PETITIONER: DR. BAL KRISHNA AGARWAL Vs. RESPONDENT: STATE OF UTTAR PRADESH & ORS. DATE OF JUDGMENT10/01/1995 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) FAIZAN UDDIN (J) CITATION: 1995 SCC (1) 614 JT 1995 (1) 471 1995 SCALE (1)116 ACT: HEADNOTE: JUDGMENT:
S.C. AGRAWAL, J.:
1. Leave granted.
2. We have heard learned counsel for the parties.
3. This appeal involves the question regarding inter se
seniority of the appellant-Dr.Bal Krishna Agarwal and
respondents Nos.4 and 5, Dr.Murli Manohar Joshi, and
Dr.P.K.Sharma as professors in Physics in the Allahabad
University (herein after referred to as ‘the university’).
The Executive Council of the University by resolution dated
July 16,1978, declared respondents Nos.4 and 5 as senior to
the appellant. Writ Petition No. 15566 of 1988 filed by the
appellant against the said resolution of the Executive
Council was dismissed by the Allahabad High Court by
judgment dated January 6, 1994 on the ground that
alternative remedy of reference to the Chancellor under
Section 68 of the Uttar Pradesh State Universities Act, 1973
(hereinafter referred to as ‘the act’) was available to the
appellant.
4. Section 31 of the Act provides for appointment of
teachers. In sub-section (10) of section 31 it is
prescribed that no selection for any appointment shall be
made except after advertisement of the vacancy in at least
three issues of two newspapers having adequate circulation
in Uttar Pradesh. In view of the said provision appointment
of teachers in- the University could only be made by direct
recruitment by inviting applications and promotion from a
lower teaching post to a higher teaching post was not
envisaged. This led to stagnation and consequent
frustration among the teachers in the various Universities
governed by the Act. In order to remove this grievance the
Government of Uttar Pradesh, by order dated, December 12,
1981 tamed a Personal Promotion Scheme Whereunder Personal
Promotion was to be given to a teacher on the basis of
continuous service rendered in the department for a certain
period. By order dated February 25, 1984 the said order
dated dated December 12,1983 was modified and it was decided
to grant personal promotion to the post of Reader to all
those full time and regularly appointed lectures on the
Government approved posts of Universities governed and
administered by the Act who possess Ph.D degree and have
completed 13 years approved, full time regular and
continuous service and those who are not Ph.D after 16 years
approved, full time and regular and continuous service. It
was also decided to grant personal promotion to the post of
professor to Readers after 10 years continuous and regular
service as Reader from the date of taking over charge after
issue of the said order. In the said order it was stated
that the personal promotion would be granted to teachers
subject to the restrictions set out in sub-paragraphs (1) to
(12) of paragraph 1 in the said order. In sub-paragraph
(12) it was stated that the seniority of the Teachers would
be regulated as per Regulations of the concerned University.
By the said letter the Vice Chancellors of all the State
Universities were directed to send the draft regulation for
carrying out necessary amendment in the Regulations of the
concerned University to the Education Department for ap-
proval. In order to give effect to the policy contained in
the aforesaid orders of the Government Uttar Pradesh,
Section 31-A was inserted in the Act by U.P. Act No.9 of
1985 which came into force on October 10, 1984. Section 31-
A provides as
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under:-
“31-A. Personal promotion to teachers of
University.
(1) Notwithstanding anything to the contrary
contained in any other provision of this Act,
a Lecturer or Reader in the ‘University
substantively appointed under Section 3 1, who
has put in such length of service and
possesses such qualifications, as may be
prescribed, may be given personal promotion,
respectively to the post of Reader or
Professor.
(2) Such personal promotion shall be given
on the recommendation of the Selection
Committee, constituted under clause (a) of
sub-section (4) of Section 31, in such manner
and subject to such conditions as may be
prescribed.
(3) Nothing contained in this section shall
affect the post of the teachers of the Uni-
versity to be filled by direct appointment in
accordance with the provisions of Section 31.”
5. In a view of sub-section (1) of Section 31-A personal
promotion as envisaged by Section 31-A could be given only
after the length of service and the qualifications were
prescribed. The word ‘prescribed’ is defined in Section
2(14) of the Act to mean prescribed by the statutes. The
necessary amendment to give effect to the scheme of personal
promotion as envisaged by Section 31-A of the Act was made
in the statutes of the University by notification dated
February 21, 1985 whereby Statue 11.12-B was introduced and
the categories of the University who would be eligible for
the personal promotion to the post of Readers and Professors
and the mode of such promotion were prescribed.
6. The appellant and respondents Nos.4 and 5 were employed
as Readers in the Physics Department of the University. In
October 1983 an advertisement was published inviting
applications for direct recruitment on one permanent post of
professor in the Physics Department of the University. In
response to the said advertisement applications were
submitted by the appellant and respondents Nos.4 and 5
alongwith other applicants. The said applications were
considered by the Selection Committee, under the Faculty of
Science and the Selection Committee, in its report dated
July 22,1984, recommended a panel containing the names of
the appellant and respondents Nos 4 and 5 for appointment on
the post of Professor in Physics. The name of the appellant
was placed at the top in the said panel. The Selection
Committee also considered the appellant and respondents Nos.
4 and 5 for promotion to the grade of professor under the
Personal Promotion Scheme and in its report dated July
22,1984 the Selection Committee recommended all three of
them for such promotion. The said recommendations of the
Selection Committee were considered by the Executive Council
of the University at the meeting held on November 8, 1985.
By Resolution No 197 the Executive Committee accepted the
recommendations of the Selection Committee and recorded that
the appellant be professor in Physics substantively. By
Resolution No. 198 the Executive Council accepted the
recommendations of the Selection Committee under the
Personal Promotion Scheme and recorded that the appellant
and respondents Nos. 4 and 5 be promoted to the grade of
Professor in terms of Government Orders dated December 12,
1983 and February 25, 1984. In the said Resolution the
names of the appellant and
474
respondents Nos. 4 and 5 be promoted to the grade of
professor in terms of Government Orders dated December 12,
1983 and February 25, 1984. In the said Resolution the
names of the appellant and the respondents Nos. 4 and 5 were
shown in the following order:-
1.Dr.Bal Krishna Agarwal (appellant)
2.Dr.M.M.Joshi (respondent No.4)
3.Dr.P.K.Sharma (respondent No.5)
7. On the basis of the said resolutions, by order dated
November 9,1984 the appellant was appointed on the post of
Professor in Physics. Respondents Nos. 4 and 5 were
promoted in the grade of Professor under the Personal
Promotion Scheme on November 9, 1984. The appointment of
the appellant on the post of Professor was on probation for
one year and he was confirmed on the said post of Professor
with effect from November, 9, 1985. The matter of inter se
seniority of the appellant of the respondents Nos.4 and 5
was considered by the Seniority Committee of the Faculty of
Science in its meeting held on December 22, 1986 and January
4, 1987. The Committee came to the conclusion that the
appointments on cadre posts and personal promotion cases
constitute two different categories and could not be in-
termingled for the purpose of determination of seniority and
that the seniority of teachers in the cadre posts should be
maintained separately from that of the personal promotees
and that the teachers appointed on cadre posts by direct
recruitment should be treated senior to those teachers ap-
pointed under Personal Promotion Scheme irrespective of
their date of appointment. The Seniority Committee decided
to place the appellant, who was holding the cadre post of
Professor, above respondents Nos. 4 and 5 who were promoted
to the grade of Professor under the Personal Promotion
Scheme. Feeling aggrieved by the said decision of the
Seniority Committee respondents Nos. 4 and 5 submitted
representations which were considered by the Executive
Council in its meeting held on July 16,1988. The Executive
Council altered the seniority as fixed by the Seniority
Committee and placed respondents Nos.4 and 5 above the
appellant. The said decision of the Executive Council was
assailed by the appellant by filling the Writ Petition
giving rise to this appeal.
8. The High Court has observed that there was controversy
in regard to every question of fact in as much as there was
dispute with regard to nature of appointments since the
appellant claimed that he had been appointed against a
regular vacancy which as assailed by the respondents who
asserted that all three had been granted personal promotion
and there was also a dispute regarding the date on which the
appellant joined the post of Professor. The High Court was
of the view that the question as to whether the impugned or-
der had been passed without affording an opportunity of
hearing to the appellant was a question which can be
appropriately decided only after investigation in the dis-
puted questions of fact and that this was not a fit case in
which the appellant should be allowed to by-pass the
alternative remedy of reference to the Chancellor provided
under Section 68 of the Act. The High Court, therefore,
dismissed the Writ Petition on the ground of availability of
the alternative remedy and directed that if the
representation of the appellant under Section 68 of the Act
was filed within a period of two weeks, the bar of
limitation would not be applied against the same and
475
it should be decided on merits.
9. The learned counsel for the appellant has urged that
the High Court was in error in dismissing the Writ Petition
of the appellant on the ground of availability of an
alternative remedy having regard to the fact that the Writ
Petition had been filed in 1988 and it had been admitted and
was pending in the High Court for the past more than five
years. The learned counsel has also urged that the High
Court was not right in saying that there was dispute on
questions of fact. According to the learned counsel there
is no dispute that the appellant had been selected by the
Selection Committee for appointment on the permanent post of
Professor which was advertised and the said recommendation
of the Selection Committee was accepted by the Executive
Council in its Resolution No. 197 dated November 8, 1984.
The fact that the name of the appellant was also included in
the list of Readers for personal promotion to the grade of
Professor in Resolution No. 198 of the Executive Council
would not mean that the appointment of the appellant to the
post of Professor which was by way of personal promotion and
not on the basis of selection for the cadre post of
Professor which was advertised. The learned counsel also
submitted that it is not the case of the appellant that he
joined the post of Professor in Physics on November 8, 1984
and that his case is that the appellant as well as re-
spondents Nos. 4 and 5 all joined as Professors in Physics
on November 9,1984.
10. Having regard to the aforesaid facts and circumstances,
we are of the view that the High Court was not right in
dismissing the petition of the appellant on the ground of
availability of an alternative remedy under Section 68 of
the Act especially when the Writ Petition that was filed in
1988 had already been admitted and was pending in the High
Court for the past more than Eve years. Since the question
that is raised involves a pure question of law and even if
the matter is referred to the Chancellor under Section 69 of
the Act it is bound to be agitated in the court by the
partly aggrieved by the order of the Chancellor, we are of
the view that this was not a case where the High Court
should have non-suited the appellant on the ground of
availability of an alternative remedy. We, therefore,
propose to go into the merits of the question regarding
inter se Seniority of the appellant and respondents Nos. 4
and 5. We may, in this context, mention that the respondent
No. 4 has already retired in January, 1994.
11. Provisions with regard to seniority of teachers of
University are contained in Chapter 18 of the First Statutes
of the University. Prior to the amendments made by
Notification dated February 21, 1985 the statutes having
bearing on the seniority of teachers of the University were
as under:-
” 18.05. The following rules shall be followed
in determining the seniority of teachers of
the University:-
(a) A Professor shall be deemed senior to
every Reader, and a Reader shall be deemed
senior to every Lecturer.
(b) In the same cadre, seniority of a
teacher shall be determined according to the
length of his continuous service in a
substantive capacity in such cadre:
Provided that where more than one appointment
to posts in a cadre have been made at the same
time, and an order of preference or merit was
indicated by the Executive Council, as the
case may be,
476
the seniority of the persons so appointed
shall be governed by the order so indicated.
(c) When any teacher holding substantive
post in any University (other than the
University of Allahabad) or in any constituent
college or in any Institute whether in the
State of Uttar Pradesh or outside Uttar
Pradesh is appointed whether before or after
August 1, 1981, to a post of corresponding
rank or grade in the University, the period of
service rendered by such teacher in that grade
or rank in such University shall be added to
his length of service.
(d) When any teacher holding substantive
post in any college affiliated to or
associated with any University is appointed
whether before or after the commencement of
these Statutes as a Lecturer in the
University, then one half of the period of
substantive service rendered by such teacher
in such college shall be added to his length
of service.
(e) Service against an administrative
appointment in any University or institution
shall not count for the purposes of seniority.
Explanation :- In this Chapter, the expression
“administrative appointment” means an
appointment made under subsection (6) of
Section 13.
(f) Continuous service in a temporary post
to which a teacher is appointed after
reference to a Selection Committee, if
followed by his appointment in a substantive
capacity to that post under Section 31 (3) (b)
shall count towards seniority.
18.06.Where more than one teacher are entitled
to count the same length of continuous service
in the cadre to which they belong, the
relative seniority of such teachers shall be
determined as below:-
(i)in the case of Professors, the length of
substantive service as Reader shall be taken
into consideration;
(ii)in the case of Readers, the length of
substantive service as Lecture Shall be taken
into consideration.
(iii)in the case of Professors, whose length
of service as Readers is also identical, the
length of service as lecturer shall be taken
into consideration.
18.07.Where more than one teacher are entitled
to count the same length of continuous service
and their relative seniority cannot be
determined in accordance with any of the
foregoing provisions, then the seniority of
such teachers shall be determined on the basis
of seniority in age.
18.08. (1) Notwithstanding anything contained
in any other Statute, if the Executive Council-
(a) agrees with the recommendation of the
Selection Committee, and approves two or more
persons for appointment as teachers in the
same Department, it shall, while recording
such approval, determine the order of merit of
such teachers;
(b)does not agree with the recommendation of
the Selection Committee and refers the matter
to the Chancellor under Section 31(8)(a), the
chancellor shall, in cases where appointment
of two or more teachers in the same Department
is involved, determine the order of merit of
such teachers at the time of deciding such
reference;
(2)The order of merit in which two or more
teachers are placed under clause (1), shall be
communicated to the teachers concerned before
their appointment.
477
By virtue of the amendment that have been introduced in the
Statutes by Notification dated February 21, 1985, clause (b)
of Statute 18.05 was substituted as under:-
“(b) In the same cadre, inter se seniority of
teachers, appointed by personal promotion or
by direct recruitment, shall be determined
according to length of continuous service in a
substantive capacity in such cadre:
Provided that where more than one appointment
have been made by direct recruitment, at the
same time and an order of preference or -merit
was indicated by the Selection Committee or by
the Executive council, as the case may be the
inter se seniority of persons so appointed
shall be governed by the order so indicated:
Provided further that where more than one
appointments have been made by promotion at
the same time, The inter se seniority of the
teachers so appointed shall be the same as it
was in the post held by them at the time of
promotion.”
12. The learned counsel for the appellant has submitted
that since the appellant was appointed on the post of
Professor in Physics on November 9, 1984 the seniority
should be regulated by the provision contained in the
Statutes as they existed on the said date and that
amendments which were made in the Statutes by notification
dated February 21, 1985 would have no application in the
matter of determination of his seniority. Under clause (b)
of Statute 18.05, as it stood on November 9,1984, when the
appellant joined as Professor in Physics, appellant, who was
holding the selection post of Professor in Physics Faculty,
was senior to respondents Nos 4 and 5 who were promotees
under the Personal Promotion Scheme. In this connection,
the learned counsel has urged that although Section 31-A,
which provides for personal promotion, was introduced in the
Act with effect from October 10, 1984, but the said
provision could be given effect to only after the length of
service as well as the qualifications were prescribed in the
Statutes and that this was done only by the amendments that
were introduced in the Statutes by notification dated
February 21, 1985 and, therefore, personal promotion of
respondents Nos. 4 and 5 could have legal effect only from
the date of such amendment in the Statutes and that respon-
dents Nos. 4 and 5 should be treated to have been promoted
under Personal Promotion Scheme on the grade of Professor in
Physics with effect from February 21,1985. Since the
appellant joined as Professor in Physics on November 9,
1984, he should be treated as senior to respondents Nos. 4
and 5.
13. Shri Sanyal, the learned senior counsel appearing for
respondent Nos. 4 and 5, has however, urged that since the
validity of appointments of respondents Nos 4 and 5 with
effect from November 9, 1984 has not been assailed by the
appellant, he should not be permitted to raise this question
at this stage. It is no doubt true that the validity of the
promotion of respondents Nos. 4 and 5 has not been assailed
by the appellant but all that he is pointing out is that in
view of the provisions contained in Section 31-A of the Act
the promotion of respondents Nos. 4 and 5 under the Personal
Promotion Scheme could be made only after the length of
service and qualifications were prescribed by the Statutes
and provisions in this regard were made in the Statutes only
on February 21,1985. In other words, what the appellant is
saying is that the promo-
478
tion of respondents Nos. 4 and 5 to the grade of Professor
can be regarded to have been made legally only with effect
from February 21, 1985. This does not involve a challenge
to the validity of their promotion but only raises the
question about the date from which it can be given effect to
in law. We are of the opinion that in view of the
provisions contained in Section 31 A and Section 2(14) of
the Act there is no escape from the conclusion that respon-
dents Nos. 4 and 5 could not be given promotion under the
Personal Promotion Scheme till the necessary provisions pre-
scribing the length of service and the qualifications for
such promotion were made in the statutes and since this was
done by Notification dated February 21, 1985, promotion
under the Personal Promotion Scheme could not be made prior
to February 21, 1985. The Executive Council in its
Resolution No. 198 dated November 8, 1984 had accepted the
recommendations of the Selection Committee for promotion of
respondents Nos. 4 and 5 on the basis of Government Orders
dated December 12, 1983 and February 25, 1984. At that time
Section 31 of the Act provided for appointment of teachers
by direct recruitment and did not envisage promotion from a
lower teaching post to a higher teaching post. The orders
of the Government aforementioned could not be given effect
till necessary amendment was made in the Act making
provision for personal promotion. This was done by
introducing Section 31 -A by U.P. Act No. 9 of 1985 with
effect 10 October, 1984. But Section 31-A could be given
effect only after the necessary provision was made in the
Statutes prescribing the length of service and the
qualifications for personal promotion. This was done by the
notification dated February 21, 1985. The promotion of
respondents Nos. 4 and 5 to the grade of Professor under the
Personal Promotion Scheme could, therefore, not be made
prior to February 21, 1985. The inter se seniority of the
appellant and respondents Nos. 4 and 5 has to be determined
on that basis.
14. Shri Sanyal has also contended that since the seniority
of the appellant and respondents Nos. 4 and 5 was determined
by the Executive Council after the Statutes had been amended
by notification dated February 21, 1985 the criterion for
fixing the seniority would be that laid down in the Statutes
on the date when such determination was made and that the
seniority was properly determined in accordance with the
provisions of the Statutes 18.05 as amended by Notification
dated February 21, 1985. We are unable to agree. Even
under the Statutes as amended by Notification dated February
21,1985, it is laid down in clause (b) of Statute 18.05 that
in the same cadre, inter se seniority of teachers, appointed
by personal promotion or by direct recruitment, shall be
determined according to length of continuous service in a
substantive capacity in such cadre. Since the promotion of
respondents Nos. 4 and 5 can be treated to be valid only
with effect from February 21, 1985 their service in the
cadre of Professor has to be counted from February 21, 1985
while the service of the appellant has to be counted from
November 9, 1984. The appellant is, therefore, entitled to
be placed above respondents Nos. 4 and 5 in so far as
seniority in the cadre of Professor is concerned.
15. Shri Arun Jaitley, the learned counsel appearing for
respondent No. 4, has invited our attention to Statute 18.06
and has submitted that since the appellant and
479
respondents Nos. 4 and 5 joined as Professors on the same
date and have the same length of continuous service in the
cadre of Professor, their inter se seniority should be
determined by virtue of the length of their service as
Readers and on that basis respondents Nos. 4 and 5 would
rank senior to the appellant since they had longer length of
service as Readers than the appellant. This contention also
proceeds on the basis that the respondents Nos. 4 and 5 were
validly promoted to the grade of Professor on November 9,
1984 and the said contention would have no validity if it is
held that promotion of respondents No. 4 and 5 to the grade
of Professor under the Personal Promotion Scheme could only
be legally effected from February 2 1, 1985.
16. For the reasons aforementioned, it must be held that the
appellant should have been treated as senior to respondents
Nos. 4 and 5 in the cadre of Professor in Physics and the
Executive Council was not justified in placing him junior to
the said respondents. The appeal is therefore, allowed, the
judgment of the High Court dated January 6, 1994 is set
aside and the Writ Petition filed by the appellant is
allowed and it is directed that the appellant should be
treated as senior to respondents Nos. 4 and 5 as Professor
in the Physics Department of the University. There is no
order as to costs.
481