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PETITIONER: DR.  RASHMI SRIVASTAVA

       Vs.

RESPONDENT: VIKRAM UNIVERSITY & ORS.

DATE OF JUDGMENT20/04/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) SAWANT, P.B.

CITATION:  1995 AIR 1694            1995 SCC  (3) 653  JT 1995 (4)    51        1995 SCALE  (2)871

ACT:

HEADNOTE:

JUDGMENT: MAJMUDAR, J.: 1.   These two civil appeals arise out of a common  judgment rendered  by the High Court of Madhya Pradesh, Indore  Bench on  23rd  February, 1994.  The High Court allowed  two  writ petitions  against  Vikram University and  other  contesting respondents.   The  contesting respondents  after  obtaining special  leave to appeal fro this court have challenged  the said  common  judgment  of the High  Court  in  these  civil appeals. 2.   A common question is involved in these appeals, namely, whether  the University teachers who have been  given  merit promotion as Readers or Professors, as the case may be,  can claim   seniority  over  directly  recruited   Readers   and Professors  on  the  ground  of  continuous  officiation  in service as Readers or Professors.  The High Court has  taken the view that they are not entitled to claim such  seniority and has accordingly allowed the writ petitions moved by  the directly  appointed Readers and Professors.  The  appellants before us are the promotee Readers and Professors under  the merit promotion scheme. Factual backdrop: 3.   In  order  to appreciate the grievance  voiced  by  the appellants,  it is necessary to have a look at the  relevant introductory facts leading to these proceedings. 1.   Civil Appeal No.6001/94: 4.   This  appeal is moved by the appellant who was  earlier working  as Lecturer in the Department of Political  Science in  Vikram  University, Ujjain.  The  said  university,  its Registrar  and  the Kulpati are respondents 1 to  3  in  the appeal.   A  merit promotion scheme was  formulated  by  the university  Grants  Commission (hereinafter referred  to  as ’Commission’)  which has been joined as respondent no. 5  in this  appeal pursuant to notice issued by this  court.   The said scheme was promulgated in the year 1982.  We will refer to the details of the said scheme in the latter part of this

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judgment.   It is sufficient to say at this stage  that  the scheme   was  to  provide  opportunities  for   professional advancement  of teachers working in the University  and  who merit academic recognition.  Such teachers were to be  given promotion on merits an not on the basis of seniority. 5.Under  the said scheme the appellant was promoted  to  the post of Reader on 29th June, 1985.  Respondent no.4 in  this appeal who was the writ petitioner before the High Court  in M.P.No.208/89  was appointed as Reader in the Department  of Political Science as direct recruit.  He was so appointed on 13th  March, 1986.  He was confirmed after a period  of  two years’   probation.   The  respondent  no.    1   university published  seniority  lists  in  the  year  November,  1986; November,  1987  and  the  latest  list  in  November,  1988 whereunder  the appellant was shown as senior to  respondent no.4.  The  appellant  was placed at  serial  no.  14  while respondent no.4 was placed at serial no.33. That was presum- ably  because the appellant worked as promotee  reader  from 29.6.1985 while respondent no.4 became reader by direct  re- cruitment later on 13th March, 1986.  Respondent no.4  being aggrieved by the said placement in the seniority list  filed the  aforesaid  writ petition in the High  Court  of  Madhya Pradesh  at  Indore on 17th January, 1989.   The  respondent no.4  prayed the the name of the appellant be  deleted  from the  seniority  list of Readers and also from the  Board  of Studies  in  Political  Science and  respondent  no.   1  be directed to determine the seniority of Readers in accordance with  Statute  No. 16 and to give due seniority to  the  4th respondent  in  the  cadre of Readers.   This  petition  was contested  by  the university as well  as  the  appellant.As noted earlier the High Court accepted the case of respondent no.4 writ petitions and allowed the writ petition. II.  Facts leading to Civil Appeal No.6002/94: 6.   The  respondent  no.4 in this appeal was  the  original writ petitioner before the High Court.  He was appointed  as Professor  in  Physics  Department  as  direct  recruit   by respondent   no.   1  Vikram   University,   Ujjain.    Ills appointment  was  confirmed  after  a  period  of  2  years’ probation  on 28th March, 1988.  The present appellants  who were  respondents  no.4,5,8 & 9 in the  said  writ  petition before  the High Court and also original respondents 6  &  7 before  the  High Court who are respondents 5 &  6  in  this appeal  were all promoted under the merit  promotion  scheme formulated by the Commission as Professors in the School  of Studies,  Vikram University in various subjects.  They  were promoted  on 12th March, 1986.  As they were promoted a  day earlier than the date on which respondent no.4 original writ petitioner  respondent no.4 was appointed as direct  recruit Professor   in  Physics  Department,  the   appellants   and respondents  5  & 6 were shown as senior  to  original  writ petitioner.  The seniority lists published by respondent no. 1  university  in  the  years 1987  &  1988  reflected  this position.   Even  in the later seniority list  of  1989  the appellants  were shown at serial no. 16, 18 & 20 in the  se- niority list while the original writ petitioner was shown at serial no.22. 7.   That brought respondent no.4 to the High     Court   by way  of  writ  petition  no.  1180/89.   He  challenged  the seniority list on diverse grounds and prayed for the reliefs as under:- 1 .  That   the   names  of  the  present   appellants   and respondents  5  & 6 be deleted from the  seniority  list  of Professors  and  also  appointment of appellant  no.   1  be quashed. 2.   That the respondent no.  1 be directed to determine the

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seniority  of Professors in accordance with the Statute  no. 16 and to give due seniority to re- 60 spondent  no.4  (original writ petitioner) in the  cadre  of Professors. 8.   This   petition  was  opposed  by  respondent   no.   1 university and the contesting respondents.  Respondent nos.2 &  3,  the Commission and the State of Madhya  Pradesh  were also joined in the writ petition.  They also contested these proceedings. 9.   As noted earlier the aforesaid writ petitions raised  a common  question.  They were heard together by the  Division Bench of Madhya Pradesh High Court.  By its common  judgment this  writ  petition was also allowed and that  is  how  the appellants  who  were promotee Professors  under  the  merit promotion  scheme  have  file this appeal.   As  both  these appeals  raise common questions of law and facts,  the  were heard  together  and  are being dispose of  by  this  common judgment.  In civil appeal no.6001/94 Professors working  in various departments of University of Delhi have been  joined as  respondents  6  to 4 and 53 to 61 in  the  light  of  an interlocutory application which was granted.  Similarly  the Professors  working  in  the different  departments  in  the University College of Medical Sciences, Delhi have also been joined  as  respondents 45 to 52 at  their  request.   While respondent  nos.62 to 90 are also permitted to be joined  at their  request in this appeal.  They are Professors  working in different schools of studies and sciences in this city. 10.  In  civil  appeal  no-6002/94  are  joined   additional respondents 1 to 19 out of whom additional respondents 1  to 3 are Professors working in Devi Ahilaya University,  Indore while  additional respondent 4 to 19 arc working as  Readers in   Dr.H.S.Gaur  University,  Sagar  and   one   additional respondent Dr. S. Sivaraman is a Professor in Dr. H.S.  Gaur University,  Sagar.   All these additional  respondents  are permitted  to  be  joined as respondents  at  their  request pursuant to interlocutory application numbers 2,3&4 moved by them  and granted by the order dated 9.9.94. In addition  to that  there  is I.A. no.5/95 in civil appeal  no.6002/94  by which  five  applicants, working as  Professors  in  various departments  of Jamia Millia Islamia University,  New  Delhi have  also  sought to be joined as  respondents.   The  said application  is treated to have been allowed and  they  will also be treated as additional respondents in this appeal. III. Statutory Provisions; 11.  Before  we deal with the main question  posed  for  our consideration,  it will be profitable to have a look at  the relevant statutory provisions governing the proceedings  and the impact of the merit promotion scheme promulgated by  the Commission which has brought the appellants in the arena  of contest. 12.  Respondent no. 1 university is governed by  the  Madhya Pradesh    Vishwavidyalaya   Adhiniyam,    1973.     English translation thereof was furnished by learned counsel for the appellants.    It  is  not  in  dispute  that  the   various universities functioning in the State of Madhya Pradesh  arc governed by the said Adhiniyam.  Respondent no. 1 university is  functioning  at  Ujjain,  while  Shivaji  University  is located  at Gwallor.  Sagar university to which some of  the newly added respondents belong is situated at Sagar town  of Madhya Pradesh. 13.  We may at this stage usefully refer 61 to  the  relevant provisions of the Adhiniyam which  have  a bearing  on  the  controversy before  us.   Clause  (iv)  of

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Section  4 defines an employee to mean any person  appointed by  the university and includes teachers and other staff  of the  university.   Clause (v) defines Executive  Council  to mean Executive Council of the university.  Clause (ix) deals with statutes, ordinances and regulations of the university, as  the  case may be, enforced for the time  being.   Clause (xviii)  defines  University Grants Commission to  mean  the Commission   established   under   the   University   Grants Commission  Act, 1956.  Clause (xx) defines teachers of  the university  to mean Professors, Readers, Lecturers and  such other persons as have been appointed for imparting education and  conducting research with the approval of  the  Academic Council in the University or any College or any  institution maintained  by the University.  Section 6 deals with  powers of  the university.  Clause (15) of Section 6  empowers  the university   to   institute   Professorships,   Readerships, Lectureships  and  any  other  academic  or  teaching  posts required  by the University and to appoint persons  to  such posts in accordance with the provisions of the Act.   Clause (3 1) of Section 6 deals with the power of the university to exercise  control over the salaried officers,  teachers  and other  employees  of the University in accordance  with  the Statutes  and  the Ordinances.  Section 19  deals  with  the authorities  of the University which include amongst  others Executive  Council, Board of Studies, Academic Planning  and Evaluation  Board.   Section  23 deals  with  the  Executive Council.   Its powers and duties are prescribed  by  Section 24.   Clause (xx) of section 24 deals with the power of  the executive   Council   to  institute   such   Professorships, Readerships, Lectureships or other teaching posts as may  be proposed by the Academic Planning and Evaluation Board.   It is  subject  to the proviso that no teaching post  shall  be instituted without the prior approval of the Madhya  Pradesh Uchcha  Shiksha Anudan Ayog.  Clause (xxxii) of  Section  24 deals  with  the  power of the Executive  Council,  save  as otherwise  provided by this Act, or the Statutes to  appoint the  officers  other that the Kulpati,  teachers  and  other employees of the University, to define their duties and  the conditions of their service, and to provide for the  filling of  temporary  vacancies  in their  posts.   Clause  (xiii), (xiiii) and (xiiv) of Section 24 refer to the powers of  the Executive  Council  to  entertain, adjudicate  upon  and  if deemed  fit to redress grievances of the employees  and  the students,  to  exercise such other powers and  perform  such other  duties  as may be conferred or imposed on  it  by  or under this Act and to exercise all powers of the  University not  otherwise provided for in this Act or the Statutes  and all  other powers which are requisite to give effect to  the provisions  of this Act or the Statutes.  Section  27  deals with  various faculties of the University in which  teaching can  be  imparted to the students.  Section  28  deals  with Board  of  Studies.   Section  34  deals  with  Coordination Committee.  Sub-section (iv) of Section 34 deals with powers and  discharging  of  the  functions  by  the   Coordination Committee.   Amongst others is found clause (v) which  deals with  consideration of matters of common interest to all  or some  of the Universities.  Section 35 deals with  Statutes. Clause   (1)   provides  for  framing   statutes   regarding qualifications  of Professors, Readers, Lecturers and  other teachers in affiliated colleges and recognised institutions. Clause (o) deals with the mode of determining seniority  for the purpose of the Act. 62 Section 37 deals with Ordinances and states that subject  to the provisions of the Act the Ordinances may provide for all

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or any of the matters listed in the section.  At item 15  is found the topic of the duties, qualifications and conditions of appointment including pay scales of the teachers paid  by the university. 14. Chapter IX of the Act deals with appointment of teaching post  in  the university.  Section 49 is  relevant  for  our present purpose.  It is useful to extract it in extension.               "CHAPTER IX  APPOINTMENT TO TEACHING POSTS  IN               THE UNIVERSITY               49.   (1) No person shall be appointed:               (i)   as a Professor, Reader, Lecturer; or               (ii)  to  any  other  teaching  post  of   the               University  paid by the University  except  on               the recommendation of a committee of selection               constituted in accordance with sub-section(2):               Provided  that  if appointment to any  of  the               teaching  posts aforesaid is not  expected  to               continue  for more than six months and  cannot               be  delayed without detriment to the  interest               of the department or institution maintained by               the University, the Executive Council may make               such appointment without obtaining the  recom-               mendation   of  the  committee  of   selection               constituted  under  subsection  (2)  but   the               person so appointed, shall not be retained  on               the  same  post  for a  period  exceeding  six               months  or  appointed to another post  in  the               service  of  the  University  except  on   the               recommendation   of  the  said  committee   of               selection.’               Provided  further  that any  such  appointment               purported   to  have  been  made   under   the               proceeding  proviso prior to the 13th  day  of               February  1974  and continuing  on  such  date               shall continue till the 30th day of June, 1974               or  the filling up of the post  in  accordance               with sub-section (5), whichever is earlier.               (2)   The   members   of  the   committee   of               selection shall be:               (i)   the Kulapati  Chairman.               (ii) omitted.               (ii)  omitted.               (iii)one expert in the subject, not  corrected               with  the University in any manner  whatsoever               to be nominated by the Academic Council.               (iv)  Three  experts, not connected  with  the               University in any manner whatsoever  nominated               by the Kuladhipati.               (v)   the Chairman of the Ayog or a member  of               the Ayog nominated by him.               (3)   Omitted.               (4)   The  committee  shall  investigate   the               merits  of the various candidates,  and  shall               recommend to the Executive Council the  names,               if any, of persons whom it considers  suitable               for the posts, arranged in order of merit-.               Provided that no recommendation shall be  made               unless  atleast  three  out  of  the   experts               nominated under clause (iii) and (iv) of  sub-               section (2) an present in the meeting in which               such recommendation is to be decided upon.               (5)   Out  of the names so  recommended  under               subsection  (4)  the Executive  Council  shall               appoint persons in order of               63

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              merit . 15. Section 63 deals with classification of teachers.   Sub- section(i) of Section 63 provides for Professors and Readers who  are  said  to be teachers appointed  by  the  Executive Council  on the scales of pay not lower than  that  approved for Professors and Readers by the Commission and accepted by the  State Government and when the scale of pay approved  by the  Commission is higher than that approved by  the’  State Government  in  this  behalf then on the  scale  of  pay  as approved  by  the State Government.  Section 64  deals  with terms  of office of members of authority of the  university. Sub-section(1) of Section 64 lays down that wherever in  ac- cordance  with this Act, any person is to hold an office  or to  be  a member of any authority by rotation  according  to seniority such seniority in the absence of any provisions to the  contrary in the Act, shall be determined in  accordance with the Statutes: Provided that till the Statutes are made the seniority in  a particular  cadre shall be determined by the length of  con- tinuous  service  in such a cadre and where  the  length  of continuous service of two or more persons in the same  cadre is  the  same, then ’Seniority’ shall be determined  by  se- niority in age. 16.  Apart  from  the aforesaid  relevant  act   provisions, Statute  16 and Ordinance no.4 have a direct bearing on  the questions  posed  for our consideration.   It  is  therefore necessary to note them at this stage, Ordinance no.4  issued as  Madhya Pradesh Vishwavidyalaya First Ordinance  1973  is framed  under  Section  37  of  the  Act.   It  deals   with qualifications and conditions of appointment of the teachers in  the  university  teaching  department  and  schools   of studies.   It  is  not in dispute that  the  appellants  and contesting respondents have the requisite qualifications for being appointed as Readers or Professors as the case may be. 17.  Statute  16  deals with seniority of  teachers  of  the university.   It is framed under Section 35(o) of  the  Act. Clause  (ii) of Statute 16 lays down that the  seniority  of Professors  and Readers in college, Assistant Professors  or Lecturers  shall  be  in  accordance  with  the  length   of continuous  service  of such person in the  cadre  concerned (emphasis applied) taken together with length of  continuous service in the cadre which is equivalent or superior to  the cadre   concerned.   Our  attention  was  also  invited   to Ordinance no.4 as applicable to Jiwaji University,  Gwalior. Clause 12 of the said ordinance provides that teachers shall be  eligible for merit promotion scheme recommended  by  the Commission, New Delhi.  The said clause with its  subclauses deserves to be noted in extensio.  It reads as under:-               " 12.  The teachers of the University shall be               eligible   for  the  merit  promotion   scheme               recommended    by   the   University    Grants               Commission, New Delhi.               (i)   Under this scheme, Lecturers and Readers               who  have  completed  8  years  of  continuous               services in their respective cadres as on 31st               December   or  any  date  stipulated  by   the               University  of the Calender year in which  the               applications are invited of which atleast four               years   are   in  the  institution,   can   be               considered.               Provided  that not more than one third of  the               total  permanent  position  of  lecturers  and               readers within a University teach-               64               ing Department may hold such merit  promotions

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             at  higher  level at any  given  time.   While               calculating  the number of positions  for  the               purpose  of  this scheme, wherever  more  than               point  five  (0.5) fraction arises it  may  be               rounded  up as one (0.1). The readers  holding               such  promotion  posts  would  not  count  for               determining  the total posts in the  cadre  of               readers for purpose of merit promotion to  the               post of Professors.               ii)   The  promotion  given to  lecturers  and               readers under this scheme would be personal to               each  individual and in the event  of  his/her               retirement on leaving the University, the post               vacated would be the one from which he/she was               promoted.               iii)  The  excess  work toad  of  the  teacher               given  merit  promotion will be  suitably  ad-               justed.               iv)   No advance increment shall be admissible               to  a teacher on promotion under this  scheme.               The  pay  of  the  teachers  promoted   shall,               however, be fixed in accordance with the  M.P.               Govt.  Rules.               v)    The following procedure shall be adopted               for  the  merit  promotion  of  Lecturers  and               Readers under this scheme.               (a)   The  Registrar will issue a  notice  or-               dinarily in the month of November every year.               (b)   The  teachers desirous to be  considered               for  merit  promotion  should  present   their               application  in hexapulate on prescribed  form               along  with  three  sets  of  their   Research               Papers,    Publications,    Books,    Reviews,               Curriculum    Development,   Teaching    Aids,               Innovation  of  teaching  methods,  equipments               developed,  etc.  through their Heads  of  the               Department  to  the office  of  the  Registrar               latest  by  31st  December  of  the  year  the               applications are called for.               (c)   The Kulpati shall refer the applications               together  with  the  enclosures  to  the   two               experts  and obtain evaluation reports,  which               shall  be kept confidential and placed  before               the committee of selection constituted U/S  49               of Adhiniyam.               (d)   The  Committee of selection  constituted               under  section 49 of the Adhiniyam shall  make               the   recommendations   after   taking    into               consideration  the evaluation reports, of  the               experts  obtained by the Kulapati.  The  final               appointment  shall  be made by  the  Executive               Council as per provisions of section 49 of the               Adhiniyam.               (e)   The  teachers who have  been  considered               and  not selected for merit promotion  in  the               initial  presentation,  shall  be  allowed  to               submit his/her work only after a lapse of  two               years." 18.Our  attention  was also invited to  the  principles  for determining seniority of teachers as laid down by Jawaharlal Nehru  University, New Delhi.  Principle no. 1 as laid  down in the resolution of the said university reads as under:-               "Subject  to the provisions contained  in  the               following  clauses, the seniority of  teachers               appointed  under Statute 27 or 28 or  promoted

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             under  the  merit promotion  scheme  shall  be               determined from the date of their  appointment               (joining) or promotion to the post:               (i)   Provided  that if the date  of  appoint-               ment, promotion of two or more teachers is the               same, their seniority shall be determined:               (a)   in the case of Assistant Professors,  on               the basis of the order of merit recommended by               the selection committee, and               (b)   in the case of Professors and  Associate               Professors, on the basis of their length               65               of continuous service in the University in the               lower   post   of  Associate   Professors   or               Assistant Professors, as the case may be;               (ii)provided further that if both the date  of               appointment/  promotion  and  the  length   of               service  in  the lower post happen to  be  the               same,  the  seniority in age  shall  be  given               priority." 19.Now is time for us to refer to the relevant provisions of the  University Grants Commission Act, 1956 under which  the Commission respondent in both these appeals is  constituted. The Commission Act is enacted to make provisions for the co- ordination  and determination of standards in  universities. The  Commission is established under Section 4 of  the  Act. As  per Section 12 it is the general duty of the  Commission to  take  in  consultation with the  universities  or  other bodies concerned, all such steps as it may think fit for the promotion  and coordination of University education and  for the determination and maintenance of standards of  teaching, examination  and  research  in  Universities,  and  for  the purpose  of  performing its functions under  the  Act.   The Commission may inquire into the financial needs of Universi- ties  and  allocate  and disburse out of  the  Fund  of  the Commission,   grants   to   Universities   established    or incorporated  by or under a Central Act for the  maintenance and  development  of  such Universities  or  for  any  other general or specified purpose. 20.In exercise of its powers under the Act the Commission by its  communication  dated 23rd  November,  1982  recommended implementation  of  merit promotion  scheme  for  University appointed  teachers in the Universities and by a later  com- munication  dated 31st December, 1982 recommended a  similar scheme  for  College  appointed  teachers.   The  Commission agreed to grant Rs.600 per annum for each person promoted in accordance with the guidelines circulated with the said com- munication.   This  contribution  was  to  be  made  by  the Commission  for the remaining period of the Sixth Five  Year Plan  after which the expenditure involved under the  scheme was  to  be  undertaken  as  committed  expenditure  by  the University or the College concerned from its own resource or with  the assistance of grants-in-aid from the State as  the case    may   be.    The   guidelines   accompanying    said communications  referred  in their preamble to the  role  of teachers  as  being  very  crucial  in  the  maintenance  of academic    standards   and   discipline   in    educational institutions, That great responsibility lies on the  teacher to ensure that appropriate academic atmosphere is maintained in  the  institution and all academic work  is  carried  out efficiently and with devotion as a full time employee of the institution.    With   a  view   to   providing   reasonable opportunities   to  teachers  for  career  advancement   and recognition  the merit promotion scheme was suggested.   The basic objective of the merit promotion scheme were to be  as

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under: 1.   The basic objectives of the scheme should be               (1)   to  recognize outstanding work  done  by               the  university  teachers  in  the  areas   of               teaching and research;               (2)   subject    such   work   to    objective               evaluation  by  experts in the  subject  areas               concerned and               (3)   to provide for reasonable  opportunities               for professional advancement to such teachers,               who merit aca-               66               demic  recognition,  on a  competitive  basis.               The  scheme  therefore  may  be  appropriately               named  as  "Merit Promotion  Scheme  for  Uni-               versity Teachers." This would be in the nature               of  a "flexible complementing scheme"  wherein               no  additional posts are created, and the  ex-               isting  persons  on  the  basis  of   critical               assessment  are  promoted to the  next  higher               level  and  the  position  is  held  by   such               incumbents   as  personal  to  them,  and   no               resultant  vacancy is required to  be  filled.               Such a Scheme would considerably encourage the               teachers  to engage in advanced  teaching  and               research and make distinct contributions which               would merit recognition and promotion. 21.  For implementing the said scheme a method was suggested to   the  effect  that  the  teachers  in   the   University Departments  engaged in advanced teaching and  research  and whose  contribution  and achievements are such as  to  merit recognition were to be considered for merit promotion in the first  instance after completing 8 years of service  in  the respective  cadre of which atleast four years should  be  in the institution where he or she is being considered for such assessment  and  merit  promotion.   Any  teacher  who   was considered  and  not  selected for merit  promotion  in  the initial  presentation could submit his work after the  lapse of  two years.  The work of the concerned teacher  including research  publication, book review, curriculum  development, teaching aids, etc. was to be presented by individual to two referees in the subject discipline concerned.  Referees were to  be selected by a panel of names set up according to  the procedure   prescribed  by  the  university  for   Selection Committee.   Merit  promotion  be given  by  the  appointing authority  to  a  teacher  only  on  recommendation  of  the Selection Committee duly constituted after it has given  due consideration to the opinion of the referees.  There  should be  at least two outside experts on the Selection  Committee in the case of promotion to readers and outside experts  for promotion  to professors in these cases.  As per clause  (f) of the method of implementation the post of reader given  to a Lecturer or the position of a professor given to a  Reader through  merit promotion would be personal to the  incumbent concerned  and  the main criteria for  promotion  under  the scheme would be the merit of the work and not the  seniority of  the  teachers.  As per guideline no.(3)  not  more  than 1/3rd of the number of total permanent position of lecturers or   readers  within  a  department  may  hold  such   merit promotions  at  next higher level at any  given  time.   The persons  holding  such merit promotion would not  count  for determining the total posts in the cadre of readers for  the purpose of merit promotion to professors.  As per  guideline no.6  while making selections for such promotions it is  not expected  that the Selection Committee would  recommend  any

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advance increment nor it is expected that any rules for  pay fixation on promotion/selection to higher posts are  applied to provide for increment.  Only marginal adjustment would be required  to  be made within the new scale, nearest  to  the salary already drawn by the promotee. 22.  The  said merit promotion scheme as recommended by  the Commission  is  said  to  have  been  accepted  by  all  the statutory  universities functioning in the country.  So  far as respondent no.1 university is con- cerned  Govt. of Madhya Pradesh, Deptt. of Higher  Education by order dated 13th March, 1984 sanctioned implementation of the merit promotion scheme for university teachers  referred to  in the letter of 23rd November, 1982 of the  Commission, New  Delhi from academic session 1983-84.  It was  mentioned therein  that  expenditure incurred on this scheme  will  be borne  by the university upto 31st March, 1985.   Commitment was  given by the State that the State Govt. will incur  the expenditure  on the scheme afterwards from 1st April,  1985. The expenditure on the scheme from 1st April, 1985 would  be treated as maintenance grant.  It was further directed  that in order to implement the scheme from academic session 1983- 84 the university should take appropriate steps according to the provisions of Madhya Pradesh Vishwavidyalaya  Adhiniyam, 1973.  University should see to it that the rules should  be framed  and  ensure uniformity in all  the  universities  of Madhya  Pradesh according to the scheme.   First  respondent accordingly adopted the said merit promotion scheme for  its teachers.    Thereafter  it  appears  that   the   concerned universities  entertained doubts regarding the  fixation  of inter  se seniority between promotee readers and  professors under  the  scheme  and directly  recruited  professors  and readers under the statutory provisions of the Act constitut- ing such universities.  In that connection the Secretary  to the  Commission  by  its  letter  dated  27th  April,   1984 addressed  to all Vice Chancellors of Universities  conveyed the  decision of the Commission at its meeting held on  29th March, 1984 to the effect that the Commission -felt that the question  of seniority of teachers promoted under the  merit promotion  scheme  vis  a  vis  teachers  appointed  against regular recruitment be decided by the University/institution concerned.   It  appears that thereafter this  question  was sought  to  be  resolved  at  the  level  of  the  concerned universities.   So  far as Universities situated  in  Madhya Pradesh  arc concerned, by communication of the  Chancellor, i.e.,  Governor  of  Madhya Pradesh dated  29th  June,  1987 addressed  to  the  Vice  Chancellor,  Avtesh  Pratap  Singh University,  Riwa it was informed that seniority of one  Dr. Agrawal  who was a merit promotee should be fixed above  the seniority  of  Dr.  R.L. Singh who was  later  recruited  as Professor.    So  far  as  respondent  no.1  university   is concerned it treated promotee readers and professors on  par with  directly  recruited professors and readers  and  fixed their  inter  se  seniority  on  the  basis  of   continuous officiation  of the concerned incumbent in the  post.   Even the Coordination Committee for the University endorsed  that view.   Our  attention was also invited  to  Ordinance  no.4 promulgated   by  Jiwaji  University,  Gwalior.    In   that ordinance  as noted earlier it is clearly provided that  the teachers of the university should be eligible for merit pro- motion scheme recommended by the Commission, New Delhi.  The resolution  dated 26th June, 1988 passed by  the  Jawaharlal Nehru  University was also pressed into service.   The  said resolution stated that subject to the provisions  containing the  seniority of teachers appointed under statute 27 or  28 are  promulgated shall be determined from the date of  their

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appointment of joining or promotion to the post.  Statute 27 referred  to  the  direct  recruitment.   While  statute  28 referred to special mode of appointment by Executive Council which  may  invite a person of high academic  excellence  to accept the post of a Professor or Reader in the  university. So  far  as Delhi University is  concerned  learned  counsel appearing for the Professors work- 68 ing  in  the  Delhi  University  who  have  been  joined  as respondents on their impleading applications submitted  that the statute 6(2) framed under the Delhi University Act, 1922 authorised  the  Executive Council to appoint from  time  to time  such Professors, Readers, Lecturers and other  members of   the  teaching  staff  as  may  be  necessary   on   the recommendation  of the Selection Committee  constituted  for the  purpose.   That as per Ordinance 11,  clause  8(i)  all posts  of teachers have to be filled up after  advertisement by  open recruitment subject to the proviso that  University may  appoint Professors, Readers under the  merit  promotion scheme  of  1983  as accepted by the  Executive  Council  in accordance with the eligibility conditions and in the manner prescribed in this scheme.  As per clause (ii) of  ordinance 11 seniority of teacher in a particular discipline etc. etc. shall  be determined in accordance with the principles  laid down  therein.   We were also taken to the  minutes  of  the Executive Council of Delhi University dated 24th April, 1983 wherein  a  decision  was rendered  regarding  selection  of university teachers under the merit promotion scheme to  the effect  that  the composition of the  Screening/  Evaluation Committee for promotion of Lecturers to the post of  Readers and  for promotion of Readers to the post of  Professors  in the  University department shall be the same as that of  the statutory Selection Committee for recruitment of teachers to such  posts.  Our attention was also invited to the  minutes of  the meeting of the Executive Council of the  Delhi  Uni- versity  dated 29th December, 1990 wherein at item  no.  141 was the resolution to the effect that the recommendation  of the  Committee  constituted  by  Vice  Chancellor  regarding determination of seniority of teachers permitted under merit promotion scheme vis a vis direct recruit be accepted as set out  in Appendix-1.  Appendix -1 states that  the  committee decided that persons appointed as Professors or Readers have to be treated alike in the matter of seniority and cannot be placed  in  two different compartments  merely  because  two different  pay scales were applicable to these cadres.   The committee concluded that seniority in all these cases should be determined by the date of appointment or promotion. 23.  It therefore appears that after the merit    promotion scheme of 1982 was adopted by all the statutory universities in the country and when the Commission left the question  of inter  se  seniority between promotees and  direct  recruits Professors  and  Readers to be determined by  the  concerned university,   respondent   no.   1  university   and   other universities  seem  to have taken the view  that  all  these incumbents  be treated at par and their inter  se  seniority should be determined on the basis of continuous  officiation in the concerned post. 24.  The scheme of merit promotion scheme of 1982  underwent a sea change by the year 1987.  The Central Govt.,  Ministry of  Human Resource Development, Deptt. of Education  by  its communication  dated  17th June, 1987 to the  Secretary,  of ,the  Commission informed that the Govt. of India had  after taking into consideration the recommendation of the  Commis- sion decided to revise the scales of pay of the teachers  in Central  Universities.  The revision of pay of teachers  was

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to   be  effective  from  1st  January,  1986.   A   similar communication was addressed to the Education Secretaries  of all States regarding revision of pay scales of teachers  in, universities for maintenance of standards in 69 higher  education.  It was informed that the  Central  Govt. had  revised the pay scales of teachers in universities  and colleges  in order to attract talented teachers.   A  career advancement  scheme was introduced, and made  applicable  to the  teachers  in the universities and  affiliated  colleges with effect from 1st January, 1986.  As per the annexure-  1 attached  to  the aforesaid communication dated  17th  June, 1987  the  revised scale of pay available to  a  Reader  was Rs.3700-125-4700-160-5300  while the pay scale of  Professor was  to be Rs.4500-150-5700-200-7300. It was  also  provided therein  that  the  existing teachers  in  Universities  and Colleges where the merit promotion schemes formulated by the Commission,  or any other similar scheme were  in  operation would  have  an  option to continue to be  governed  by  the provisions of these schemes provided that they exercise that option  in  writing prior to their pay fixation  under  this scheme,  they  would also be entitled  to  the  designations envisaged  for  various  categories  of  teachers  in  these schemes, but the scales of pay would be as follows:- Readers/Lecturers (Selection Grade)   Rs.3000 - 5000 Professor           Rs.4500 - 5700 It  thus  became  clear that with effect  from  1.  1.  1986 because  of the career advancement scheme introduced by  the Central Govt. the erstwhile merit promotion scheme providing for  uniform pay scale then available to directly  recruited Readers  and  Professors  as  well  as  the  merit  promoted Professors  and  Teachers was given a go-by  and  under  the career  advancement scheme uniform revised pay  scales  were provided for Readers and Professors with a rider that  those existing  teachers in Universities and Colleges who gave  in writing  to be governed by the merit promotion  scheme  even thereafter  would get the benefit of that scheme  for  being promoted  to the post of Professors and Readers as the  case may  be but their pay scales would be lower as  compared  to the pay scales of directly recruited Professors and Readers. In   other  words,  if  after  17.6.1987  when  the   career advancement  scheme  replaced the  earlier  merit  promotion scheme,  any existing Lecturer or Reader wanted to take  the benefit  of merit promotion scheme thereafter and if he  got promoted  accordingly to the post of Reader or Professor  as the  case  may be his pay scale on the promotional  post  of reader would be Rs.3000 - 5000 as compared to the pay  scale of  Rs.3700 - 5300 available to a directly recruited  Reader and so far as merit promoted Professor was concerned his pay scale would be lower, namely, Rs.4500 - 5700 as compared  to the  higher  pay  scale available to  a  directly  recruited Professor,  i.e. Rs.4500 - 7300.  By a  communication  dated 6th January, 1989 addressed by the Under Secretary, Ministry of Human Resource Development, Deptt. of Education addressed to all Registrars of State Universities a clarification  was issued  regarding  the  merit  promotion  scheme.   It   was informed  that the Govt. of India had decided that  existing teachers  in  universities  and  colleges  where  the  merit promotion scheme formulated by the Commission in 1983 or any other similar scheme are in operation will have an option to continue  to be governed by the provision of  these  schemes provided  that they exercise the option in writing prior  to their  pay  fixation under this scheme.  They will  also  be entitled   to   the  designations  envisaged   for   various

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categories  of teachers in these schemes, but the scales  of pay 70 will be as follows:- i)   Lecturer     - Rs.2200 - 4000 ii)  Reader       - Rs.3000 - 5000 iii) Professor    - Rs.4500 - 5700 25.  In  the  light  of  the  aforesaid  relevant  statutory provisions  and  factual  data  we  may  now  turn  to   the consideration of rival contentions canvassed by the  learned Advocates representing the contesting parties. IV.  Rival contentions: 26.  Mr. Bobde, learned counsel appearing for the appellants in civil appeal no.6001/94 submitted that as per statute  16 of the first respondent university, the seniority of college Professor,  Reader, etc. shall be determined  in  accordance with the length of continuous service of such person in  the cadre  concerned.  That cadre is not defined by the  Act  or the  rules.   That in law 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.   That  such merit promotion of a Lecturer  to  the post of a Reader on pure merits and competition and  through a  Selection  Committee which is the same as  the  Selection Committee for directly recruited Readers under Section 49 of the  Act  cannot  be  said  to be  an  ad  hoc  or  stop-gap promotion.   It  is a regular promotion on pure  merits  and therefore  the  cadre  of Reader can be said  to  have  been enlarged for taking in its fold such promotee Readers.  Once that  conclusion  is  reached it becomes  obvious  that  for deciding  inter  se seniority of such promotee  Readers  and directly  recruited Readers there cannot be any  discrimina- tion.   They  all  do the same work, they  are  selected  on merits   by  the  same  committee  though  the  sources   of recruitment  may be different.  But their birth marks  would vanish  the moment they formed part and parcel of  the  same cadre  of  Readers.  Hence, continuous  officiation  of  the concerned incumbents in the Readers posts would be the  only relevant  yardstick for deciding the inter se  seniority  of promotee  vis a vis directly recruited Readers.   Mr.  Bobde submitted  that the High Court in the impugned judgment  had patently  erred  in holding that the said  promotee  Readers were not part of the cadre of Readers.  That even-though the promotion may be personal to the incumbent, so long as he is in  service  he remains entitled to occupy  the  promotional post and to that extent there is a net addition to the cadre of Readers. 27.  Reliance  was  also  placed  on  the  decision  of  the Division  Bench  of  Rajasthan  High  Court  in  Civil  Writ No.2558/88 decided on 9th December, 1988 by the Bench of Mr. Justice  S.N.  Bhargava  and Mr.  Justice  P.C.  Jain.   The Division  Bench of Rajasthan High Court had taken  the  view that  once  Associate Professors or  Professors  formed  one category of teachers and once their work was identical there cannot  be any discrimination in connection with pay  scales made  available to them.  Whether a person is promotee  Pro- fessor  or directly recruited Professor, he has to  be  paid the same time scale and a promoted Professor cannot be given lessor  time scale.  Mr. Bobde also placed reliance  on  the decision of this court in the case of S.B. Patwardhan & Anr. v. State of Maharashtra & Ors. and K.V. Ramkrishna & Ors. v. State of Gujarat & Ors. and MG.  Raichur & Anr. v. State  of Gujarat & Ors. (1977 (3) SCC 399) to support his  contention that temporary ad- 71

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dition  to  the cadre can be made by having  temporary  Post included  therein.   In this connection, reliance  was  also placed on the, decisions of this court in the case of Direct Recruit  Class II Engineering Officers Association v.  State of Maharashtra & Ors. (1990 (2) SCC 715) and in the case, of A.  Janardhana v. Union of India & Ors. (1983 (3) SCC  601). It  was  contended  that the appellant was  entitled  to  be treated  as senior to respondent no.4 as she  become  Reader under  merit  promotion scheme prior to the  date  on  which respondent  no.4  entered  the cadre  of  Reader  by  direct recruitment.  it was also contended that once the  appellant was  promoted as a Reader even though it may be  a  personal promotion  and  there may not be any vacancy of  a  Lecturer because  of such promotion, even then she cannot be  treated as  merely  a  Lecturer  for the,  purpose  of  fixation  of seniority as has been ordered by the High Court. 28.   Mr. Dave appearing for the appellants in Civil  Appeal No.  6002/94  adopted  the submissions  of  Sh.   Bobde  and further submitted that the appellants were promoted on  12th March,  1986  as Professors under  merit  promotion  scheme, while  respondent no.4, original writ petitioner who  was  a Professor  in  a private college was directly  recruited  as Professor under Section 49 of the Act on 13th March 1986 and therefore  the  appellants were senior to  respondent  no.4. That  the merit promotion scheme was adopted  by  respondent no.1  university.   The  Coordination  Committee  of   first respondent  by  its  meeting dated 11th  January,  1984  had adopted  th said scheme.  That the Commission had  left  the question  of  inter  se seniority  of  direct  recruits  and promotee  professors  to the University.   Its  Coordination Committee by its meetings dated 27th and 28th October,  1988 had  decided that there could be no  discrimination  between teachers  promoted under merit promotion scheme  and  direct recruits  and  that such a decision could be  taken  by  the Coordination  Committee  in  exercise  of  its  power  under Section  24 of the Act.  That the Executive Council  of  the university exercising powers under Sections 23 and 24 of the Act  adopted this decision of the Coordination Committee  on 27th  May,  1989.  The State Govt. had issued  a  letter  on 23.9.89  wherein  it  was  clearly  stated  that  Professors promoted under the merit promotion scheme before 17th  June, 1987  shall also be paid Rs.4500 - 150 - 5700 200 - 7  3  00 with effect from 1. 1. 1986 and this clarification was  also adopted by Executive Council of respondent no. 1  university in its meeting held on 27.5.1988 by resolution no. 179.  The net result of the resolution was that a Professor under  the merit  promotion  scheme before 17-6-87 is entitled  to  pay scale  of  Rs.4500 - 7300 with effect from  1.1.86  and  the Professor  promoted under the merit scheme after 17.6.87  is to  be paid the scale of Rs.4500 - 5700.  Mr.  Dave  invited our attention to relevant provisions of the Act and  submit- ted that once a promotee is given promotion on pure merit by the very same committee which also selects direct  recruits, and once the promotees prior to 17.6.87 are entitled to  the same pay scale as directly recruited Professors there is  no reason why in the matter of inter se seniority there  should be  any  distinction or difference  between  them.   Placing reliance on the decision of this court O.P. Singla & Anr. v. Union  of  India & Ors. and Sadhu Ram & Others v.  Union  of India  &  Others (1984 (4) SCC 450) it  was  submitted  that temporary appointees to cadre posts can 72 also  be  considered  to  be  incumbents  in  the  cadre  as Executive  Council has power under Section 24 of the Act  to create posts as laid down by clause 20 thereof.  That cadres

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can  be  amalgamated.  Placing reliance on the  decision  of this court in the case of Vinay Kumar Verma & Ors. v.  State of  Bihar  & Ors. (1990 (2) SCC 647) it was  submitted  that once  cadres are amalgamated the incumbent of the  cadre  is brought in with the post. 29.  Learned Advocate, Sh.  Sharma appearing for    promotee Professors respondents 6 to  61 in Civil  Appeal  No.6001/94 submitted  that  the  basis of the  scheme  was  to  provide promotional  advancement  to avoid stagnation,  that  though University  Act  did not envisage  internal  promotion,  the sanctioned  strength  of  Readers  and  Professors  can   be increased  by  bringing  in promotees.   Reliance  was  also placed on statute 37 of the Delhi University and minutes  of Executive Council meetings.  Our attention was also  invited to  the  fact  that one Mr. Krishna Kumar  was  selected  as direct  recruit  but he opted out for being  promoted  under merit promotion scheme.  Therefore it could not be said that those who are unfit to be selected as direct recruits got  a back- door entry through merit promotion scheme. 30.  Learned  senior  counsel, Dr. Dhavan appearing  for  56 Professors  of  Jawaharlal Nehru  University  adopted  these arguments.   The  learned Advocate  for  promotees  teachers further submitted that in the present proceedings only  1983 scheme  is  on the anvil and we arc not concerned  with  the career  advancement  scheme  of 1987.  All  those  who  were promoted  between  1983 to 1987 as  Professors  submit  that their  seniority  vis a vis  directly  recruited  Professors cannot  but  be  decided  on  the  yardstick  of  continuous officiation of Professors.  That the scheme of 1982 is to be read  with  letter of the Commission issued  in  1984  which stated  that the question of inter se seniority was left  to the  concerned universities.  That once the  concerned  uni- versity  decided to accord seniority to promotees vis a  vis direct  recruits on the basis of continuous officiation  the matter  was at an end.  That on the doctrine  of  promissory estoppel neither the university nor the direct recruits  can take  a contrary stand.  That the Scheme of merit  promotion can  be divided into two parts.  The first part  dealt  with promotion on pure merits, while the second part wherein  new additional  staff  was not to be created and  the  vacancies created  on account of the promotion of the incumbents  were not  to  be filled was based on consideration  of  financial crunch but it had nothing to do with the inter se  seniority of  promotees  and  direct recruit  Professors.   That  this amounted  to only tightening of the belt and in  that  sense the  promotion  can  be  considered  to  be  personal.   Our attention was invited to the decisions of this court in  the cases of University of Delhi v. Raj Singh & Ors. (1994 Supp. (3)  SCC  516)  and  Col.   A.S. Iyer  &  Ors.  etc.  v.  V. Balasubramanyam  & Ors. (1980 SCR 1036) for submitting  that overdoing of classification should be avoided and merely  on the basis of classification the guarantee of equality  under Article 14 does not get exhausted.  Placing reliance on  the decision of this court in the case of Paradise Printers  and Others v. Union Territory of Chandigarh and Others (1988 (1) SCC 440) it was submitted that this was a case of promissory estoppel, that while getting merit promotions the incumbents were promised by the Commission that their se- 73 niority will be decided by the university concerned and once the  university  had decided to give them seniority  on  the basis  of continuous officiation a clear case of  promissory estoppel  had  arisen  in their favour.   That  decision  of Jawaharlal  Nehru University dated 28th June, 1988  in  this connection was that the university had decided that inter se

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seniority  of  directly recruited Professors  and  promotees should  be decided on the basis of  continuous  officiation. That for seniority, entry in service was relevant as decided in  the  case  of Bhey Ram Sharma & Ors.  v.  Haryana  State Electricity Board & Ors. and Balbir Singh & Ors. v.  Haryana State Electricity Board & Ors. and Sohan Lal Verma & Anr. v. Haryana  State Electricity Board & Ors. (1994  Supp.(1)  SCC 276).   It was therefore submitted that the High  Court  was patently  wrong  in  taking the  view  that  merit  promoted Professors  and  Readers  could not  stake  their  claim  of seniority  vis a vis direct recruit Professors  and  Readers who  formed  a  distinct class or  cadre  within  which  the promotees could not be encompassed. 31.  Mr. Gambhir, learned Advocate appearing for respondents 1  to  3  being Vikram University, its  Registrar  and  Vice Chancellor  broadly  supported  the  arguments  of   learned counsel  for the promotees.  He contended that once a  merit promotee  is promoted from the post of Lecturer to  that  of Reader or from the post of Reader to that of Professor there is  no question of any reversion of such a promotee only  on the  ground  that  there  is  no  vacancy  of  a  Reader  or Professor.  That Section 49 of the University Act only  pre- scribes the procedure for selection of a Reader or Professor but  is  not  confined to only direct  recruitment  of  such university teachers.  That promotions given to the concerned teachers under the merit promotion scheme are in  accordance with Section 49 of the Act.  Once the Lecturers so  promoted enter the cadre of Reader they would be entitled to  further promotion on merits.  Our attention was invited to the reply filed by the university before the High Court for submitting that  as original respondent no.4 was officiating as  Reader prior to the original writ petitioner, he was rightly  shown as  senior to him.  He further submitted  that  Coordination Committee had adopted the scheme and that resolution of  the Coordination Committee was further adopted by the  Executive Council  of the university.  Mr. Gambhir  further  contended that  statutes and ordinances of the university are part  of the  Act and they can create new source of recruitment.   In this  connection reliance was also placed on Section  34  of the Act which defines powers of Coordination Committee which can  approve  or  reject statutes or  ordinances.   In  this connection,  Mr. Gambhir invited our attention to  paragraph 10(d) of the return on behalf of respondents no.1 & 2  filed in the High Court.  In the said paragraph it was stated that the merit promotion scheme was formulated by the  Commission in  the year 1982 and it was approved in the meeting of  the Coordination  Committee by resolution no.23 dated  29.6.1983 and  it  was  decided to implement this scheme  in  all  the Universities of the State from the academic session  198384. It was also resolved by the Coordination Committee that  the scheme  can  be  implemented without  framing  any  separate ordinance  or  statute  for the purpose and  that  the  same decision  was  confirmed  in a  subsequent  meeting  of  the Coordination  Committee held on 11.1.1984. Mr. Gambhir  also referred to the averments 74 made  in paragraph 10(f) of the said counter.  It  has  been pointed   out  therein  that  the   Coordination   Committee appointed under section 34 of the Vishva Vidyalaya Adhiniyam has  resolved in its meeting held on 27th and 28th  October, 1988 as under:               "  12.02  The Coordination  Committee  decided               that  no  discrimination may be  made  between               teachers  promoted under the  Merit  Promotion               Scheme and those recruited under section 49 of

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             the Madhya Pradesh Vishva Vidyalaya  Adhiniyam               1972 in the Universities." On  the basis of the said resolution it was  submitted  that this  amounted  to  creation  of  an  additional  source  of recruitment of teachers in the university.  In this  connec- tion Mr. Gambhir relied on the decision of this court in the case  of Dr. Ms. O.Z Hussain v. Union of India (1990  (Supp) SCC 688).  At page 691 in para 7 it has been laid down  that there is desirability of having source of promotion for  any service  to  avoid  stagnation and heart  burning  and  that accordingly  the university had recognised  this  additional source of recruitment of teachers by way of promotion  under the  merit promotion scheme.  And once that is  accepted  on the principle of continuous officiation original writ  peti- tioner  would be junior to original respondent no.4  who  is appellant before us. 32.Learned   counsel  for  the  Commission   Shri   Banerjee submitted that as per the Commission Act the function of the Commission was to suggest merit promotion scheme to teachers in  the universities to avoid heart burning and  frustration but  the  Commission  was not concerned with  the  inter  se seniority of university teachers.  That question was left to be  considered  by  the concerned  universities.   That  the Commission in exercise of its powers under Section 12 of the Act  had recommended to the concerned universities to  adopt merit  promotion  scheme  and that is  how  the  scheme  was adopted by the concerned universities.  That it was not open to  the Commission to direct creation of more posts  in  the cadre.  That the merit promotion scheme did not  contemplate fixing of inter se seniority of merit promoted teachers  and directly recruited teachers.  Mr. Banerjee further submitted that after the Central Government’s direction to ’revise the pay  scales  of university teachers with effect from  1.  1. 1986,  the  then existing merit  promotion  scheme  remained available  to  the  concerned  teachers  to  exercise  their option.  But in that they were to receive lessor pay  scales as  promoted.  Readers or Professors as the case may  be  if their promotions were subsequent to 17th June, 1987 when the Govt. decided to revise the pay scales.  That for new incum- bents  who  arc directly recruited as Readers  or  Lecturers after   17.6.1987  there  was  no  merit  promotion   scheme available but only career advancement scheme was  available. That  only promotee Readers or Professors who were  promoted under the then existing promotion scheme prior to 17th June, 1987 got their pay protected as per the decision of the M.P. Govt.  Placing reliance on the decision of this court in the case  of Dr. Ms. O.Z Hussain v. Union of India  (supra),  it was  submitted that provision for promotional  opportunities to university teachers was essential for removing stagnation of  the concerned merit oriented teachers and that  was  the basis of the scheme. 33.Mr.  Singh, Advocate for respondent no.4 in Civil  Appeal No.6001/94 in reply 75 submitted that Section 49 of the Act which was enacted years back  in 1973 did not contemplate any promotions.  That  the merit  promotion scheme which came years afterwards in  1982 could  not therefore be treated to have been encompassed  by Section  49.   That the respondent no.4 was appointed  as  a direct  recruit Reader pursuant to the advertisement  issued by  the  university.  From the date of appointment  on  13th March,  1986  he  was  to be on  probation  for  two  years. Thereafter  he was confirmed as Reader on 12th April,  1988. That  merit promotion scheme sought to grant an  opportunity for   promotion  to  Lecturers  only  by  way  of   personal

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promotions.  No vacancy was thereby created in the cadre  of Lecturers  nor any post was created in the cadre of  Readers to  accommodate  such promotees, that the scheme  should  be read  independently  of the Act.  The merit  promotees  were occupying  excadre posts and consequently there cannot be  a combined  seniority list of directly recruited  Readers  who were part of the cadre of Readers and merit promotee excadre Readers who were having persona promotions as Readers.  That ordinance  of  Vikram University promulgated  under  Section 37(xv)  did  not  say anything  about  promotion.   In  this connection  our attention was invited to a decision of  this court  in  the case of Dr. Bal Krishna Agarwal v.  State  of Uttar  Pradesh  &  Or. (JT 1995(1 SC 47 1)  wherein  it  was clearly  laid  do that in. case of  merit  promotion  scheme unless  university act is amended and such a new  source  of promotion is contemplate therein there would be no  increase in  cad of the concerned teachers.  Our attention  was  also invited  to  Appendix-  1 of Ordinance 4  wherein  clause  6 provided   for   recruitment  of  Lecturers,   Readers   and Professors  to be made through all India advertisement.   In this connection, Mr. Singh also invited our attention to the reply filed by Vikram University before the High Court.   In the  return  in  paragraph 10(a) it  has  been  stated  that respondent no.4 was appointed Reader by promotion in accord- ance  with the scheme which was accepted by the  university. The appointment of respondent no.4 was not on probation  and therefore  there was no question of her confirmation on  the said  post.  Mr. Singh submitted if that was so  a  promotee Reader  cannot have any confirmed post but would  remain  on personal assignment by way of promotion.  Our attention  was also invited to paragraph 15 of the petition before the High Court  in which it has been stated that under the  7th  Five Year  Plan  the establishment of the teaching staff  of  the university, as per the record of the university, annexed  at P/10 is as follows:      Professor 18      Reader    33 and      Lecturer  57 Thus there were only 33 posts of Readers in the  university. It  was contended in the light of the above  said  averments which  were not denied by the university, that the 33  posts of Readers, were meant for direct recruitment and the  merit promotee Readers would therefore be outside the cadre or the sanctioned   strength  of  Readers.   In   connection   with resolution  12.02  of  the  Coordination  Committee  it  was submitted  that under section 34 of sub-section (4)  such  a resolution  cannot be passed by the  Coordination  Committee and therefore it had no force of law.  It was next contended that  as  per  Section 24(xx) no  post  was  recommended  by Academic Planning and Evaluation Board nor prior approval of 76 Madhaya Pradesh Uchcha Shiksha Anudan Ayog was shown to have been obtained before creation of such posts to be filled  up by  departmental promotees under the merit promotion  scheme and therefore it would not be correct to contend that  there was a temporary addition to the cadre strength of Readers or Professors  as  the case may be.  It was  further  contended that  the  work load of promotee Readers is  different  from work  load  of directly recruited Readers.  Even  their  pay scales  are different from 1986.  ’Mat Section  35(0)  which dealt  with seniority provision had to be read with  Section 49  which  contemplated direct  recruitment  only.   Placing reliance on the Constitution Bench decision of this court in the  case  of  The  Direct  Recruit  Class  II   Engineering Officers’Association and Others v.  State of Maharashtra and

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others  (JT  1990 (2) SC 264) at page 271 (para 13)  it  was submitted  that  unequals cannot be treated as  equals.   An excadre  employee cannot be treated to be a  cadre  employee for  determining their inter se seniority and therefore  the High  Court was right in accepting the writ petition of  the direct recruit Reader. 34. Respondent no.4 in Civil Appeal No.6002/94 who  appeared in  person,  adopted the line of reasoning as  submitted  by Shri  Singh and further contended that he was  appointed  as Professor of Physics pursuant to all India competition.  The post was advertised by inviting applications and in the open competition  as contemplated by Section 49 of the  Act,  the appellant  -candidates were rejected while  respondent  no.4 were  selected.   That  though  the  appellants  were  merit promoted as Professors, they were wrongly shown as senior to him and that is why he had to file the petition in the  High Court which was rightly allowed.  ’Mat there were two  posts of  Professors  of Physics in 1986 and for  filling  up  one vacancy  advertisement was issued and interviews were  held. That though the Selection Committee had considered the cases of  appellants for merit promotion on 13.3.86  after  direct recruits   were  interviewed  and  recruitment   was   over, university had wrongly and mala fide issued promotion orders to  the appellants by way of backdating them  on  12.3.1986. That merit promotions was purely personal to the  incumbent. The  moment the incumbent retired or resigned  or  otherwise ceased to be a merit promotee, there will be no question  of promoting somebody else vice him.  It was further  contended that  merit promotion scheme cannot be  implemented  without ordinances  or  provisions  and in the  absence  of  such  a provision  merit promotions granted to the  appellants  were required  to be quashed.  That they could not be  given  the same  pay scale as directly recruited  Professors.   Placing reliance  on  the  decision of this court  in  Civil  Appeal no.1549/94  it was submitted that the abstract  doctrine  of equal pay for equal work was illogical and consequently  the judgment  of Rajasthan High Court which had taken  the  view that merit promoted Professors should be given the same  pay scale  as  direct  recruits  could  not  be  sustained.   He submitted  that the university had harassed him  by  showing him  to  be junior to promotee Professors and  therefore  he prayed for Following reliefs:- 1)   Respondent  no.4 be awarded compensation  amounting  to Rs. 17.00 lakhs. 2)   Merit   promoted  Professors  should  be   treated   as additional Professors but not as a full-fledged Professor. 77 3)   Pay  scales  of  merit promoted  Professors  should  be reduced. 35. Mr. Bobde, Mr. Dave and Dr. Dhavan in rejoinder  refuted the  contentions of Shri Singh and respondent no.4  in  C.A. No.6002/94  and reiterated their submissions in  support  of the appeals. V.   Points for consideration: 36.  In  the  light of the aforesaid rival  contentions  the following points arise for our consideration-- 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

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seniority  should be shown only in the cadre of Lecturer  or Reader from which they arc 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? 37.    We shall now deal with the aforesaid points seriatim. Point No.1 38.A  resume of relevant provisions of the  merit  promotion scheme and the relevant provisions of the Vikram  University Act  to which we have made reference earlier  clearly  shows that when the Act was enacted in 1973 the State  Legislature had  not contemplated any promotion of a Lecturer as  Reader or Reader as Professor as the case may be.  All the relevant ordinances  and statutes will therefore have to be  read  in that light.  It is not possible to agree with the contention of  the  learned counsel for appellants that Section  49  as enacted  can take in its sweep even departmental  promotees. A mere look at Section 49 shows that the Members of the Com- mittee  of  Selection as contemplated by subsection  (4)  of Section  49  have to investigate the merits of  the  various candidates  and  to recommend to the Executive  Council  the names if any, of persons whom they consider suitable for the posts, arranged in order of merit.  Sub-section(5)  mentions that  out of the names so recommended under sub-section  (4) the  Executive  Council shall appoint persons  in  order  of merit.  This clearly contemplates an open market recruitment procedure  by  way  of  direct  recruitment  and  candidates selected  will have to be appointed in order of merits.   It is  obvious that there would be no occasion to consider  the question of inter se merit of a departmental promotee and  a direct  recruit.  It is also pertinent to note that  in  the year  1973  the subsequent merit promotion  scheme  of  1982 would  never have been under contemplation of  the  Legisla- ture.   It must therefore be held on a conjoint  reading  of the  relevant provisions of the Act that only one source  of recruit- 78 ment  of university teachers namely, Professors and  Readers and even of Lecturers is contemplated and that source is  by way of direct recruitment.  If that is so and if under merit promotion scheme as recommended by the Commission which  was adopted   by   the  respondent  no.    1   university,   any departmental  candidate  is to be promoted, he would  be  so promoted  dehors  Section 49 and would obviously  be  an  ex cadre  Reader  or Professor as the case may  be.  Once  that happens it would be obvious that there would be no  occasion to fix the inter se seniority of directly recruited  Readers and  Professors  who are holding cadre posts  and  ex  cadre merit  promoted  Readers  and  Professors  who  would  stand outside  the  cadre.  The first respondent by  its  impugned decision which was quashed by the High Court in the judgment under  appeal tried to fuse the inter se seniority  of  both these  classes  of employees.  And that itself  amounted  to treating unequals as equals.  It clearly offended the provi- sions of Articles 14 and 16(1) of the Constitution of India. Unless Section 49 is suitably amended and a separate  source of recruitment by way of internal promotion is  contemplated by the Act there would remain no occasion of undertaking any exercise  of  fixing  inter se seniority  between  ex  cadre employees and cadre employees.  It is not in dispute between the parties that neither the Act nor any ordinances or stat- utes  of respondent no.  1 university even remotely  whisper

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about   creation   of  a  separate  recognised   source   of recruitment of Professors and Readers by way of departmental promotions.  It is of course true as indicated by Dr. Dhavan appearing for the intervenors that in some of the  universi- ties  even  ordinances have been issued accepting  such  new source  of promotion of university teachers under the  merit promotion  scheme.  But even if it is so that would make  no difference  as it is the parent Act, namely, University  Act concerned which should contemplate creation of new source of recruitment by way of departmental promotions of  university teachers.   Unless that is done mere issuance of  ordinances or  statutes  to  that effect which  to  that  extent  would conflict with the parent Act would be of no avail and  would be an exercise in futility.  They would also be ultra  vires the  Act.   It  must  therefore  be  held  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 Coordination Committee or  Executive  Com- mittee  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. 39.It is true as submitted by learned counsel for appellants that  for avoiding stagnation and heart burning  promotional avenues should be made available in any service as laid down by this court in number of decisions to which our  attention was  invited  by them.  However the short question  for  our consideration  is whether the concerned university  Act  has made  such a provision.  If a provision is made  then  there would  be no difficulty in the way of the appellants but  in the  absence of such a provision mere availability of  merit pro- 79 motion  scheme cannot elevate the merit promoted  Reader  or Professor  to the cadre of such Reader or Professor  as  the case  may  be.   They would remain ex  cadre  employees  who cannot  claim  any inter se seniority with  direct  recruits forming  the concerned cadre.  It is not possible  to  agree with the contention of Shri Bobde and Dr. Dhavan that  under the  merit promotion scheme though the promotions were  per- sonal, to that extent there was a temporary extension of the cadre of Reader or Professor as the case may be or that they were special promotions as Dr. Dhavan would like to have it. The  very  guidelines  of the scheme suggest  that  a  merit promoted  Reader  or  Professor will be treated  to  have  a personal promotion.  It will not create any addition to  the cadre nor it will create any vacancy in the lower cadre from which  he or she was promoted.  The work load has to  be  so distributed  as  not to require any additional  staff.   Dr. Dhavan  said  that this was only because  of  the  financial crunch.  That may be so.  But ultimately the effect  thereof would be that once a merit promoted Reader or Professor goes out of service there will be no post which will fall  vacant in the promotional avenue.  Consequently, it cannot be  said that there was any’ temporary addition to the cadre strength of  Reader  or Professor as the case may  be.   We  entirely concur  with the reasoning adopted by the High  Court  while considering  the  relevant clauses of  the  merit  promotion scheme  when  it took the view that Readers  and  Professors

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promoted  under the scheme were not entitled to be  included in  the  seniority list of directly  recruited  Readers  and Professors.    Reliance  placed  by  learned   counsel   for appellants  on  statute  16  is also  of  no  avail  to  the appellants for the simple reason that statute 16 deals  with seniority  of teachers of the university.  This  statute  is promulgated  under Section 35(o) of the Act.  Section  35(o) of  the  Vikram  University  Act  deals  with  the  mode  of determining   seniority   for  the  purpose  of   the   Act. Consequently it will have to be read with Section 49 meaning thereby  when a Professor, Reader or Lecturer  is  recruited under  Section 49 how his seniority is to be determined  can be decided in the light of the relevant statute framed under Section  35(o).  When we turn to Statute 16 we find that  as per clause (2) thereof the seniority of Professors,  College Professors, Readers, Associate Professors or Lecturers shall be  determined in accordance with the length  of  continuous service of such person in the cadre concerned taken together with length of continuous service which is equivalent to  or superior  to  the  cadre concerned.   It  was  submitted  by learned  counsel  for  appellants that  the  word  cadre  as employed  by statute 16(2) is used in a loose sense.  It  is difficult  to agree.  Statute 16(2) read with Section  35(0) and  Section  49 leave no room for doubt.   That  all  those Readers  and Professors who were recruited under Section  49 as  direct recruits and who enter the cadres  of  Professors and  Readers as the case may be shall have  their  seniority determined  in  accordance with length of service  in  their concerned  cadre.  As merit promotee Reader or Professor  is outside  the  cadre there is no question  of  statute  16(2) operating  in his case.  It is also pertinent to  note  that merit  promotee  Professors  or  Readers  form  a   separate distinct class as compared to directly recruited  Professors or  Readers.  It is true that as decided by respondent  no.1 university,  the  same Selection  Committee  which  directly recruits  Professors and Readers under Section  49(2)  deals with  the  question  of granting  merit  promotions  to  the concerned Lec- 80 turers  as Readers and Readers as Professors.  But  to  that extent  the  machinery  or  infrastructure  available  under Section  49(2)  for directly recruiting  teachers  was  made available  for  deciding  the  eligibility  of  departmental candidates for merit promotion but that would not by  itself create a new source of recruitment for promotee Readers  and Professors unless Section 49 was suitably amended.  That has not  been  done  till  now.   In  this  connection,  we  can profitably  refer to the decision of this court in the  case of Dr. Bal Krishna Agrawal v. State of Uttar Pradesh &  Ors. (JT  1995  (1) SC 47 1).  In that case a Division  Bench  of this   court  was  concerned  with  the   question   whether Professors  promoted by Allahabad University governed  under Uttar  Pradesh  State  University  Act,  1973  could   claim seniority  vis a vis directly recruited  Professors.   Under Section  31  a merit promotion scheme adopted  by  Allahabad University  was promulgated by State of Uttar  Pradesh.   By inserting  Section 31 (A) in the University Act with  effect from 10. 10. 1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in university  was created  by  State  Legislature.   But  that  Section  which created  a distinct source of recruitment by  promotion  was effectively brought into force from 10. 10.94. The appellant before this court was directly appointed as Professor on 9th November,  1984  while the contesting respondents no.4  &  5 were  promoted  as  Professors under  the  scheme  by  Govt.

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Orders  dated 12th December, 1983 and 25th  February,  1984. These  respondents were treated as senior to  the  appellant before  this court.  He unsuccessfully challenged  the  said fixation of inter se seniority before the High Court, as the High  Court  took  the view that the  appellant  had  to  be relegated to the alternative remedy available under  Section 68 of the Act.  In appeal pursuant to leave granted by  this court, S.C. Agrawal, J. speaking for the Division Bench took the view that appellant was entitled to be treated as senior to  the promotee Professor as Section 31 (A) was not on  the statute  book when the respondents 4 & 5 were  promoted  and therefore  their promotions could be treated as  valid  only from  21st February, 1985 when Section 31(A)  was  enforced. Before that date the appellant had already entered the cadre of Professors on 11th November, 1984 and therefore he had to be treated as senior to respondents 4 & 5. In para 13 of the report   the  following  observations  were  made  in   this connection:-               "...... We are of the opinion that in view  of               the provisions contained in Section 31 -A  and               Section  2(14) of the Act there is  no  escape               from the conclusion that respondents nos.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 February 21, 1985,  pro-               motion  under  the Personal  Promotion  Scheme               could not be made prior to February 21,  1985.               The  Executive Council in its  Resolution  No.               198  dated November 8, 1984 had  accepted  the               recommendations of the $election Committee for               promotion  of respondents Nos. 4 and 5 on  the               basis of Government Orders dated December  12,               1983  and  February 25, 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 intro-               81               ducing Section 31 -A by U.P. Act No. 9 of 1985               with  effect  from 10th  October,  1984.   But               Section  31  (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               February   21,   1985.    The   promotion   of               respondents  Nos.4  and  5  to  the  grade  of               Professor under the Personal promotion  Scheme               could,   therefore,  not  be  made  prior   to               February 21, 1985.  The inter se seniority  of               the appellant and respondents Nos. 4 and 5 has               to be determined on that basis. In our view the aforesaid decision of this court is squarely applicable to the facts of the present case.  As seen  above in  the Uttar Pradesh Act there is already an  amendment  by insertion  of Section 31 (A) which provided for  a  distinct source  of  promotion.  In the Vikram  University  Act  with which  we are concerned, there is no such provision.  It  is

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therefore  to be held that till appropriate  amendments  are effected in the concerned universities Act on the same lines as Section 31 (A) of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the  cadre  of Reader or Professor as the case  may  be  and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such  an  ex  cadre promotees  and  the  directly  recruited Readers or Professors who form the cadre concerned. 40.At  this stage it would also be appropriate  to  consider whether the promotee Readers and Professors under the  merit promotion  scheme  as  recommended  by  the  Commission  and adopted  by the university concerned, in the absence of  any statutory  creation  of  a  distinct  and  fresh  source  of recruitment by way of promotion, can be said to fall in  the same class as directly recruited Readers or Professors.  The answer  becomes obvious.  They cannot be said to be  forming the  same  class.  The  following  distinct  characteristics between  these  two  classes of  employees  become  at  once visible. i)   The  directly recruited Readers and Professors fill  up the  vacancies in the cadres of Readers and  Professors  for which   direct  recruitment  is  resorted  to.   While   the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no posts are created. The  promotion  given to them are purely  personal  and  the posts  to  which  they are upgraded  do  not  survive  their service career.  The posts vanish with the incumbent  person like  the  shadow  vanishing with  the  substance.   Such  a promotee fills up no vacancy in the promotional avenue since no post is available by promotion. ii)The   directly  recruited  Readers  and  Professors   are recruited  pursuant  to  the  only  source  of   appointment contemplated  by  Section  49,  that is  by  way  of  direct recruitment.   The  promotee  Readers  and  Professors   arc appointed  not  in  the cadre posts but  under  an  entirely different scheme, namely merit promotion scheme.  Even under this  scheme, no posts as such are created.  Those  selected under  the scheme are given personal posts which cease  with their  employment.   In fact the posts from which  they  are promoted  do not become vacant and none can be appointed  to the said posts while they hold the higher posts. iii)Pay  scales  of  promotee  Professors  and  Readers  are different from the pay scales or directly recruited  Readers and Profes- 82 sors  atleast  after  coming into operation  of  the  career advancement  scheme as seen earlier.  To recapitulate for  a direct  recruit Readers revised pay scale with  effect  from 1.1.86  is Rs.3700 - 5300 while the pay scale  for  promoted Reader  is  Rs.3000  5000.  Pay scale of  a  direct  recruit Professor  is  Rs.4500  -  7300 while the  pay  scale  of  a promotee  Professor  is Rs.4500 - 5700.  It is  also  to  be noted that as per the letter of Under Secretary,  Department of   Education  dated  1st  January,  1989   the   aforesaid difference  in  pay  scales of merit  promoted  teachers  is clearly  brought out.  It is of course true that as per  the order of the Madhya Pradesh Govt. the pay scales of promotee Readers  and  Professors  who were  promoted  prior  to  the enforcement  of  career advancement scheme  were  protected. But for such protection they would not have been entitled to pay  scales of directly recruited Professors and Readers  as revised under the scheme.  This difference in the pay scales itself  is a distinct feature so far as promotees under  the merit  promotion  scheme on the one hand  and  the  directly

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recruited  Readers  and  Professors on the  other  hand  are concerned. iv)The  promotee Readers and Professors are not holding  any officiating  or even temporary post of Reader  or  Professor nor is there any temporary addition to the cadre strength of Readers and Professors. v)   The   work  load  of  directly  recruited  Reader   and Professor is different from the work load of promotee Reader or Professor for whom the work load of a Reader or  Lecturer as  the  case  may be would still have to be  shared  as  no vacancies  are created for being filled in the  cadres  from which such promotions are effected. vi)There  is  a  qualitative difference in  the  process  of selection of direct recruits under the scheme of Section 49, as  compared  to  the  promotion  of  the  merit  promotees. Although  for  the latter the  infrastructure  of  Selection Committee  under Section 49 may be made available, the  cri- teria   for  their  promotion  are  entirely  distinct   and different as envisaged by the guidelines governing the merit promotion scheme. vii)There  is  no question of promotee Reader  or  Professor being  put  on probation.  There is further no  question  of confirming them in the concerned posts as they do not occupy any post as such in the promotional avenue.  This is  unlike the direct recruits. 41.The  aforesaid distinguishing features  clearly  indicate that  merit promotee Professors and Readers form a  distinct class of ex cadre or supernumerary appointees as compared to cadre  employee,  namely,  directly  recruited  Readers  and Professors.   They  are  unequals not only  because  of  the source  of their appointment but also because of the  nature and character of their appointment and of the nature of  the posts  which they hold.  They cannot be treated equally  for all purposes and particularly for seniority and promotion if any.   For  this purpose the nature of work they do  is  ir- relevant.  The competition for seniority can only be amongst those who are in the cadre posts.  Otherwise, the mandate of Articles  14  and  16(1)  would  get  violated.   For  these reasons,  there  would  be  no  occasion  to  fix  inter  se seniority  of  merit  promotee Readers  and  Professors  and directly  recruited Readers and Professors by treating  them as  forming  one,  class.   Any  decision  rendered  by  the university concerned not to 83 discriminate  between  them  in  the  matter  of  inter   se seniority  would be invalid in the absence of any  statutory creation of a distinct source of recruitment by promotion by way of amending die parent Act.  As the first respondent  is governed by the Act which does not contemplate any statutory source   of  recruitment  by  way  of  promotion,   whatever sentiments  might  have  been  expressed  by  the  Executive Committee  of the university for not distinguishing  between directly  recruited Professors and Readers on the  one  hand and promotee Readers and Professors on the other hand in the matter  of  seniority,  have  no  legal  efficacy.   On  the contrary,  treating them at par for seniority and  promotion is violative of Articles 14 and 16(1) as we have seen above. It must therefore be held that the High Court was  justified in  taking the view that the action of the first  respondent university   in  fixing  inter  se  seniority  of   directly recruited Professors and Readers and merit promoted  Readers and  Professors on the yardstick of  continuous  officiation was illegal and unconstitutional. 42.Before parting with discussion on this point we may refer to  certain  additional submissions placed for  our  consid-

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eration  by  Mr.  Bobde and Mr.  Dave  learned  counsel  for appellants.  Placing reliance on Section 6 of the  Adhiniyam read  with  Section 34 it was submitted by  Mr.  Bobde  that university had full powers to create posts.  When we turn to Section  6  we find that sub- section 30 thereof  lays  down that   university  has  power  to   create   administrative, ministerial  and other necessary posts to make  appointments thereto.  There cannot be any dispute on this aspect.  Simi- larly  when  we  turn  to  Section  34  we  find  that   the Coordination Committee has power amongst others to  consider matters   of  common  interest  to  all  or  some   of   the universities.   However, we do not read in these  provisions the  power  to  create  additional  posts  of  Readers   and Professors  for  being  reserved for  promotee  Readers  and Professors  nor is the power exercised by the university  in the present case to create such posts as indeed it could not in  the  absence  of  any statutory  provision  in  the  Act permitting  it to do so.  A conjoint reading of  Section  49 and sub-section 30 of Section 6 would only indicate that the university  can  create  additional  posts  of  Readers   or Professors  for  filling  them up by  the  only  statutorily permitted   source   of  recruitment,  namely,   by   direct recruitment under Section 49.  As already discussed  earlier in  the absence of similar provision like Section 31 (A)  of Uttar Pradesh Act which was considered by this court in  the case of Dr. Bal Krishna Agarwal v. State of Uttar Pradesh  & Ors. (supra) no posts could have been created for  promotees by way of extension of cadre of Readers or Professors as the case may be.  As there is no such statutory provision in the Act  governing  first respondent university,  Section  6  by itself  cannot be of any assistance to learned  counsel  for appellants.   Mr. Dave invited our attention to  Section  50 which  deals  with  payment  of  salaries  to  teachers   of university.  The said provision is not relevant for deciding the  question whether the merit promotees were ex cadre  em- ployees  or  not.   Similarly Section  64(1)  to  which  our attention  was invited by the learned counsel is also of  no avail to the appellants as all that section provides is that wherever  in accordance with the Act, any person is to  hold an office or to be a member of any authority by rotation ac- cording  to seniority such seniority in the absence  of  any provisions  to the contrary in the Act, shall be  determined in accor- 84 dance  with the statutes.  Untill the statutes are made  the seniority  in a particular cadre shall be determined by  the length  of  continuous service in such cadre.   As  we  have already  discussed  earlier the said statutes  would  govern seniority of cadre employees only and cannot be projected to take in their sweep inter se seniority of cadre employees on the  one  hand  and ex cadre  employees  like  the  promotee Readers  and Professors on the other hand.   The  University cannot  make statutes contrary to or inconsistent  with  the provisions of the Act. 43.    Reliance was then placed by the learned  counsel  for appellants  on a decision of the very same High  Court  from which  the  present  appeal arise.  The  said  decision  was rendered  by the Jabalpu Bench in M.P.No.2064/89. The  Bench its  order  dated 19.7.94 has taken the view that  inter  se seniority of directly recruited Readers in Hindi  Department of  Rani  Durgawati Vishwa Vidyalaya and a  promotee  Reader under  the  merit promotion scheme shall be decided  on  the basis  of  continuous  officiation.   It  is  difficult   to appreciate  the reasoning of the Court, in view of the  fact that a directly recruited Reader was a cadre employee  while

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merit  promotee Reader was only an ex cadre employee.   This vital  aspect of the matter has been totally missed  by  the Court  in that decision.  Hence, it has to be held that  the said decision does not lay down correct legal position.  Our attention  was also invited to a decision of Rajasthan  High Court,  Jaipur Bench in D.B. Civil Writ Petition  No.2558/88 decided  by S.N. Bhargava and P.C. Jain, JJ on  9.12.88.  In that  case the Division Bench had taken the view that  merit promoted Professors must be given the same time scale as di- rectly  recruited Professors under the Rajasthan  University Teachers  and  Officers Special Condition  of  Service  Act, 1974.  That has been directed on the basis of equal pay  for equal  work.   We are informed that special  leave  petition against  the  said decision was dismissed by this  court  on 9.12.88 by a non speaking-order.  The said decision is of no avail  to  the  appellants  as we  are  concerned  with  the relevant  provisions  of  the Vikram  University  Act.   The aforesaid decision was rendered in the light of an  entirely different  scheme  of  statutory  provisions  governing  the controversy  between  the parties in that  case.   But  that apart,  the Rajasthan High Court was not concerned with  the question with which we are concerned, namely, whether  there can  be inter se seniority of ex cadre employees  and  cadre employees oven if they are drawing the same salary.  We  may note  at this stage that so far as the present  appeals  are concerned it is not in dispute between the parties that  the promotee  Professors  and  Readers  who  have  actually  got promoted  under  the 1982 merit promotion scheme  are  being paid   the   same  revised  time  scale   even   after   the implementation of the career advancement scheme, in view  of the decision of Madhya Pradesh Government dated 21st  March, 1989  wherein  it  has  been  clearly  directed  that  those teachers  who  have  been given promotion  under  the  merit promotion  scheme prior to 19.6.87 will be entitled to  draw from  1.  1. 86 or from the date of their  actual  promotion (that is between 1.1.86 and 17.6.87), the revised time scale for Reader i.e. Rs.3000 - 5700 and for the Professor Rs.4700 -  7300.   In the present proceeding, we are  not  concerned with  the  pay scales of any merit promotee who  might  have opted  out for being governed by the merit promotion  scheme even after the implementation of career advancement scheme 85 and  who might have been promoted only after 17.6.87. As  we have  seen earlier, for them the pay scales would  be  lower than the revised pay scale available to a directly recruited Reader  or Professor as the case may be.  It must  therefore be  held  that  there  would be  no  justification  for  the respondent   authorities   to   treat   directly   recruited Professors  and Readers at par with merit  promotee  Readers and  Professors for deciding their inter se seniority  which as we have already discussed earlier cannot be  countenanced at all. 44.  It  was next submitted that on doctrine  of  promissory estoppel  the  respondent authorities  must  treat  promotee Readers  and  Professors  at par  with  directly-  recruited Readers and Professors.  This contention has to be stated to be  rejected.   No promise was held out either by  the  Com- mission  or  by respondent no. 1 university to  these  merit promotees that their inter se seniority with direct recruits in  the  upper cadres will be reckoned on the  principle  of continuous officiation nor is there anything to suggest that but  for such a promise a merit promotee would not have  ac- cepted his promotion or that he had changed his position  in any  manner  relying  on such an alleged  promise.   Such  a promise  if any also would have been unconstitutional  being

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violative of Articles 14(1) and 16 of the Constitution.  Dr. Dhavan  submitted that such a promise is culled out  from  a letter  of  Commission issued in 1984.  In that  letter  the Commission informed all concerned that the question of inter se  seniority of promotees and direct recruits will be  left to  be  decided  by  the  concerned  universities.   It   is impossible to discern any promise about fixation of inter se seniority  from  this letter.  For all  these  reasons,  the first point under consideration is answered in the negative. Point No.2 45.  So far as this point is concerned we may note that  the High  Court by the impugned judgment has taken the  view  in the last para of the judgment that the respondent university shall  delete the names of respondents nos. 4 to 9  in  M.P. 1180/ 89 and respondent no.4 in M.P. 208/89, from  seniority list.   A grave exception was taken by learned  counsel  for appellants  to  the aforesaid direction.  It  was  submitted that  once  the merit promotion scheme  recommended  by  the Commission was adopted by the respondent university and once the concerned incumbents were promoted on merit as Reader or Professor  as the case may be they were entitled to work  as Readers or Professors even assuming that they were ex  cadre employees.  Hence it cannot be said that they should not  be treated as Readers or Professors at all and their  seniority should  be  shown  only  in the lower  cadre  of  Reader  or Lecturer as the case may be from which they were promoted on merit  as  Readers or Professors.  In this  connection  they invited  our  attention to para 12 of the  judgment  to  the effect that it is clear from the scheme annexure P/4 that by virtue  of promotion under the said scheme, it is  only  the designation of the incumbent which is changed but in reality he  remains  in  the same lower cadre of  either  Reader  or Lecturer as the case may be.  Consequently respondents 4  to 9  can not be held to have been appointed by the  University on clear vacant posts of professors and their name cannot be included in the seniority list of professors nor can they be considered  senior  to the petitioner.  According to  us  no exception can be taken to the last part of para 86 no. 12, there it is observed that respondents 4 to 9  cannot be  held  to have been appointed on clear  vacant  posts  of Professors nor can they be included in the seniority list of Professor  nor can be considered senior to  the  petitioner. But it must be clarified at this stage that even though they may  not  be  included  in  the  seniority  list  of   cadre employees,  namely, Professors or Readers it also cannot  be held  as  assumed  by  the  High  Court  that  their   merit promotions  were  of  no  legal  effect  at  all.   In  this connection, we must keep in view the salient features of the merit  promotion scheme.  It cannot be disputed that with  a view  to  avoid stagnation amongst university  teachers  the Commission  recommended  a scheme of merit  promotion.   The very  preamble of the scheme shows that it is  necessary  to give  reasonable  opportunity  for  career  advancement  and recognition of merits and it is on the basis of  competitive test  for recognising outstanding work and merit  that  such merit promotions were given.  Once a Lecturer is promoted on merit  as  Reader or a Reader as Professor even  though  the promotion  may be personal to him he can certainly  continue to  work as promotee Reader or Professor till he retires  or otherwise ceases to be an employee of the university or till he is reverted for some valid reasons.  There is no question of  such  a merit promotee being reverted otherwise  to  the lower cadre from which he came.  He has to work as a  Reader or Professor as the case may be and share the work load with

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the cadre employees.  In fact as there is no vacancy created in  the  lower cadre from which he came on  account  of  his promotion,  he has also to share the burden of work  load  o the lower post.  Consequently it cannot be said that such  a merit  promotee is not th Reader or Professor so far as  his work  as Reader or Professor is concerned.  We cannot  claim to  be fitted in the inter se seniority list and may  remain outside the cadre of Reader or Professor as the case may be. However, for all other purposes like pay, work and status he is a Reader or Professor as the case may be. 46.  The  question then remains as to how his seniority  has to  be reckoned as a merit promotee even though he is an  ex cadre Reader or Professor.  The answer is obvious.   Amongst person  forming the same class to which he belongs,  namely, ’merit  promotee  Readers  or  Professors  their  inter   se seniority  has  to  be  fixed on  the  basis  of  continuous officiation  as  such  merit  promotees.   Such  a  separate seniority list of merit promotee Readers and Professors  has to  be  prepared  and acted upon  for  purposes  other  than seniority  and promotion in, and to the posts  available  to those  in the cadre.  It is not as if they are still  to  be treated as only Lecturers or Readers as the case may be from which posts they got merit promotion, as wrongly assumed  by the  High  Court.  In short there have to be  two  seniority lists,  one  of  the cadre Readers and  Professors  who  are direct recruits and the other of merit promotee Readers  and Professors.  The directions issued by the High Court in  the impugned judgment in paragraph 16 read with the observations in  paragraph 12 will have to stand modified  as  aforesaid. It  is  however, clarified that the direction  of  the  High Court that names of respondents 4 to 9 in M.P. 1180/ 89  and respondent no.4 in M.P.208/89 in the combined seniority list will have to be deleted has to be sustained.  The other  di- rections  contained in the later part of paragraph  16  also will  have to be sustained.  Point no.2, is answered in  the negative but as indicated herein above. 87 Point No.3 47.  So  far  as this point is concerned, it must  be  noted that  even though die respondent no.4 in his  writ  petition before the High Court had prayed for several reliefs in  the prayer  clause  53,  no  such  relief  was  claimed  against respondent  no.1  university.  Not only that,  even  in  the judgment under appeal no such claim has been considered  and no  such relief is given to him.  He has also not filed  any cross  petition in this court claiming such relief.   Hence, the  relief  cannot be given to him in  the  present  appeal moved  by the appellants.  ’Mat apart, there is  no  factual basis  by  way of any material on record  for  awarding  any compensation  to him for the alleged harassment suffered  by him.  Point no.3 is therefore, answered in the negative. Point No.4 48.  So far as this point is concerned, respondent no.4  who filed the writ petition before the High Court had prayed  as per  prayer  (e) of clause 53 that the order  Annexure  P/25 revising pay scales of the teachers being discriminatory, be quashed  in  the  light of the clarification  given  by  the Commission.  But such an argument does not seem to have been pressed  into  service by him before the  High  Court  while arguing the writ petition.  At least no discussion is  found in  the  judgment  under appeal on  this  aspect.   However, respondent  no.4 drew our attention to paragraph 16  of  the judgment which contains a direction that any other ancillary relief  such as appointment as Dean or Head  of  Department, and  their  respective pay scales, are  matters  of  details

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which the university is directed to work out and give effect to.  It was submitted that this direction would  necessarily mean that the pay scales available to the appellants  should be  reduced.  It is not possible to agree with this  conten- tion.  The said direction is only a consequential  direction which flows from the reshuffling of the seniority list which was found fault with by the High Court and it was a  logical corollary of the deletion of the names of respondents 4 to 9 from the combined seniority list.  This ancillary relief has nothing  to do with the setting aside of exhibit  P/25.   It has  to be kept in view that the State of Madhya Pradesh  by clarificatory order dated 21.3.81 had clearly directed  that those merit promotee Readers and Professors who got promoted under  merit  promotion scheme prior to 17.6.87  had  to  be given  pay protection and would be entitled to draw  revised salary  of  Reader  and  Professor  at  par  with   directly recruited Reader and Professor.  That order of the State  of Madhya  Pradesh does not appear to have been  challenged  by the  party  in person before the High Court as there  is  no discussion  on this aspect in the judgment.  Not  only  that but there is no decision rendered by the High Court in  this connection.   The  respondent no.4 had not filed  any  cross petition  claiming this additional relief from  this  court. Consequently,  it is not open to respondent no.4 to  contend in  the appeal filed by the appellants that a  more  adverse order be passed against the appellants by depriving them  of the  enhanced revised time scale made available to  them  by the State of Madhya Pradesh.  Even otherwise, we do not find any justification for finding any fault with the  directions contained  in the State Govt.  Order which tried to  protect the  pay  scales of merit promotees who  had  already  taken advantage  of  and  who  had  got  benefited  by  the  merit promotion 88 scheme much prior to the coming into operation of the career advancement   scheme.    To  say  the  least,   it   was   a discretionary order which was justified on the facts of  the present  case.  The fourth point is accordingly answered  in the negative. Point No.5 49.  In view of the aforesaid discussion and our decision on the  concerned points for determination, the result is  that these  appeals  fail  and  are  dismissed  subject  to   the modification  of  the impugned order of the  High  Court  as indicated  while  answering  point no.2. In  the  facts  and circumstances  of  the  case there will be no  order  as  to costs. 92