IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29909 of 2008, W.P.No.515 of 2009 and W.P.No.1215 of 2010 and connected Miscellaneous petitions Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam (AnnaAmSam) [Reg.No.10/2007] 9/5, Gandhi Nagar, Chidambaram – 608 001 Rep. By its President Dr.R.S.Kumar ... Petitioner in W.P.No.29909 of 2008 Annamalai University Teaching and Non-Teaching Staff Welfare Association (Reg:Sl.No.39/2008) Annamalai Nagar 608 002 Rep. By its President R.Udaiachandran ... Petitioner in W.P.No.515 of 2009 Annamalai Palkalai Kazhaga Asiriyargal Munnetra Sangam (AUTPA) Rep. By its President Dr.C.Subramanian (Reg.No.41/2008) ... Petitioner in W.P.No.1215 of 2010 Vs 1.The Vice-Chancellor Annamalai University, Annamalai Nagar – 608 002 Cuddalore District. 2.The Registrar, Annamalai University, Annamalai Nagar – 608 002 Cuddalore District. ...Respondents 1 and 2 in W.P.No.29909/2008 and W.P.No.515/2009 https://hcservices.ecourts.gov.in/hcservices/ 3.Annamalai Palkalaikazhaga SC/ST Asiriyar Nala Sangam. (R3 impleaded as per order dated 05.10.2009 by MMSJ in M.P.No.1/2009 in W.P.No.29909/08) 4.Annamalai Palkalaikazhaga Adi Dravidar Matrum Palagkudinar Asiriyar Aluvalar Manavar Nala Sangam (R4 impleaded as per order dated 12.01.2010 by KCJ in M.P.No.2/2009 in W.P.No.29909/08) ... Respondents 3 and 4 in W.P.No.29909 of 2008 The Annamalai University, Rep. By its Registrar, Annamalai Nagar – 608 002, Chidambaram Taluk, Cuddalore District. ... Respondent in W.P.No.1215 of 2010 W.P.No.29909 of 2008 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the entire records connected with the impugned notifications No.4/2008 (C) dt 19.11.2008 appeared in 'The New Indian Express' dated 24.11.2008 issued by the second respondent and the Addendum to the said Notification appeared in 'The New Indian Express' and in 'Dinamani' dated 10.12.2008 and quash the same and further direct the 2nd respondent to issue fresh notification calculating the backlog vacancies for SC/ST from the year 1989, category-wise and cadre-wise in all the 49 departments in the respondent-University strictly complying with Rule 22 of the Tamilnadu State and Subordinate Service Rules and the Tamilnadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and for appointments of Posts in the services under the State)Act of 1993. W.P.No.515 of 2009 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the entire records connected with the impugned notifications No.4/2008(C) dated 19.11.2008 appeared in the 'New Indian Express' dated 24.11.2008 and the Addendum to the said Notification appeared in the 'New Indian Express' and in 'Dinamani' dated 10.12.2008 and quash the same and further direct the respondents to issue fresh notification calculating the backlog vacancies for MBCs from 01.04.1989, category-wise and cadre-wise in all the 49 departments in the respondent - University strictly complying with Rule 22 of the Tamil Nadu State and Subordinate Service Rules and the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational https://hcservices.ecourts.gov.in/hcservices/ Institutions and for appointments of Posts in the services under the State)Act of 1993. W.P.No.1215 of 2010 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the respondent in connection with the impugned Notification No.4/2008 (C) dated 19.11.2008 'New Indian Express' English daily and quash the same. For petitioners in W.P.No.29909/2008 W.P.No.515/2009 : Mr.M.Radhakrishnan for Mr.S.Sathiachandran W.P.No.1215/2010 : Mr.M.Ravi For Respondents : Mr.R.Muthukumarasamy,S.C. Assisted by Mr.Jenasenan for R1 and R2 M/s.La Law for R3 and R C O M M O N O R D E R In the first two writ petitions (W.P.No.29909/2008 and W.P.No.515/2009), arguments were heard and orders were reserved on 20.01.2010. It is at this stage, the third writ petition (W.P.No.1215 of 2010) came to be filed relating to the very same issue. Therefore, after hearing arguments, the third writ petition was also tagged along with the earlier writ petitions and a common order is passed. 2.In W.P.No.29909 of 2008, the petitioner is Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam, which is a registered Society with Registration No.10/2007. The said writ petition came to be filed challenging a notification No.4/2008 dated 19.11.2008 issued by the respondent University and as appeared in the daily newspaper 'The New Indian Express' dated 24.11.2008 and also the Addendum issued subsequently in the "New Indian express" dated 10.12.2008. They seek for setting aside the same and for the issuance of a fresh notification by calculating the backlog vacancies available for SC/ST candidates from the year 1989 onwards, category-wise and cadre-wise for all the 49 departments in the University and to strictly comply with Rule 22 of the Tamil Nadu State and Subordinate Service Rules as well as the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and for Appointments of posts in the services under the State) Act 1993. 3. By the impugned notification dated 19.11.2008, the respondent University had advertised for filling up backlog vacancies in SC/ST/MBC categories in respect of 33 departments. https://hcservices.ecourts.gov.in/hcservices/ This included 24 posts of Professors and 33 posts of Readers, exclusively for Schedule Caste candidates. 4. When the matter came up on 18.12.2008, this Court directed the petitioner to serve notice on the learned Standing counsel for the respondent- Annamalai University and no interim order was granted as prayed for by the petitioners. 5. Thereafter, in M.P.No.1 of 2009 in W.P.No.29909 of 2008, a body by name Annamalai Palkalaikazhaga SC/ST Asiriyar Nala Sangam with registration No.20/08 got itself impleaded by orders dated 05.10.2009 as third respondent. In M.P.No.2 of 2009 in W.P.No.29909 of 2008, another body viz., Annamalai Palkalaikazhaga Adi Dravidar Matrum Palagkudinar Asiriyar Aluvalar Manavar Nala Sangam with registration No.1/2002 got itself impleaded on 12.01.2010 as fourth respondent. 6. On notice from this Court, the respondent- University had filed a counter affidavit dated 26.11.2009 for W.P.No.29909 of 2008 7. Thereafter, another Association with Registration No.39 of 2008 filed another writ petition being W.P.No.515 of 2009 seeking to set aside the very same notification and has sought for further direction to calculate the backlog vacancies for MBC candidates with effect from 01.04.1989, category-wise and cadre-wise for all the 49 departments. That writ petition was admitted on 12.01.2009. In the prayer for interim relief, only notice was ordered. 8. On notice from this Court, the respondents had filed a counter affidavit dated 11.12.2009 in W.P.No.515 of 2009. 9. Since these two matters were challenging the very same notification, they were directed to be heard together. Even when the matters were being heard, another Association by name Annamalai Palkalai Kazhaga Asiriyargal Munnetra Sangam (AUTPA) with registration No.41/2008 came to be filed challenging the very same notification and sought for quashing the same. 10. It is ironical that an Association representing the interests of the SC/ST employees (both teaching and non-teaching staff) chose to challenge a notification calling for applications for backlog vacancies only on the plea that the posts advertised were not complete and the backlog vacancies should be calculated from the year 1989. Till such time no recruitment for the backlog vacancies should be held. Though, they did not get any interim order, taking advantage of the pendency of the proceedings, the respondent-University for the reasons best known to them did not go through the recruitment process. 11. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the University is unable to give any precise reason for not going ahead with the selection process to fill up the 24 posts of Professors and 33 posts of Reader, exclusively reserved for Scheduled Caste candidates. It looks as if even the University is https://hcservices.ecourts.gov.in/hcservices/ showing reluctance in fulfilling a constitutional mandate under an imperative based on social justice. This Court takes a serious view of the inaction on the part of the respondent- University in not proceeding with the selection process. Though Mr.R.Muthukumara Swamy learned Senior Counsel appearing for the respondent- University states that they are always prepared to fill up these backlog vacancies and if any direction is given by this Court, they will re-advertise those posts, having regard to the time lag taken place after the earlier notification. It is made clear such a direction from this Court is unnecessary, since it is for the University discharge its constitutional duty by filling up those posts. They need not wait for any green signal from this Court that too in the context of this Court not interdicted the selection process with any interim order. 12. The facts leading to the case are as follows:-Annamalai University is a Unitary University and are having approximately 21,000 students. It is claimed that there are 2527 SC/ST students studying in the University. It is also claimed that the total staff strength including Teachers of the University was 12,000. It is claimed by the University that there are 2624 teaching staff working in the University, but out of which only for 657 teaching posts grant has been given by the State Government. Originally a writ petition was filed by the petitioner-Association (in W.P.No.29909 of 2008) being W.P.No.16452 of 12008, seeking for a direction to the respondent-University to consider their representation regarding promotions to the post of Readers and Professors against the backlog vacancies meant for SC/ST. This Court after notice to parties on 05.09.2008 directed the University to consider their representation and pass appropriate orders. 13. It is pursuant to the said direction, the respondent- University gave the impugned notification dated 19.11.2008, identifying 33 Departments for the backlog vacancies and called for applications in respect of 24 posts of Professors and 33 posts of Readers. Similarly in respect of MBC vacancies, 11 posts of Professors and 5 posts of Readers were advertised by them. 14. It is rather unfortunate, on the competing claims of various Associations, the entire process of filling up of backlog vacancies have come to a stand still. When their action questioned as to how they could challenge the very notification which was in favour of the interest of their members, Mr.Radhakrishnan, appearing for S.Sathiachandran, learned counsel for the petitioner had no answer. If the functioning of the Associations are to be for the welfare of their members, they ought to have allowed the process of selection to proceed with and should have asked for the remaining posts towards backlog vacancies to be filled up. However, a third writ petition which came to be filed after all the arguments were over is intended to prevent recruitment solely based on backlog vacancies which is impermissible. 15. Mr.M.Radhakrishan, learned counsel appearing for the petitioner in the first two writ petitions submitted that there are https://hcservices.ecourts.gov.in/hcservices/ 75 departments in the University. G.O.Ms.No.44 Adi Dravidar and Tribal Welfare Department dated 20.05.1998 clearly stipulates that in respect of Group 'A' to Group 'D' should be filled up by having the reservation in age in mind and appropriate rules should be made for making direct recruitment. In paragraphs 4 and 5 of the said order, it was directed as follows:- "4. In order to achieve the objective stated in the above paragraph it has been ordered that appropriate rules be made wherever necessary in the service rules to incorporate the provisions for direct recruitment. 5. The Government direct that the Committee constituted under the chairmanship of the Minister for Adi Dravidar and Tribal Welfare in G.O.Ms.No.156 Adi Dravidar and Tribal Welfare Dated 13.09.1997 shall function as the empowered committee to assess whether the Scs/STs are adequately represented in various Government Departments, Government Undertakings, Universities and Institutions receiving Government aid. This Empowered Committee shall have the power to requisition and obtain necessary details from the Secretaries to Government, Heads of Department, Chief Executive Officers of Public Sector Undertaking, Vice Chancellors of Universities, recruitment agencies like the Tamil Nadu Public Service Commission, Tamil Nadu Uniformed Services Recruitment Board and Teachers Recruitment Board in the discharge of its functions. If necessary, the Committee shall also have the powers to invite them and have discussions in this regard." 16. Therefore, the learned counsel states that in the light of the order as well as on the basis of the 1993 Act made by the State Government, the posts should have been identified from the year 1989 and should have been filled exclusively for SC/ST. But with reference to the advertisement, it is stated that the advertisement did not indicate as to which are the Scheduled Caste vacancies and which are the Scheduled Tribe vacancies. Hence, the advertisements should be struck down and a fresh advertisement should be given. He also stated that the advertisement given is not an advertisement in the eye of law and filling up of entire backlog vacancies is a constitutional mandate. Therefore, the respondent University has no other option except to fill up those posts. It is the right of every SC candidate to seek for such appointments and they have a right to move this Court when such constitutional mandate was disobeyed. 17. The third respondent which is also an Association for the welfare of the SC/ST in the affidavit filed in support of their impleading petition in paragraphs 3 to 5 stated as follows: '3.The petitioner states that the above call for is pursuant to the order by this Hon'ble Court wherein one of the SC/ST Association in WP No.16452 of 2008 directed to consider the representation of the SC/ST Association to fill up backlog vacancy and the 1st respondent had also in compliance of the order https://hcservices.ecourts.gov.in/hcservices/ identified preliminary vacancies in 34 departments and advertised for the recruitment. 4.The petitioner states that the writ petitioner herein with ulterior motive had filed the writ petition against the interest of SC/ST candidates, which is condemned by federation of all the SC/ST Associations in the University consisting of 2000 teaching and non-teaching staff. The issue raised by the petitioner under a false pretext of claiming more vacancy than the advertised by the respondent and stalling the recruitment of the available vacancy which would benefit with the SC/STs is a clear case of colourful exercise of protection of SC/ST rights to bargain personal rights with the first respondent. 5.The petitioner states that there is no dispute that even if more vacancies as claimed by the petitioner is available and not pursued for filling up by the university would not give right to stall the existing vacancy announced for the benefit of SC/ST." Similarly the fourth respondent had also reiterated the same view in their affidavit. 18. In response to the averments made by the first two petitioners, in the counter affidavit filed by the respondent University, it was stated that necessary action had been taken by the University to implement the directives issued by the State Government by the Government orders referred to above. Further, there are also promotions made on the basis of Career Advancement Scheme/Merit Promotion Scheme framed by the University Grants Commission and approved by the State Government without following any roaster. The University issued a notification dated 23.05.2008 inviting applications for the post of Readers and Lecturers in various disciplines. Pursuant to the writ petition filed seeking for filling up of the backlog vacancies, the said notification No.1/08 dated 23.05.2008 was withdrawn and a fresh notification was issued calling for applications for backlog vacancies. In respect of the Lecturer vacancy, a notification was issued on 08.09.2008 to fill up the backlog vacancies and posts were advertised. Subsequently, after the direction issued by this Court dated 05.09.2008, another notification in respect of backlog vacancies for Professors and Readers were advertised as per the Rules. But since the matter was sub judice, they could not pursue as already noticed. This is a spurious argument. It had facilitated the University from stalling the appointments. Subsequent to the advertisement dated 19.11.2008, one post of Professor of Horticulture and one post of Reader in Civil Engineering was also advertised for SC/ST candidates. It was also stated that all the Rules and Regulations framed by the Government in this regard have been scrupulously followed in filling up these posts. 19. In addition to that in the counter affidavit dated 11.12.2009 filed in W.P.No.515 of 2009, the respondent University further stated that out of 2624 staff members 45% belongs to https://hcservices.ecourts.gov.in/hcservices/ Backward community and 28% belongs to Most Backward Community. For the demand that the backlog vacancies should be notified from taking into account the starting point as 1989, it was stated that the Government order even came to be issued only during 2000 and the vacancies cannot be calculated for 20 years. Further, it is also stated that the vacancies are identified based on the roaster point and not department wise or faculty wise. After identifying the backlog vacancies from 1998 as per the Government order, notification was also issued category wise and cadre wise in all the departments. 20. Mr.R.Muthukumarasamy, learned Senior Counsel stated that the details in respect of the appointments were available only from 1990 and therefore, the vacancies were identified from that year and the advertisements have been given in newspapers having an all India circulation. 21. After the orders were reserved Mr.M.Radhakrishnan, circulated a circular issued by the state Government dated 19.04.2002 to all the Universities and after referring to the case relating to the Madras University, wherein in paragraph 2,3 and 4, it was directed as follows:- "2. In view of the High Court and Supreme Court orders, the University of Madras advertised the Lecturer vacancies treating each department as a single unit in accordance with the order of the Supreme Court. The latest orders for communal reservation/rotation in G.O.Ms.No.85 Personnel and Administrative Reforms Department dated 6.5.2000 and G.O.Ms.No.105 Personnel and Administrative Reforms Department, dated 20.06.2000 have been adopted by the Syndicate at its meeting on 10.7.2000 to identify the roster points in the above advertisement. Further for filling up of the posts Selection Committees have been constituted duly observing the Statutory provisions contained in Statute 7, Chapter 10 of Volume 1 of the University Calendar and also in confirmity with guidelines prescribed by University Grants Commission and Government of Tamilnadu with regard to the provisions for Chancellors nominee in its Selection Committees. The University has adopted the communal roster reservation for the teaching faculty of the University for the first time as per the statutory rules of the Government. Now, the University of Madras has also opened the communal roster reservation register for each department separately. 3.In an earlier communication in Government D.O.Letter No.68027/H1/91-16 dated 4.1.93 it has been instructed that the pooling should be done for cadre vacancies. Since the Supreme Court judgment takes priority and has come with the judgment in connection with the Madras University asking the University to follow the roster system taking each department as an individual unit for each cadre and not pooling each cadre for the https://hcservices.ecourts.gov.in/hcservices/ whole University together. 4.I am to request you to kindly adhere the above said Supreme Court Judgment in your University and also to intimate the action taken so far in this regard to Government immediately." 22. According to the counsel, he had prepared a chart showing the number of SC candidates in the University as against the total post. Out of 291 posts of professors only 6 belongs to SC. Similarly out of 300 posts of Readers only 18 belongs to S.C. Similarly out of 2040 lecturers only 288 belongs to SC. Therefore, there is a need to fill up the existing vacancies even in respect of other department where there is no post held by the SC candidates in respect of Lecturer, Reader and Professor post and hence he prayed that a direction should be given to fill up the backlog vacancies in addition to the posts identified in the impugned order. 23. Mr.M.Ravi, learned counsel appearing for the petitioner in W.P.No.1215 of 2010 submitted that the notification dated 19.11.2008 calling for backlog vacancies for SC/ST candidates ought not to have been issued merely on the basis of Government circular. In respect of posts for which no aid has been received, the University unless adopts the resolution prescribing appointment to those posts cannot fill up those alleged backlog vacancies. It is further stated that reservation is applicable only to lowest level of post namely Lecturer level. Because of this move direct recruitment to these backlog vacancies, the existing teachers will be denied their promotional aavenues and the present attempt to fill up backlog vacancies is a meticulous intention to accommodate the interest of certain members belonging to different service association in the University. Since by virtue of the UGC circular, existing posts are now being redesignated, there is no necessity to go for any backlog vacancies recruitment. 24. In order to appreciate the rival contentions raised herein, it is necessary to refer to certain judgments of the Supreme Court which have bearing on this issued. 25. A Constitution Bench of the Supreme Court vide its judgment in M.Nagaraj v. Union of India reported in(2006) 8 SCC 212 dealt with the issue on identifying the posts for promotion and enforceability of the directives of the Government by the Courts. The following passages found in paragraphs 102,104,107 and 123 may be usefully extracted below: "102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not https://hcservices.ecourts.gov.in/hcservices/ constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4- A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide https://hcservices.ecourts.gov.in/hcservices/ for reservation. It