1992. The Board authorised the Vice-Chancellor to issue orders for counting the EOL period availed for higher scientific and technical studies by the staff as qualifying service for Career Advancement purpose also, considering the representation of the individuals. The following passage from para 5 of the counter affidavit is extracted here-under:- "When the staff of this University were governed under Tamil Nadu Agricultural University, Coimbatore, guidelines were issued by the Registrar, TNAU, Coimbatore to take the period of EOL availed for prosecuting higher studies in to account for fixation of revised UGC scale and Career Advancement during 1989 vide Circular No.A2/8540/89, dated 26.05.1989. Based on the representation made by the staff of this University citing the above circular, a subject was placed before the 10th Meeting of the Board of Management meeting held on 24.09.1992. The Board after discussion, authorized the Vice- Chancellor to issue orders for counting the EOL period availed for higher scientific and technical studies by the staff as qualifying service for Career Advancement purpose also, considering the representations of the individuals." 21. However, it seems that the Local Fund Audit raised objections for counting the EOL period for the purpose of Career Advancement. The objection was on the ground that the qualification prescribed for the post of Associate Professor is Ph.D., and that the Assistant Professors without Ph.D., could not be considered for promotion / Career Advancement to the post of Associate Professor. Therefore, it was for the Assistant Professors in their own interest should undergo Ph.D., programme to get promotion. The Local Fund Audit objected for counting the EOL period by such persons for the purpose of Career Advancement. When the local Fund Audit objected for counting the EOL availed by persons to undergo Ph.D., for the purpose of Career Advancement, the issue was placed for decision before the 51st meeting of Board of Management on 24.06.2004. The notes of Agenda on the said subject has been placed before this Court and the same is extracted here-under:- https://hcservices.ecourts.gov.in/hcservices/ "50.6.2: TO CONSIDER AND DECIDE WHETHER THE PERIOD OF EXTRA-ORDINARY LEAVE AVAILED FOR Ph.D., COURSE BY THE ASSISTANT PROFESSORS OF THE UNIVERSITY ALSO UNDER THE TERM "HIGHER SCIENTIFIC STUDIES AND TECHNICAL STUDIES" AS PROVIDED IN CLAUSE 13(2)(h) OF THE STATUTES / BOARD'S DECISION TO COUNT AS QUALIFYING SERVICE FOR PURPOSE OF PENSION AND CAREER ADVANCEMENT OR NOT. The Statutes Clause 13(2)(h) empowers the Vice- Chancellor to issue orders counting the period of extra-ordinary leave taken by the employees for prosecuting higher scientific and technical studies for the purpose of pension in the University. When the staff of TANUVAS were governed under TNAU, guidelines were issued by the Registrar, TNAU to take the period of EOL availed for prosecuting higher studies into account for fixation of revised UGC Scale under Career Advancement during 1989 vide Circular No.A2/8540/89, dated 26.05.1989. Based on the representation made by the staff of this University, citing the above circular, a subject was placed before the Tenth Meeting of the Board of Management held on 24.09.1992. The Board after discussion, authorized the Vice-Chancellor to issue orders for counting the EOL period availed for higher scientific and technical studies by the staff as qualifying service for Career Advancement purpose also, considering the representations of the individuals. The University considers the Ph.D., course as higher scientific study and issue orders counting the period of EOL taken by the staff for this purpose as qualifying service for Pension and also for Career Advancement, till date. The Local Fund Audit of TANUVAS during the recent audit has objected to these orders, raising that the minimum qualification for selection of Assistant Professors to the cadre of Associate Professors is Ph.D., and one should undergo the Ph.D., course only on his/her own interest to get selected for next higher cadre. According to the view of the Audit "Post Doctoral Training" only is to be taken as Higher Scientific Studies and not Ph.D., The Audit wants the University to appraise the position to the Board and to get clear direction to consider the EOL period spent for prosecuting Ph.D., by the staff as "Higher Scientific Studies" as said in the Clause 13(2)(h) of Statutes/Board's decision and to take the EOL period spent for this purpose as qualifying service for Pension and Career Advancement. The Board is requested to consider and decide https://hcservices.ecourts.gov.in/hcservices/ whether the period of Extra-Ordinary Leave availed for Ph.D., course by the Assistant Professors of the University also under the term "Higher Scientific Studies and Technical studies" as provided in clause 13 (2)(h) of the Statutes / Board's Decision to count as qualifying service for purpose of Pension and Career Advancement or not." 22. Further, the agenda also only related EOL availed by the Assistant Professors, to undergo Ph.D., programme. The agenda for consideration before the Board is extracted here-under:- "AGENDA NO.50.6.2: TO CONSIDER AND DECIDE WHETHER THE PERIOD OF EXTRA-ORDINARY LEAVE AVAILED FOR Ph.D., COURSE BY THE ASSISTANT PROFESSORS OF THE UNIVERSITY ALSO UNDER THE TERM "HIGHER SCIENTIFIC STUDIES AND TECHNICAL STUDIES" AS PROVIDED IN CLAUSE 13(2)(h) OF THE STATUTES / BOARD'S DECISION TO COUNT AS QUALIFYING SERVICE FOR PURPOSE OF PENSION AND CAREER ADVANCEMENT OR NOT." 23. The aforesaid notes make it clear that the Local Fund Audit objected for counting the period of EOL for the Assistant Professors who undergo Ph.D., for the purpose of Career Advancement. In the aforesaid notes, it has been made clear that the Audit was of the view that while the EOL period for the purpose of Ph.D., programmee could not be considered for Career Advancement, the EOL period for Post Doctoral Training could be counted for the same. The agenda for the meeting that was extracted above also makes it clear that the decision of the Board was not relating to EOL for Post Doctoral Training. 24. In those circumstances, the board took the following decision on the said agenda:- "The Board decided to reject the request for counting the period of EOL availed for higher scientific and technical studies including Ph.D., programme as qualifying service for the purpose of Career Advancement in future. The request to consider the period of EOL availed for higher scientific and technical studies etc., for the purpose of pension may be examined with reference to the Government Rules and put up to the Board." 25. From the aforesaid decision of the Board, it could be seen that the decision of the Board not to count the period of EOL availed by the Assistant Professors to undergo Ph.D., for the purpose of Career Advancement would be in future. That is, already the teachers who were granted EOL to Ph.D., prior to 24.04.2004 are entitled to count the EOL period for the purpose of Career https://hcservices.ecourts.gov.in/hcservices/ Advancement. Only EOL availed after 24.04.2004 to undergo Ph.D., could not be counted for Career Advancement Scheme. Hence, the impugned order dated 25.06.2004 was passed. 26. But, the impugned order dated 25.06.2004 was passed contrary to the decision of the Board. The impugned order reads as follows:- "The period of Extra-ordinary Leave without pay and allowances availed by the teachers on Higher Scientific and Technical Studies including Ph.D., Programme shall not be taken into account for the purpose of qualifying service towards elevation under Career Advancement Scheme. The individual orders issued earlier to the existing teachers permitting them to include the Extra-ordinary Leave without pay and allowances availed by them for prosecuting Higher Scientific and Technical Studies including Ph.D., as qualifying service for the purpose of elevation under Career Advancement scheme hereby stands cancelled. The University Officers, Head of Departments, Stations and Centres are requested to bring the contents of this order to the all the concerned besides taking appropriate action to cancel the earlier entries in service books. The action taken in this regard may be informed. They are also requested to send a 'nil' report if no action is required." 27. As stated above, the impugned order is contrary to the decision of the Board, as it cancelled the earlier orders granting EOL and counting the EOL for Career Advancement. When the decision of the Board was only not to count EOL availed for Ph.D., by Assistant Professors in future, the first respondent-University is not correct in passing the impugned order. The Board nowhere stated in its decision to cancel the orders that were passed prior to 24.04.2004, counting the EOL availed to undergo Ph.D., for Career Advancement. 28. In any event, the decision of the Board as well as the impugned order do not deprive the benefit of counting the EOL period to undergo Post Doctoral Training by Associate Professors for the purpose of Career Advancement. Hence, I am of the view that the impugned order dated 25.06.2004 does not cancel the order dated 11.04.2002 of the first respondent-University counting the EOL period of the petitioner to undergo Post Doctoral Training for the purpose of Career Advancement. 29. The writ petitioner in W.P.No.1620 of 2006 was a Assistant Professor. He availed EOL to undergo Ph.D., Programme. In https://hcservices.ecourts.gov.in/hcservices/ his case, the EOL was counted for the purpose of Career Advancement. The same was sought to be annulled based on the order dated 25.06.2004. The impugned order dated 25.06.2004 is a common order based on the decision of the 51st Board Meeting of the first respondent-University. The said teacher approached this Court and obtained an order to count his EOL period availed to undergo Ph.D., Programmee for the purpose of Career Advancement. This Court held that other persons who availed leave for the purpose of pursuing Ph.D., could not treat the judgment as a precedent and claim relief. Thus, the judgments of this Court in W.P.No.1620 of 2006 and W.A.No.775 of 2008, do not cover the case of Associate Professors, who had availed EOL for Post Doctoral Training. No one would become Associate Professor without Ph.D. 30. But, as stated above, the petitioner availed EOL not for Ph.D., Programmee and on the other hand for the purpose of Post Doctoral Specialized Training. In fact, the entire notes of the minutes, the audit objection, the ultimate decision read together makes it clear that the decision relates only not to count EOL period availed by Assistant Professors to higher studies including Ph.D., for Career Advancement. The EOL availed for Post Doctoral Specialized Training is not covered under the Board decision dated 24.04.2004 and the order dated 25.06.2004. 31. In any event, if the benefits granted under the order dated 11.04.2002 counting the EOL period for Career Advancement is sought to be taken away by the impugned order, the first respondent could not do so without hearing the petitioner. The action of the first respondent would amount to depriving the benefits conferred under the order dated 11.04.2002 in contravention to the principles of natural justice. In fact, no specific order was passed, canceling the benefit granted in the order dated 11.04.2002. 32. As stated above, neither the Board nor the impugned order decided to take away the benefit given either in the earlier period or in the future period to undergo Post Doctoral Training for the purpose of Career Advancement. 33. In fact, the petitioner has categorically wrote a letter dated 10.10.2007, making it clear that he did not avail EOL for the purpose of Ph.D., as he was already in possession of Ph.D., and that he availed EOL for Post Doctoral Specialized Training in USA. The following passage in the letter dated 10.10.2007 of the petitioner is extracted here-under in this regard:- "I submit to inform that I did not go for higher scientific and technical studies and did not earn any degree. I was permitted by the University (TANUVAS) to go for post doctoral specialized training and this was https://hcservices.ecourts.gov.in/hcservices/ granted to me based on a letter from the School of Public Health, University of Alabama, USA addressed to the Registrar, TANUVAS dated 30.04.1999. In that letter, it was clearly mentioned that the programme is not a study but specialized training for a stipulated period. My EOL period was regularised by the University and order was issued stating that the EOL period spent for post doctoral training will be considered as qualifying service for pension and for elevation to the next cadre in the Career Advancement (CA) Scheme. I did not go for higher scientific and technical studies including Ph.D., only I was permitted to go for Post Doctoral Specialized Training after completion of Ph.D., I am not covered under the proceeding issued by the Registrar on 25.06.2004 and hence I do not come under the purview of the writ petition (W.P.M.P.No.1827 of 2006 in W.P.No.1620 of 2006 of the Hon'ble High Court, Chennai). I request that my result may kindly be published at the earliest as there is no impediment in my eligibility for the post and the publication of the results." 34. The learned counsel for the first respondent sought dismissal of the writ petition on the sole ground that the petitioner sought relief based on the order in W.P.No.1620 of 2006 and in W.A.No.775 of 2008, while the Division Bench of this Court, made it very clear that the order could not be treated as precedent. It is true that the prayer in the writ petition is made relying on the decision of this Court in W.P.No.1620 of 2006 and in W.A.No.775 of 2008. It is also prayed for passing such order, as this Court deems fit in the circumstances of this case. Furthermore, various grounds were raised seeking the relief in the writ petition. The writ petition is not solely relying the order in W.P.No.1620 of 2006 and in W.A.No.775 of 2008. Hence, the decision of the Hon'ble Apex Court in Nadia Distt. Primary School Council & Anr. v. Sristidhar Biswas & Ors. reported in JT 2007 (6) SC 188, relied on by the learned counsel for the first respondent is not applicable to the facts of this case. 35. In any event, as stated above, the writ petitioner in W.P.No.1620 of 2006 availed EOL to undergo Ph.D., Programme and wanted to count the EOL period for the purpose of Career Advancement. In this case, the petitioner did not undergo Ph.D., Programme and he availed EOL only for Post Doctoral Specialized Training in USA and the first respondent granted permission to go for such training and also passed an order dated 11.04.2002 to https://hcservices.ecourts.gov.in/hcservices/ treat the period for the purpose of Career Advancement. Hence, the submission of the learned counsel for the first respondent has no merit. 36. The other ground raised by the learned counsel for the first respondent relates to delay also has no substance. The facts disclosed above make it very clear that when the W.P.No.1620 of 2006 and in W.A.No.775 of 2008 were pending, the petitioner was permitted to participate in the interview for the purpose of Career Advancement as Professor in the year 2006 and 2007. Furthermore, as stated above, the Local Fund Audit did not object for counting the EOL given for Post Doctoral Training for the purpose of Career Advancement. In these circumstances, I hereby reject the plea of the learned counsel for the first respondent relating to delay in preferring the writ petition. In any event, in the circumstances of the case, the writ petition cannot be rejected on the technical plea of the delay. 37. For all the aforesaid reasons, the impugned order is liable to be quashed and the same is quashed. The first respondent- University is directed to confer Career Advancement as Professor with effect from the date of eligibility as per the proceeding of the first respondent in U.S.O.No.20014/A1/2002 No.5803/A1/2002 dated 11.04.2002 with all consequential benefits including seniority, arrears of