IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.06.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.1294 of 2007 J.Manova .. Petitioner vs. The Registrar University of Madras Centenary Buildings Chepauk, Chennai 5. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the respondent herein relating to his proceedings dated 9.11.2006 in Officer Communication No.F.T. (A) Estt/2006/2767, quash the same and consequently regularize the services of the petitioner as Junior Assistant with effect from the date of his appointment dated 18.7.1977. For petitioner : Mr.AR.L.Sundaresan,Sr.Counsel for Ms.A.L.Gandhimathi For respondent : Mr.Mani Sundara Gopal ORDER The writ petition is directed against the order of the respondent, Registrar of University of Madras, by which the University, as per the decision of its Syndicate dated 25.03.1979 and 04.07.2006, has regularised and confirmed the petitioner in the post of Junior Assistant with effect from 08.10.1985, by considering the seniority with effect from the said date and placing him between Thiru T.G.Mohan and Tmt.G.Shyama. 2. The petitioner has joined as Bradma Operator in the respondent University on 18.07.1977 in the regular scale of pay and he has also completed the probation of two years. The Government, by G.O.Ms.No.2580 dated 02.12.1975, has abolished the post of Bradma Operator and by the above said Government Order, the general and special rules applicable to holders of permanent post of Junior https://hcservices.ecourts.gov.in/hcservices/ Assistant in the category 14 of the Tamil Nadu Ministerial Services were made applicable to the holders of temporary post of Bradma Operators. a) It is stated that, thereafter, the University has placed him as a Junior Assistant with effect from his date of appointment, viz., 18.07.1977 with the special pay of Rs.25/- per month as per the above said Government Order. It is further stated that the Establishment Committee of the University has decided to accept the representation of the petitioner to confirm him as Junior Assistant from the date of his appointment, viz., 18.07.1977 and accordingly the seniority arising thereon and other benefits including the promotion have been given to him and the Establishment Committee's decision has been approved by the Syndicate of the University on 12.01.2001. b) According to the petitioner, his services were regularised as Junior Assistant from the date of his appointment as Bradma Operator from 18.07.1977. It is stated that, thereafter many persons were appointed as Junior Assistant without having required qualification and they were granted time to acquire required qualification and the petitioner was also given time to acquire the qualification to be required for the post of Junior Assistant in the year 1985. c) In the proceedings dated 31.01.2003, the petitioner's name was included in the panel for the post of Section Officer in the order of seniority in Serial No.17 and was posted as Section Officer in the place of R.Natarajan, who had voluntarily retired and the posting order was issued on 15.04.2003. It appears that on various representations made by others, who were affected by such promotion of the petitioner, the petitioner was informed on 27.06.2003 that the Syndicate has decided on 06.06.2003, by considering the said representations made by one R.Parthasarathy, Assistant Section Officer and 34 others and accordingly, reverted the petitioner back to the post of Junior Assistant with effect from 08.10.1985. The arrears paid to the petitioner to the tune of Rs.1,79,780/- was also sought to be recovered. d) The petitioner has made a representation to the respondent University, to treat him on par with those who were appointed as Junior Assistant without qualification and who were regularised as Junior Assistant after acquiring the qualification from the date of their appointment and the same was rejected by the respondent on 09.09.2006, confirming the regularisation of the petitioner's service by considering his seniority from 08.10.1985 only and the said order is challenged on various grounds, including that it is arbitrary; that the respondent has failed to see that all https://hcservices.ecourts.gov.in/hcservices/ other Junior Assistants, who have not acquired the qualification on the date of their appointment have been given benefits from the date of their original appointment, including regularization; that the respondent has made arrangements for recovery of the amount paid in excess; that even in respect of some of the persons who have not acquired qualifications on the date of their original appointment till date have been given benefits and even though the petitioner was appointed in 1977 itself, that has not been taken into consideration. 3. In the counter affidavit filed by the respondent, it is stated that the petitioner was originally appointed as Bradma Operator on 18.07.1977, which is a technical post with the qualification of S.S.L.C. with a Trade Certificate. It was, on 25.03.1979, a proposal was placed before the Syndicate that the petitioner may be placed in the category of Junior Assistant with effect from the date of his appointment, viz., 18.07.1977 with a special pay of Rs.25/- in conformity with G.O.Ms.No.2580 Revenue Department dated 02.12.1975. However, the Syndicate has resolved to pay the special pay as per the said Government Order. a) Thereafter, the petitioner's service was regularised in the post of Bradma Operator from 12.05.1987. The petitioner has made a representation in the year 1989 to the University to reconsider the decision of the University dated 20.04.1987, to regularise him as Bradma Operator with effect from 18.07.1977 and requested to regularise him in the post of Junior Assistant from the said date. However, the qualification required for the post of Junior Assistant was SSLC with Typewriting (English) Higher Grade or Pre-University with Typewriting (English) Lower Grade or Degree. b) At the time of appointment, the petitioner did not possess the required qualification, viz., Typewriting English Higher Grade and he got the said qualification viz., Pre-University with Typewriting English Lower Grade only in October,1985. After taking the same into consideration, the Establishment Committee of the University has placed a recommendation to the Syndicate with two options, viz., either to continue the petitioner as a Bradma Operator in technical cadre or to bring him in the clerical cadre in the category of Junior Assistant and take the normal course of promotion stating that if the petitioner chooses the latter option, which he prefers as per the representation, he can be regularised in the post of Junior Assistant, only from the date of acquiring the prescribed qualification for the post. c) In this case, the petitioner acquired the required qualification in October,1985, and therefore, a proposal has been sent to the effect that he can be regularised from October,1985 as Junior Assistant. The Syndicate, in its meeting held on 13.06.1991, approved the recommendation and the same was communicated to the https://hcservices.ecourts.gov.in/hcservices/ petitioner on 22.07.1991. Again, the petitioner has made a representation to regularise him from 18.07.1977, the date of his appointment as Bradma Operator, however, the Syndicate, on 28.04.1998 has considered the same and decided that his original date of appointment, viz., 18.07.1977 be counted for his retirement benefits only and not for his seniority. d) Again, the petitioner has made a representation on 28.06.2000, claiming regularisation in the post of Junior Assistant from the date of his appointment in the post of Bradma Operator and therefore, on 12.01.2001, the Syndicate of the respondent University has resolved that the petitioner, who had been appointed as Bradma Operator was regularised in the said post and confirmed as Junior Assistant from the date of appointment, viz., 18.07.1977, granting all service benefits, including promotion and seniority arising thereon as in the case of 175 batch of incumbents, who have been regularised from the date of their appointment in the Syndicate decision dated 06.03.1996. e) One R.Parthasarathy and 34 others have raised objection by way of representation against the said decision appointing the petitioner as Junior Assistant from the date of his original appointment and also conferring the seniority on such basis and by such action, their seniority is affected. In the meantime, the petitioner was also promoted as Section Officer on 01.04.2003. After considering the representation of R.Parthasarathy and 34 others and taking into consideration of relevant factors, on 06.06.2003, the Syndicate of the respondent University has decided to revert the petitioner, who was then working as Section Officer as Junior Assistant with effect from 08.10.1985, for which he is eligible for the subsequent service benefits by virtue of his qualification. f) Further, it was resolved to recover the arrears of Rs.1,79,780/- paid to him and that decision of the Syndicate was communicated to the petitioner on 27.06.2003 and the petitioner has given a representation requesting to reconsider the Syndicate's decision dated 06.06.2003, and after considering the same it was decided by the Syndicate on 25.10.2006 that, the seniority of the petitioner be fixed in the post of Junior Assistant only from the date of acquisition of the requisite qualification i.e., from October,1985 only and that was communicated to him on 09.11.2006, informing that he is placed between Thiru T.G.Mohan and Tmt.G.Shyama. g) The impugned order is only a communication of the resolution of the Syndicate dated 25.03.1979 and 06.06.2003. The said resolution of the Syndicate dated 06.06.2003 has not been challenged by the petitioner and after four years, the present communication has been challenged, which according to the respondent is not maintainable. https://hcservices.ecourts.gov.in/hcservices/ h) By conferring the benefit to the petitioner as Junior Assistant from 1977, persons fully qualified in the year 1977 will be affected and therefore, the resolution of the Syndicate dated 06.06.2003, reverting the petitioner as Junior Assistant from the date of his eligibility, viz., October,1985, is only a rectification of mistake. 4. It is the contention of Mr.AR.L.Sundaresan, learned senior counsel appearing for the petitioner that the University having taken a decision as early as on 04.5.2001, regularising the appointment of the petitioner as Junior Assistant with effect from the date of his original appointment, viz., 18.07.1977, has arbitrarily passed the subsequent resolution dated 06.06.2003, by reverting him as Junior Assistant from 08.10.1985 and that decision was communicated to the petitioner only under the impugned communication by the Registrar of the respondent University, and therefore, according to the learned senior counsel, when once the resolution of the Syndicate dated 06.06.2003, is patently illegal, there is no jurisdiction on the part of the Syndicate of the respondent University to supersede its earlier resolution dated 04.05.2001 and conferment of benefits given in the year 2001 were taken away by the resolution of the year 2003, without giving opportunity which is opposed to the basic principles of natural justice. 5. On the other hand, it is the contention of Mr.Mani Sundara Gopal, learned counsel appearing for the University that, admittedly, the petitioner has acquired the qualification which is necessary for the post of Junior Assistant only on 08.10.1985 and therefore, he cannot claim any benefit from the date of his original appointment, viz., 18.07.1977, especially when the University has not denied his pensionary benefits from the date of appointment, but only in respect of the seniority in the cadre of Junior Assistant, his date of acquiring qualification, viz., October,1985 has been taken into consideration, which cannot be found fault with. According to the learned counsel, when the petitioner was not having the required qualification for the post, he cannot take advantage of the earlier resolution of the Syndicate for conferment of benefits. Moreover, it is his contention that the decision has been taken only based on the objections raised by various persons, who were practically affected by the resolution of the Syndicate dated 04.05.2001 and the Syndicate being the authority under the statute of University of Madras has rectified the mistake, which cannot be found fault with. It is his submission that the petitioner having no qualification cannot claim the principles of natural justice by relying upon the observation of the Supreme Court in Haryana Financial Corporation and another vs. Kailash Chandra Ahuja (2008 (9) SCC 31). He would also submit that by conferring the benefit of Junior Assistant to the petitioner from the date of his original appointment, viz., from 18.07.1977, many https://hcservices.ecourts.gov.in/hcservices/ number of Junior Assistants appointed with necessary qualification will be affected and that is numbering nearly 35 and without making them as parties, the present writ petition cannot be maintainable. 6. It is not in dispute that the petitioner was originally appointed in the year 1977 as Bradma Operator, for which the necessary qualification was a pass in SSLC and certain technical qualifications. It is seen in G.O.Ms.No.2580 Revenue Department dated 02.12.1975, that the Government has made applicable the general and special rules to the holders of Bradma Operators also, even though the same was originally applicable to the Junior Assistants. The statutory rules which were framed by way of ad hoc rules temporarily, are as follows: " The general and the special rules applicable to the holders of the permanent posts of Junior Assistants in Category 14 in the Tamil Nadu Ministerial Service shall apply to the holders of the temporary posts of Bradma Operators subject to the modification specified in the following rules. 2. Constitution.- The posts shall form a temporary addition to the said Category of the said service. 3. Appointing authority.- The appointing authority for the posts shall be the Personal Assistant tot he Collector concerned. 4. Pay.- There shall be paid to the holders of the post, a monthly pay calculated in the scale of Rs.210-5- 245-10-325 with a special pay of Rs.25 per mensum." Therefore, the post of Bradma Operator was not equated to the post of the Junior Assistant and it was intended only to make applicable the special rules for Junior Assistants, also to the Bradma Operators. Therefore, it is not correct as it is submitted by the learned senior counsel for the petitioner that by the Government Order, the Bradma Operators have been converted into Junior Assistants. However, it is true that the University in its resolution dated 04.05.2001, based on the representation made by the petitioner dated 28.06.2000, has passed a resolution, which was as follows: " RESOLVED to recommend that Thiru J.Manova appointed as Bradma Operator be regularised and confirmed as Junior Assistant from the date of appointment i.e. 18.7.1977 and accord all service benefits including promotion and seniority arising thereon as done in the case of 175 batch of incumbents whose services were regularised from the date of appointment by the Syndicate on 6.3.1996." https://hcservices.ecourts.gov.in/hcservices/ by which the University has treated him as a Junior Assistant by regularising him from the date of his original appointment, viz., 18.07.1977, the date of his appointment as Bradma Operator. Admittedly, the qualification required for the post of Junior Assistant at that time was, (i)SSLC with Typewriting English Higher Grade; (OR) (ii)Pre-University or equivalent examination with Typewriting English Lower Grade; (OR) (iii)Degree. 7. It is not in dispute that on the date of passing of the resolution by the Syndicate on 04.05.2001, the petitioner was not having anyone of those qualifications. Therefore, by virtue of the said resolution dated 04.05.2001 passed by the Syndicate of the University, the petitioner who was not qualified as Junior Assistant, cannot claim himself eligible to be treated as Junior Assistant from the date of his original appointment as Bradma Operator, viz., 18.07.1977. It is, admittedly, on 08.10.1985, the petitioner acquired the qualification and it is seen that the petitioner has completed the pre-university course with lower grade English Typewriting by that time. 8. By virtue of the resolution passed on 04.05.2001, many number of Junior Assistants with necessary qualifications on the date of their appointment were affected, since their seniority were directed to be interfered with and they have made many representations and in the meantime, the petitioner has been made as Section Officer also. The grievance of the 34 persons is that, when they are already holding the post of Assistant Section Officer from the post of Junior Assistant, the petitioner who was appointed as Bradma Operator, illegally conferred the status of Junior Assistant on 04.05.2001, by misconstruction of G.O.Ms.No.2580 Revenue dated 2.12.1975, has been made as Section Officer, by overlooking all the 34 persons and naturally, it is based on their grievance, the Syndicate reconsidered its earlier decision and passed a resolution on 27.06.2003, by reverting the petitioner as Junior Assistant from 08.10.1985. Therefore, by virtue of the said resolution dated 27.06.2003, which is as follows: " Thiru J.Manova is informed that the Syndicate at its meeting held on 6th June 2003, considered the joint representations dated 01.08.2001 received from Thiru R.Parthasarathy, Assistant Section Officer (SG) and 34 others raising objections for fixing the seniority of Thiru J.Manova above them by regularising the services of Thiru J.Manova, Bradma Operator from the date of appointment as Junior Assistant together with the details furnished by the Section on the subject and https://hcservices.ecourts.gov.in/hcservices/ RESOLVED that Thiru J.Manova, presently working as Section Officer, Institute of Correspondence Education, be reserved back to the post of Junior Assistant w.e.f. 8.10.1985 for which he is eligible when he himself got qualified and he be placed in that cadre in the junior most position w.e.f. 8.10.1985, and that subsequent service benefits be extended as per rules in force. RESOLVED FURTHER that the arrears paid to the tune of Rs.1,79,780/- to Thiru J.Manova be recovered, including the subsequent difference in pay and allowances, from the payment of 60% arrears due to implementation of VI Pay Commission Pay Scales and that he be directed to remit the balance amount within sixty days from the date of receipt of the order." what was sought to be done by the Syndicate of the University was only to rectify the mistake, which was effected by the earlier resolution dated 04.05.2001 and in such circumstances, there is no question of any principles of natural justice involved. The principles of natural justice cannot be argued to be a blind formality in all cases where a person who is either illegally appointed or a person who is appointed without qualification can perpetuate to remain in the said post, affecting all other persons, who were regularly appointed with qualifications. It is in this regard, as submitted by the learned counsel appearing for the respondent University that the Hon'ble Apex Court has held in Haryana Financial Corporation and another vs. Kailash Chandra Ahuja (2008 (9) SCC 31) that even though the principles of natural justice are established legal principles, they have got so many other forms, and the relevant portion of the judgment is as follows: " 25. It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept of “natural justice” is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula." The extent of application of principles of natural justice was also elicited by the Supreme Court in paragraph 28, which is as follows: " 28. This Court has also taken similar view. In Union of India v. P.K. Roy, speaking for the Court, Ramaswami, J. observed: (AIR p. 858, para 11) https://hcservices.ecourts.gov.in/hcservices/ “11. … the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.” The Supreme Court evolved subsequently a theory of prejudice for the purpose of enforcing the principles of natural justice and it was in that case, the Supreme Court, after referring to the judgment in B.Karunakar's case (1993 (4) SCC 727) has held that, for a person claiming his right under the principles of natural justice, he must establish the prejudice, which is likely to be caused to him and ultimately it was held as follows: " 45. In the instant case, no finding has been recorded by the High Court that prejudice had been caused to the delinquent employee, the writ petitioner. According to the High Court, such prejudice is “writ large”. In our view, the above observation and conclusion is not in consonance with the decisions referred to above, including a decision of the Constitution Bench in B. Karunakar. The view of the High Court, hence, cannot be upheld. The impugned order, therefore, deserves to be set aside and is accordingly set aside. Therefore, on the facts of the present case, it is not as if the petitioner can blindly claim his right of natural justice on the basis that certain benefits have been conferred on him. On 04.05.2001, admittedly, the petitioner was not having any qualification for the post, and therefore, the Syndicate by the resolution dated 23.06.2003, can at the most take it as a rectification of mistake committed by the Syndicate in its earlier resolution dated 04.05.2001. The petitioner has not challenged the said resolution, the impugned communication by the Registrar of the respondent University is only a communication of the resolution dated 23.06.2003, and therefore, if such resolution has not been challenged by the petitioner, he has no manner of right to challenge the present communication. There is one another significance that,if the petitioner challenges the resolution dated 23.06.2003, certainly he has to make all parties, who were regularly appointed as Junior Assistants with necessary qualification on the date of their appointment and then only the writ petition could be entertained and therefore, the writ petition is liable to be dismissed for non- joinder of necessary parties also. https://hcservices.ecourts.gov.in/hcservices/ The petitioner having been an unjust beneficiary under the earlier resolution dated 04.05.2001, he cannot claim to continue such unjust benefit and in any event the Syndicate being the authority of the University has got every right to rectify the earlier mistake committed by it and therefore, in that view of the matter, the subsequent resolution of the Syndicate dated 23.04.2003 can at the most be taken as rectification of mistake and cannot be found fault with. Accordingly, the writ petition fails and the same is dismissed. No costs. However, it is made clear that the University shall not make any recovery in respect of the amount, if the same was paid already. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Kh To The Registrar University of Madras Centenary Buildings Chepauk, Chennai 5. + 1 cc to Mr. Manisundaragrpal, Sr.31939 + 1 cc to Gandhimathi, Sr.32126 W.P.No.1294 of 2007 NM(CO) Eu 13.06.11 https://hcservices.ecourts.gov.in/hcservices/