IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.26324 of 2010 and M.P.Nos.1 and 2 of 2010 Dr.M.Soudarssane .. Petitioner Vs. 1.Special Secretary (Art & Culture) cum Director, Puducherry Institute of Linguistics and Culture, Chief Secretariat, Puducherry. 2.Dr.S.Bakthavatchala Bharathy, Assistant Professor, Puducherry Institute of Linguistics and Culture, Puducherry. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent with No.nil, dated 19.11.2010 promoting the second respondent to the post of Director and reverting the petitioner from the post of Director. For Petitioner : Mr.V.Ajayakumar For Respondents : Mr.P.V.S.Giridhar for RR1 and 2 ORDER The petitioner has filed the present writ petition seeking to challenge an order dated 19.11.2010 passed by the first respondent Special Secretary (Arts and Culture) cum Director, Puducherry Institute of Linguistic and Culture in promoting the second respondent to the post of Director and reverting the petitioner and seeks to set aside the same. 2.When the matter came up on 23.11.2010, this Court directed private notices to be served on the respondents and a status quo was directed to be maintained. Subsequently, the learned Government Pleader (Puducherry) took notice and the interim order came to be extended. A counter affidavit was filed by the first respondent, dated 30.3.2011, to which the petitioner had filed a rejoinder dated 21.4.2011. https://hcservices.ecourts.gov.in/hcservices/ 3.Heard the arguments of Mr.V.Ajayakumar, learned counsel appearing for the petitioner and Mr.P.V.S.Giridhar, learned counsel appearing for both respondents. 4.The case of the petitioner was that he is currently working as a Director of the Puducherry Institute of Linguistic and Culture, Puducherry. He joined the service as a Lecturer on 24.12.1990. On 24.7.1995, his services were regularized. Subsequently, on 28.5.2007, he was fitted in the senior scale equivalent to that of the Assistant Professor as per the UGC norms with effect from 24.7.1999. The petitioner is the senior most Assistant Professor in the entire cadre. When a tentative seniority list of the Assistant Professor was prepared on 27.7.2007, the petitioner was shown in Serial Number 1 in the said list. Therefore, by an order dated 28.03.2006, he was appointed as a Director of the Institute until further orders. 5.It was stated that the said institute was established by the Union Territory of Puducherry as an autonomous institution. It is a registered society with the Educational Minister as its Chairman and the Special Secretary for Arts and Culture, i.e., the first respondent as its Vice Chairman. It is also a "State" within the meaning of Article 12 of the Constitution. The Government of Puducherry had allotted funds to the institute which runs upto Rs.1 Crore. It was claimed that even the current funds was not sufficient for carrying out various research activities. The substantial fund was given away as salary to the staff engaged by them. It was further stated that there was political pressure exerted to appoint daily wage labourers numbering about 10 to 15, for which the petitioner had objected to. In the meanwhile, complaints were also received against the second respondent including harassing the research scholars. The petitioner was forced to give memos on the conduct of the second respondent. 6.It was stated that the first respondent and the Minister concerned were waiting for an opportunity to wreak vengeance on the petitioner. Therefore, on 19.11.2010 around 7.00 p.m., the petitioner had received an information of appointing the second respondent as a Director of the institute. The Draft Recruitment Rules for the post of the Director sent to the Government for approval, was still pending at that time and that there was no regular recruitment rules for filling up the post. As per the draft recruitment rules, the method of appointment to the post of the Director is by promotion from the cadre of Senior Lecturer (presently re-designated as an Assistant Professor) and an aspirant must have 10 years of service. The promotion was on the basis of seniority cum fitness. In the matter of selecting the second respondent without adhering to any norms, a pick and choose method was adopted by the first respondent and that the petitioner's claim was disregarded and he was unceremoniously edged out. 7.In the counter affidavit filed by the first respondent, it was claimed that a tentative seniority list was fixed without getting approval from the competent authority. The petitioner was https://hcservices.ecourts.gov.in/hcservices/ neither senior most Assistant Professor in the entire cadre nor senior most faculty of the institute. Objections were raised by several persons including Dr.T.Parasuraman and Dr.S.Pilavendran. Despite the same, the list was not revised. On 28.03.2006, the previous Director Dr.P.Marudanayagam had resigned and in order to have smooth functioning of administration, the petitioner was made as an in-charge Director and he was not regularly appointed. Earlier when the petitioner was relieved from service on ground of inefficiency, he filed W.P.No.16367 of 1994, challenging the relieving order. But, he was not successful. The petitioner's inefficient administration had led to the financial crisis. He never convened the Advisory Council meeting. Though the petitioner was asked to start classes for teaching of Foreign languages for college students, the petitioner did not take any initiative. He was involved in mudslinging and making false allegations against higher authorities. 8.It was stated that the second respondent was working in the Tamil University from 1985 to 1990. He had an excellent record of publications and he is the senior most faculty in the department of Anthropology. The petitioner made an indirect attempt to send a petition against the second respondent. Unless and until the person is charge-sheeted under Rule 14 of the CCS(CCA) Rules, one cannot construe that there are allegations pending against the second respondent. The second respondent's visit to Srilanka was not unauthorised and permission was given by the Chairman. The second respondent had assumed charge as Director In-charge on 19.11.2010 at 5.00 p.m. He was only asked to look after the current duties of the Director and that he will relinquish as and when his successor takes charge. The second respondent had fulfilled all norms under the draft recruitment rules. With reference to appointment of second respondent, in paragraph 24 of the counter, it was averred as follows: "24.As per the schedule attached to the service Bye Laws governing he functioning of PICL, the powers have been delegated to the Chairman. The Chairman has full powers to make officiating appointments to Group A and B against the vacancies that arise as emergent nature, which will be ratified later in the Governing Body (G.B). So the Chairman has got full powers to appoint the Director subject to the ratification of G.B. So far the G.B. has not been convened due to administrative reasons, mainly in view of the upcoming Assembly Elections. As and when the new Chairman assumes office and the G.B is reconstituted, the appointment of the Second Respondent will be ratified. So the question of impugned order and non- issuance of relieving order, etc., are not maintainable and sustainable in the eyes of law as contended by the Petitioner. So there is no irregularity, much less any illegality or malafides in the appointment of the second respondent on a temporary basis...." https://hcservices.ecourts.gov.in/hcservices/ 9.The petitioner had filed a rejoinder, dated 21.4.2011. In the rejoinder, it was claimed that if the earlier seniority list was held to be a tentative seniority list and if objections raised by Dr.T.Parasuraman and Dr.S.Pilavendran are accepted, it is the second respondent who will go down in the seniority list and not the petitioner. For reverting the petitioner that too based on unsubstantiated allegations, no enquiry was conducted. The petitioner had produced 4 Ph.D. holders, which is the essential qualification under the UGC norms. The petitioner being the Director In-charge never shrunk his responsibility and that for the selection of the new Director, no DPC was conducted. 10.The short question that arises for consideration is whether the action initiated against the petitioner in removing him from the post of the Director In-charge and appointing the second respondent as the Director In-charge was justified or not? 11.Mr.Ajayakumar, learned counsel for the petitioner produced service byelaws of the institute made in the year 1993. Under the byelaws, with reference to recruitment by promotion, in Part II Rule 6, it is stated as follows: "(6)Recruitment by promotion : i)Appointment to a post in any grade by promotion shall be made, whether in a permanent or officiating capacity, from amongst employees serving in feeder posts as specified in the Recruitment Rules. ii)Every appointment by promotion shall be on the basis of suitability with due regard being paid to seniority academic excellence/productivity. Iii)The Selection Committee for filling up of posts under the Institute by promotion from amongst the employees shall be constituted, in the manner laid down below;- a)in the case of Research cum-academic staff, the Vice-Chairman, Director (PILC), Director of Education, Director of Art and Culture, three Experts, and the Head of the faculty concerned shall be the members of the committee. The Vice-Chairman shall be the Chairman of the Selection Committee; (b)in the case of administrative staff, Vice-Chairman (PILC)/Secy. (Edn.) one expert, Director of Art and Culture and Director (PILC), shall be the members of the Committee. The Vice- Chairman (PILC)/Secy.(Edn.) shall be the Chairman of the Selection Committee." 12.With reference to appointment and adhoc appointment, https://hcservices.ecourts.gov.in/hcservices/ Part II Rules 7 and 8 read as follows: "(7)Appointments: Appointment to a post shall be made by the Governing Body or by the authority authorised by the Governing Body for the purpose, on the recommendations of the Selection Committee constituted for the purpose from time to time. (8)Ad-hoc appointments: Not withstanding anything contained in the above bye-laws, the Governing Body may by a general or special order and subject to such conditions as it may specify in such order, delegate to any authority in the Institute, the power to make ad-hoc appointments." 13.Therefore, the power to appoint vests only with the governing body and not with the Chairman (Minister of Education) as contended by the first respondent. It is only in case of delegation, the power to make appointments were given to any other authority. Under Clause 22 of the service bylaws, the schedule of powers delegated to the Chairman and the Director was referred to. It is stated that for exercising the powers of the governing body, in emergent cases the Chairman was authorised to exercise its full powers only as follows: "Full powers – this power shall be exercised only in cases of such emergent nature which may not be possible to the withheld till the convening of the Governing Body or by circulation of the case among the members of the Governing Body and subject to report to Governing Body in the next meeting for its ratification." 14.This power is exercised only in between two governing bodies and that too in an emergent situation and not otherwise. As per paragraph 4, to make Officiating appointments upto three months to Group A and B posts against the vacancies caused on account of leave, retirement and death, the Chairman can exercise his full power provided the duration of vacancies exceeds 30 days. 15.Hence it is necessary to see whether the second respondent was appointed in accordance with the bylaws. The impugned order dated 19.11.2010 reads as follows: Sub :CS(A&C)-PILC-Appointment of Dr.S.Bhakthavatsala Bharathi, Senior Lecturer (Anthropology) as Director-in- Charge – Orders – Issued. Ref :i.Memorandum No.24197/CS(A&C)/E6/2005 dt.28.3.2006 of the Chief Secretariat (Art & Culture). ii.Note No.344/PWM/PS/2010 dt.20.9.2010 from the Chairman, PILC, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ In pursuance of reference second cited Dr.S.Bhakthavatsala Bharathi, Senior Lecturer, PILC is appointed as Director-in-charge of PILC purely on temporary and ad-hoc basis with immediate effect until further orders vice Dr.M.Soudarssane, Senior Lecturer, PILC hitherto looking after the current duties of the post of Director, PILC vide reference first cited. (S.M.KHANNAJI) SPECIAL SECRETARY TO GOVT. (ART & CULTURE) AND VICE CHAIRMAN, PILC. 16.This court directed the two references mentioned in the reference to be produced. In the Office Note (2nd reference), the Minister of Arts and Culture had approved the following note which reads as follows: "1.Pondicherry Institute of Linguistics and Culture (PILC), a society run with the financial support from the Department of Art & Culture has been started mainly with the objective to focus on research activities in the fields of language, literature and culture. 2.Many Linguistic programmes are also required to be taken up thro' PILC such as Language workshop etc. presently the institute is headed by a senior academic staff of the institute as Director in-charge. 3.The Institute is in its 25th year of service, a milestone in the history of its existence. However, the Institute has to accelerate its activities further so as to fulfill the objectives for which it was started. The activities are required to be fine tuned. To take up the programmes very effectively, the society requires a Director in-charge with much initiatives and experience. 4.It is desirable that an arrangement may be made that a senior academic staff of PILC with good experience and drive may replace the present Director In-charge, in order to give the required impetus and thrust to the activities of the institute. It is suggested that Thiru S.Bakthavatsala Bharathi, senior academic staff of PILC may be posted as Director in-charge of PILC. 5.Accordingly, necessary early action may be taken to post Thiru S.Bakthavatsala Bharathi, as Director in-charge of PILC." 17.Thereafter, on the basis of the command performance, the https://hcservices.ecourts.gov.in/hcservices/ first respondent Secretary had prepared a fresh proceedings. In paragraphs 5,6, 7 and 9 of the note, it was recorded as follows: "5.In this connection, it is stated that the institute is governed by set of rules and regulations approved by the Government based on which all the activities in regard to recruitment, literary and other functional aspects are carried out. The draft recruitment rules for the post of Director as proposed by the institute is under examination in the society. 6.If a Selection Committee/Recruitment Committee exists, what is its composition? Composition of Selection Committee 1.Vice Chairman, PILC/Secretary to Govt. (Art & Culture)-Chairman 2.Director, Art and Culture-Member 3.Director, Dept. of Education-Member 4.Three experts in relevant field. 7.The Vice-Chairman cum Secretary is the Chairman of the DPC. Since the above Recruitment Rules are in draft stage and the present proposal is mooted by the Hon'ble Minister for Art & Culture being the chairman of the society, the same may be agreed to subject to ratification by the Governing Body, which is the apex body to decide and approve all academic and administrative matters in all its spheres. As per the tentative seniority list of the faculties Dr.S.Bhakthavatsala Bharathi is the next senior to Dr.M.Soudarssane, the present Director in charge and fulfills the educational qualifications prescribed in the proposed RR as the post is a selection post. 9.The file may be submitted to the Special Secretary to Art and Culture cum Vice-Chairman, PILC and then to Hon'ble Minister (Art & Culture) for approval." 18.It is needless to state that promptly the file was circulated. The first respondent had immediately approved the note on 18.11.2010 and the Minister as per the note approved it on 19.11.2010. It must be noted that if the draft recruitment rules are pending approval for over four years, then the respondents could have done something to finalise the rules rather than taking an adhoc decision on an adhoc appointment. When the petitioner has been holding the post all along, there is no necessity to remove him. If there are any adverse circumstances, certainly, he is entitled for an hearing. While the second respondent was considered as the second senior person in the note file, however in the counter affidavit the very seniority itself was doubted by stating https://hcservices.ecourts.gov.in/hcservices/ that it was a tentative list and that objections were raised and were pending. 19.In such circumstances, even if as per the understanding of the second respondent, it was the senior most person was to become the Director and that was why the petitioner was made as the Director In-charge even in the year 2006, nothing prevented the respondents in the last four years to finalise the regular recruitment rules and go for a proper appointment of a full time Director. The respondents cannot suddenly wake up about the so- called inefficiency of the petitioner when they had slept over the matter for the last four years. But for the Minister initiating the proposal (it is obvious that it must be at the instance of the second respondent), the first respondent merely fell in line with his dictum. Even the office note clearly referred to the composition of selection committee and that the second respondent was only the second in the seniority list. Such an anxiety on the part of the first respondent to obey to the command of a Minister (who was an ex-officio Chairman) was hardly expected of a Government servant. He is in a position to advice the Minister properly in such matters rather than chanting the slogan of "Yes Minister". 20.Under the rules, this decision cannot be labelled as an adhoc decision. Even for an adhoc decision, as per the delegation of powers pointed out in the counter affidavit, there must be an emergent situation. The proceedings do not show any such emergent situation for the Minister to exercise his extraordinary power. The impugned order is a thorough misconception and wrong understanding of the relevant rule provisions. Hence it obliges this court to set aside the impugned order. Accordingly, the impugned order will stand set aside. The writ petition will stand allowed. However, the parties are allowed to bear their own costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To Special Secretary (Art & Culture) cum Director, Puducherry Institute of Linguistics and Culture, Chief Secretariat, Puducherry. 1 cc To Mr.V.Ajayakumar, Advocate, SR.2859 1 cc To Mr.P.V.S.Giridhar , Advocate, SR.32332 W.P.NO.26324 of 2010 rsy(co)pmk.10.6.2011 https://hcservices.ecourts.gov.in/hcservices/