N. Paul Vasanthakumar, J.@mdashThis writ petition is filed for the issuance of a Writ of Mandamus, directing the respondents to release the annual increments that are due to the petitioner from 2001 onwards.
2. The case of the petitioner as could be seen from the affidavit filed in support of the writ petition are as follows:
(a) Petitioner is employed as an Associate Professor in the Department of Economics, Loyola College, Chennai. He was initially appointed temporarily as Assistant Professor in the Economics Department from 2.7.1985 in the leave vacancy of one Fr. A. Leonard and his appointment was confirmed by the order dated 1.7.1988. At the time of appointment, he possessed M.A., qualification, which is the required qualification for the post of Assistant Professor. The petitioner had been working in the 3rd respondent college since 1985 and he obtained M. Phil degree in the year 1990.
(b) While so, the Government of Tamil Nadu had issued G.O.Ms.No. 2766, Education Department, Science & Technology, dated 31.12.1982, prescribing passing of Tamil Language Test as one of the conditions for all the staff of aided colleges, as in the case of Government servants, with immediate effect. The said order is passed based on Rule 12-A of the Tamil Nadu State and Subordinate Services Rules, which makes it mandatory for all the Government servants to pass Tamil language test, inclusive of the Government teachers.
(c) In pursuance of the above said G.O., the first respondent initiated Proceedings dated 03.04.1983, which was communicated to all the Aided colleges for necessary action. In 1997, the petitioner was directed to pass the Tamil language test on or before 31.12.1997 and the time was periodically extended from time to time. Finally, it was extended by the second respondent up to 31.12.2001 under the threat of stoppage of increments and promotion in case of failure to comply with the same.
(d) G.O. Ms. No. 2766 dated 31.12.1982 was quashed by this Court in W.P. No. 14658 of 1995 on 12.7.2002 on the ground that the Government has no power to prescribe qualifications for the teaching staff employed in the Private Colleges and that Rule 12A of the Tamil Nadu State and Subordinate Service Rules, which prescribes passing of Tamil language test as mandatory for all Government Servants, cannot be made applicable to the teaching staff of Private Colleges since it has no statutory basis. The said order is reported in
(e) Based on the said Government order, the University of Madras passed regulation on 22.4.2004 prescribing condition of passing Tamil language test for teaching staff of aided college with retrospective effect from the date of the Government Order. The said regulation was challenged before this Court in W.P. No. 43750 of 2006 and this Court by order dated 23.4.2010 quashed the said regulation.
(f) Subsequently, petitioner made a representation to the first respondent on 25.8.2010 with a request to release the annual increments due to him from 1.1.2002 and the same was forwarded by the second respondent on 2.9.2010 with his recommendations. The first respondent made a query as to whether petitioner has got similar orders in his favour from the High Court. Hence the petitioner has filed this writ petition with the above prayer.
3. Heard the learned Counsel for the petitioner as well as Respondents.
4. The issue involved in this writ petition is already decided by this Court in W.P. No. 43750 of 2006 by order dated 23.4.2010 and the condition prescribed by the University viz., pass in Tamil Language Test for the teaching staff of the aided colleges with retrospective effect, was quashed and the respondents were directed to release the annual increments due to the Petitioner therein. In paragraphs 7 to 10 this Court held as follows:
7. It is not in dispute that G.O. Ms. No. 2766, Department of Education, Science & Technology, dated 31.12.1982, has been passed by the Government, prescribing the passing of Tamil Language Test as one of the conditions for appointment in the aided colleges as in the case of appointment of staff in the Government service and it is in force from 1982. But the said G.O. was quashed by this Court in W.P. No. 14658 of 1995 filed by one Mohamood Basha, which was reported in
In service jurisprudence, even though rules under Article 309 of the Constitution can be made with retrospective effect, such rules cannot have the effect of adversely affecting any vested right.
8. In the other judgment reported in
Unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. The features which make retrospective operation of rules framed under the proviso to Article 309 are absent in clause (5) of Article 148. There is nothing in clause(5) to indicate that the rules framed therein were intended to serve until parliamentary legislation was enacted. That clause thus confers power on the President to frame rules operating prospective only. Clearly then, the Rules of 1974 cannot have retrospective operation, and therefore, sub-rule(2) of Rule 1, which declares that they will be deemed to have come into force on July 27, 1956 must be held ultra vires.
9. In the unreported judgment of this Court dated 05.09.2005 passed in W.P.No.5934 of 1995, it has been held as follows:
12. It is settled proposition that as far as service conditions are concerned, when once appointment has been made in a perfectly lawful manner and the appointee was fully qualified in terms of the qualifications as prescribed at the time of such appointment, there cannot be a subsequent revision of the qualifications so as to be applied retrospectively and affect the career of such appointees. It is not disputed that the Government Orders, by itself, do not specifically envisage any retrospective application. It is also settled proposition that rules framed by the Government cannot have retrospective effect unless specifically provided for under the Act and Rules. Though the learned Counsel for the third respondent sought to rely on the observations in paragraph 69 of the judgment in C.STEPHENSON ROOBASINGH v. STATE OF TAMIL NADU & OTHERS (1993 WLR 544) extracted above and contended that the observations clearly bring forth that the Government Order will govern all the pending applications for recognition and the institutions which did not have permanent recognition, the said contention was, however, rightly disputed by the learned Counsel for the petitioner who has brought to the notice of this Court that the third respondent institution had permanent recognition. But it is only subsequently due to certain other reasons, the recognition had been withdrawn and temporary recognition was being granted periodically. A perusal of the proceedings of the Joint Director dated 09.12.1991 which deals with several Teacher Training Institutes, inclusive of the third respondent Institute, shows that it has been specifically referred to as enjoying permanent recognition. Therefore, the contention of the learned Counsel for the third respondent that the petitioner Institution would be governed by the observations contained in the judgment of the Division Bench, cannot be accepted. I am inclined to hold that the Government Orders revising the qualifications and various other norms can have only prospective application, namely, institutions applying newly for recognition and institutions, which, as on the date of the order, did not have permanent recognition. The petitioner institution having been a permanent institution, cannot fall under anyone of the said two categories and hence, as far as the third respondent Institution is concerned, the impugned Government Order enhancing the educational qualifications cannot be retrospectively applied. The fact that either the Government or the third respondent Institution had wrongly understood the provisions, cannot result in snatching away the rights of the petitioner. The legal consequences of any Government Order or statutory provisions has to naturally follow and be implemented and it does not depend on how one of the parties had understood the scope of the order. Even assuming that the government was not granting permanent recognition only due to the said fact, it does not follow that the petitioner should be non-suited. The claims of the petitioner, namely, that the Government Orders cannot be given retrospective operation, is well founded and the order of termination cannot be sustained.
10. Therefore, it can be culled out from the above decisions that the statute conferring the power to make rules with retrospective effect can be made unless such rules cannot have the effect of positively affecting the vested right. So far as the instant case is concerned, the petitioner was appointed as the Assistant Professor in the Commerce Department as early as in the year 1982 and he possessed M.Com. qualification, which is the requisite qualification for the said post and subsequently, he had obtained Ph.D. in the year 2003. In the said situation, the impugned order, which is passed with retrospective effect, taking away the vested rights of the petitioner in the matter of increments and promotional avenues, is totally against the established principles of law and natural justice. Moreover, a perusal of the judgments relied on by the petitioner shows that subsequent to the quashing of G.O.Ms.No. 2766 by this Court, similarly placed persons on par with the petitioner, have filed writ petitions before this Court and got appropriate relief. Under such circumstances, I have no hesitation to hold that the vested right of the petitioner cannot be taken away by passing the impugned order with retrospective effect and it has to be only with prospective effect. Therefore, the impugned order dated 22.04.2004 passed by the 1st respondent with retrospective effect is liable to be quashed and, accordingly, the same is hereby quashed. Consequently, the respondents concerned are directed to release the annual increments that are due to the petitioner from 2002 onwards and approve his eligibility for promotion.
For the reasons stated above, the writ petition is allowed as prayed for. No costs. Consequently, connected M.Ps. are closed.
5. As the issue involved in this writ petition is already decided by this Court in the above extracted decision, this writ petition stands allowed. The respondents are directed to release the annual increments that are due to the petitioner from 1.1.2002 onwards within a period of four weeks from the date of receipt of copy of this order. There is no order as to costs.
