The prayer in the writ petition is to direct the respondent to notify the Assistant Professor vacancy in the Department of Art History, Aesthetics and Fine Arts, since the same was a backlog vacancy for Scheduled Castes Community, within the period stipulated by this Court.
2. The case of the petitioner is that he is having Bachelor degree in History and Master Degree also. He subsequently completed M.Phil degree in the field of Art History. He undertook research in the field of Art History and based on which he was awarded Ph.D degree in the year 2006. Thereafter, he joined at the respondent University and worked from 2007-2009 as a Guest Lecturer. By notification dated 21.03.2007, a vacancy in the department of Art History, Aesthetics and Fine Arts had been advertised, as a backlog vacancy, meant for Scheduled Castes community, by the respondent University. The said vacancy notified as S.No.13, since had not been filled up because of the orders passed by this Court, the petitioner had expected a re- advertisement to be issued by the respondent University to fill up the said backlog vacancy meant for Scheduled Castes community in the Department of Art History, Aesthetics. Whileso, without having filled up the backlog vacancy, the respondent University has proceeded to issue advertisement to fill up the vacancy in the Department of Art History Aesthetics, which was originally earmarked for Scheduled Castes community which was brought forward as a backlog vacancy. Therefore the petitioner has come forward with the present writ petition with the above said prayer seeking for a mandamus to the respondent University to notify the backlog vacancy for Scheduled Castes community in the Department of Art History, Aesthetics and proceed with the selection.
3.Heard both sides.
4.The learned counsel for the petitioner has infact relied upon a direction given by a Division Bench of this Court in W.P.Nos.1997, 2102 and 2880 of 2006 in the matter of V.Gopalsamy vs. The Registrar, Madurai Kamaraj University, Madurai, wherein at para No.12 of the judgment the following directions were given:
?12. In that view of the matter, we are in complete agreement with the grievance espoused in these writ petitions and the respondent-University is not justified in filling up of these vacancies by following roster. Accordingly, the impugned Advertisement is set aside and the respondent- University is at liberty to issue a fresh advertisement in respect of such of those vacancies, excluding the backlog vacancies, and fill up the posts by following roster. So far as the backlog vacancies are concerned, the respondent-University shall advertise separately and the same could be filled up from the SC/ST candidates. All the writ petitions are ordered accordingly. No Costs. Consequently, M.P.(MD).No.1 of 2006 and W.P.M.P(MD).Nos.2210, 2307 and 3158 of 2005 are closed?
5.Only pursuant to the direction, the backlog vacancy earmarked in each of the Department including the Department of Art History, Aesthetics and Fine Arts has to be filled up by the respondent University, only from among the eligible candidates belonging to the Scheduled Castes community for which the said vacancy is earmarked.
6. Inspite of the directions given by this Court, the respondent University has not filled up the said backlog vacancy for the post of Assistant Professor in Art History Department, and therefore there is every justification on the part of the petitioner to seek the present prayer of writ of mandamus, whereby a direction can be issued to the respondent University to go for a proper advertisement to fill up the said backlog vacancy for the post of Assistant Professor in Art History.
7.Per contra, the learned standing counsel appearing for the respondent University, pursuant to the direction issued by this Court, has filed relevant documents by way of typed set of documents. The learned standing counsel would draw the attention of this Court, to the report of the Teachers Recruitment Steering Committee of the respondent University submitted in June, 2009. As per the said report, the distribution of vacancies, on the basis of communal reservation, out of the total 176 sanctioned post of Assistant Professors of the respondent University, is given as follows:
? 29.Identification of Shortfall The Committee has found the sanctioned strength of lecturers in the University from its inception till date to be 176, Each community is entitled for its share as shown below:
1. SC 18% =31.68 =32
2. ST 1% =1.76 =2
3. MBC 20% =35.2 =35
4. BC 30% =52.8% =53
5. OC31% =54.56 =55 The number of incumbents in the post of Lecturer is 83 as on 26.06.2009. The University has already filled up four posts of Lecturers under backlog in 1997-1998, consequently, the actual shortfall for SC is 28. The University has not filled up any of the other posts with specific advertisements, hence the shortfall has to be arrived at for each of these posts. However, there are several departments with vacant posts but the University cannot fill them up due the constraints in opening the roster register, because the first post has to go to GT candidate. And the University could fill up vacancies under GT only after clearing the backlog vacancies. Thus the calculated shortfall for all communities works out as given below.
Actual Proposed SC 28 28 ST 2 2 MBC 35 32 BC 32 27 Total 97 89 The community wise distribution of post is also given in the said report which reads thus :
Reservation for 176
1. SC 18% 31.68 32
2. ST 1% 1.76 2
3. MBC 20% 35.2 35
4.
No. of posts to be advertised under shortfall 97 89 No. of posts to be advertised as current vacancies (all under GT) 7 7 Total 104 96
8. The learned standing counsel would also submit that the Department of Art History, Aesthetics and Fine Arts had been sanctioned with one post of Assistant Professor and the said post was not filled up and was kept vacant. Subsequently, according to the learned standing counsel, the respondent University has issued an advertisement, dated 22.01.2010, whereby as per the distribution of vacancies, the 28 vacancies earmarked for Scheduled Castes community had been shown as backlog vacancies, as those vacancies were not filled up. Accordingly, the recruitment drive was on and all the 28 posts earmarked for Scheduled Castes community have been filled up by way of backlog vacancies recruitment.
9. The learned standing counsel would also brought to the notice of this Court the amendment made to the statute of the respondent University, as has been approved by the Chancellor of the University, which has enabled the University to bring the Department of Youth Welfare Studies and Art History under one umbrella, namely School of Youth Empowerment, as per the amended Statute, which amended the erstwhile statute 2 (22) of chapter-VII. According to the learned counsel for the respondent, in the School of Youth Empowerment, two Departments are available, namely Department of Youth Welfare Studies and Art History. In so far as the Department of Art History is concerned as stated earlier, there was one post of Assistant Professor sanctioned. Since the said one post alone was sanctioned in the Assistant Professor category to the Department of Art History, the same cannot be reserved for communal basis and therefore the same has to be filled up under the general turn category. Therefore, the one Assistant Professor post as has been fixed by way of cadre strength pursuant to the committee's report by the respondent University has to be filled up, for which, a notification was issued by the respondent university on 22.01.2014. Even the said notification has been put under challenge before this Court by way of Writ Petition in W.P. (MD) No.8583 of 2014 and the Hon'ble Division Bench of this Court, by an order, dated 04.07.2014 has dismissed the said writ petition. Therefore, in accordance with the notification issued by the respondent University, dated 22.01.2014, where the Assistant Professor post to the Department of Art History and the Department of Fine Arts and Aesthetics, which were originally considered as one Department, and has subsequently been divided into two, have to be filled up by each of the said Departments. Since there is only one Assistant Professor post exist, the same would be filled up only by way of general turn, that is, by way of open competition and only for that purpose the said advertisement was issued and the said one post of Assistant Professor in the Department of Art History has also been filled up and as of now there is no vacancy specifically earmarked for Scheduled Castes, much less, there is no post earmarked for Scheduled Castes communities in the category of Assistant Professor at the Department of Art History. Therefore the prayer sought for in the writ petition is frivolous and the same cannot be accepted, the respondent counsel, requests.
10.This Court has considered the said rival submissions made by both sides and also perused the materials placed before this Court.
11. It is a case of the petitioner that, originally the Department of Art History was along with Fine Arts and Aesthetics and in the said Department, one post of Assistant Professor was earmarked for Scheduled Castes category, and since the said post was not filled up and in order to fill up the said post, of course, pursuant to the direction issued by the Hon'ble Division Bench of this Court, in the earlier round of litigation referred to above, the advertisement was given and instead of filling up the said post in the Department of Art History, Aesthetics and Fine Arts, which was backlog vacancy, the respondent University had proceeded to diversify the Department and restructure the cadre strength of each of the Department and accordingly they have proceeded to fill up the vacancies earmarked to Fine Arts Department. This compliant made on behalf of the petitioner might have been a worthy point for consideration long back, provided, if the University had not fixed its cadre strength and distributed the vacancies by adopting 60% communal reservation. However, since the cadre strength has been fixed, through which 176 sanctioned post to the category of Assistant Professors were approved and out of the 176 post, 28 post were earmarked for Scheduled Caste communities and these 28 posts have been distributed to various Departments, which would not be the cadre strength of Assistant Professor category alone in each of such Department.
12.Insofar as the department of Art History is concerned, though it was originally along with Fine Arts and Aesthetics, subsequently the same has been diversified and has been merged with or brought under the control of Youth Empowerment Department, for which necessary amendment also has been made in the statute which was also been approved by the Chancellor of the University. Since the Department of Art History was brought under the control of Youth Empowerment, the post earmarked for the Department of Art History cannot be taken into account for the purpose of communal reservation. If the Department of Art History is having more than one post in the category of Assistant Professor and in that case atleast one post has to be reserved for any of the communal category depending upon the 200 point roaster, being adopted by the respondent University. Since the Department is having only one post now in the category of Assistant Professor, the same cannot be reserved on any communal basis. In this regard, the findings given by the Hon'ble Division Bench of this Court in W.P.No.8583 of 2014 in the matter of Parthasarathi, Secretary, Madurai Kamarajar Palkalaikazhaga Thalthappattor Uyarnilai Matrum Kadainilai Paniyalargal Sangam vs. State of Tamilnadu, dated 04.07.2014 can be usefully referred to herein: ?8. As rightly pointed by Mr.Issac Mohanlal, learned counsel appearing for the University, the Constitution Bench of the Supreme Court has already settled in Post-Graduate Institute of Medical Education and Research vs. Factulty Association-(1998) 4 SCC 1 that there can be no reservation in respect of a single post. This decision over-ruled the earlier decisions in Union of India vs. Madhav-(1997) 2 SCC 332 and Suresh Chandra v.J.B.Agarwal- (1997) 5 SCC 363. Hence, wherever the post is a single cadre post, there is no scope for going it by rotation.?
13. Since the law is well settled that if there is a single post, the same cannot be pressed for any communal reservation. Here in the case on hand, since the Department of Art History is having only a single post of Assistant Professor, the same cannot be expected to be reserved on the basis of community. If in future the University add few more posts in the category of Assistant Professor in the Department of Art History, then certainly some posts in the Department would be expected to be reserved on communal basis and accordingly those posts would be filled up. In the absence of more than one post in the Department, it is thoroughly not possible to direct the University to reserve the same on communal basis.
14. In view of the aforesaid facts and circumstances as well as the discussions made above and in view of the law, as has been indicated in the Division Bench Judgment referred to above, this Court is of the considered view that the prayer sought for in this writ petition cannot be granted.
15. In the result, the writ petition fails and therefore the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
To The Registrar, The Madurai Kamaraj University, Palkalai Nagar, Madurai. .