IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.16089 of 2011 and M.P.No.1 of 2011 Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam, (AnnaAmsam), Represented by its President, Dr.R.S.Kumar ...Petitioner Vs. 1.State of Tamilnadu, Rep. By its Secretary to Government, Higher Education Department, Secretariat, Fort St.George, Chennai – 600 009. 2.The Vice Chancellor, Annamalai University, Annamalai Nagar 608 002 Cuddalore District. 3.The Registrar, Annamalai University, Annamalai Nagar 608 002 Cuddalore District. ...Respondents Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Declaration, declaring Section 19(3) of the Annamalai University Act, 1928, so far as the expression 'Professor' contained therein does not denote any category of Professor in the respondent University, unconstitutional. For Petitioner : Mr.M.Radhakrishnan for Mr.S.Sathia Chandran For Respondents : Mr.E.Sampathkumar, Spl.G.P.(Edn) for R1 Ms.D.Geetha for R2 and R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is an Association functioning under the third respondent. They have come forward to file the present writ petition, seeking for a writ in the nature of Declaration, declaring Section 19(3) of the Annamalai University Act, 1928, in so far as the expression 'Professor' contained therein does not denote any category of Professor in the respondent University and wants a declaration from this Court that it is unconstitutional. 2. Hence, it is necessary to refer to Section 19 of the Annamalai University Act, 1928, which reads as follows:- "19(1)The University shall include Faculties of Arts, Science, Technology and Oriental Studies and such other Faculties as may be prescribed and each such Faculty shall be constituted in the manner prescribed. (2) Each Faculty shall have a Dean. He shall be elected by the Faculty from among the heads of departments of the Faculty, and shall be responsible for the due observance of the statutes and regulations relating to the Faculty. He shall hold office for such period and subject to such conditions as may be prescribed by the statutes. (3) Each Faculty shall comprise such departments of study as may be prescribed by the regulations and shall, subject to the control of the Academic Council, have charge of the teaching, courses of study and research work in such departments. The head of every department of study shall be the Professor of that department, or, if there is no Professor, the Reader. If there is more than one Professor, or more than one Reader in a department, as the case may be, the Vice Chancellor shall appoint such Professor or Reader as he thinks fit to be the head of the department. The head of the department shall be responsible to the Dean for the organisation of the teaching in that department." (Emphasis added) 3. The apprehension made by the petitioner was that after the Act was made, due to the introduction of the Career Promotion Scheme, there are many persons due to the length of service have got the status of Professors. If the distinction between a regular Professor and a person who got promoted through Career Promotion Scheme is not made, then it will result in injustice, inasmuch as the persons who came through regular promotion will be overshadowed https://hcservices.ecourts.gov.in/hcservices/ by such of those persons who got designation due to Career Promotion Scheme. Therefore, the impugned provision inasmuch as it does not make any distinction between regular promotee and Career Advancement Promotee is unconstitutional. 4. However, this Court is not inclined to accept the said contention. It must be noted that when the Annamalai University Act was enacted in the year 1928, the Scheme for Career Promotion was unknown and the scheme came much later. Hence, the impugned provisions does not suffer from any ambiguity or discrimination. 5. In fact, an identical question came up for consideration before the Supreme Court in Dr.Rashmi Srivastava v. Vikram University reported in (1995) 3 SCC 653. The Supreme Court held that Merit Promotion Scheme for University Teachers fall outside the cadre of direct recruits. Such Merit Promotees are not entitled to be included in the seniority list of direct recruits. They will be entitled to remain in promotional post till their retirement or reversion for valid reasons. In view of the present nature of promotion, they will also be entitled for all other purposes like pay, work and status, whether he is a Reader or Professor as the case may be. But a separate inter se seniority of such promotees has to be prepared on the basis of continuous officiation as such merit promotees. In this context, it is necessary to refer to the following passage found in paragraphs 44 and 45, which reads as follows:- "44. So far as this point is concerned we may note that the High Court by the impugned judgment has taken the view in the last para of the judgment that the respondent University shall delete the names of Respondents 4 to 9 in MP No. 1180 of 1989 and Respondent 4 in MP No. 208 of 1989 from the seniority list. A grave exception was taken by learned counsel for appellants to the aforesaid direction. It was submitted that once the merit promotion scheme recommended by the Commission was adopted by the respondent University and once the incumbents concerned were promoted on merit as Reader or Professor as the case may be they were entitled to work as Readers or Professors even assuming that they were ex cadre employees. Hence it cannot be said that they should not be treated as Readers or Professors at all and their seniority should be shown only in the lower cadre of Reader or Lecturer as the case may be from which they were promoted on merit as Readers or Professors. In this connection they invited our attention to para 12 of the judgment to the effect that it is clear from the scheme Annexure P-4 that by virtue of promotion under the said scheme, it is only the designation of the incumbent which is changed but in reality he https://hcservices.ecourts.gov.in/hcservices/ remains in the same lower cadre of either Reader or Lecturer as the case may be. Consequently Respondents 4 to 9 cannot be held to have been appointed by the University on clear vacant posts of Professors and their names cannot be included in the seniority list of Professors nor can they be considered senior to the petitioner. According to us no exception can be taken to the last part of para 12, where it is observed that Respondents 4 to 9 cannot be held to have been appointed on clear vacant posts of Professors nor can they be included in the seniority list of Professor nor can be considered senior to the petitioner. But it must be clarified at this stage that even though they may not be included in the seniority list of cadre employees, namely, Professors or Readers it also cannot be held as assumed by the High Court that their merit promotions were of no legal effect at all. In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed that with a view to avoid stagnation amongst university teachers the Commission recommended a scheme of merit promotion. The very preamble of the scheme shows that it is necessary to give reasonable opportunity for career advancement and recognition of merit and it is on the basis of competitive test for recognising outstanding work and merit that such merit promotions were given. Once a Lecturer is promoted on merit as Reader or a Reader as Professor even though the promotion may be personal to him he can certainly continue to work as promotee Reader or Professor till he retires or otherwise ceases to be an employee of the University or till he is reverted for some valid reasons. There is no question of such a merit promotee being reverted otherwise to the lower cadre from which he came. He has to work as a Reader or Professor as the case may be and share the workload with the cadre employees. In fact as there is no vacancy created in the lower cadre from which he came on account of his promotion, he has also to share the burden of workload of the lower post. Consequently it cannot be said that such a merit promotee is not the Reader or Professor so far as his work as Reader or Professor is concerned. He cannot claim to be fitted in the inter se seniority list and may remain outside the cadre of Reader or Professor as the case may be. However, for all other purposes like pay, work and status, he is a Reader or Professor as the case may be. https://hcservices.ecourts.gov.in/hcservices/ 45. The question then remains as to how his seniority has to be reckoned as a merit promotee even though he is an ex cadre Reader or Professor. The answer is obvious. Amongst persons forming the same class to which he belongs, namely, merit promotee Readers or Professors their inter se seniority has to be fixed on the basis of continuous officiation as such merit promotees. Such a separate seniority list of merit promotee Readers and Professors has to be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the cadre. It is not as if they are still to be treated as only Lecturers or Readers as the case may be from which posts they got merit promotion, as wrongly assumed by the High Court. In short there have to be two seniority lists, one of the cadre Readers and Professors who are direct recruits and the other of merit promotee Readers and Professors. The directions issued by the High Court in the impugned judgment in para 16 read with the observations in para 12 will have to stand modified as aforesaid. It is however, clarified that the direction of the High Court that names of Respondents 4 to 9 in MP No. 1180 of 1989 and Respondent 4 in MP No. 208 of 1989 in the combined seniority list will have to be deleted has to be sustained. The other directions contained in the later part of para 16 also will have to be sustained. Point 2 is answered in the negative but as indicated hereinabove." (Emphasis added) 5. In the light of the clear pronouncement of the Supreme Court as set out above, it is unnecessary to declare Section 19(3) of Annamalai University Act, 1928, as unconstitutional. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government, State of Tamilnadu, Higher Education Department, Secretariat, Fort St.George, Chennai – 600 009. 2.The Vice Chancellor, Annamalai University, Annamalai Nagar 608 002 Cuddalore District. 3.The Registrar, Annamalai University, Annamalai Nagar 608 002 Cuddalore District. 1 cc to Mr. Sathia Chandran, Advocate, Sr. 40490 1 cc to Mrs. D. Geetha, Advocat, Sr. 39931 W.P.No.16089 of 2011 VS (CO) kk 22/7 https://hcservices.ecourts.gov.in/hcservices/