Dr. Krishna Kant Srivastava vs State Of U.P. & Others on 27 July, 2010

Allahabad High Court
Dr. Krishna Kant Srivastava vs State Of U.P. & Others on 27 July, 2010
Court No. - 29
Case :- WRIT - A No. - 34202 of 2010
Petitioner :- Dr. Krishna Kant Srivastava
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Anil Bhushan
Respondent Counsel :- C.S.C.,N.L. Srivastava,Neeraj Tiwari

Hon'ble Sunil Ambwani,J.

Hon’ble Kashi Nath Pandey,J.

Heard Shri Anil Bhushan, learned counsel for the petitioner.
Learned Standing Counsel appears for the respondent no.1. Shri
P.S. Baghel, Senior Advocate assisted by Shri Anil Srivastava
appears for Committee of Management of D.B.S. P.G. College,
Kanpur-respondent no.2 and the Principal arrayed as respondent
no. 3. Shri Neeraj Tiwari appears for respondent nos. 4 and 5. Shri
N.L. Srivastava appears for Dr. Pragya Agrawal-respondent no. 6.

A dispute of seniority, between the petitioner and the respondent
no. 6, appointed on adhoc basis on the same day, on 29.3.1988, in
pursuance to the recommendation of Selection Committee, in
which respondent no. 6 was placed higher in merit than the
petitioner, after which both the petitioner and respondent no. 6
were regularized on the same day on 26.6.1992 under Section 31-

(c) of the U.P. Higher Education Service Commission Act, 1980,
thereby getting appointment in substantive capacity, has been
decided by the Committee of Management of the College on the
basis of the decision of the Vice Chancellor of the University dated
7.1.2000. The Vice Chancellor held that when two or more persons
are appointed as teachers in the same department or in the same
subject, on same day, according to Statute 18.13 of the Statutes of
the University, their relative seniority shall be determined in order
of preference or merit in which their names were recommended by
the Selection Committee.

The Statutes of the University, relating to seniority of Principal
and Teachers of affiliated Colleges, with which we are concerned,
are given in Part II as follows:-

“Part II

Seniority of Principals and Teachers of affiliated Colleges
18.10: The following rule shall be followed in determining the seniority of
Principal and other teachers of affiliated colleges:

(a) The Principal shall be deemed senior to other teachers in the college;

(b) The Principal of Post Graduate College shall be deemed senior to the
Principal of Degree College;

(c) The seniority of Principals and Teachers of the affiliated colleges shall
be determined by the length of continuous service from the date of
appointment in substantive capacity;

(d) Service in each capacity (for example, as Principal or as a teacher),
shall be counted from the date of taking charge pursuant to substantive
appointment;

(e) Service in each a substantive capacity in another University or
another Degree or Post Graduate College whether affiliated to or
associated with the University or another University established by law
shall be added to his length of service.

18.11 Where more than one teachers are entitled to count the same length
of continuous service, the relative seniority of such teacher shall be
determined as below:(Section 49(o))

(i) In the case of Principals, the length of substantive service as a
Lecturer shall be taken into consideration;

(ii) In the case of Lecturers, the seniority in age shall be taken into
consideration.

18. 12 Where the seniority of a person as Principal is to be determined
for the purposes of representation or appointment as such on an
University Authority, length of service only as Principal shall be taken
into account(Section 49(o).

18.13(1) When two or more persons are appointed as teachers in the
same department or in the same subject, the relative seniority shall be
determined in order of preference or merit in which their names were
recommended by the selection committee.

(2) If the seniority of two or more teachers has been determined under
clause (1), the same shall be communicated to the teachers concerned
before their appointment.

18.14. All disputes regarding seniority of teachers (other than the
Principal), shall be decided by the Principal of the college who shall give
reasons for the decision. Any teacher aggrieved by the decision of
Principal may prefer an appeal to the Vice Chancellor within sixty days
from the date of communication of such decision to the teachers
concerned. If the Vice Chancellor disagrees from the Principal, he shall
give reasons for such disagreement.(Section 49 (o) )

18.15 All disputes regarding seniority of Principal of affiliated colleges
shall be decided by the Vice Chancellor who shall give reasons for the
decision. Any Principal aggrieved by the decision of Vice Chancellor may
prefer an appeal to the executive council within 60 days from the date of
communication of such decision to the Principal concerned. If the
executive council disagrees with the Vice Chancellor, it shall give reason
for such disagreement. (Section 49 (o).

18.16 The provisions of Statutes 18.01, 18.02, 18.05 and 18.08 shall
mutatis mutandis apply to the teachers and Principals of affiliated
colleges as they apply to the teachers of the University. (Section 49 (O).”

Shri Anil Bhushan submits that the Principal of the College had
decided the seniority, which was continued for a long period of
time. The post of Head of Department had fallen vacant on
1.7.2010, on which respondent no. 6 raised the issue for the first
time to decide her seniority in accordance with the Statute 18.13
(1). The Committee of Management has upset the long standing
seniority between the petitioner and respondent no.6.

It is submitted by Shri Anil Bhushan, that Statute 18.11 takes into
account the seniority in age in case of substantive appointment on
the same day. The petitioner is senior in age, born on 19.9.1963 as
compared to respondent no. 6, born on 4.6.1965. The Statute 18.11
will prevail over Statute 18.13. He submits that the appointment of
both the petitioner and respondent no. 6 was initially on adhoc
basis. The recommendation of the Selection Committee for adhoc
appointment will not be relevant as both the petitioner and
respondent no. 6 were regularized under Section 31-(c) of the Act
on the same day on 26.6.1992. The rule of seniority in age under
Statute 18.11 (ii) will prevail. He further submits that the decision
of the Principal is final and that since no appeal was filed by
respondent no. 6 before the Vice Chancellor, she cannot re-agitate
the matter at the time of appointment as Head of Department to be
the senior most teacher, after 22 years.

Shri P.S. Baghel, Senior Advocate appearing for the Committee of
Management would submit that though the matter should be
decided by the Vice Chancellor, but since Statute 18.13 comes
later to Statute 18.11, and clarifies that where two or more persons
are appointed as teachers in the same department and in the same
subject, their relative seniority has been determined in accordance
with the preference or merit in which their names were
recommended by the Selection Committee.

It is not denied that the respondent no. 6 was placed at serial No. 1
by the Selection Committee, in which there was one nominee of
the Vice Chancellor and that the recommendations were accepted
by the University in the same order. The substantive appointment
only changes the nature of appointment. Even if both the petitioner
and respondent no. 6 were appointed on the same day in
substantive capacity, Stature 18.13 would be applicable and if both
persons were appointed in the same department and same subject,
it would again have prevailed.

We find that the Statutes are absolutely clear on the subject and
thus there is no question of relegating the matter to the Vice
Chancellor, who has already decided the matter in a case of Shri
Jai Shanker Prasad, on 7.1.2009, and has taken the same view. We
can take help from his decision in deciding this matter.

Statute 18.13 falls later than the Statute 18.11 in the order of
Statutes for determination of seniority. The adhoc appointment
gets converted into regular appointment under Section 31-(c) of
the Act of 1980, without any fresh selections on merits, and thus
since both the petitioner and respondent no. 6 were appointed on
adhoc basis on the same day and were given substantive
appointment on the basis of the same selections on comparative
merit. Their seniority would be arranged in order of merit and will
be governed by the Statute 18.13 (i), and not Statute 18.11 (ii).

Statute 18.13 (i) does not refer to the nature of appointment. It is
attracted where two or more persons are appointed as teachers
(including posts other than Lecturers) in the same department or in
the same subject. It deals with specific cases, in which the two or
more persons are appointed in same selections, as in the present
case. Statute 18.11 applies where two or more teachers (including
other posts) are entitled to count the same length of continues
service. In case of Principal, the length of substantive service as
Lecturer, and in case of Lecturer, the seniority in age in such case,
will be determinative factor. Both situations may arise in a same
case. Where however the teacher are of the same department or in
same subject and were selected in same selections (the nature of
post or selections is not specified in Statute 18.13 (i) ), as a special
case their seniority, by specific reference to Statute 18.13 (i), will
be determined in order of preference or merit in which their names
were recommended by Selection Committee. The special clauses
covered by Statute 18.13 (i), will prevail over the general clause in
Statute 18.11 (ii). The petitioner’s regularisation was not
conditional, as in the case of M.P. Palaniswamy & others vs.
Government of T.N. AIR
2009 SC 2809.

There is no good ground to interfere in the matter.

The writ petition is dismissed.

Order Date :- 27.7.2010 RKP

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