{"id":101798,"date":"1995-01-10T00:00:00","date_gmt":"1995-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-bal-krishna-agarwal-vs-state-of-uttar-pradesh-ors-on-10-january-1995"},"modified":"2017-09-10T22:10:40","modified_gmt":"2017-09-10T16:40:40","slug":"dr-bal-krishna-agarwal-vs-state-of-uttar-pradesh-ors-on-10-january-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-bal-krishna-agarwal-vs-state-of-uttar-pradesh-ors-on-10-january-1995","title":{"rendered":"Dr. Bal Krishna Agarwal vs State Of Uttar Pradesh & Ors on 10 January, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. Bal Krishna Agarwal vs State Of Uttar Pradesh & Ors on 10 January, 1995<\/div>\n
Equivalent citations: 1995 SCC (1) 614, \t JT 1995 (1)\t471<\/div>\n
Author: S Agrawal<\/div>\n
Bench: Agrawal, S.C. (J)<\/div>\n
           PETITIONER:\nDR. BAL KRISHNA AGARWAL\n\n\tVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH & ORS.\n\nDATE OF JUDGMENT10\/01\/1995\n\nBENCH:\nAGRAWAL, S.C. (J)\nBENCH:\nAGRAWAL, S.C. (J)\nFAIZAN UDDIN (J)\n\nCITATION:\n 1995 SCC  (1) 614\t  JT 1995 (1)\t471\n 1995 SCALE  (1)116\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
S.C. AGRAWAL, J.:\n<\/p>\n
1.   Leave granted.\n<\/p>\n
2.   We have heard learned counsel for the parties.\n<\/p>\n
3.   This  appeal involves the question regarding  inter  se
\nseniority  of  the  appellant-Dr.Bal  Krishna  Agarwal\t and
\nrespondents  Nos.4  and\t 5,  Dr.Murli  Manohar\tJoshi,\t and
\nDr.P.K.Sharma  as  professors in Physics  in  the  Allahabad
\nUniversity  (herein after referred to as ‘the  university’).
\nThe Executive Council of the University by resolution  dated
\nJuly 16,1978, declared respondents Nos.4 and 5 as senior  to
\nthe appellant.\tWrit Petition No. 15566 of 1988 filed by the
\nappellant  against  the\t said resolution  of  the  Executive
\nCouncil\t was  dismissed\t by  the  Allahabad  High  Court  by
\njudgment   dated  January  6,  1994  on\t the   ground\tthat
\nalternative  remedy  of reference to  the  Chancellor  under
\nSection 68 of the Uttar Pradesh State Universities Act, 1973
\n(hereinafter referred to as ‘the act’) was available to\t the
\nappellant.\n<\/p>\n
4.   Section  31  of  the Act provides\tfor  appointment  of
\nteachers.    In\t sub-section  (10)  of\tsection\t 31  it\t  is
\nprescribed  that no selection for any appointment  shall  be
\nmade  except after advertisement of the vacancy in at  least
\nthree  issues of two newspapers having adequate\t circulation
\nin Uttar Pradesh.  In view of the said provision appointment
\nof teachers in- the University could only be made by  direct
\nrecruitment  by inviting applications and promotion  from  a
\nlower  teaching\t post  to a higher  teaching  post  was\t not
\nenvisaged.    This   led  to   stagnation   and\t  consequent
\nfrustration  among the teachers in the various\tUniversities
\ngoverned by the Act.  In order to remove this grievance\t the
\nGovernment  of Uttar Pradesh, by order dated,  December\t 12,
\n1981  tamed a Personal Promotion Scheme Whereunder  Personal
\nPromotion  was\tto  be given to a teacher on  the  basis  of
\ncontinuous service rendered in the department for a  certain
\nperiod.\t  By  order dated February 25, 1984 the\t said  order
\ndated dated December 12,1983 was modified and it was decided
\nto  grant  personal promotion to the post of Reader  to\t all
\nthose  full  time and regularly appointed  lectures  on\t the
\nGovernment  approved  posts  of\t Universities  governed\t and
\nadministered  by  the Act who possess Ph.D degree  and\thave
\ncompleted   13\tyears  approved,  full\ttime   regular\t and
\ncontinuous service and those who are not Ph.D after 16 years
\napproved, full time and regular and continuous service.\t  It
\nwas also decided to grant personal promotion to the post  of
\nprofessor  to Readers after 10 years continuous and  regular
\nservice as Reader from the date of taking over charge  after
\nissue  of the said order.  In the said order it\t was  stated
\nthat  the  personal promotion would be granted\tto  teachers
\nsubject to the restrictions set out in sub-paragraphs (1) to
\n(12)  of  paragraph 1 in the said order.   In  sub-paragraph
\n(12) it was stated that the seniority of the Teachers  would
\nbe regulated as per Regulations of the concerned University.
\nBy  the\t said letter the Vice Chancellors of all  the  State
\nUniversities were directed to send the draft regulation\t for
\ncarrying  out necessary amendment in the Regulations of\t the
\nconcerned  University  to the Education Department  for\t ap-
\nproval.\t In order to give effect to the policy contained  in
\nthe  aforesaid\torders\tof  the\t Government  Uttar  Pradesh,
\nSection\t 31-A  was inserted in the Act by U.P. Act  No.9  of
\n1985 which came into force on October 10, 1984.\t Section 31-
\nA provides as
\n473<\/span>
\nunder:-\n<\/p>\n
\t      “31-A.   Personal\t promotion  to\tteachers  of
\n\t      University.\n<\/p><\/blockquote>\n
\t      (1)   Notwithstanding anything to the contrary
\n\t      contained in any other provision of this\tAct,
\n\t      a\t Lecturer  or  Reader  in  the\t ‘University
\n\t      substantively appointed under Section 3 1, who
\n\t      has   put\t in  such  length  of  service\t and
\n\t      possesses\t such  qualifications,\tas  may\t  be
\n\t      prescribed,  may be given personal  promotion,
\n\t      respectively   to\t the  post  of\t Reader\t  or
\n\t      Professor.\n<\/p><\/blockquote>\n
\t      (2)   Such  personal promotion shall be  given
\n\t      on   the\trecommendation\tof   the   Selection
\n\t      Committee,  constituted  under clause  (a)  of
\n\t      sub-section (4) of Section 31, in such  manner
\n\t      and  subject  to\tsuch conditions\t as  may  be
\n\t      prescribed.\n<\/p><\/blockquote>\n
\t      (3)   Nothing contained in this section  shall
\n\t      affect  the post of the teachers of  the\tUni-
\n\t      versity to be filled by direct appointment  in
\n\t      accordance with the provisions of Section 31.”\n<\/p><\/blockquote>\n
5.   In\t a view of sub-section (1) of Section 31-A  personal
\npromotion  as envisaged by Section 31-A could be given\tonly
\nafter  the  length of service and  the\tqualifications\twere
\nprescribed.   The  word ‘prescribed’ is defined\t in  Section
\n2(14)  of the Act to mean prescribed by the  statutes.\t The
\nnecessary amendment to give effect to the scheme of personal
\npromotion  as envisaged by Section 31-A of the Act was\tmade
\nin  the\t statutes of the University  by\t notification  dated
\nFebruary 21, 1985 whereby Statue 11.12-B was introduced\t and
\nthe  categories of the University who would be eligible\t for
\nthe personal promotion to the post of Readers and Professors
\nand the mode of such promotion were prescribed.\n<\/p>\n
6.   The appellant and respondents Nos.4 and 5 were employed
\nas Readers in the Physics Department of the University.\t  In
\nOctober\t  1983\tan  advertisement  was\tpublished   inviting
\napplications for direct recruitment on one permanent post of
\nprofessor  in the Physics Department of the University.\t  In
\nresponse   to  the  said  advertisement\t applications\twere
\nsubmitted  by  the  appellant and respondents  Nos.4  and  5
\nalongwith  other  applicants.  The  said  applications\twere
\nconsidered by the Selection Committee, under the Faculty  of
\nScience\t and  the Selection Committee, in its  report  dated
\nJuly  22,1984, recommended a panel containing the  names  of
\nthe appellant and respondents Nos 4 and 5 for appointment on
\nthe post of Professor in Physics.  The name of the appellant
\nwas  placed  at the top in the said  panel.   The  Selection
\nCommittee also considered the appellant and respondents Nos.
\n4  and 5 for promotion to the grade of professor  under\t the
\nPersonal  Promotion  Scheme  and in its\t report\t dated\tJuly
\n22,1984\t the  Selection Committee recommended all  three  of
\nthem  for such promotion.  The said recommendations  of\t the
\nSelection Committee were considered by the Executive Council
\nof  the University at the meeting held on November 8,  1985.
\nBy  Resolution No 197 the Executive Committee  accepted\t the
\nrecommendations of the Selection Committee and recorded that
\nthe  appellant\tbe professor in Physics\t substantively.\t  By
\nResolution  No.\t 198  the  Executive  Council  accepted\t the
\nrecommendations\t  of  the  Selection  Committee\t under\t the
\nPersonal  Promotion Scheme and recorded that  the  appellant
\nand  respondents  Nos. 4 and 5 be promoted to the  grade  of
\nProfessor  in terms of Government Orders dated December\t 12,
\n1983  and  February 25, 1984.  In the  said  Resolution\t the
\nnames of the appellant and
\n474<\/span>
\nrespondents  Nos.  4  and  5 be promoted  to  the  grade  of
\nprofessor  in terms of Government Orders dated December\t 12,
\n1983  and  February 25, 1984.  In the  said  Resolution\t the
\nnames of the appellant and the respondents Nos. 4 and 5 were
\nshown in the following order:-\n<\/p>\n
\t    1.Dr.Bal Krishna Agarwal (appellant)\n<\/p><\/blockquote>\n
\t    2.Dr.M.M.Joshi (respondent No.4)\n<\/p><\/blockquote>\n
\t    3.Dr.P.K.Sharma (respondent No.5)\n<\/p><\/blockquote>\n
7.   On\t the basis of the said resolutions, by\torder  dated
\nNovember  9,1984 the appellant was appointed on the post  of
\nProfessor  in  Physics.\t  Respondents  Nos.  4\tand  5\twere
\npromoted  in  the  grade of  Professor\tunder  the  Personal
\nPromotion  Scheme on November 9, 1984.\tThe  appointment  of
\nthe appellant on the post of Professor was on probation\t for
\none year and he was confirmed on the said post of  Professor
\nwith effect from November, 9, 1985.  The matter of inter  se
\nseniority  of the appellant of the respondents Nos.4  and  5
\nwas considered by the Seniority Committee of the Faculty  of
\nScience in its meeting held on December 22, 1986 and January
\n4,  1987.   The Committee came to the  conclusion  that\t the
\nappointments  on  cadre posts and personal  promotion  cases
\nconstitute  two\t different categories and could not  be\t in-
\ntermingled for the purpose of determination of seniority and
\nthat the seniority of teachers in the cadre posts should  be
\nmaintained  separately from that of the\t personal  promotees
\nand  that  the teachers appointed on cadre posts  by  direct
\nrecruitment  should be treated senior to those teachers\t ap-
\npointed\t under\tPersonal Promotion  Scheme  irrespective  of
\ntheir date of appointment.  The Seniority Committee  decided
\nto  place the appellant, who was holding the cadre  post  of
\nProfessor, above respondents Nos. 4 and 5 who were  promoted
\nto  the\t grade\tof Professor under  the\t Personal  Promotion
\nScheme.\t  Feeling  aggrieved  by the said  decision  of\t the
\nSeniority  Committee  respondents  Nos. 4  and\t5  submitted
\nrepresentations\t which\twere  considered  by  the  Executive
\nCouncil in its meeting held on July 16,1988.  The  Executive
\nCouncil\t altered  the seniority as fixed  by  the  Seniority
\nCommittee  and\tplaced\trespondents Nos.4 and  5  above\t the
\nappellant.   The said decision of the Executive Council\t was
\nassailed  by  the  appellant by filling\t the  Writ  Petition
\ngiving rise to this appeal.\n<\/p>\n
8.   The High Court has observed that there was\t controversy
\nin regard to every question of fact in as much as there\t was
\ndispute\t with  regard to nature of  appointments  since\t the
\nappellant  claimed  that  he had been  appointed  against  a
\nregular\t vacancy  which as assailed by the  respondents\t who
\nasserted that all three had been granted personal  promotion
\nand there was also a dispute regarding the date on which the
\nappellant joined the post of Professor.\t The High Court\t was
\nof the view that the question as to whether the impugned or-
\nder  had  been passed without affording\t an  opportunity  of
\nhearing\t to  the  appellant  was a  question  which  can  be
\nappropriately  decided only after investigation in the\tdis-
\nputed questions of fact and that this was not a fit case  in
\nwhich  the  appellant  should  be  allowed  to\tby-pass\t the
\nalternative  remedy of reference to the Chancellor  provided
\nunder  Section\t68 of the Act.\tThe High  Court,  therefore,
\ndismissed the Writ Petition on the ground of availability of
\nthe   alternative   remedy   and  directed   that   if\t the
\nrepresentation of the appellant under Section 68 of the\t Act
\nwas  filed  within  a  period  of  two\tweeks,\tthe  bar  of
\nlimitation would not be applied against the same and
\n475<\/span>
\nit should be decided on merits.\n<\/p>\n
9.   The  learned counsel for the appellant has\t urged\tthat
\nthe High Court was in error in dismissing the Writ  Petition
\nof  the\t appellant  on\tthe ground  of\tavailability  of  an
\nalternative  remedy having regard to the fact that the\tWrit
\nPetition had been filed in 1988 and it had been admitted and
\nwas  pending in the High Court for the past more  than\tfive
\nyears.\t The  learned counsel has also urged that  the\tHigh
\nCourt  was  not right in saying that there  was\t dispute  on
\nquestions  of fact.  According to the learned counsel  there
\nis  no dispute that the appellant had been selected  by\t the
\nSelection Committee for appointment on the permanent post of
\nProfessor  which was advertised and the said  recommendation
\nof  the\t Selection Committee was accepted by  the  Executive
\nCouncil\t in its Resolution No. 197 dated November  8,  1984.
\nThe fact that the name of the appellant was also included in
\nthe  list of Readers for personal promotion to the grade  of
\nProfessor  in  Resolution No. 198 of the  Executive  Council
\nwould not mean that the appointment of the appellant to\t the
\npost of Professor which was by way of personal promotion and
\nnot  on\t the  basis  of selection  for\tthe  cadre  post  of
\nProfessor  which was advertised.  The learned  counsel\talso
\nsubmitted  that it is not the case of the appellant that  he
\njoined the post of Professor in Physics on November 8,\t1984
\nand  that  his\tcase is that the appellant as  well  as\t re-
\nspondents  Nos. 4 and 5 all joined as Professors in  Physics
\non November 9,1984.\n<\/p>\n
10.  Having regard to the aforesaid facts and circumstances,
\nwe are of the view that the   High  Court was not  right  in
\ndismissing the petition\t of the appellant on the  ground  of
\navailability  of an alternative remedy under Section  68  of
\nthe Act especially when the Writ Petition that was filed  in
\n1988  had already been admitted and was pending in the\tHigh
\nCourt for the past more than Eve years.\t Since the  question
\nthat  is raised involves a pure question of law and even  if
\nthe matter is referred to the Chancellor under Section 69 of
\nthe  Act  it  is bound to be agitated in the  court  by\t the
\npartly\taggrieved by the order of the Chancellor, we are  of
\nthe  view  that\t this was not a case where  the\t High  Court
\nshould\thave  non-suited  the appellant\t on  the  ground  of
\navailability  of  an  alternative  remedy.   We,  therefore,
\npropose\t to  go into the merits of  the\t question  regarding
\ninter  se Seniority of the appellant and respondents Nos.  4
\nand 5. We may, in this context, mention that the  respondent
\nNo. 4 has already retired in January, 1994.\n<\/p>\n
11.  Provisions\t with  regard to seniority  of\tteachers  of
\nUniversity are contained in Chapter 18 of the First Statutes
\nof  the\t University.   Prior  to  the  amendments  made\t  by
\nNotification  dated  February 21, 1985 the  statutes  having
\nbearing on the seniority of teachers of the University\twere
\nas under:-\n<\/p>\n
\t      ” 18.05. The following rules shall be followed
\n\t      in  determining the seniority of\tteachers  of
\n\t      the University:-\n<\/p><\/blockquote>\n
\t      (a)   A  Professor shall be deemed  senior  to
\n\t      every  Reader,  and a Reader shall  be  deemed
\n\t      senior to every Lecturer.\n<\/p><\/blockquote>\n
\t      (b)   In\tthe  same  cadre,  seniority  of   a
\n\t      teacher  shall be determined according to\t the
\n\t      length   of  his\tcontinuous  service   in   a
\n\t      substantive capacity in such cadre:
\n\t      Provided that where more than one\t appointment
\n\t      to posts in a cadre have been made at the same
\n\t      time, and an order of preference or merit\t was
\n\t      indicated\t by  the Executive Council,  as\t the
\n\t      case may be,
\n\t      476<\/span>
\n\t      the  seniority  of the  persons  so  appointed
\n\t      shall be governed by the order so indicated.\n<\/p><\/blockquote>\n
\t      (c)   When  any  teacher\tholding\t substantive
\n\t      post   in\t any  University  (other  than\t the
\n\t      University of Allahabad) or in any constituent
\n\t      college  or  in any Institute whether  in\t the
\n\t      State  of\t Uttar\tPradesh\t or  outside   Uttar
\n\t      Pradesh  is appointed whether before or  after
\n\t      August  1,  1981, to a post  of  corresponding
\n\t      rank or grade in the University, the period of
\n\t      service rendered by such teacher in that grade
\n\t      or  rank in such University shall be added  to
\n\t      his length of service.\n<\/p><\/blockquote>\n
\t      (d)   When  any  teacher\tholding\t substantive
\n\t      post   in\t  any  college\taffiliated   to\t  or
\n\t      associated  with any University  is  appointed
\n\t      whether  before or after the  commencement  of
\n\t      these   Statutes\t as  a\t Lecturer   in\t the
\n\t      University,  then\t one half of the  period  of
\n\t      substantive  service rendered by such  teacher
\n\t      in  such college shall be added to his  length
\n\t      of service.\n<\/p><\/blockquote>\n
\t      (e)   Service   against\tan    administrative
\n\t      appointment  in any University or\t institution
\n\t      shall not count for the purposes of seniority.
\n\t      Explanation :- In this Chapter, the expression
\n\t      “administrative\t appointment”\t means\t  an
\n\t\t\t    appointment\t made  under  subsection  (6)\tof
\n\t      Section 13.\n<\/p><\/blockquote>\n
\t      (f)   Continuous\tservice in a temporary\tpost
\n\t      to   which  a  teacher  is   appointed   after
\n\t      reference\t  to  a\t Selection   Committee,\t  if
\n\t      followed\tby his appointment in a\t substantive
\n\t      capacity to that post under Section 31 (3) (b)
\n\t      shall count towards seniority.
\n\t      18.06.Where more than one teacher are entitled
\n\t      to count the same length of continuous service
\n\t      in  the  cadre  to  which\t they  belong,\t the
\n\t      relative\tseniority of such teachers shall  be
\n\t      determined as below:-\n<\/p><\/blockquote>\n
\t      (i)in  the case of Professors, the  length  of
\n\t      substantive  service as Reader shall be  taken
\n\t      into consideration;\n<\/p><\/blockquote>\n
\t      (ii)in  the  case of Readers,  the  length  of
\n\t      substantive service as Lecture Shall be  taken
\n\t      into consideration.\n<\/p><\/blockquote>\n
\t      (iii)in  the case of Professors, whose  length
\n\t      of  service as Readers is also identical,\t the
\n\t      length  of service as lecturer shall be  taken
\n\t      into consideration.\n<\/p><\/blockquote>\n
\t      18.07.Where more than one teacher are entitled
\n\t      to count the same length of continuous service
\n\t      and   their  relative  seniority\t cannot\t  be
\n\t      determined  in  accordance  with\tany  of\t the
\n\t      foregoing\t provisions, then the  seniority  of
\n\t      such teachers shall be determined on the basis
\n\t      of seniority in age.\n<\/p><\/blockquote>\n
\t      18.08. (1) Notwithstanding anything  contained
\n\t      in any other Statute, if the Executive   Council-\n<\/p><\/blockquote>\n
\t      (a)  agrees  with the  recommendation  of\t the
\n\t      Selection Committee, and approves two or\tmore
\n\t      persons  for  appointment as teachers  in\t the
\n\t      same  Department,\t it shall,  while  recording
\n\t      such approval, determine the order of merit of
\n\t      such teachers;\n<\/p><\/blockquote>\n
\t      (b)does  not agree with the recommendation  of
\n\t      the Selection Committee and refers the  matter
\n\t      to the Chancellor under Section 31(8)(a),\t the
\n\t      chancellor  shall, in cases where\t appointment
\n\t      of two or more teachers in the same Department
\n\t      is  involved, determine the order of merit  of
\n\t      such  teachers  at the time of  deciding\tsuch
\n\t      reference;\n<\/p><\/blockquote>\n
\t      (2)The  order  of merit in which two  or\tmore
\n\t      teachers are placed under clause (1), shall be
\n\t      communicated to the teachers concerned  before
\n\t      their appointment.\n<\/p><\/blockquote>\n
477<\/span><\/p>\n
By virtue of the amendment that have been introduced in\t the
\nStatutes by Notification dated February 21, 1985, clause (b)
\nof Statute 18.05 was substituted as under:-\n<\/p>\n
\t      “(b) In the same cadre, inter se seniority  of
\n\t      teachers,\t appointed by personal promotion  or
\n\t      by  direct  recruitment, shall  be  determined
\n\t      according to length of continuous service in a
\n\t      substantive capacity in such cadre:
\n\t      Provided that where more than one\t appointment
\n\t      have  been made by direct recruitment, at\t the
\n\t      same time and an order of preference or -merit
\n\t      was indicated by the Selection Committee or by
\n\t      the Executive council, as the case may be\t the
\n\t      inter  se\t seniority of persons  so  appointed
\n\t      shall be governed by the order so indicated:
\n\t      Provided\tfurther\t that where  more  than\t one
\n\t      appointments  have been made by  promotion  at
\n\t      the  same time, The inter se seniority of\t the
\n\t      teachers so appointed shall be the same as  it
\n\t      was  in the post held by them at the  time  of
\n\t      promotion.”\n<\/p><\/blockquote>\n
12.  The  learned  counsel for the appellant  has  submitted
\nthat  since  the  appellant was appointed  on  the  post  of
\nProfessor  in  Physics\ton November 9,\t1984  the  seniority
\nshould\tbe  regulated  by the  provision  contained  in\t the
\nStatutes  as  they  existed  on\t the  said  date  and\tthat
\namendments  which were made in the Statutes by\tnotification
\ndated  February\t 21, 1985 would have no application  in\t the
\nmatter of determination of his seniority.  Under clause\t (b)
\nof  Statute 18.05, as it stood on November 9,1984, when\t the
\nappellant joined as Professor in Physics, appellant, who was
\nholding the selection post of Professor in Physics  Faculty,
\nwas  senior  to respondents Nos 4 and 5 who  were  promotees
\nunder  the Personal Promotion Scheme.  In  this\t connection,
\nthe  learned counsel has urged that although  Section  31-A,
\nwhich provides for personal promotion, was introduced in the
\nAct  with  effect  from\t October  10,  1984,  but  the\tsaid
\nprovision could be given effect to only after the length  of
\nservice as well as the qualifications were prescribed in the
\nStatutes and that this was done only by the amendments\tthat
\nwere  introduced  in  the  Statutes  by\t notification  dated
\nFebruary  21,  1985 and, therefore,  personal  promotion  of
\nrespondents  Nos. 4 and 5 could have legal effect only\tfrom
\nthe date of such amendment in the Statutes and that  respon-
\ndents  Nos. 4 and 5 should be treated to have been  promoted
\nunder Personal Promotion Scheme on the grade of Professor in
\nPhysics\t with  effect  from  February  21,1985.\t  Since\t the
\nappellant  joined  as Professor in Physics  on\tNovember  9,
\n1984,  he should be treated as senior to respondents Nos.  4
\nand 5.\n<\/p>\n
13.  Shri  Sanyal, the learned senior counsel appearing\t for
\nrespondent  Nos. 4 and 5, has however, urged that since\t the
\nvalidity  of  appointments of respondents Nos 4 and  5\twith
\neffect\tfrom November 9, 1984 has not been assailed  by\t the
\nappellant, he should not be permitted to raise this question
\nat this stage.\tIt is no doubt true that the validity of the
\npromotion of respondents Nos. 4 and 5 has not been  assailed
\nby the appellant but all that he is pointing out is that  in
\nview of the provisions contained in Section 31-A of the\t Act
\nthe promotion of respondents Nos. 4 and 5 under the Personal
\nPromotion  Scheme  could be made only after  the  length  of
\nservice\t and qualifications were prescribed by the  Statutes
\nand provisions in this regard were made in the Statutes only
\non February 21,1985.  In other words, what the appellant  is
\nsaying is that the promo-\n<\/p>\n
478<\/span><\/p>\n
tion  of respondents Nos. 4 and 5 to the grade of  Professor
\ncan  be regarded to have been made legally only with  effect
\nfrom  February 21, 1985.  This does not involve a  challenge
\nto  the\t validity  of their promotion but  only\t raises\t the
\nquestion about the date from which it can be given effect to
\nin  law.   We  are  of\tthe opinion  that  in  view  of\t the
\nprovisions  contained in Section 31 A and Section  2(14)  of
\nthe Act there is no escape from the conclusion that  respon-
\ndents  Nos. 4 and 5 could not be given promotion  under\t the
\nPersonal Promotion Scheme till the necessary provisions pre-
\nscribing  the length of service and the\t qualifications\t for
\nsuch promotion were made in the statutes and since this\t was
\ndone  by  Notification dated February  21,  1985,  promotion
\nunder the Personal Promotion Scheme could not be made  prior
\nto  February  21,  1985.   The\tExecutive  Council  in\t its
\nResolution  No. 198 dated November 8, 1984 had accepted\t the
\nrecommendations of the Selection Committee for promotion  of
\nrespondents  Nos. 4 and 5 on the basis of Government  Orders
\ndated December 12, 1983 and February 25, 1984.\tAt that time
\nSection\t 31 of the Act provided for appointment of  teachers
\nby direct recruitment and did not envisage promotion from  a
\nlower  teaching post to a higher teaching post.\t The  orders
\nof  the Government aforementioned could not be given  effect
\ntill  necessary\t amendment  was\t made  in  the\tAct   making
\nprovision   for\t personal  promotion.\tThis  was  done\t  by
\nintroducing  Section  31 -A by U.P. Act No. 9 of  1985\twith
\neffect\t10 October, 1984.  But Section 31-A could  be  given
\neffect\tonly after the necessary provision was made  in\t the
\nStatutes   prescribing\tthe  length  of\t service   and\t the
\nqualifications for personal promotion. This was done by\t the
\nnotification  dated  February 21, 1985.\t  The  promotion  of
\nrespondents Nos. 4 and 5 to the grade of Professor under the
\nPersonal  Promotion  Scheme could, therefore,  not  be\tmade
\nprior  to February 21, 1985.  The inter se seniority of\t the
\nappellant and respondents Nos. 4 and 5 has to be  determined
\non that basis.\n<\/p>\n
14.  Shri Sanyal has also contended that since the seniority
\nof the appellant and respondents Nos. 4 and 5 was determined
\nby the Executive Council after the Statutes had been amended
\nby  notification dated February 21, 1985 the  criterion\t for
\nfixing the seniority would be that laid down in the Statutes
\non  the date when such determination was made and  that\t the
\nseniority  was\tproperly determined in accordance  with\t the
\nprovisions of the Statutes 18.05 as amended by\tNotification
\ndated  February\t 21, 1985.  We are unable  to  agree.\tEven
\nunder the Statutes as amended by Notification dated February
\n21,1985, it is laid down in clause (b) of Statute 18.05 that
\nin the same cadre, inter se seniority of teachers, appointed
\nby  personal  promotion or by direct recruitment,  shall  be
\ndetermined  according to length of continuous service  in  a
\nsubstantive capacity in such cadre.  Since the promotion  of
\nrespondents  Nos.  4 and 5 can be treated to be\t valid\tonly
\nwith  effect  from February 21, 1985 their  service  in\t the
\ncadre of Professor has to be counted from February 21,\t1985
\nwhile  the service of the appellant has to be  counted\tfrom
\nNovember 9, 1984.  The appellant is, therefore, entitled  to
\nbe  placed  above  respondents Nos. 4 and 5  in\t so  far  as
\nseniority in the cadre of Professor is concerned.\n<\/p>\n
15.  Shri  Arun Jaitley, the learned counsel  appearing\t for
\nrespondent No. 4, has invited our attention to Statute 18.06
\nand has submitted that since the appellant and
\n479<\/span>
\nrespondents  Nos. 4 and 5 joined as Professors on  the\tsame
\ndate  and have the same length of continuous service in\t the
\ncadre  of  Professor,  their inter se  seniority  should  be
\ndetermined  by\tvirtue\tof the length of  their\t service  as
\nReaders\t and  on that basis respondents Nos. 4 and  5  would
\nrank senior to the appellant since they had longer length of
\nservice as Readers than the appellant.\tThis contention also
\nproceeds on the basis that the respondents Nos. 4 and 5 were
\nvalidly\t promoted to the grade of Professor on\tNovember  9,
\n1984 and the said contention would have no validity if it is
\nheld that promotion of respondents No. 4 and 5 to the  grade
\nof Professor under the Personal Promotion Scheme could\tonly
\nbe legally effected from February 2 1, 1985.\n<\/p>\n
16. For the reasons aforementioned, it must be held that the
\nappellant should have been treated as senior to\t respondents
\nNos.  4 and 5 in the cadre of Professor in Physics  and\t the
\nExecutive Council was not justified in placing him junior to
\nthe said respondents.  The appeal is therefore, allowed, the
\njudgment  of  the High Court dated January 6,  1994  is\t set
\naside  and  the\t Writ Petition filed  by  the  appellant  is
\nallowed\t and  it is directed that the  appellant  should  be
\ntreated\t as senior to respondents Nos. 4 and 5 as  Professor
\nin  the Physics Department of the University.  There  is  no
\norder as to costs.\n<\/p>\n
481<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. Bal Krishna Agarwal vs State Of Uttar Pradesh & Ors on 10 January, 1995 Equivalent citations: 1995 SCC (1) 614, JT 1995 (1) 471 Author: S Agrawal Bench: Agrawal, S.C. (J) PETITIONER: DR. BAL KRISHNA AGARWAL Vs. RESPONDENT: STATE OF UTTAR PRADESH & ORS. DATE OF JUDGMENT10\/01\/1995 BENCH: AGRAWAL, S.C. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-101798","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. Bal Krishna Agarwal vs State Of Uttar Pradesh & Ors on 10 January, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-bal-krishna-agarwal-vs-state-of-uttar-pradesh-ors-on-10-january-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Bal Krishna Agarwal vs State Of Uttar Pradesh & Ors on 10 January, 1995 - 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