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PETITIONER: DR. H.P. HAJELA

       Vs.

RESPONDENT: N.S. VERMA & ORS.

DATE OF JUDGMENT02/05/1986

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1986 AIR 1638            1986 SCR  (2) 967  1986 SCC  (3) 292        1986 SCALE  (1)1202

ACT:      University-Seniority of  teachers -  Kanpur  University old  statutes/First   Statutes,  11.34/18.10   and  18.16  - Affiliated col1eges  - Whether  deputation service effects a break of service resulting in loss of seniority.

HEADNOTE:      The appellant  was granted  extra-ordinary leave on the request of  the Government  of India  for being  sent  on  a teaching assignment  to the University of Aden (South Yeman) on the  express condition  that his lien on the post of Head of the  Department of Zoology in a college affiliated to the Kanpur University  will be maintained and his seniority will be protected.  After having fulfilled the aforesaid teaching assignment and  on return  to India, he sought to resume his post in  the college. The first respondent who was acting as the Head of the Department of Zoology in the college refused to handover  charge on  the  ground  that  he  had  attained seniority over  the appellant.  The Principal  also rejected the  appellant’s   claim  to   seniority.  Thereafter,   the appellant challenged  the order  of the Principal before the Vice-Chancellor of  Kanpur University  on the ground that he had not  suffered a  break in service and his seniority over the first  respondent remained intact all through his period of service  on deputation.  The Vice-Chancellor  upheld  the appellant’s claim  and held  that he  was  entitled  to  his rightful place  of seniority.  The Chancellor,  in appeal by the first  respondent,  affirmed  the  order  of  the  Vice- chancellor.      The first  respondent filed a writ petition in the High Court. A learned single Judge of the High Court held that in terms of  either the  old Statutes  or the First Statutes of the Kanpur  University, the  appellant is  not  entitled  to reckon the  period of  service at the University of Aden for computing length  of service  in the DAV College and as such the recognition  of the  seniority of the appellant over the first 968 respondent by  the Vice-Chancellor  and  the  Chancellor  in their respective orders cannot be sustained.      Allowing the appeal, ^

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    HELD: l.  The High  Court has not properly comprehended the Statutes.  Because of  the failure  of the High Court to have applied  the appropriate provision in the Statutes, the period of  service of  the appellant  on deputation has been wrongly held  to be  non-includible in  the total  length of service of  the appellant. The Principal, as the Head of the Institution, was  undoubtedly competent  to grant  leave  on loss to  pay to the appellant in order to enable him to take up a  foreign assignment  on deputation basis. The period of leave granted  to the  appellant  was  utilised  in  holding another position  involving similar  work and therefore, the appellant is  automatically entitled  to the benefit of sub- clause (4) of old Statute 11.34. [976 D; 978 G]      2.(i) &  b-clause (1)  of  statute  11.34  of  the  Old Statutes deals  with the reckoning of seniority on the basis of the  length of service in one and the same college and in the same  cadre and  grade; sub-clause  (2) provides for the addition   of    service   in    another    University    or associated/affiliated college  etc. provided  the University is situate in Uttar Pradesh and the college is affiliated to or associated  with one  of the  Universities in  the State; sub-clause (3)  excludes service  in an officiating capacity and grants  recognition of  temporary service only if it has continuity with  a  subsequent  permanent  appointment;  and lastly sub-clause  (4) prescribes  for tacking  on of  leave period with  the total  length of service provided ; (1) the period of  leave has  been spent in holding another position involving similar work or (2) it was medical leave.[976 D-F]      2.(ii) The  case of  the appellant would not fall under sub-clause(2) because  his service in the University of Aden will not  constitute such kinds of services as are envisaged in the sub-clause. However, sub-clause (4) would undoubtedly cover the  case of the appellant because he had been granted leave of  absence on loss of pay for a period of three years for  rendering   service  in   the  University  of  Aden  on deputation basis. The word "unless during such leave another position 969 involving similar work was held" would squarely apply to the A period  of leave  of the  appellant. It  is significant to note  that  the  qualifying  words  "University  or  College situated in  Uttar Pradesh and the Colleges affiliated to or associated with  one  of  the  Universities  in  the  State" occurring in sub-clause (2) are conspicuously absent in sub- clause (4). [976 F-G; 977 A-B] B      2.(iii) As  there is no conflict between sub-clause (4) of Statute  11.34 of  the Old  Statutes and any provision in the First  Statutes, there  is no room or scope for invoking the overriding  provision contained  in Statute  1.02(1) for denying the  application of Old Statute 11.34(4) to the case of the  appellant. On  the other hand, the appellant will be entitled to  claim the  benefit of First Statute 18.16 which preserved "inter  seniority  of  teachers  employed  in  the University from before the commencement of the Statute."[977 C-D]      3.  Sub-clause   (2)  and  (4)  of  Old  Statute  11.34 contemplate  different   situations  and  act  in  different fields. While  sub-clause (4)  contemplates service rendered elsewhere during  the period  of leave,  sub-clause (2) does not  contemplate  any  such  service  but  contemplates  the service rendered  elsewhere without  taking leave  from  any institution. proper exposition of the fields of operation of sub-clauses (2)  and (4)  of Old  Statute 11.34 will at once bring to light the merit in the contentions of the appellant and the  error that  has been  committed by  the High Court.

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Moreover, the  provision contained  in sub-clause (4) of Old Statute 11.34  has not  been disturbed  in any manner by the First Statutes  and hence  the appellant will be entitled to the benefit  of  this  provision,  especially  in  terms  of statute 18.16 of the First Statutes. [977 D-H; 978 A-B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1477 of 1986.      From the Judgment and Order dated 20th May, 1985 of the Allahabad High Court in Writ Petition No. 3710 of 1985.      S.N. Kacker and R.B. Mehrotra for the Appellant.      S.C. Birla for the Respondents.      The Judgment of the Court was delivered by 970      NATARAJAN, J.  This appeal by special leave is directed against the order of a learned Single Judge of the Allahabad High Court  in Civil  Misc. Writ  Petition No.  3710 of 1985 filed in  the High Court by the first respondent herein. The appeal lies  within a narrow compass as the limited question for consideration is whether the extraordinary leave granted to the  appellant for  the period 24.12.80 to 31.7.83 on the request of the Government of India for his being posted on a teaching assignment  in the University of Aden (South Yemen) effected a  break in  service so as to deprive the appellant his seniority  in the  Department of  Zoology in  the D.A.V. College, Kanpur.      The facts  which are  not in  controversy, of the case, are briefly as set out below.      On 1.9.49  the appellant  was appointed  as Lecturer in Zoology in  a substantive  capacity in  the D.A.V.  College, Kanpur. About  six weeks’  later i.e.  On 12.9.49  the first respondent was  also appointed  as a  Lecturer in Zoology in the same  college.  In  the  year  1974  the  appellant  was appointed as  the Head  of the  Department of Zoology in the said  College.   On  24.12.80   the  appellant  was  granted extraordinary leave  on the  request of  the  Government  of India for  being  sent  on  a  teaching  assignment  to  the University of  Aden (South  Yemen) on  the express condition that his  lien on the post in the College will be maintained and his seniority will be protected. On the basis of such an arrangement the  appellant fulfilled his teaching assignment at the  University of  Aden and on return to India he sought to resume  his post in the College. The first respondent who was acting  as the  Head of  the Department  refused to hand over charge on the ground he had attained seniority over the appellant. It  is relevant  to mention  here that  the first respondent did  not also  continuously serve the College but left its  services and  went to other teaching institutions, and  after  stints  of  service  therein,  he  rejoined  the Department of  Zoology in  the D.A.V.  College,  Kanpur.  It would appear  that the first respondent went over on 21.1.78 as Principal  of the D.A.V. College, Dehradun and thereafter he went  over as Principal of the D.B.S. College, Kanpur and subsequently he came back to the D.A.V. College, Kanpur. 971      As the  first respondent refused to hand over charge of the Department,  the appellant  made a representation to the Principal and  sought his  intervention. After  considerable delay the  Principal refused  to countenance the appellant’s claim to  seniority and  sustained the  stand taken  by  the first respondent.      The appellant  challenged the  order of  the  Principal

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before  the  Vice-Chancellor  of  Kanpur  University.  While contending that  he had  not suffered a break in service and his seniority  over the first respondent has remained intact all  through  his  period  of  service  on  deputation,  the appellant further contended that the first respondent had in fact suffered  break in  service because  of his  spells  of service at  the D.A.V.  College, Dehra  Dun and  the  D.B.S. College, Kanpur  and as such the first respondent’s claim of continuous service was an untenable one. The Vice-Chancellor upheld the  appellant’s claim  that he  had not suffered any break in  service and  by virtue of his lien he was entitled to his  rightful place  of seniority. Aggrieved by the order of the  Vice-Chancellor, the  first respondent  preferred an appeal to  the Chancellor  but the  Chancellor affirmed  the order of the Vice-Chancellor and dismissed the appeal.      Thereafter the  first respondent filed Civil Misc. Writ Petition  No.   3710  of  1985  under  Article  226  of  the Constitution before  the High  Court of  Allahabad.  By  the impugned order  a learned  Single Judge  of the  High  Court allowed the  writ petition  holding that  in terms of either the Old  Statutes  or  the  First  Statutes  of  the  Kanpur University the  appellant herein  is not  entitled to reckon the  period  of  service  at  the  University  of  Aden  for computing the length of service in the D.A.V. College and as such the  recognition of the seniority of the appellant over the  first   respondent  by   the  Vice-Chanceller  and  the Chancellors in  their respective orders cannot be sustained. Accordingly the learned Judge has issued a rule in favour of the first  respondent and  it is  against  that  order  this appeal by special leave has been filed.      While presenting  the case  of the  appellant before us Shri  S.N.   Kacker,  learned  counsel  did  not  press  the alternative contention of the appellant that the first 972 respondent had  suffered break  in  service  in  the  D.A.V. College, Kanpur  and as  such  he  has  no  locus  to  claim seniority. Consequently,  the only ground on which the order of the High Court was assailed is that the High Court was in error  in   holding  that  the  deputation  service  of  the appellant has effected a break of service and as such he has lost his original seniority in the Department of Zoology. As the High  Court has held that neither under the Old Statutes nor under  the First  Statutes of  the Kanpur University the appellant  is  entitled  to  tack  on  his  service  in  the University of  Aden with  his service in the D.A.V. College, Kanpur it  is necessary to advert to the relevant provisions in the  two Statutes.  However, before  such advertence,  it will be relevant to refer to the letter of consent issued to the  appellant   by  the   then  Principal  viz.  Shri  S.C. Srivastava of  the D.A.V.  College, Kanpur  as  a  condition precedent for  his accepting the teaching assignment abroad. The letter,  addressed to  the Ministry  of Home Affairs, is worded as under :-      "From :      Principal      D.A.V. College,      Kanpur, U.P.      India.      To      Ministry of Home Affairs,      Department of Personnel and Administrative Reforms,      (Foreign Assignment Section)      New Delhi.      Assignment of Indian Experts abroad       Certified  that the appellant Dr. K.P. Hajela, Head of

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Zoology Department, D.A.V. College, Kanpur, will be relieved for service  abroad  on  foreign  service  terms  in  public interest (i.e. retaining the applicant’s lien and protecting his seniority within thirty days of selection if need be. It is 973 further stated  that  the  applicant,  Dr.  Hajela,  can  be released for  service abroad  for a  total period  of  three years.      August 21, 1978.    Sd/- S.C. Srivastava" It may  be seen from this letter that the appellant had been granted leave  for a  period of  three years  and a specific undertaking had been given on behalf of the College that the appellant’s lien  in the  College will  be retained  and his seniority also  will  be  protected  during  his  period  of service abroad.  It will also be relevant to mention in this context itself  that even now the present Principal, who has declined to  uphold the  seniority  of  the  appellant,  has conceded in  his order  dated September  1,  1983  that  the appellant’s lien  has been  maintained. The relevant portion in the order is contained in para 6 and reads as under :           "Dr. Hajela’s lien has been maintained on his post           here in  so far  as he  was granted  extraordinary           leave without  pay  for  the  period  of  contract           service abroad and that no appointment was made in           his place. Other claims are not admissible."      No doubt the first respondent and the present Principal of  the  College  have  taken  the  stand  that  the  former Principal had  no authority  to guarantee  the appellant his lien in  the Department and his rank of seniority. The merit of this  stand will be gone into later but for the moment we would  only   like  to  point  out  that  one  part  of  the undertaking given  by the former Principal namely, retention of lien  has been  conformed to and what is disputed is only the guarantee regarding the protection of seniority.      Now coming  to the Statutes the relevant one in the Old Statutes is  11.34 and  the one  in the  First  Statutes  is 18.10. They are in the following terms:-           Old Statutes:           "Seniority of teachers in Affiliated Colleges :           11.34(1) Subject to the provisions of this Statute           the seniority of teachers in a particular college 974           shall be  determined by  the length  of service in           that College  in the  same cadre  and in  the same           grade.           (2) The  periods of  service in another University           associated/affiliated  college   in  the  same  or           higher cadre  and grade  shall also  count towards           seniority if the University of College is situated           in Uttar  Pradesh and the College is affiliated to           or associated  with one of the Universities in the           State.           (3) Service  in an  officiating capacity shall not           be counted.  Temporary service  shall  be  counted           only if  it is  in continuation  of  a  subsequent           permanent appointment.           (4) The  period of  leave without pay shall not be           counted in calculating the seniority unless during           such leave  another  position  involving  similiar           work was held or it was medical leave." First Statutes "Seniority  of   Principals  and   Teachers  of   affiliated colleges.           18.10 The  following rules  shall be  followed  in

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         determining the  seniority of Principals and other           teachers of affiliated colleges :           (a) the  Principal shall be deemed senior to other           teachers in the College ;           (b) the Principal of a post-graduate college shall           be deemed  senior to  the Principal  of  a  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 ; 975           (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 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." Another provision,  which has  not been  adverted to  by the High Court, is also set out, as it has relevance : C           "18.16 :  The statutes  contained in  this Chapter           shall not  affect the  inter seniority of teachers           employed  in   this  University  from  before  the           commencement of these statutes".      In order  to give operative force to the First Statutes over the  Old Statutes  in the  event of any conflict in the provisions of  the two  Statutes a  specific provisions  has been made  in Chapter  I Section  50(1) 1.02(1)  and  it  is worded as under :           "All existing  Statutes and all such Ordinances in           force in  the University, as are inconsistent with           these  Statutes   are  to   the  extent   of  such           inconsistency,   hereby    rescinded   and   shall           forthwith cease  to have effect except as respects           things done  or omitted  to  be  done  before  the           commencement of these Statutes".      The High  Court has  taken the  view that  there is  no inconsistency between  Statute 11.34 of the Old Statutes and Statute  18.10  of  the  First  Statutes  and  as  such  the seniority  of   the  appellant   should  be   determined  in accordance with  Statute 11.34(2). As it is provided in sub- clause (2)  of Statute  11.34 that the periods of service in another University or College would count for seniority only if the  University or  College is  situated in Uttar Pradesh and the  College is  affiliated to or associated with one of the Universities  in the  State, it  has been  held that the appellant 976 cannot tack  the period  of his service in the University of Aden with  his service in the D.A.V. College for purposes of seniority. The  High Court has further held that even if the First Statutes  are held  applicable the appellant will fare no better  because under  sub-clause (e) of Statute 18.10 it is only  the service  rendered in  a substantive capacity in another University  or affiliated  or associated  College in the University or another University established by law that would count. As the University of Aden would not fall within the  definition   of  "University   or  another   University established by  law" envisaged  in the  sub-clause the  High Court has  stated that  any service  rendered in  a  foreign University has  to be  necessarily excluded  while computing the length of continuous service.

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    On a  careful consideration  of the matter we find that the High  Court has  not properly comprehended the Statutes. Taking up  Statute 11.34  of the Old Statutes it may be seen that sub-clause (1) deals with the reckoning of seniority on the basis  of the  length of  service in  one and  the  same College and  in the  same cadre  and grade;  sub-clause  (2) provides for  the addition  of service in another University or  associated/   affiliated  College   etc.  provided   the University is  situate in  Uttar Pradesh  and the College is affiliated to  or associated with one of the Universities in the State; sub-clause (3) excludes service in an officiating capacity and grants recognition of temporary service only if it has  continuity with  a subsequent permanent appointment; and lastly sub-clause (4) prescribes for tacking on of leave period with  the total  length of  service provided; (1) the period of  leave has  been spent in holding another position involving  similar   work  or  (2)  it  was  medical  leave. Admittedly, the  case of  the appellant would not fall under sub-clause (2) because his service in the University of Aden will not  constitute such kinds of services as are envisaged in the sub-clause. However, sub-clause (4) would undoubtedly cover the  case of the appellant because he had been granted leave of  absence on loss of pay for a period of three years for  rendering   service  in   the  University  of  Aden  on deputation  basis.  The  words  "unless  during  such  leave another position  involving similar  work  was  held"  would squarely apply  to the  period of leave of the appellant. It is significant to note that the qualifying words "University or College situated in Uttar Pradesh and the 977 Colleges  affiliated  to  or  associated  with  one  of  the Universities in  the State"  occurring in sub-clause (2) are conspicuously absent  in sub-clause  (4). It is not the case of the  first respondent and for that matter there can be no such contention also that the position held by the appellant in the University of Aden did not involve the performance of work similar  to the  one he  was performing  in the  D.A.V. College, Kanpur. Unfortunately, this sub-clause which is the one directly  governing the  case of  the appellant  has not been noticed  by the  High Court.  As there  is no  conflict between sub-clause  (4) of Statute 11.34 of the Old Statutes and any  provision in the First Statutes there is no room or scope for  invoking the  overriding provisions  contained in Statute 1.02(1)  for denying  the application of Old Statute 11.34(4) to the case of the appellant. On the other hand the appellant will  be entitled  to claim  the benefit  of First Statute 18.16  which preserves  "inter seniority of teachers employed in  the University  from before the commencement of the Statutes-      The High  Court has  failed to  notice that sub-clauses (2) and  (4) of  Old  Statute  11.34  contemplate  different situations  and   act  in   different  fields.  The  service contemplated under  sub-clause (2) is a distinctly different service and  has no bearing with the service rendered in the particular institution  in which  seniority is claimed. Even so,  a  link  is  provided  between  the  services  rendered elsewhere  and   the  services  rendered  in  the  concerned University or  College because of the similarity of features in the  two services and the integral connection between the Universities situated  in the  State and  the affiliation or association of  the Colleges  with one  or the  other of the Universities in  the State.  On the  other hand  the service contemplated under  sub-clause (4)  is the  service rendered elsewhere  during   leave  period  even  while  the  teacher continues to  be on the rolls of the institution in which he

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has  been  rendering  service.  Thus  while  sub-clause  (4) contemplates service rendered elsewhere during the period of leave, sub-clause  (2) does not contemplate any such service but contemplates  the  service  rendered  elsewhere  without taking leave  from any  institution. A  proper exposition of the fields  of operation  of sub-clauses  (2) and (4) of Old Statute 11.34  will at  once bring to light the merit in the contentions of  the appellant  and the  error that  has been committed by  the High  Court. As we have already stated the provision contained 978 in  sub-clause  (4)  of  Old  Statute  11.34  has  not  been disturbed in  any manner by the First Statutes and hence the appellant will be entitled to the benefit of this provision, especially in  terms of Statute 18.16 of the First Statutes. Because of the failure of the High Court to have applied the appropriate provision in the Statutes, the period of service of the  appellant on  deputation has been wrongly held to be non-includible  in  the  total  length  of  service  of  the appellant and  this has led to the denial of the appellant’s rightful seniority.      As the  appellant’s  case  falls  squarely  within  Old Statute 11.34(4) there is no need or necessity for resorting to the  provisions of the First Statutes for determining the appellant’s claim  of seniority.  It is  not the case of the appellant that  he had  rendered service  in  a  substantive capacity in  another University  or  another  affiliated  or associated College  established by  law as  contemplated  by sub-clause (e) of First Statute 18.10. On the other hand his claim is  that he  had all  along continued  to  be  in  the service of  the D.A.V.  College, Kanpur  notwithstanding his service on deputation in a foreign University because he had been  granted  extraordinary  leave  on  loss  of  pay  with guaranteed lien and seniority of service.      It was  hesitantly contended  by the  counsel  for  the first respondent  that the  former Principal  of the  D.A.V. College had no authority to guarantee the appellant the lien on his  post and  his seniority  rights and that such powers vested only  with the  University. This  contention does not require examination because the Principal, as he Head of the Institution, was  undoubtedly competent  to grant  leave  on loss of  pay to the appellant in order to enable him to take up a  foreign assignment  on deputation  basis. Once  it  is proved by  the  appellant  that  the  period  of  leave  was utilized in  holding another position involving similar work the appellant  is automatically  entitled to  the benefit of sub-clause (4)  of Old  Statute 11.34.  On account  of  this irrefutable position  it is  needless  for  us  to  consider whether the  Principal had  acted within  his powers  or had exceeded his  powers in  committing the  College  to  confer rights of lien and seniority status to the appellant when he was granted leave. 979      In the  light of  our  conclusion  the  appeal  has  to succeed. Accordingly  it will stand allowed and the judgment of the  Court is  set aside. The parties will, however, bear their respective costs. M.L.A.                                       Appeal allowed. 980