IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.06.2011 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.19432 of 2009 M.P.No.1 of 2009 P. Dhanajeyam ... Petitioner Vs. 1. The Vice Chancellor, University of Madras, Chennai – 600 005. 2. The Registrar, Office of the Registrar, University of Madras, Chennai – 600 005. ... Respondents Amended Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus, calling for the records of the respondents relating to 529 (SEC.F1/A/ESTT) resolution No.83, passed by the Syndicate of the University of Madras on 25.8.2010, quash the same and direct the respondents to promote the petitioner as Assistant or appoint her as Assistant Technical Officer in the University of Madras with retrospective effect from the date, she obtained the necessary qualification and grant her the attendant benefits. (Prayer amended as per order of the Court dated 6.4.2011 in M.P.No.1 of 2011) For Petitioner : Mrs.Hema Sampath, Senior Counsel for Mrs.R.Meenal For Respondents : Mr. Mani Sundaragopal O R D E R The prayer in the writ petition is to quash the resolution No.83 passed by the Syndicate of the Madras University dated 25.8.2010 and direct the respondents to promote the petitioner as Assistant or appoint her as Assistant Technical Officer in the University of Madras with retrospective effect from the date she obtained the https://hcservices.ecourts.gov.in/hcservices/ necessary qualification and grant her the attendant benefits. 2. The brief facts necessary for disposal of this writ petition are as follows: (a) The petitioner's husband M.Paramasivam was serving as an Assistant Section Officer in the University of Madras and while in service on 5.12.1995 he passed away leaving the family in harness. The petitioner, Widow of the deceased Paramasivam was qualified with PUC and Typewriting Higher grade in English and Tamil, Shorthand Lower grade in English. (b) Petitioner applied for compassionate appointment due to the death of her husband and the University granted her appointment as Attender on 5.8.1996. According to the petitioner she was assured of promotion, if she pass graduation. After joining in the service as Attender, the petitioner passed B.A degree in History in the year 1998, Bachelor of Library and Information Science in the year 2000, Master of Library and Information Science in the year 2001, Post Graduate Diploma in Computer Applications in the year 2005 and M.Phil in Library and Information Science in the year 2006. (c) Petitioner on each occasion of upgrading her qualification, submitted representation to the respondents and prayed for promotion/appointment based on her qualification. Petitioner's regular promotion as Assistant was also not given even though similarly appointed persons were given promotion by waiving necessary qualifications. (d) Petitioner submitted representation under RTI Act, for which a reply was given on 19.3.2008 stating that the petitioner had the necessary qualification for several posts. (e) On 17.7.2009 the University issued an advertisement for filling up eight vacancies in the post of Assistant Technical Officer including one vacancy for Scheduled Caste. Petitioner being a Scheduled Caste candidate, applied and she was not called for interview. Hence she filed the writ petition with a original prayer for issuing a writ of mandamus directing the respondents to promote the petitioner as Assistant or appoint her as Assistant Technical Officer with retrospective effect from the date on which she obtained qualification and grant her attendant benefits as per her representation dated 2.3.2009. 3. The second respondent has filed counter affidavit stating that at the time when the petitioner was appointed, she was having the qualification of P.U.C. with Typewriting Higher Grade in English and Tamil, and Shorthand Junior Grade in English. Petitioner passed the other degrees subsequently, i.e., from 1998 onwards. The Syndicate of the University prescribed six years of regular service https://hcservices.ecourts.gov.in/hcservices/ in Class-IV category for promotion to Class-III cadre, apart from possessing the qualification prescribed for the post of Assistant, and that written test should be conducted to test the knowledge of Tamil and English Typing. Again the Syndicate in its meeting held on 13.11.1998 revised the qualification for the post of Assistant prescribing any degree with English Typewriting Junior grade and one year certificate/diploma course in Computer Applications. The petitioner passed B.A.degree in the year 1998 and has completed six years of regular service in Class-IV category on 4.8.2002 and also passed Diploma in Computer Applications (PGDCA) in December, 2005. Petitioner's request to promote her to the post of Assistant Technical Officer (Library) was not granted as the post is a direct recruitment post. Therefore the University advised her to apply for the post as and when the same is advertised for direct recruitment. 4. In view of the said stand taken in the counter affidavit, the petitioner restricted the prayer seeking promotion as Assistant alone and also challenged the resolution of the University dated 25.8.2010 insofar as it directs to attend for written test, by filing an amendment petition and the same was ordered by this Court on 6.4.2011. For the amended prayer also the respondents filed counter affidavit. 5. The learned Senior Counsel appearing for the petitioner submitted that the petitioner completed six years of service on 4.8.2002 in Class-IV service like other 20 persons (the names of whom are found in page No.95 of the typed set of papers filed by the petitioner), who were similarly placed and they were given promotion without they appearance in the written test and the University has discriminated the petitioner from among the equally placed persons. The learned Senior Counsel also pointed out the order passed by the University giving promotion to several persons and some of the orders are filed in the typed set of papers. 6. The learned Counsel appearing for the University submitted that merely because the University has exempted or violated the regulation and granted promotion to some others, the same cannot be taken as a ground to pray for promotion to the petitioner contrary to the University regulation and the same would be in effect perpetuating the illegality. The learned counsel also produced the file relating to the promotion given to other persons. 7. The file produced by the learned counsel for the respondent contains a list of 12 persons who have been given promotion without written test. The learned counsel argued that the said promotions were given taking note of G.O.Ms.No.57 P&AR Department, dated 23.3.2001 and the Syndicate in its meeting held on 7.12.2001 granted one year time to the promotees to acquire computer skill through a recognised University/Institution and the said decision of the Syndicate is a one time measure and the same cannot be treated as a https://hcservices.ecourts.gov.in/hcservices/ precedent. 8. I have considered the rival submissions made by the learned Senior Counsel for the petitioner as well as learned Counsel appearing for the respondent University. 9. The point arises for consideration in this writ petition is as to whether the impugned resolution of the respondent University is valid and the petitioner is entitled to get promotion as Assistant as it was given to other persons from the date of completion of six years of service in Class-IV service without their appearance in any written test. 10. Petitioner's husband served as Assistant Section Officer in the University of Madras and his death on 5.12.1995, the appointment of the petitioner on compassionate ground as Attender in Class-IV service on 5.8.1996 are not in dispute. Petitioner's qualification of P.U.C., Typewriting Higher grade in English and Tamil, Shorthand Junior Grade in English and subsequent passing of B.A. degree in History in the year 1998, Bachelor of Library and Information Science in the year 2000, Master of Library and Information Science in the year 2001, P.G.Diploma in Computer applications in the year 2005 and M.Phil degree in Library and Information Science in the year 2006 are also not in dispute. 11. The petitioner is not justified in claiming appointment as Assistant Technical Officer in the University of Madras based on her qualifications as already been replied by the University stating that the petitioner has to apply as and when vacancies are notified and take part in the selection process. The said communication was sent to the petitioner by the University on 9.6.2009. The said order is not challenged and therefore it is to be presumed that the petitioner has given up her claim for the said post, even though an alternate prayer is made in this writ petition. 12. Admittedly the petitioner completed six years of service in Class-IV service (as Attender) on 4.8.2002. The resolution of the Syndicate dated 7.2.1997 states that for promotion from Class-IV to Class-III, a person shall possess at least six years of service in Class-IV category, must possess the qualifications prescribed by the Syndicate for the post of Assistant and they should appear for the written test to test the knowledge in Tamil and English Typing. The qualification prescribed for promotion to the post of Assistant from Class-IV category is to have Diploma in Computer Application. A pass in graduation in any degree was also prescribed in the year 1998. 13. The promotion given to 12 Class-IV employees to the post of Assistant in the year 2002 without conducting written test and the said promotion was granted by adopting G.O.Ms.No.57 P&AR Department, dated 23.3.2001 with condition to acquire computer skills through a https://hcservices.ecourts.gov.in/hcservices/ six months course from a recognised University/Institution within a year, is not in dispute. In fact the said resolution was passed by the Syndicate in its meeting held on 7.12.2001. The said resolution reads as follows: "Resolved that the request of the Class-IV employees with UG/PG degree qualification for promotion as Assistants by adopting G.O.Ms.No.57, Personnel and Administrative Reforms (D) dated 23.3.2001, after due verification of the G.O., be approved. Resolved further that the UG/PG degree possessing Class-IV employees on promotion shall acquire Computer skill through a six month course from recognized Universities/Institutions within a year." Thus, the resolution passed by the Syndicate of the University on 7.2.1997 is not enforced, which is evident from the Syndicate's resolution dated 7.12.2001. 14. From the perusal of the Government Order it is evident that 50% of the Class-III posts should be filled up by giving promotion to the employees serving in Class-IV category. The said Government Order was adopted by the University after getting legal opinion on 23.7.2001. Thus, it is evident that 12 persons similarly placed like the petitioner were given promotion as Assistant without their appearance in the written test. The name and other details of the said 12 persons are as follows: Sl No NAME Date of Class-IV Appointment Promoted or Appointed as Assistant QUALIFICATIONS Degree T/W Computer 1. N. Mohankumar As peon from 20.12.91 14.1.2002 B.A. YES NO 2. B. Magesh As peon from 1.10.92 11.1.2002 B.A. YES NO 3. M. Madurai As Lab Attender from 23.5.94 24.1.2002 B.A. YES NO 4. B. Srinivasan As Peon from 14.10.91 11.1.2002 B.Sc. YES NO https://hcservices.ecourts.gov.in/hcservices/ 5. C. Ramesh As Attender from 10.8.94 11.1.2002 B.A. YES NO 6. K. Jayashri As peon from 19.5.95 11.1.2002 B.A. YES NO 7. K. Nageswari As Sweeper from 11.11.94 11.1.2002 B.A. YES NO 8. K.Jayachandran As driver from 15.12.94 11.1.2002 B.A. YES NO 9. N. Shankar As Watchman from 25.5.94 11.1.2002 B.A., NO NO M.A. 10 N. Devarajan As peon from 27.9.91 7.8.2002 B.A. YES NO 11 D.Sornalatha Cl.4 promotee 7.8.2002 B.A. YES NO 12 D.Gunasekaran Cl.4 promotee 7.8.2002 B.A. YES NO In the query raised by the petitioner under the RTI Act as to how the said persons were given promotion, a reply was given by the University stating that based on their request to promote from Class- IV to Class-III promotions were given; that no written tests were conducted and promotions were ordered as per the Syndicate resolution dated 7.12.2001; that all the said persons were having six years of experience in Class-IV; and that, the Syndicate resolution prescribing written test dated 7.2.1997 still stands. 15. From the above materials available in the file produced by the University it is beyond doubt that the petitioner is discriminated while giving promotion to 12 persons based on G.O.Ms.No.57 P&AR Department, dated 23.3.2001, and promotions were given to them as Assistant even though they were not having the prescribed computer qualification and time was granted to them to get themselves qualified in computer course within one year period. The petitioner passed B.A. Degree in the year 1998, Bachelor of Library and Information Science in the year 2000, Master of Library and Information Science in the year 2001. She having completed six years of service in Class-IV category on 5.8.2002, she is also bound to be considered for promotion as Assistant as it was given to similarly placed persons, applying G.O.Ms.No.57 dated 23.3.2001. The action of the respondents in not promoting the petitioner, even though she is also similarly placed with other 12 persons, is discriminatory, particularly when no exemption is granted to the above 12 persons by the University. No exemption order is also produced nor available in the file. https://hcservices.ecourts.gov.in/hcservices/ 16. The time limit given to acquire Diploma/ Certificate course in Computer Applications to 12 persons was one year. However, the said persons have not passed the Diploma/Certificate course within one year and one person viz., D.Gunasekaran passed Diploma course on 9.6.2005 i.e, after a period of three years and others have passed the same in 2 to 3 years as evidenced from the petitioner's typed set of papers. The petitioner passed P.G.Diploma in Computer Applications in December, 2005, and she completed six years of service on 4.8.2002. Persons who have completed six years of service in Class-IV service only on 7.8.2002 viz., N.Devarajan, D.Sornalatha, D.Gunasekaran were given promotion. However, the petitioner was not given promotion and the same is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India. 17. Similarly placed persons should be treated alike is a right guaranteed to all under Article 14 of the Constitution of India unless there is intelligible differentia. The respondents have not pleaded or shown any material to justify the differential treatment given to the petitioner, except relying on the Syndicate resolution. The State and its instrumentalities are not entitled to discriminate while determining the rights of equally placed person, is decided in the following decisions. (i) In the decision reported in (2003) 5 SCC 437 (Union of India v. International Trading Co.) in paragraph 15 the Honourable Supreme Court held thus, "........ The basic requirement of Article 14 is fairness in action by the State, and non- arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. ........." (ii) The said judgment was followed in the decision reported in (2010) 3 SCC 621 : 2010 (2) CTC 336 (Hari Ram v. State of Haryana), though in a matter relating to land acquisition. In the said case, while dealing with discrimination in not releasing the land of certain persons, even though lands were released for 40 land owners to certain extent, the supreme Court held that the said treatment of the State is arbitrary and unfair. In paragraphs 41 & 43 (in SCC) the Supreme Court held thus, https://hcservices.ecourts.gov.in/hcservices/ "41. ................ The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to the same acquisition proceedings and for the same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory. 43. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of the State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law." (Emphasis Supplied) (iii) In the decision reported in (2008) 10 SCC 139 (U.P.Power Corporation Ltd., v. Ayodhya Prasad Mishra) also the Honourable Supreme Court considered the said issue and in paragraph 36 held as follows: "36. It is well settled that Article 14 is designed to prevent discrimination. It seeks to prohibit a person or class of persons from being singled out from others similarly situated or circumstanced for the purpose of being specially subjected to discrimination by hostile legislating. It, however, does not prohibit classification, if such classification is based on legal and relevant considerations." (iv) In Service Law the question as to whether a person continued for ten years and more is entitled to get regularisation by applying the judgment rendered in State of Karnataka v. Umadevi reported in (2006) 4 SCC 1 and whether paragraph 53, which states https://hcservices.ecourts.gov.in/hcservices/ that such of those persons, who completed ten years without reference to any Court order, who are qualified shall be granted regularisation as an one time measure, is extendable to all the persons or not, came up for consideration in the decision reported in 2010 (6) Supreme 262 : (2010) 9 SCC 247 (State of Karnataka v. M.L.Kesari). In the said decision it is held that the regularisation request of such of those employees pending on the date of rendering judgment in Umadevi's case should also be considered in the light of paragraph 53 of the judgment rendered in Umadevi's case, if they are qualified for holding the post. (v) The request regarding grant of relaxation of qualification as it was granted to similarly placed persons was considered by the Division Bench of this Court in the decision reported in 2010 (1) TLNJ 170 (Civil) (The Management of Airport Authority of India, Meenambakkam, Chennai-27 V. The Presiding Officer, Industrial Tribunal, Tamil Nadu, Chennai). In the said judgment it was held that even in discretionary matters, Article 14 has to be followed if employees are identically placed and no distinguished feature is available. While imposing punishment on delinquent officers after charges were framed and proved and if they are identically placed, parity in punishment has to be followed as per the judgments rendered by the Honourable Supreme Court in (1998) 2 SCC 407 (Director General of Police v. G.Dasayan), (2006) 6 SCC 548 (Anand Regional Co-Op. Oil Seedsgrowers' Union Ltd. v. Shaileshkumar Harshadbhai Shah) and (2008) 2 SCC 74 (Akhilesh Kumar Singh v. State of Jharkhand and Others). (vi) Identically placed persons shall be considered alike and if relief is denied the same shall be directed to be extended, was considered by this Court in the decision reported in (2006) 2 MLJ 572 : 2006 WLR 327 (N.S.Balasubramanian v. Food Corporation of India, New Delhi). In the said decision the Food Corporation of India was directed to give pay revision benefits, which was denied to the petitioner therein, though extended to some class of persons in other regions. The said decision was upheld by the Division Bench of this Court in W.A.No.956 of 2006 by judgment dated 30.10.2006. S.L.P.(C) No.677 of 2007 filed before the Honourable Supreme Court was also dismissed on 23.4.2007. 18. In this case, as stated supra, at least 12 persons were granted promotion subject to condition to pass Diploma in Computer Application within one year, but without their participation in the written test as admitted in the counter affidavit and also as evidenced from the file. It is also noticed above that no relaxation was granted to them. Hence action of the respondent in passing the impugned order is discriminatory and violative of Article 14 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 19. The promotion given to the said 12 persons is not illegal as the said order was passed in compliance with G.O.Ms.No.57 P&AR Department, dated 23.3.2001 and the resolution passed by the Syndicate on 7.12.2001. Hence there is no justification on the part of the learned counsel for the respondent University to contend that illegality cannot be treated as a precedent. The University neither in the counter affidavit nor in the Additional Counter affidavit filed, has chosen to state that the promotion given to others are illegal. The said orders having been found legal, I am of the view that the petitioner is also entitled to get similar relief. 20. The petitioner, a widow, though passed B.A., B.LIS, M.LIS and M.Phil (LIS) degrees, was compelled to serve as an Attender for the past 15 years and is languishing for promotion to the post of Assistant. The facts above stated reveal that the action of the University is unreasonable and not expected of the reputed University authorities. 21. In view of the above findings, the writ petition is allowed and the impugned resolution No.83 dated 25.8.2010 is set aside. The respondents are directed to verify petitioner's qualifications and consider the claim of the petitioner seeking promotion as Assistant with all benefits from 4.8.2002, as promotions were given to similarly placed 12 persons, on the basis of the findings rendered above and pass necessary orders within a period of four weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vr To 1. The Vice Chancellor, University of Madras, Chennai – 600 005. 2. The Registrar, Office of the Registrar, University of Madras, Chennai – 600 005. 1 cc to Mr. Mani Sundaragopal , Advocate, Sr.No.36756/11 1 cc to Mrs.R.Meenal , Advocate, Sr.No36409/11 W.P.No.19432 of 2009 kgk(co) pmk.27.6.2011 https://hcservices.ecourts.gov.in/hcservices/