K.Ramachandran Vs The State of Tamil Nadu

Prayer : Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records from the first respondent relating to G.O.Ms.No.14 Higher Education (F2) Department dated 23.01.2016 proposing to post the surplus staff of the third respondent University to the Government Arts and Science Colleges in the State of Tamil Nadu functioning under the control of the first and second respondents detriment to the interest of the Writ Petitioners and all consequential proceedings, quash the same as illegal, arbitrary, un-constitutional, without jurisdiction and consequently direct the Respondents 1 and 2 to frame a Scheme for regularizing/appointing/accommodating the Petitioner Guest Lecturers working in the 1114 vacancies available in the Government Arts and Science Colleges in the State of Tamil Nadu within a time frame fixed by this Court.

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For Petitioners : Mr.A.Vigneshwaran for Mr.K.Srinivasamurthy For Respondents : Mrs.Y.Kavitha Government Advocate for R1 & R2 : Mr.S.Venkatesh for Ajmal Associates for R3

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O R D E R

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W.P.No.6250 of 2016

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Heard the learned counsel for the petitioners and the learned Government Advocate for the respondents and perused the records.

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The case of the petitioners in brief is that they have been working as guest lecturers in various disciplines in Government Colleges since 2002; that the Government had issued a notification identifying 1114 permanent vacancies of lecturers in various disciplines in Government colleges to be filled by direct recruitment; that in the mean time, on account of notifying the Annamalai University Act, 2013 on 29.04.2013, the staff who are found to be surplus in the third respondent university are sought to be absorbed/appointed against the permanent vacancies identified to be filled up by direct recruitment; that in the process of appointing/absorbing the surplus staff of the third respondent university against the notified vacancies, the respondents have appointed persons overlooking the qualifications prescribed for such appointments, and also the available qualified candidates like the petitioners; that by issuing impugned proceedings vide G.O.Ms.No.14 dated 23.01.2016, grave prejudice and irreparable loss has been caused to the petitioners; and that the action of the respondents in appointing the surplus staff of the third respondent university against the identified vacancies

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without verifying/ascertaining the qualification is illegal, arbitrary and is liable to be set aside.

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Second respondent and third respondent filed separate counter

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affidavits.

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The second respondent by the counter affidavit while denying the writ averments contended that the Annamalai University Act, 2013 was notified on 29.04.2013 and the powers of Pro-Chancellor were cut-off once and for all; that the State had to resort to the aforesaid action as appointments were made beyond the sanctioned strength and excess salary having been paid to the staff; that in order to put an end to such acts, the Government took a sound decision to appoint the excess staff from Annamalai University by way of transfer to Government Arts and Science College and Colleges of Education for a period of three years on agreement basis under Rule 11 of Tamil Nadu State Subordinate Services Rules by issuing G.O.Ms.No.14 dated 23.01.2016.

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The second respondent by the counter affidavit further contended that

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the petitioners, while accepting their appointment as guest lecturers in Government Colleges, had agreed to work on an honorarium basis and not to claim anything beyond the honorarium prescribed; that they were treated as temporary staff with remuneration being paid only for 11 months in an academic year i.e., from June to April; that the petitioners by the present writ petition are seeking for being appointed in permanent sanctioned posts without taking part in the selection process which is undertaken by the Teacher Recruitment Board as and when vacancies arise; that several notifications were issued by the Teacher Recruitment Board for direct recruitment of assistant professor posts in Government Arts and Science Colleges in Tamil Nadu, even after notifying the identified vacancies in the year 2013, a part of which were sought to be absorbed/appointed by the surplus staff of the third respondent university on account of the passing of the Act, 2013; and that the petitioners, if are qualified and having adequate experience could have taken part in the subsequent selection process, instead of seeking regularization of their services on the basis of their tenure as guest lecturers, which is purely a temporary appointment.

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The third respondent by the counter affidavit contended that as against

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the notified vacancies of 1114 only 369 number of Assistant Professors were posted from Annamalai University/third respondent for a period of three years under agreement; that insofar as claim of the petitioners of the surplus staff appointed in Government Colleges is without causing proper verification, the qualifications of the Assistant Professors who are posted in the Government Colleges are duly verified by the concerned colleges, and only on fulfillment of norms, such candidates were permitted to join the respective colleges; and that such appointments are based on the policy decision of the Government to redeploy the surplus staff of Annamalai University/third respondent to Government Arts and Science Colleges for a period of three years on an agreement basis; and that the said decision being a policy decision of the State to redeploy the employees of Annamalai University to Government College, the petitioners, who are working as guest lecturers, cannot claim of their rights being affected.

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Contending as above, the respondents seek for dismissal of the writ petition as being not maintainable and unsustainable in law.

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I have taken note of the respective contentions as urged.

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While the petitioners claimed themselves to be qualified for appointment as lecturers / assistant professors, having worked as guest lecturers since 2002, the material paper as filed into this Court would show that the first petitioner secured his M.Phil degree only in June 2007, while the second petitioner secured her M.Phil degree in March 2006 and thereafter was awarded Ph.D in August 2011. The fact of petitioners securing their qualification ie., M.Phil / Ph.D during 2006-2011 would show that their appointment as guest lecturers in 2002 was not made as by having a prescribed educational qualification of Ph.D in the relevant subject or Master Degree with prescribed percentage of marks in the relevant subject and also pass in UGC/CSIR/JRF/NET/SLET/SLST as per UGC norms. If only the petitioners were in regular employment from 2002 as sought to be contended, the petitioners ought to have obtained permission to pursue their further studies while continuing as guest lecturers. No material is placed before this Court to show that the petitioners were permitted to pursue further studies while continuing to work as guest lecturers.

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Further, the petitioners also did not controvert the claim made by the second respondent by its counter affidavit of the petitioners’ appointment being a temporary appointment and being only for a period of 11 months in every academic year, by filing any rejoinder or by placing any material on record. Thus, the petitioners cannot claim of their services having been continued on a continuous basis since their initial appointment in 2002, for them to claim that their services need to be regularized or the Government is required to formulate a policy to appoint/absorb the guest lecturers like the petitioners.

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Though the petitioners in order to buttress their claim in the writ petition had stated that the staff of Annamalai University who do not possess requisite qualification are being appointed/absorbed against notified vacancies on the basis of the impugned G.O, the respondents by the counter affidavit having categorically stated that as against 723 surplus staff, only 369 employees of third respondent being appointed and such appointment is also being undertaken only after verifying the qualifications of the identified surplus staff, the petitioners did not take any steps to substantiate their claim or convert the assertion made by the third respondent.

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Further, it may also not be out of place to note that the decision to absorb/appoint the surplus staff of the third respondent university by the Government in the Government Arts and Science Colleges and College of Education is a policy decision, as the third respondent university was not a private educational institute, but is also an educational institution established under an Act of the State i.e, Annamalai University Act, 1928, whereby the State is required to allocate funds in the form of grants for its functioning. Thus, the third respondent though was an autonomous body, the staff of the third respondent University cannot be considered as private employees of a private institution, to be left in the lurch. It is settled position of law judicial review of policy decision is limited and the Court does not act as Appellate Authority. [See: (2003) 4 SCC 289 – Federation of Railway Officers Association and others v. Union of India ] and [ (2007) 4 SCC 737 – Director of Film Festivals and others v. Gaurav Aswin Jain and others ].

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Further, the fact of the third respondent being considered as an instrumentality of the State under Article 12 of the Constitution of India also

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required the State Government to take care of the staff of the third respondent university when it had taken over the administration and control of the third respondent by passing Act, 2013 with effect from 29.04.2013.

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It is a settled position of law that challenge to a Government Order (G.O) can be made only when the said Government Order issued is contrary to statute, ultra vires the Act, suffers from Arbitrariness or malafide, procedural irregularity or in violation of Constitution.

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Though the petitioners contended that on account of absorption / appointment of surplus staff of third respondent against notified vacancies, their right to employment is affected, right to work only in a Government establishment is not a fundamental or constitutional right for the petitioners to seek its enforcement by issuing a writ under Constitution of India.

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Since, in the facts of the present case as detailed herein above, the petitioners having failed to make out a case including challenge to the G.O.Ms.No.14 dated 23.01.2016 on any of the available grounds, this Court is of

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the view that the writ petition as filed is devoid of merit and is liable to fail.

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