JUDGMENT
R.C. Chavan, J.
1. Rule. Made returnable forthwith by consent of parties.
2. The petitioners, University Teachers, take exception to the provisions of Ordinance No. 17 of 2006 dated 25th January, 2007 promulgated by Nagpur University to amend Ordinance No. 122 of the Nagpur University and consequential actions taken by respondent University’s Management Council regarding seniority of university teachers coming from different streams.
3. The petitioners were appointed to various teaching posts in the university in pursuance of recruitment done by the University in accordance with Section 76 of the Maharashtra Universities Act. Respondents No. 6 to 10 were appointed to various posts of Readers and Professors under the Career Advancement Scheme framed by University Grants Commission and made applicable to teachers in Nagpur University. According to the petitioners, appointment to higher posts under the Career Advancement Scheme does not entitle such persons to claim parity with those appointed after a recruitment process, since such promotions under the Career Advancement Scheme are not to any posts, but a personal status carried by the person concerned on completion of requisite number of years service in the lower cadre. Since the petitioners had been selected in a recruitment process and held a sanctioned post they had also became heads of their respective departments by virtue of seniority.
4. Respondent No. 1 University, however, decided to examine the question of combined seniority of Readers and Professors who came to hold such post by designation and promotion, vis-a-vis those who were appointed after a recruitment process. In pursuance of a report of one member committee the management council passed resolution which was forwarded to the Chancellor for his assent and became Ordinance No. 17 of 2006 amending Clause 17 of Ordinance No. 122, relating to the seniority of university teachers. In pursuance of this ordinance the university prepared a common seniority list of Readers and Professors according to dates of their respective appointments. This resulted in appointees under Career Advancement Scheme becoming senior to the petitioners, who had come to hold such posts by virtue of their selection. Aggrieved thereby, the petitioners have approached this Court by filing present petition.
5. A two-fold challenge was raised to action of the University by the learned Advocate for the petitioner while canvassing grounds enumerated in the petition. He submitted that the provisions of Ordinance No. 17 of 2006 are ultra-vires powers of the University to make such an ordinance in view of the provisions of Sections 51 and 52 of the Maharashtra Universities Act, (hereinafter referred to as the Act). Second challenge to the action of the university is based on infringement of rights guaranteed under Articles 14 and 16 of the Constitution of India as unequals are sought to be treated as equals. The petitioners, therefore, prayed for declaring Ordinance No. 17 of 2006 unconstitutional, invalid, void and inoperative, with the consequential reliefs of declaration that designated Readers or Professors under the Career Advancement Scheme cannot be treated at par with Readers or Professors selected in recruitment process.
6. We have heard learned Advocate Mr. R.K. Deshpande for the petitioners, learned Advocate Dr. B.G. Kulkarni, for respondent Nos. 1 and 2 and learned A.G.P. Mr. A.G. Mujumdar for respondents No. 3 and 4.
7. Learned Advocate Mr. R.K. Deshpande for the petitioners submitted that Sections 51 and 52 of Maharashtra Universities Act, 1994 relates to statutes which can be made by the University. Section 51 enumerates matters which may be provided by statutes. Clause (5) thereof reads as under:
(5) the principles governing the seniority and service conditions of the employees of the university.
8. Section 52 prescribes procedure in making statutes. A statute can be made by the Senate of University by considering draft proposed by the Management Council or a draft taken up on the motion of the Senate itself, but after considering the opinion of the Management Council. The statute passed by the Senate has to be submitted to the Chancellor and does not become valid or come into force unless assented to by the Chancellor.
9. Section 53 of the Act provides for Ordinances and their subject-matters. The Management Council of the university has power to make ordinance for various subjects enumerated under section 53. Section 54 provides for procedure in making Ordinances. The learned Advocate submitted that the Act provides that principles governing seniority and service conditions of the employees may be prescribed only by a statute and not by an ordinance since such a subject is enumerated in Clause (5) of Section 51 but not in any clauses of Section 53. Therefore, according to the learned Advocate the University could not have provided for seniority of university teachers by an ordinance. This subject was required to be discussed in the Senate had to be processed in accordance with Section 52.
10. The learned Advocate submitted that though Ordinance No. 17 though seeks to amend Ordinance 122 passed by Nagpur University under the Nagpur University Act, 1974 i.e. before the Maharashtra Universities Act, 1994 came into force, by virtue of provisions of Section 115 of the Maharashtra Universities Act, Ordinance No. 122 would be deemed to be a statute and therefore, would be required to be amended as a statute by following procedure prescribed in Section 52 of the Act. Clause (xii) of sub-section (2) of Section 115 of the Maharashtra Universities Act reads as under:
(2) Notwithstanding the repeal of the said Acts
(i) …
(ii) …
(iii) …
(iv) …
(v) …
(vi) …
(vii) …
(viii) …
(ix) …
(x) …
(xi) …
(xii) all Statutes and Ordinances made under the said Acts in respect of any existing university shall, insofar as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under this Act in respect of the corresponding university by the Senate or the Management Council as the case may be, of that university, until they are superseded or modified by the Statutes made under this Act.
11. He, therefore, submitted that by this deeming provision Ordinance 122 would be deemed to be a statute made under the Maharashtra Universities Act, 1994, since it deal with subject enumerated in Section 51 of the Act. Therefore, according to the learned Advocate the amendment sought to be made by Ordinance No. 17 of 2006 was incompetent since it did not follow procedure for making a statute prescribed under Section 52 of the Act.
12. His learned adversary questioned this proposition. He submitted first that Career Advancement Scheme has been promulgated in pursuance of recommendations of University Grants Commission and therefore, implementation of such recommendation would require universities of the State to make necessary adjustments in the rules governing service conditions of university teachers. Secondly he submitted that question of seniority had been regulated by Clause 17 of Ordinance 122. Logic in the submission that Ordinance No. 122 would become a statute was itself incomprehensible since Section 115(2) of Maharashtra Universities Act, 1994 only aims at saving the statutes and ordinances made under the enactments which were repealed, insofar as they were not inconsistent with the provisions of the new Act. He, therefore, submitted that the saving clause would entail retention of Ordinance No. 122 in its original form as an “Ordinance” and would not convert it into a “statute” even fictionally. Since there is nothing inconsistent in the ordinance with the provisions of the Maharashtra Universities Act, Ordinance No. 122 simply gets saved as it is, without any conversion in its character.
13. We have carefully considered this aspect and find it indeed difficult to accept the logic in the submission of the learned Advocate for the petitioner that Ordinance No. 122 ought to be treated as a statute or that therefore, it was required to be amended in accordance with procedure prescribed in Section 52 of the Act.
14. The learned Advocate for respondent No. 1 next submitted that Ordinance No. 17 of 2006 amending Clause 17 of Ordinance No. 122 had also undergone procedure prescribed for making Ordinance under Section 54 of the Act. He pointed out that ordinance is also required to be submitted to the Chancellor within two weeks and is required to be approved or rejected within a period of four weeks. Therefore, since Ordinance 17 of 2006 was made by a body competent to make it after following prescribed procedure it was not open to challenge on the ground of want of competence.
15. Having carefully considered these submissions advanced by both the learned Advocates on the question of competence of respondent No. 1 to make ordinance on the subject we find that since the provisions in earlier ordinance are not shown to be inconsistent with the provisions of Maharashtra Universities Act, the Ordinance could have been amended only by an amending ordinance and not by a statute. Therefore, we do not accept contentions of the learned Advocate for the petitioner in this behalf and held that respondent No. 1 was competent to make such ordinance. Consequently ordinance dated 25th January, 2007 cannot be branded as unconstitutional, invalid, void or inoperative for want of competence.
16. Learned Advocate for the petitioners next submitted that the impugned rule is violative of the right to equality since it attempts to treat unequals as equals. He submitted that the petitioners were appointed by following procedure prescribed in Section 76 of the Act after undergoing a process of selection. The petitioners were appointed to sanctioned posts and therefore, could not have been equated with those who only got the higher scale of pay but did not have a post to hold, by virtue of their having put in prescribed extent of service.
17. This contention was countered by the learned Advocate for respondent No. 1 university, who pointed out that even for getting career advancement scale a teacher had to undergo the same stringent selection process as is applicable for selecting a person in a recruitment process. He submitted that Vice-Chancellor of Nagpur University has issued Direction No. 6 of 2002 on 28-3-2002 which provides for selection of university teachers for the post of Professors and Readers under the Career Advancement Scheme. He pointed out that Clause (10) thereof requires the Selection Committee to consider confidential reports, mark sheets, Ph.D. notifications, appointment orders, service books and other aspects of appraisal. He pointed out that Clause (13) of the direction entails even assessment of research publication by three eminent experts as provided in Section 76(2)(e) of Maharashtra Universities Act. Positive recommendations from three experts is a sine-qua-non. Similar provision is made for conferring position of Reader under Career Advancement Scheme in Clause (14) of the directions. The learned Advocate for respondent No. 1 pointed out that this direction issued by the Vice-Chancellor under Clause (8) of Section 14 of Maharashtra Universities Act was duly placed before the requisite authority after its issuance and therefore, has a force of the relevant regulatory instrument like statute, ordinance or regulation. He therefore submitted, and rightly so in our view, that there is absolutely no force in the contention that persons appointed under the Career Advancement Scheme do not have to undergo same rigorous process of selection which appointees, at the time of recruitment, have to undergo.
18. The object of Career Advancement Scheme was not to grant bounty to those who may not be fit for higher positions, but to remove stagnation of those who are fit, and yet could not get higher position because of dearth of adequate number of such posts. Therefore, if respondents have been conferred Career Advancement Scales after undergoing a process of selection in accordance with Direction No. 6/02 it would be unjust to contend that unequals are being treated as equals. There is nothing special or exemplary in a person getting selected through recruitment process vis-a-vis a person who may get promoted through a process of evaluation of his performance departmentally. Rival Contentions:
19. Learned Advocate for the petitioner submitted that the Apex Court had an occasion to consider the question of fixation of inter se seniority between promotees and direct recruit teachers in Dr. Rashmi Srivastava v. Vikram University reported at . The learned Advocate quite graciously readout the judgment to us. In that case the question was whether teachers, who had been given merit promotion as Readers or Professors, who could claim seniority over direct recruits on the ground of continuous officiation as Readers or Professors.
20. In this context, the Court enumerated contentions of the appellants in paragraph 27 that even a temporary addition to the cadre during the time a promotee Lecturer works as a Reader has to be considered to be an addition to the cadre of Readers, and that such merit promotion of a Lecturer to the post of a Reader on pure merits and through a Selection Committee, which is the same as the Selection Committee for directly recruited Readers, cannot be said to be an ad hoc or stop-gap arrangement. It was contended that since it is a regular promotion on pure merits the cadre of Reader can be said to have been enlarged for taking in its fold such promotee Readers and once that conclusion is reached, it would be obvious that for deciding inter se seniority of such promotee Readers and directly recruited Readers there cannot be any discrimination and that their birth marks would vanish the moment they formed part and parcel of the same cadre.
21. This was opposed by the respondents, who contended that Merit Promotion Scheme only granted an opportunity of promotion to Readers by way of persona] promotions without creating any vacancy in the cadre of Lecturers or creation of any post to the cadre of Lecturers to accommodate such promotees. Such promotees would be occupying ex-cadre post and therefore, there cannot be any combined seniority list of those who are directly recruited and merit promotees. It was further argued that the relevant Ordinance of Vikram University did not say anything about promotions. In light of these arguments advanced, the Court raised following points for consideration in paragraph 37 of the judgment:
1) Whether a merit promotee Reader or Professor as the case may be in the service of respondent No. 1 university can be treated at par with directly recruited Reader or Professor for the purpose of fixing their inter se seniority?
2) If the answer to the first point is in the negative whether such merit promotee Readers and Professors cannot be considered as Professors and Readers for fixing inter se seniority of such promotee Readers and Professors and their seniority should be shown only in the cadre of Lecturer or Reader from which they are promoted?
3) Whether respondent No. 1 university is liable to pay any compensation to respondent No. 4 in Civil Appeal No. 6002/94?
4) Whether the pay scales of Professors available to the appellants in C.A. No. 6002/94 should be reduced?
5) What is final order?
22. The Court held in paragraph 39 upon conjoint reading of relevant provisions of the Act that only one source of recruitment of university teachers, namely, Professors and Readers and even of Lecturers is contemplated, and that source is by way of direct recruitment. If that be so and if under merit promotion scheme any departmental candidate was to be promoted, such candidate would be so promoted de hors Section 49 of the said University Act and would obviously be an ex cadre Reader or Professor. Therefore, there was no occasion to fix inter se seniority of directly recruited Readers and Professors. The Court then observed that unless the concerned University Acts under which the universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of merit promotion scheme recommended by the Commission, or mere decision of the Co-ordination Committee or Executive Committee not to discriminate between merit promotees and direct recruit university teachers, and even issuance of ordinances or statutes to that effect, would be of no avail and will not have any legal effect, nor would they permit the concerned universities to fuse the cadre employees with ex cadre employees and to prepare a combined seniority list on that basis.
23. The learned Advocate for the petitioner submitted that the case at hand is on all fours with the decision relied on. He submitted that Section 49 quoted in paragraph 14 of the judgment can be compared to Section 76 pertaining to appointment of university teachers in Maharashtra Universities Act. He pointed out that sub-section (4) of Section 76 enjoins that every post of university teacher to be filled by selection shall be duly and widely advertised and therefore, entails appointment only by recruitment and not by promotion. The contention is indeed ingenious, but we find it difficult to accept it. First there are material differences in the phraseology used in Section 49 of the Vikram University Act, referred to in paragraph 14 of the aforesaid judgment, and Section 76 of the Maharashtra Universities Act. Section 49 of the Vikram University Act begins with Clause “no person shall be appointed”, implying that the appointments shall have to be made only in accordance with the said section. On the contrary, sub-section (1) of Section 76 provides that the appointment shall be made subject to provisions of the Act, statutes and ordinances. Therefore, if the Acts, statutes or ordinances provide for appointment under the Career Advancement Scheme such an appointment would be one under Section 76 of the Act. Further, as rightly pointed out by the learned Advocate for respondent No. 1 university, the words “to be filled by selection ” appearing in sub-section (4) are separated from the remaining part of the sentence by commas. He submitted, and rightly so in our view, that only the posts to be filled in by selection are required to be advertised. The clause cannot be read to mean that ‘every post has to be filled by advertisement’. The learned Advocate for respondent No. 1 next pointed out that Direction No. 6 of 2002 prescribes a process of selection for Career Advancement Scheme similar to that of recruitment and therefore, there is absolutely no warrant for treating Career Advancement appointees as inferior to those directly recruited. Bearing in mind difference in the expression used in the enactment applicable in Rashmi Srivastava ‘s case and the present case, the ratio in Rashmi Srivastava would be inapplicable.
Decisions of the Apex Court:
24. Both, the learned Advocate for the petitioners as well as respondent No. 1 had placed reliance on decision of the Supreme Court in Prof. S.A. Siddiqui v. Prof. M. Wajid Khan reported at , which takes into consideration earlier decision of the Court in Rashmi Srivastava. The learned Advocate for the petitioners has relied on judgment on the premise that even the Maharashtra Universities Act does not contain any provision for appointment by any method other than direct recruitment. As we have already pointed out such is not the case. The Court had specifically considered the ‘Merit Promotion Scheme’ which may be the same as ‘Career Advancement Scheme’. Aligarh Muslim University, from which dispute had gone to the Supreme Court, had framed rules for determining inter se seniority of those appointed under the Merit Promotion Scheme and those appointed against general post. After considering the scheme of rules applicable to Aligarh Muslim University the Apex Court observed in paragraph 9 that in the Aligarh Muslim University that direct recruitment was not the only source of appointment, therefore, the decision in Rashmi Srivastava would not apply. The Court held the appellant, a promotee under the merit promotion scheme, to be a part of cadre of Professor and entitled to seniority above direct recruits.
25. The decision of the Apex Court in Prof. S.A. Siddiqui v. Prof. M. Wajid Khan thus entails that a common seniority of persons appointed by direct recruitment and those appointed under merit promotion scheme is perfectly permissible.
Conclusions:
26. The learned Advocate for the petitioner submitted that the persons appointed in the Career Advancement Scheme did not, in fact, form a part of higher cadre and for this purpose relied on Government Resolution dated 24th August, 2000, Annexure-P-19. In the synopsis submitted by the petitioners at Item No. 13 this G.R. is referred to and it is mentioned that “designated Readers are not entitled to be promoted as Professors under CAS being personal position, and not against sanctioned post, teaching workload of Reader be carried forward”. On the contrary, we find that the Government Resolution incorporates explanation issued on 26th July, 2000 by the University Grants Commission, as under:
1) Directly recruited Readers as well as Readers under career Advancement Scheme are eligible for promotion to the post of Professor.
2) Eight years of service as Reader is compulsory for promotion to the post of Professor.
27. The stipulation that such promotees would carry teaching workload of the lower post is obviously necessary because such promotions do not result in creating corresponding lower post. It does not, however, follow that the person is to be treated as holding lower post. Since no additional posts are created there is no force in the submission that such promotions violate Article 16 of the Constitution as regards reservation.
28. To sum up, since the petitioners have failed to show first, that the university lacked requisite competence to issue Ordinance No. 17 of 2006 and to fix seniority of petitioners and others promoted under the Career Advancement Scheme in pursuance of the said Ordinance, and secondly that the Ordinance violates Article 14 or 16 of the Constitution, challenge to the impugned acts of respondent No. 1 University has to be turned down.
29. The petition, therefore, fails and is dismissed.
30. Rule discharged.