Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7553   OF 2009 (Arising out of SLP (C) No. 15066/2008)

Nitya Nand                               …Appellant

Versus

State of Haryana & Ors.                      …Respondents   

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. In this appeal by special leave, the judgment of the  

High Court of Punjab and Haryana passed on April 30, 2008  

has been challenged.  By the said  judgment, the High Court  

allowed writ   petition  filed  by  the  present  respondent  No.  4  

fixing his seniority over appellant to the post of Senior Professor  

setting aside the communication of the Government of Haryana  

dated November 30, 2007 and consequential office order dated  

December 3, 2007 issued by the Director, PGIMS, Rohtak.  

3. The  question  that  falls  to  be  determined  in  this  

appeal  by special  leave is:  whether  “Floating Professor”  and  

“Associate  Professor”  are  different  categories  of  posts  in  

Haryana  Medical  Education  Service  and,  if  the  answer  is  in  

affirmative;  is  High  Court  justified  in  holding  that  present  

respondent No.4, having been selected as Floating Professor  

while  the  appellant  continued  as  a  substantive  Associate  

Professor prior to their promotion as Senior  Professor,  must  

rank senior to the appellant to the post of Senior Professor.  

4. The  answer  to  the  aforesaid  question,  obviously,  

must  be found with  reference to  Haryana Medical  Education  

Service Rules 1988 (amended in 2007)  (hereinafter referred to  

as ‘the Rules’ ) but before we do that, it will be appropriate that  

material and relevant facts are noticed first.  

5. Dr.  Nitya  Nand  (Appellant)  and  Dr.  P.S.  Ghalaut  

(Respondent No. 4) joined Haryana Medical Education Service  

as  Lecturer  in  1981.   The  appellant  is  said  to  have  been  

confirmed as Lecturer in the Department of Medicine on July  

12, 1984 while respondent No. 4 was confirmed as Lecturer on  

July 26, 1984.   The issue concerning inter-se seniority between  

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appellant and respondent No. 4 as Lecturer reached this Court  

in  C.A.  No.7608/95,   P.S.  Ghalaut  V.  State  of  Haryana  and  

Others, (1995) 5 SCC 625, and this Court vide judgment dated  

August  3,  1995  held  that  the  appellant  was  senior  to  

respondent  No.  4  as  Lecturer.   The  appellant  as  well  as  

respondent No. 4 after they were allowed to cross 1st efficiency  

bar  and  on  the  fulfillment  of  the  requisite  qualifications  and  

experience  were  re-designated  as  Reader  and  upon  their  

crossing 2nd efficiency bar  and fulfilling the qualifications and  

experience for the post of Associate Professor, they were re-

designated  as  Associate  Professor.     The  Appellant  was  

appointed and designated as Reader with effect from June 26,  

1986 and Associate Professor with effect from June 26, 1991  

while the respondent No. 4  was appointed and designated as  

Reader  with  effect  from September  11,  1986  and  Associate  

Professor with effect from September 11, 1991.  In view of the  

vacant posts obtaining then, the appellant was promoted as ad  

hoc Professor on August 6, 1993, while respondent No. 4 was  

promoted as Professor on ad hoc basis on December 23, 1993  

but  both  of  them  continued  to  hold  substantive  posts  of  

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Associate Professor.  The respondent No. 4, vide order dated  

July 19, 2006 was selected as Floating Professor under rule 10  

of the Rules.  The appellant as well as respondent No. 4 were  

promoted  as  Senior  Professor  (erstwhile  Professor)  

substantively  with effect from May 2, 2007.  It was clarified that  

their inter-se seniority shall be decided later on.  Ultimately, vide  

communication dated November 30, 2007 inter-se seniority of  

the  appellant  and  respondent  No.  4  to  the  post  of  Senior  

Professor  was  decided  by  the  Government  whereby  the  

appellant was accorded seniority over  respondent No. 4 and  

office order came to be issued on December 3, 2007.  

6. The  present  respondent  No.  4  challenged  the  

communication dated November 30, 2007 and the office order  

dated December 3, 2007 before the High Court of Punjab and  

Haryana.   As  noticed  above  the  High  Court  set  aside  the  

communication  dated  November  30,  2007  and  office  order  

dated December 3, 2007;  allowed the writ  petition and held  

that respondent No.4 would rank senior to the appellant to the  

post of Senior Professor.   

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7. In rule 2 (l), “Service” means the Haryana Medical  

Education Service.

Rule 2 (m) defines “teacher” thus :  

“teacher”  means  a  lecturer,  Reader  and  Associate  Professor including those when appointed as Floating  Professors under rule 10.”  

Rule 3 reads thus :

“The  Service  shall  comprise  the  posts  with  designation,  scales  of  pay  and  other  allowances  shown in Appendix A to these rules;

Provided that nothing in these rules shall affect  the  inherent  right  of  the  Government  to  make  additions to, or reduction in the number of such posts  or  to create new posts with different  designation or  scales of pay either permanently or temporarily.”

Rule 9, to the extent it is relevant, reads thus:  

“(1) Recruitment to any post in the Service shall  be  made as under :--

(a) ………………………………………….. (b) ………………………………………….  (c) ...........................................................  (d) …………………………………………. (e)     …………………………………………. (f)    in  the  case  of  Professors  (Medical/Non-

Medical) and Professors (Dental):--  

(i)   50%  by  promotion  from  amongst  the  teachers, and  

(ii) 50%  by direct recruitment, or by  transfer or  deputation  of  any  officer/official  already  in  the service of any State Government or the  Government of India.:

Provided  that  the  first  post   or  vacancy  of  a  Professor in each Department shall be filled in  

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by  direct  recruitment   and  the  second  by  promotion and so  on.

(g) in the case of Teachers (Medical/Non-Medical)  and  Teachers (Dental):--

(i) appointment  shall  be  made  on  the  post  of  Lecturer  only  by  direct  recruitment  and  if  no  suitable  person is available for appointment as  Lecturer  then  by  transfer  or  deputation  from  any State Government or Government of India  or any institution;

(ii) a lecturer  shall be re-designated as Reader  if  he  has  been  allowed  to  cross  1st  efficiency  bar  and  fulfils  the  qualifications  and experience for  the post  of Reader as  laid down in column 5 of Appendix  B;  

(iii) a  Reader  shall  be  re-designated   as  Associate  Professor  if   he  has  been  allowed to cross the 2nd efficiency  bar and  fulfils the qualifications and experience  for  the  post  of   Associate  Professor  as  laid  down in column 5 of Appendix B:

Provided  that  the  persons  holding  the  posts  of  Lecturer  or  Reader   on  the  commencement  of  these rules  shall be re-designated  as Reader  or  Associate  Professor   as  the  case  may be  if  he  fulfils  the  qualifications  and  experience   as  laid  down in column 5 of Appendix B and is otherwise  suitable for re-designation on the basis of record  irrespective  of the fact whether  he has crossed  the 1st or the 2nd  efficiency bar, as the case may  be;

2. Appointment by promotion  shall be  made on  the basis of seniority-cum-merit  and seniority  alone  shall  not  confer  any  right  to  such  promotion.”

Rule 10 makes provision for appointment as  

Floating Professors.  It reads as follows :

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“(1) The  posts  of  Floating  Professor  under  this  scheme shall be created subject to the maximum of 5  posts.

(2) Only  those  Associate  Professors  who  are  working  for  the  last  10  years  as  Associate  Professors shall be considered for the post of  Floating Professor.

(3) Promotion  to  the  post  of  Floating  Professor  under this scheme shall mean an upgradation  of  the  post  which  a  promotee  is  holding.  Hence the post will remain in abeyance till the  incumbent  is  adjusted against  the permanent  post or retires.

(4) The  person  shall  have  to  appear  before  the  Selection  Committee  constituted  for  deciding  his suitability for Floating Professorship.

(5) If the regular post of Professor falls vacant, the  Floating  Professor  shall  be  required  to  compete for the regular post.

(6) On  the  retirement,  adjustment,  selection  against  permanent  post,  the post  thus falling  vacant shall be filled in as per procedures laid  down above.

(7) As  it  is  an  upgradation  of  the  post  that  a  promotee is holding incumbent shall  continue  to perform the duties as heretofore.”  

Rule 13 provides for inter-se seniority of the  

members of service.  It reads thus :-

“Seniority,  inter se of members of the Service, shall  be determined by the length of continuous service on  any post in the service :

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Provided that where there are different categories of  posts in the service, the seniority shall be determined  separately for each category :

Provided  further  that  in  the  case  of  two  or  more  members appointed by direct recruitment, the order of  merit  determined  by  the  Commission  or  Selection  Committee  shall  not  be  disturbed  in  fixing  the  seniority.

Provided  further  that  in  the  case  of  two  or  more  members appointed on the same date, the seniority  shall be determined as follows :--

(a) a member appointed by direct recruitment shall  be senior to a member appointed by promotion or  by transfer ;  

(b) a  member  appointed  by  promotion  shall  be  senior to a member appointed by transfer ;  

(c) in the case of members appointed by promotion  or  by  transfer,  seniority  shall  be  determined  according to the seniority of such members in the  appointments from which they were promoted or  transferred ; and  

(d) in  the  case  of  members  appointed  by  transfer  from  different  cadres,  their  seniority  shall  be  determined  according  to  pay,  preference  being  given to  a  member  who was drawing a higher  rate of pay in his previous appointment; and if the  rates of pay drawn are also the same, then by  the length of  their  service in the appointments,  and if the length of such service is also the same,  older  member  shall  be  senior  to  the  younger  member.”  

8. Mr.  Aman  Lekhi,  learned  senior  counsel  for  the  

appellant submitted that the faculty, as per the Rules, has two  

cadres viz; ‘Teacher’ and ‘Professor’ (now designated as Senior  

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Professor in the amended Rules, 2007).  Section 2(m) defines  

‘Teacher’  which  means  Lecturers,  Readers,  Associate  

Professor  and  Floating  Professor  (now  called  Assistant  

Professor, Associate Professor and Professor) respectively and  

once  cadre  seniority  has  been  fixed,  the  same  cannot  be  

altered and therefore, the appellant having been held senior to  

the  respondent  No.  4  in  the  cadre  of  ‘Teacher’  and inter-se  

seniority in the cadre of  ‘Teacher’   having been settled right  

upto  this  Court,  the  appellant  was  rightly  made  senior  to  

respondent No. 4 by the Government on their promotion to the  

post  of  Senior  Professor.   He  submitted  that  High  Court  

seriously erred in holding that respondent No. 4 having been  

selected as a Floating Professor, he would  get seniority over  

the appellant when the post held by both of them is the same  

viz, ‘Teacher’.  Learned senior counsel would submit that sub-

rule (5) and (7) of rule 10 of the Rules cannot be disregarded  

while considering sub-rule (1) of rule 10 since the selection as  

Floating Professor keeps the selectee in the cadre of ‘Teacher’  

as  defined  in  rule  2(m)  of  the  Rules.   The  learned  senior  

counsel strenuously urged that High Court has mis-interpreted  

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and mis-construed the Rules.  

9. On the  other  hand,  Mr.  Bali  Ram Gupta,  learned  

senior counsel appearing for respondent No. 4 supported the  

view of the High Court.

10. It  is  true  that,  as  per  rule  3,  Haryana  Medical  

Education  Service  comprises  of  the  posts  with  designation,  

scales of pay and other allowances as shown in Appendix A to  

the Rules. It is also true that in appendix  A, no separate post of  

“Associate Professor” and “Floating Professor” are mentioned.  

However,   from  the  Rules,  it  is  apparent  that  “Associate  

Professor” and “Floating Professor” are different categories of  

posts in the service.  It is so because as per rule 10 only those  

Associate  Professors  who had  been  working  for  the  last  10  

years can be considered for selection to the post of Floating  

Professor.  Sub-rule (1) of rule 10 begins with the expression,  

“The post of Floating Professor” and provides that these posts  

shall  be  created  to  the  maximum  of  five  posts  under  the  

scheme as set out in the rule.  This gives an indication  that  

Floating  Professor  is a different  category  of post  in service.  

Sub-rule (3) of rule 10 provides that promotion to the post of  

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“Floating  Professor”  shall  mean  an  upgradation  of  the  post  

which a promotee is holding and by virtue of Sub-rule (7), the  

promotee  continues to  perform  the duties hitherto being done  

by  him.   As  per  sub-rule  (4),  the  suitability  for  Floating  

Professorship is to be decided by a Selection Committee and a  

candidate  has  to  appear  before  such  Committee.   Although  

appointed  as a Floating Professor,  if  the regular  post  of  the  

Professor  falls  vacant,  as per  sub-rule  (5),  he is  required  to  

compete for the regular post.   The survey of scheme contained  

in rule 10 leaves no manner of doubt that the Rules do provide  

for  the post  of  Floating Professor  and  that  it  is  a   different  

category  of  post.   As a  matter  of  fact,  rule  10 is  a special  

provision for appointment as Floating Professor.  The selection  

procedure  incorporates  adjudgment  of  suitability  for  Floating  

Professorship  by  the  selection  committee.   Moreover,  had  

Floating Professor been not a distinct category,   in rule 2(m)  

that defines “Teacher”, there would not have been mention of  

“Floating Professors”.   

11. In so far as rule 9 is concerned, it has no application  

for selection and appointment as Floating Professor.  The very  

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fact  that  there  is  a  statutory  provision  with  regard  to  the  

appointment as Floating Professor, no doubt is left that it is a  

separate  category  of  post,  more  so,  once  an  Associate  

Professor is selected and promoted as Floating Professor, he  

comes in a higher pay-scale.  In this view of the matter,  we  

hold, as it must be, that the Rules provide for appointment as  

Floating Professor and it is a separate category of post.   

12. Having held that, the question then arises whether  

High Court is justified in its view that the present  respondent  

No.  4  having  already  been  appointed  as  Floating  Professor  

must  rank  senior  to  the  appellant  to  the  post  of  Senior  

Professor.

13. On completion of ten years as Associate Professor,  

as  noticed  above,  the  candidature  of  respondent  No.  4  for  

appointment  as  Floating  Professor  was  considered;  he  

appeared  before  the  selection  committee  and  was  found  

suitable for Floating Professorship and was in fact appointed as  

Floating Professor on July 19, 2006.  The appellant had also  

completed ten years working as an Associate Professor but for  

the reasons best known to him, he did not choose to appear  

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before  the  selection  committee  and,  consequently,  he  

continued  on  the  substantive  post  of  Associate  Professor,  

albeit,  he was working on ad hoc basis as Professor.  It is true  

that  on  the  same  date  i.e.  May  2,  2007,  the  appellant  and  

respondent  No.  4  were  promoted  to  the  post  of  Senior  

Professor substantively but for the reasons indicated above, the  

appellant  could  not  have  been  accorded  seniority  over  

respondent No. 4 as respondent No. 4 was already selected  

and appointed as Floating Professor from amongst Associate  

Professors under rule 10 and was drawing higher pay-scale.  It  

would be travesty of justice and rather absurd if respondent No.  

4 who had already been appointed as Floating Professor and  

was  drawing  higher  pay-scale  than  the  appellant  before  his  

substantive promotion to the post of Senior Professor is made  

junior  to  the appellant  who was only  holding the substantive  

post  of  Associate  Professor  (re-designated  as  a  post  of  

Professor under amended Rules 2007) and was in the lower  

pay-scale on the date of promotion.

14. Moreover, since the appellant and respondent No. 4  

were  in  different  categories  of  posts  in  service  as  indicated  

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above,  as  per  Rule  13,  their  seniority  has to  be determined  

separately.  The High Court in this regard considered the matter  

thus:

 “The post of Floating Professor,  though is part  of  teacher  under  Rule  2(m)  of  the  Rules,  but  the  appointment  as  Floating  Professor  is  governed and  regulated  by  Rule  10  of  the  Rules.   Sub-Rule  (1)  contemplates maximum 5 posts of Floating Professor.  Still  further,  promotion  to  the  post  of  Floating  Professor means an upgradation of the posts which a  promotee  is  holding.   Hence,  the  post  held  by  the  Floating  Professor  is  to  remain  in  abeyance till  the  incumbent is adjusted against permanent post of the  lecturer  [refer  Sub-Rule  (3)].   Still  further,  the  candidate  has  to  appear  before  the  Selection  Committee  for  deciding  his  suitability  for  Floating  Professorship.  Thus, Floating Professor is a distinct  category  of  a  teacher  though  part  of  Service  as  teacher.   Floating  Professor  is  promoted  from  amongst  eligible  Associate  Professors  after  the  Selection  Committee  finds  him  suitable.   Rule  13  contemplates that  the Seniority  shall  be determined  by the length of continuous service on any post in the  Service.  It is further explained that where there are  different  categories  of  posts  in  the  Service,  the  seniority  shall  be  determined  separately  for  each  category, therefore, the post of Floating Professor is a  separate  category  than  that  of  Associate  Professor  and as such the seniority of Floating Professor has to  be  determined  separately  than  that  of  Associate  Professor (since amended to read as Floating Senior  Professor).

No doubt, it is correct that five posts of Floating  Professors  have  been  created  out  of  the  cadre  of  teachers  alone  and  such  Floating  Professors  carry  their posts with them but the number of posts or the  nature of promotion is not relevant for determining the  seniority.   The  seniority  has  to  be  determined  in  respect  of  each category  of  posts  in  Service.   The  petitioner  who  has  been  promoted  as  Floating  Professor in the pay-scale of Rs.16400-21800/- is in  

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separate  higher  category  than  the  Associate  Professor  (re-designated  as  Professor)  in  the  pay- scale of Rs.14300-18300/-.  Both categories of posts  are  not  in  the  same  category  and  therefore,  not  comparable.”

15. We find no legal infirmity in the consideration of the  

matter by the High Court.  The view of the High Court calls for  

no interference.   

16. In what we have discussed above, appeal must fail  

and is dismissed with no order as to costs.  

……………………J (Tarun Chatterjee)

…….……………..J         (R. M. Lodha)

New Delhi, November 13 , 2009.   

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