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PETITIONER: PROF.S.A. SIDDIQUI

       Vs.

RESPONDENT: PROF.M.WAJID KHAN  & ORS.

DATE OF JUDGMENT:       11/01/1999

BENCH: Sujata V.Manohar, G.B.Pattanaik

JUDGMENT:

Mrs.  Sujata V.  Manohar, J.

     The   appellant,  Prof.S.A.Siddiqui,   and  the  first respondent,  Prof.  M.Wajid Khan, are both Professors in the Botany  Department  of the Aligarh Muslim  University.   The dispute  pertains to seniority as between the appellant  and the  first  respondent.   The  appellant  was  appointed  as Lecturer  in the Aligarh Muslim University on 30th of April, 1965.  He became a Reader in the open post of Reader on 30th March,  1979 upon his selection by the selection  committee. He  was  subsequently  selected under  the  Merit  Promotion Scheme  for promotion to the post of Professor.  On 14th  of March,  1987,  he was promoted as Professor under the  Merit Promotion  Scheme.   The first respondent was  appointed  as Lecturer  much  later  on 2nd of April, 1973.  He  was  also promoted  as  Reader  much later under the  Merit  Promotion Scheme on 1.1.1983.  Thereafter he has been appointed to the open  post of Professor on 10.3.1992 on his selection by the selection committee.  Although the first respondent has been appointed  as  Professor much later than the  appellant,  he contends  that he alone is to be considered for the  purpose of  seniority  and  promotion since he holds the post  of  a Professor  on regular selection.  He contends that since the appellant   was  promoted  as   Professor  under  the  Merit Promotion  Scheme, he cannot be considered for seniority  or further  promotions.   It is the contention of  the  Aligarh Muslim  University  as well as the appellant that  both  the appellant  as well as the first respondent hold the post  of Professors  and  they  have been  throughout  considered  as Professors  and have been shown in the common seniority list of  all Professors.  From the year 1992 onwards, that is  to say  after the appointment of first respondent as Professor, in  the seniority list of Professors the appellant was shown as  senior to respondent no.1.  For the first time in  1995, the  first  respondent  challenged   the  placement  in  the seniority  list of the name of the appellant.  On  12.6.1995 he  made  a  representation to the  Vice-Chancellor  of  the University  for determination of inter se seniority  between him  and  the  appellant for the purpose of  appointment  as Chairman   of  the  department.    The  Vice-Chancellor   on 21.6.1995 appointed a sub-committee for the determination of the  issue  of  seniority  of   the  first  respondent.   On 22.2.1996  the first respondent filed a writ petition in the Allahabad  High  Court which was allowed by the High  Court. The  High  Court directed that separate seniority  lists  be

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prepared  and  the parties appointed under  Merit  Promotion Scheme be not appointed or continued as Chairman/Dean of any Department  or  Faculty  of the Aligarh  Muslim  University. Aggrieved  by  this  judgment and order, the  appellant  has filed the present appeal.

     In  1983 the University Grants Commission formulated a scheme  of Merit Promotion with a view "to give  recognition to  the outstanding work done by the University teachers and to   provide  for  reasonable   opportunities  to  them  for professional advancement".  It was so stated by the Chairman of  the University Grants Commission in letters addressed to the   Vice-Chancellors   of   various   Universities.    The University  Grants Commission felt that the Merit  Promotion Scheme  would  improve the overall morale of the  University teachers and would also minimise to some extent, demands for increasing  the number of senior positions during the  sixth plan  period in the Universities.  The following objectives, inter  alia, were stated by the University Grants Commission as forming the basis of the Merit Promotion Scheme:

     1.   The basic objectives of the scheme should be  (1) to  recognise  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 subjects/areas  concerned and (3) to provide for  reasonable opportunities for professional advancement to such teachers, who merit academic recognition, on a competitive basis.  The scheme  should, therefore, be appropriately named as  "Merit Promotion Scheme for University Teachers".  This would be in the   nature  of  a   "flexible  complementing  scheme",  no additional  posts would be created and the existing  persons on  the basis of critical assessment were to be promoted  to the next higher level and the position would be held by such incumbents  as  personal to them, no resulting  vacancy  was required  to be filled and no new posts were required to  be created.

     Detailed  guidelines were laid down by the  University Grants  Commission  for  the implementation of  the  scheme. There  was a ceiling on the number of positions which  could be held in a department on such merit promotion.

     The  Academic Council of the Aligarh Muslim University at  its meeting held on 15th of June, 1983 recommended  that the University Grants Commission’s Merit Promotion Scheme be accepted  with incorporation of the modifications  suggested by  the Vice-Chancellor of the said university in his letter of  31.5.1983,  namely,  (1)  the process  of  screening  by experts  preceding the Selection Committee be dispensed with in  the  interest  of  expedition, (2) there  should  be  no condition  of unanimity at the Selection Committee or  among the  experts  serving on it, and (3) the  University  Grants Commission  be  approached  to raise the  ceiling  of  33.3% whenever  this  should become necessary.  Pursuant  to  this recommendation  of  the  Academic   Council,  the  Executive Douncil  at  its meeting held on 18-20th of  February,  1984 approved  the above recommendation of the Academic  Council. The  Executive  Council also decided that if the  University Grants  Commission  accepts or announces any concessions  in its  scheme  to other Central Universities, including  Delhi University,  these will be applicable to the Aligarh  Muslim University also.

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     At  the said meeting of 18-20th of February, 1984  the Executive Council after approving the Merit Promotion Scheme of  1983 for the Aligarh Muslim University also resolved  in the  exercise  of its powers under Statute 30(1),  that  the inter  se  seniority  among (a) those who were  selected  to general  posts and (b) those promoted under Merit  Promotion Scheme  would  be determined subsequently.   Thereafter  the Executive  Council  in  the  exercise of  its  powers  under Statute  30  framed  regulations to determine the  inter  se seniority  amongst persons holding a regular post and  those holding  the  same  post under the Merit  Promotion  Scheme. This was done under its resolution dated June 18/19, 1988 as modified  at  its  meeting  of December  10/11,  1988.   The selection  of  those appointed to the general post  as  also those  appointed under Merit Promotion Scheme was to be made by  the  Selection Committee constituted under  Statute  27. The  rules for determining inter se seniority so framed  and modified are to the following effect:-

     (a)  The  seniority  of a  Professor/Reader  appointed under  the Merit Promotion scheme should be counted from the date  of  issue  of  order   relating  to  such  appointment notwithstanding   the   fact   that  he   has   been   given retrospective  appointment  from  an   earlier  date.   Such retrospective  appointment  should be deemed to be  for  the purpose  of  payment of salary and retirement benefits  etc. and not for the purpose of seniority.

     (b)  The  seniority  of  Professors/Readers  appointed against  the general posts should continue to be  determined in accordance with the principles laid down by the Executive Council  vide its resolution under item No.4 of its  meeting held on 18/19/20 February 1984.

     (c)  In case the date of issue of appointment order of a  Professor/Reader promoted under merit promotion scheme is the  same as the date of commencement of continuous approved service for a Professor/Reader appointed against the general post,  then  the  following  principles should  be  used  to determine the seniority.

     (i)  The  teacher who has longer continuous  temporary service  in the same grade, after selection by the Selection Committee  constituted  under  Statute 27, shall  be  ranked senior.

     (ii)  If the length of service mentioned in (i)  above is  equal  the  teacher who has rendered  longer  continuous approved  service  in the next lower grade/grades  shall  be ranked senior.

     (iii)  If  the length of service mentioned in (i)  and (ii)  above  is equal the one older in age shall  be  ranked senior."

     Thereafter  on the basis of the recommendations of the Academic  Council  made  vide  its  Resolution  No.44  dated 28/29.11.1988  the  Executive   Council  prescribed  certain regulations  at its meeting held on 10/11.12.1988 to  govern implementation  of the Merit Promotion Scheme subsequent  to the  adoption  of  revised  pay-scales of  teachers  in  the Aligarh  Muslim University, Aligarh.  Under the  regulations so  framed  also  it  was  specifically  provided  that  the

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principles    governing    inter      se    seniority     of Readers/Professors  appointed  under this  Scheme  vis-a-vis Readers/Professors  appointed against a general post as laid down  by  the  Executive  Council,  shall  apply.   Clearly, therefore,  seniority  between Readers/Professors  appointed under    the    Merit       Promotion    Scheme    vis-a-vis Readers/Professors appointed to general posts is governed by the  regulations  laid down by the Executive  Council.   The Executive  Council has treated all posts of Readers and  all posts   of  Professors  -  whichever   be  the   method   of appointment,  as  belonging  to  the   same  cadre  and  has prescribed  rules  for  inter se seniority  between  persons appointed  under  the  Merit Promotion  Scheme  and  persons appointed to general posts treating them as belonging to the same  cadre.   In fact, the question of inter  se  seniority would  arise only if all these persons belonged to the  same cadre.

     The  first  respondent  has, however,  contended  that under  the Aligarh Muslim University Act 40 of 1920 as  also under  the Statutes framed for the Aligarh Muslim University there  is  no provision for the posts of  Readers/Professors under  the Merit Promotion Scheme and hence persons  holding such  posts on Merit Promotion Scheme have to be  considered as  outside  the cadre.  This contention does not appear  to have any basis if one examines the Aligarh Muslim University Act  of 1920 and the relevant statutes.  Under Section  2(k) of the Aligarh Muslim University Act, "Teachers" are defined to  mean  Professors,  Readers,  Lecturers  and  such  other persons as may be appointed for imparting instruction in the University  or a Hall and are designated as teachers by  the Ordinances.    No   difference  based  on  the   method   of appointment  to  these  posts  has been  spelt  out  in  the definition.   Under  Section  5(7)  of   the  said  Act  the University  has  the  power   to  institute  Professorships, Readerships,  Lecturerships, and other teaching or  academic posts  required by the University and to appoint persons  to such  Professorships,  Readerships, Lecturerships and  other posts   and  determine  their   conditions  of  service   in accordance  with the Statutes.  Under Section 24 of the said Act  the Executive Council shall be the principal  executive body  of the University.  Its constitution and the terms  of office  of  its members and its powers and duties  shall  be prescribed  by the Statutes.  Under Section 25 the  Academic Council  shall  be  the  principal   academic  body  of  the University  and it shall, subject to the provisions of  this Act,  the  Statutes  and   the  Ordinances  co-ordinate  and exercise  general supervision over the academic policies  of the  University.   Section 27 deals with the power  to  make Statutes.   Under  the said section the Statutes may,  inter alia,  provide for the manner of appointment of teachers and other academic staff and their emoluments and the principles governing  seniority  of service of employees.   Section  31 gives  to  the authorities of the University  including  the Executive  Council power to make regulations consistent with the  Act,  the Statutes and the Ordinances providing,  inter alia, for all matters which by this Act, the Statutes or the Ordinances are to be prescribed by regulations.

     Under  Statute 17(2) of the Aligarh Muslim  University dealing  with powers and functions of the Executive  Council it is provided as follows:-

     "17(2)(i):  to appoint the Registrar, Finance Officer, Librarian,   Principals   of   Colleges   and   Institutions

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established  by the University and such Professors, Readers, Lecturers  and  other members of the teaching  and  academic staff  as  may  be necessary, on the recommendation  of  the Selection  Committee constituted for the purpose:   Provided that  no  action shall be taken by the Executive Council  in respect of the number, qualifications, emoluments, and other conditions  of service of teachers, without consideration of the recommendation of the Academic Council."

     The  Statute  27  deals with the constitution  of  the Selection  Committee  for  appointments   to  various  posts including the post of Professor and the post of Reader.  The composition  of  the Selection Committee is set out  against each post.  Under Statute 27(7) it is provided as follows:-

     "27(7):   Notwithstanding  anything contained  in  the foregoing  clauses  of  this  Statute  or  Statute  29,  the Executive  Council  may  invite a person  of  high  academic distinction  and professional attainment to accept a post of Professor in the University, on such terms and conditions as it  deems fit, and on the person agreeing to do so,  appoint him to the post."

     Under  Statute 29(2)(a) all appointments to  permanent posts  of  teachers in the University shall be made  by  the Executive  Council  on  the recommendation  of  a  Selection Committee  in the manner set out there.  Under Statute 30(1) it is provided as follows:-

     "30(1):   Whenever, in accordance with these Statutes, any  person  is  to  hold an office or be  a  member  of  an authority  of  the  University  by  rotation  according   to seniority,  such seniority shall be determined according  to the  length  of  continuous service of such  person  in  his grade,  and, in accordance with such other principles as the Executive Council may from time to time prescribe."

     Thus  under the Aligarh Muslim University Act of 1920, there is no specific provision laying down that appointments to  the  posts of Professors can only be made in a  specific manner  or by following a specific procedure.  Statute 27(7) gives an express power to the Executive Council to appoint a person  to  the post of Professor in the University on  such terms and conditions as it deems fit if the person possesses high  academic distinction and professional attainment.  The Executive  Council also has the power to appoint Professors, Readers, Lecturers and other members of the teaching and the academic  staff  on  the  recommendation  of  the  Selection Committee constituted for the purpose.  It has to act on the recommendation  of  the Academic Council in laying down  the number,  qualifications, emoluments and other conditions  of service  of  such  teachers.    The  Executive  Council  has accordingly  in exercise of its powers under Statutes 17 and 27  framed  regulations  for appointments to  the  posts  of Professors and Readers under the Merit Promotion Scheme.  It has  also  in exercise of its powers under Statute  30  laid down   rules  providing  for   inter  se  seniority  between Professors  appointed  under the Merit Promotion Scheme  and Professors appointed under the general scheme.  In doing so, the Executive Council has acted within its statutory powers. The  Aligarh  Muslim  University   has,  therefore,  rightly prepared seniority list of Professors in accordance with the

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regulations  framed  by the Executive Council in  which  the appellant is shown as senior to respondent no.1.

     The  first  respondent has relied upon a  decision  of this  Court in Dr.  Rashmi Srivastava v.  Vikram  University and Ors.  etc.  etc.  (1995 (3) SCC 653).  In that case this Court  considered  the  position   of  university   teachers promoted   under  the  Merit   Promotion  Scheme   vis-a-vis University  teachers  who were directly recruited  to  their posts.    After  examining  the   provisions  of  the   M.P. Vishwavidyalaya  Adhiniyam, 1973, the Court said that  under the  said Act, the only source of appointment was by  direct recruitment.  Hence direct recruits alone formed the regular cadre.   The merit promotees would, therefore, fall  outside the  cadre under the Madhya Pradesh Adhiniyam unless the Act was  amended  introducing Merit Promotion as  an  additional source  of  recruitment.  Ordinances and Statutes issued  by the  University  providing for promotion as a new source  of recruitment and determination of inter se seniority would be ultra  vires  the  Act and of no  effect.   The  provisions, however, of the Aligarh Muslim University Act of 1920 do not prescribe  that  direct  recruitment is the only  source  of recruitment  to the regular cadre of teachers in the Aligarh Muslim University.  The method of recruitment or appointment is not prescribed in the Act but is left to be formulated by the  Statutes  of the University.  The Statutes give to  the Executive  Council  the power of appointment even  otherwise than  by direct recruitment.  The Merit Promotion Scheme has been  adopted by the Aligarh Muslim University, on the basis of  the  recommendations made by the Academic Council  which have  been  accepted  by the Executive Council  as  provided under   Statute  17.   The   ratio,  therefore,  of   Rashmi Srivastava’s case (Supra) will not apply.

     In  the case of Dr.  Suman Agarwal v.   ViceChancellor and Ors.  (1996 (1) SCC 632), this Court considered the same question  of  a person directly recruited as a Reader and  a person  promoted  as  a  Reader under  the  Merit  Promotion Scheme.   The  Court rejected the contention that  a  Reader appointed  by  personal  promotion was not a member  of  the cadre of Readers, on the basis of the provisions of the U.P. State  Universities  Act, 1973.  Distinguishing the case  of Rashmi  Srivastava  (Supra) this Court said that  under  the Scheme  of  Section 31A(1) of the U.P.   State  Universities Act,  1973  read  with Statute 17.05-B and  Statute  11.12-B Clause 6, a personal promotee gets a berth through statutory force under Section 31A(1) and the post held by the promotee becomes  a  temporary  addition  to  the  sanctioned   cadre occupied  by  direct  recruits.  In the case of  a  personal promotion, so long as the candidate holds the post, the post remains  in the cadre.  It ceases with the cessation of  the service  of the holder of the post.  Nevertheless, the  post of a promotee is a temporary addition to the cadre strength. Rules  for  Inter  se seniority have also been  provided  as between direct recruits and merit promotees.  The Court said that the candidates from two streams fused into the relevant cadre of Professor or Reader.  The same is the position here looking  to the provisions of the Aligarh Muslim  University Act and the Statutes.

     In  the case of Dr.  Bal Krishna Agarwal v.  State  of U.P.   and  Ors.   (1995  (1)   SCC  614)  also  this  Court specifically  stated  that under the U.P.  State  University Act  1973 read with the relevant Statutes, as between direct appointees  and  persons promoted under the Merit  Promotion

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Scheme, inter se seniority was to be determined according to the  length of service in such cadre.  The Court, therefore, relied  on  a  specific  provision   in  the  Statute  which regulated the inter se seniority between direct recruits and merit  promotees.  This judgment has also been cited in  the case  of  Dr.  Suman Agarwal v.  Vice- chancellor  and  Ors. (Supra)  while distinguishing Dr.  Rashmi Srivastava’s  case (Supra).

     Looking  to the Aligarh Muslim University Act and  the relevant Statutes the appellant is, therefore, a part of the cadre  of Professors in the Aligarh Muslim University and is entitled  to  seniority  above the first respondent  in  the light  of the regulations for determining inter se seniority framed  by  the  Executive Council.  He is entitled  to  all consequential benefits.

     The  appeal  is accordingly allowed and  the  impugned judgment and order of the Allahabad High Court is set aside. There will, however, be no order as to costs.