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PETITIONER: DR BAL KRISHNA AGARWAL

       Vs.

RESPONDENT: STATE OF U.P.

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: The judgement of the court was delivered by S.C. AGRAWAL, J--Leave granted. 2. We have heard learned counsel for the parties. +From the Judgment and Order dated 6-1-1994 of the Allahabad High court in C.M.P.W.PNo. 15566 of 1988 3.   This  appeal involves the question regarding  inter  se seniority  of  the appellant, Dr Bal  Krishna  Agarwal,  and Respondents  4  and  5,Dr Murli Manohar Joshi,  and  Dr  PK. Sharma as Professors in Physics in the Allahabad  University (hereinafter   referred  to  as  "the   University").    The Executive  Council  of the University  by  resolution  dated 16-7-1978,  declared  Respondents 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  6-1-1994  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 subsection (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  12-12-1983, framed  a  Personal Promotion Scheme  where  under  personal promotion  was  to  be given to a teacher on  the  basis  of continuous service rendered in the department for a  certain

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period.   By  order  dated 25-2-1984 the  said  order  dated 12-12-1983 was modified and it was decided to grant personal promotion  to the post of Reader to all those full-time  and regularly  appointed  lecturers on the  Government  approved posts  of universities governed and administered by the  Act who  possess  Ph.D.  degrees 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  IO  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  in the said order.  In sub-paragraph (12) it  was stated that the seniority of teachers would be regulated  as per  regulations of the university concerned.  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  university concerned  to  the Education Department  for  approval.   In order  to  give  effect  to  the  policy  contained  in  the aforesaid orders of the Government of Uttar Pradesh, Section 3  1  -A was inserted in the Act by U.P Act No.  9  of  1985 which  came  into  force  on 10-10-1984.   Section  3  1  -A provides as under:               "31-A.   Personal  promotion  to  Teachers  of               University.-  (1) Notwithstanding anything  to               the contrary contained in any other               616               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  posts  of  the  teachers  of  the               University to be filled by direct  appointment               in  accordance with the provisions of  Section               31." 5.   In  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 21-2-1985  whereby  Statute 11.12-B was introduced  and  the categories  of  teachers  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 4 and 5 were employed  as Readers  in  the Physics Department of the  University.   In October   1983  an  advertisement  was  published   inviting

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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 4 and  5  along with   other   applicants.   The  said   applications   were considered  by the Selection Committee under the Faculty  of Science and the Selection Committee, in its report dated 22- 7-1984,  recommended  a panel containing the  names  of  the appellant  and  Respondents 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  4 and  5  for promotion to the grade of  Professor  under  the Personal Promotion Scheme and in its report dated  22-7-1984 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 8-11-1984.  By  Resolution No.  197 the Executive Council accepted the  recommendations of  the Selection Committee and recorded that the  appellant be  appointed  as 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  4  and  5 be  promoted  to  the  grade  of Professor in terms of Government Orders dated 12-12-1983 and 25-2-1984.  In the said 617 resolution the names of the appellant and Respondents 4  and 5 were shown in the following order:               1.    Dr Bal Krishna Agarwal (appellant)               2.    Dr M.M. Joshi (Respondent 4)               3.    Dr PK.  Sharma (Respondent 5) 7.   On the basis of the said resolutions, by order dated 9- 11-1984,  the  appellant  was  appointed  on  the  post   of Professor in Physics.  Respondents 4 and 5 were promoted  in the  grade of Professor under the Personal Promotion  Scheme on 9-11-1984.  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  9- 11-1985.  The matter of inter se seniority of the  appellant and  Respondents  4 and 5 was considered  by  the  Seniority Committee  of the Faculty of Science in its meeting held  on 22-12-1986   and  4-1-1987.   The  Committee  came  to   the conclusion that the appointments on cadre posts and personal promotion  cases  constitute two  different  categories  and could  not be intermingled 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  of  direct recruitment should be  treated  senior  to those  teachers  appointed 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 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  4  and  5  submitted representations  which  were  considered  by  the  Executive Council  in  its meeting held on 16-7-1988.   The  Executive Council  altered  the seniority as fixed  by  the  Seniority Committee   and  placed  Respondents  4  and  5  above   the appellant.   The said decision of the Executive Council  was assailed by the appellant by filing the writ petition giving rise to this appeal.

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8.   The High Court has observed that there was  controversy in regard to every question of fact inasmuch as there was  a dispute  with  regard to nature of  appointments  since  the appellant  claimed  that  he had been  appointed  against  a regular  vacancy which was assailed by the  respondents  who asserted that all three had been granted personal  promotion and  that  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   order  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 disputed questions of fact and that this was not a fit  case in  which  the  appellant should be allowed  to  bypass  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 alternative  remedy and directed that if the  representation of  the  appellant  under Section 68 of the  Act  was  filed within a period of two 618 weeks,  the bar of limitation would not be  applied  against the same and 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 8-11-1984.  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  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 8-11-1984 and that his case is  that the  appellant as well as Respondents 4 and 5 all joined  as Professors in Physics on 9-11-1984. 10.Having  regard to the aforesaid facts and  circumstances, we  are  of the view that the High Court was  not  right  in dismissing the writ 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 five 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 68 of the Act it is bound to be agitated in the court by the party 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 4 and 5. We may, in this  context, mention  that  Respondent 4 has already retired  in  January

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1994. 11.Provisions  with  regard  to  seniority  of  teachers  of University are contained in Chapter 18 of the First  Statute of  the  University.   Prior  to  the  amendments  made   by Notification dated 21-2-1985 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.               619               (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 Selection Committee or  by  the  Executive  Council, as the  case  may  be,  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               1-8-1981,  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 sub-section (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 Lecturer shall be taken               into consideration;.

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             (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 620 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  recommendations               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. By virtue of the amendments that have been introduced in the Statutes  by  Notification dated 21-2-1985,  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               appointment 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 9-11-1984, the seniority should  be regulated  by  the provisions contained in the  Statutes  as they existed on the said date and that the amendments  which were  made in the Statutes by Notification  dated  21-2-1985 would have. no application in the matter of determination of his  seniority.   Under clause (b) of Statute 18.05,  as  it stood  on 9-11-1984, when the appellant joined as  Professor in Physics, appellant, who was holding the selection post of Professor  in Physics Faculty, was senior to  Respondents  4 and  5  who  were promotees  under  the  Personal  Promotion Scheme.   In this connection, the learned counsel has  urged

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that although Section 31-A, which provides for personal 621 promotion, was introduced in the Act with effect from 10-10- 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  21-2-1985  and,  therefore,   personal promotion  of  Respondents 4 and 5 could have  legal  effect only  from  the date of such amendment in the  Statutes  and that  Respondents  4 and 5 should be treated  to  have  been promoted  under  Personal Promotion Scheme on the  grade  of Professor in Physics with effect from 21-2-1985.  Since  the appellant  joined as Professor in Physics on  9-11-1984,  he should be treated as senior to Respondents 4 and 5. 13.  Shri  Sanyal, the learned Senior Counsel appearing  for Respondent 5, has, however, urged that since the validity of appointment  of Respondents 4 and 5 with effect  from  9-11- 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 promotion of Respondents  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  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  21-2-1985.   In  other words, what the appellant is saying is that the promotion of Respondents  4  and  5  to the grade  of  Professor  can  be regarded to have been made legally only with effect from 21- 2-1985.   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  3  1 -A and Section 2(14) of the Act  there  is  no escape  from the conclusion that Respondents 4 and  5  could not  be given promotion under the Personal Promotion  Scheme till  the  necessary provisions prescribing  the  length  of service and the qualifications for such promotion were  made in  the  Statutes and since this was  done  by  Notification dated  21-2-1985,  promotion under  the  Personal  Promotion Scheme could not be made prior to 21-2-1985.  The  Executive Council  in  its  Resolution No.  198  dated  8-11-1984  had accepted the recommendations of the Selection Committee  for promotion of Respondents 4 and 5 on the basis of  Government Orders dated 12-12-1983 and 25-2-1984.  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  3 1  -A  by U.P. Act No. 9 of 1985 with effect  from  10-  10- 1984.   But Section 3 1 -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  21-2- 1985.  The promotion of Respondents 4 and 5 to the grade  of Professor   under  the  Personal  Promotion  Scheme   could, therefore, not be made prior to 21-2-1985 622 and it has to be treated to have been made with effect  from 21-2-1985.   The  inter se seniority of  the  appellant  and Respondents 4 and 5 has to be determined on that basis.

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14.  Shri Sanyal has also contended that since the seniority of  the appellant and Respondents 4 and 5 was determined  by the Executive Council after the Statutes had been amended by notification  dated 21-2-1985 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  Statute  18.05 as amended by Notification  dated  21-2- 1985.   We are unable to agree.  Even under the Statutes  as amended by Notification dated 21-2-1985, 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 4 and 5  can  be treated  to be valid only with effect from  21-2-1985  their service in the cadre of Professor has to be counted from 21- 2-1985 while the service of the appellant has to be  counted from 9-11-1984.  The appellant is, therefore, entitled to be placed above Respondents 4 and 5 insofar as seniority in the cadre of Professor is concerned. 15.  Shri  Arun Jaitley, the learned counsel  appearing  for Respondent 4, has invited our attention to Statute 18.06 and has submitted that since the appellant and Respondents 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 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 Respondents  4 and 5 were validly promoted to the  grade  of Professor on 9-11-1984 and the said contention would have no validity if it is held that promotion of Respondents 4 and 5 to  the  grade  of Professor under  the  Personal  Promotion Scheme could only be legally effected from 21-2-1985. 16.  For  the reasons aforementioned, it must be  held  that the  appellant  should  have  been  treated  as  senior   to Respondents 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  6-1-1994  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 4 and 5 as Professor in the Physics Department of the University.  There is no order  as to costs. 623