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PETITIONER: DR. KM. SUMAN AGARWAL

       Vs.

RESPONDENT: THE VICE-CHANCELLOR & ORS.

DATE OF JUDGMENT29/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (1) 632        JT 1995 (9)   238  1995 SCALE  (7)320

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard  learned  counsel  on  both  sides.  The appellant was a direct recruit as a Reader and was appointed with effect  from July  1987 in  the Home Science Institute, Agra University.  The third respondent Dr. (Mrs.) Hiru Kumar was appointed  as a  Lecturer with  effect from July 6, 1968 and she was confirmed on May 13, 1969. She was promoted as a Reader  on  February  18,  1985  pursuant  to  the  personal promotion scheme.  On  appointment  as  Vice  Chancellor  of Bundelkhand University, Dr. Mrs. S.P. Ragquir proceeded on a long leave.  Consequently, the  post of  the Director became vacant. The question then arose as to who is to be nominated to  hold   that  post   temporarily  till  the  Director  is appointed. Dr.(Mrs.)  Hiru Kumar  claimed the  post, but the University  did  not  accede  to  that  request.  The  Vice- Chancellor, to  avoid controversy, had appointed a Committee headed by  Dr.S.V. Pandey  and the  appellant and  the third respondent as  the members, with effect from January 9,1995. Dr.(Mrs.) Hiru Kumar filed a writ petition in the High Court claiming that  she had  earlier officiated  as  Director  in leave vacancies  of the  erstwhile Director  viz.  Dr.(Mrs.) S.P.  Rahquir.   She  is  the  senior-mist  teacher  in  the Institute and  consequently, she is entitled to be appointed temporarily as Acting Director. Initially, the appellant was not impleaded  as party-respondent  to the writ petition. At her behest,  she was impleaded as a respondent. The Division Bench of  the High  Court  held  that  since  the  Executive Council had not approved of the appointment of the Committee by the  Vice-Chancellor, and Dr. (Mrs.) Hiru Kumar being the senior-most teacher  is entitled  to be temporarily kept in- charge of  the post of Director. In addition, the High Court also directed  to finalise  the appointment  to the  post of Professor within  one month from the date of the order. This

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order came  to be  issued on  May 24,  1995 in writ Petition No.10669/95. Thus this appeal by special leave.      Shri  Dhingra,   learned  counsel  for  the  appellant, contended that  the appellant  being a  direct  recruit,  by operation of  Sub-section (3)  of s.31(A)  of the U.P. State Universities Act.  1973 (for  short, ’the  Act’)  which  was brought into  force by  way of  an amendment,  the  post  of Reader is  reserved for  a direct recruit in accordance with the  provision   of  Section  31.  The  promotion  given  to Dr.(Mrs.) Hiru  Kumar as  a Reader  is one time promotion by operation of  para 11.12-B(6)  of the statutes. She is not a member of  the cadre  of Reader.  The appellant, having been appointed to  a substantive  vacancy in  the year 1987, is a member of the cadre while the third respondent was appointed as a  reader to  an  ex-cadre  post  by  Personal  Promotion Scheme, which is only personal to her. So she did not become part of  the regular  cadre.  Therefore,  she  cannot  claim seniority over  the appellant  for appointment  as Director. Thereby the  appellant alone is entitled to be considered as acting Director,  pending appointment  of the  Director. The contention has  been resisted by Shri Dhawan, learned senior counsel for the third respondent.      The question,  therefore, is,  whether the appellant is senior to  the respondent in the cadre as a Reader. The High Court has  left open  the intex  seniority and  directed the appropriate authority to consider the question of seniority. The approach  of the  High Court is not correct. Unless this is decided,  the question of consideration of the parties as acting Director cannot be solved. Clause (c) of Ordinance-4A reads as follows :-      "The Institute  shall  be  headed  by  a      Director who  shall  be  appointed  from      amongst the  permanent Professors of the      Institute".      Clause 4A(b)  of the  Ordinance Provides  that till the regular appointment  of a  Director, a Professor; and in the absence of  a Professor,  a Reader  of the Institute; and in the absence of a Reader, a Lecturer of the Institute, may be appointed as  Acting Director. The appointment of a Lecturer as Acting  Director will  terminate within two months of the appointment of  a permanent Reader and if a Reader as Acting Director will terminate within two months of the appointment of the  permanent Professor. Clause (c) provides that in the event of  casual vacancy  caused by  the Director  or Acting Director, being  on leave  other than  duty leave  or casual leave, the  next senior-most  teacher of the Institute shall discharge the  functions of  the Director,  unless otherwise decided by  the authority  competent to  sanction the leave, i.e., the  Vice-Chancellor or  the Executive  Council as the case may be.      In view  of the  above provisions, the question emerges as to whether the third respondent, Dr.(Mrs.) Hiru Kumar, is senior to  the appellant as a reader. She may be senior-most Lecturer. But  that does  not solve the problem unless inter se seniority  as Reader is determined since the appellant is not claiming  as a  Lecturer. The  inter se  seniority would depend upon the reading of the appropriate provisions of the Ordinance and the Statutes and the provisions of the Act.      It is seen that Section 31-A reads thus:      1.  "Notwithstanding   anything  to  the      contrary   contained    in   any   other      provisions of  this Act  a  Lecturer  or      Reader in  the University  substantively      appointed under  Section 31, who has put      in such  length of service and possesses

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    such   qualifications,    as   may    be      prescribed,  may   be   given   personal      promotion respectively  to the  post  of      Reader or Professor, as the case may be.      2.  Such  personal  promotion  shall  be      given  on   the  recommendation  of  the      Selection Committee,  constituted  under      clause (a)  of Section 31 in such manner      and subject to such conditions as may be      prescribed therein  and subject  to  the      condition  as   specified  therein.   3.      Nothing contained  in this section shall      effect the  posts of the Teachers of the      University  to   be  filled   by  direct      appointment  in   accordance  with   the      provisions of s.31."      Though the  appointment by  promotion to  the  post  of Reader or  Professor, as  the case  may be,  has been  given under  Section   31A(1),  their   promotion  does   not  get entrenched into  the cadre  of  the  direct  recruits  quota provided by  sub-section (3) of Section 31A. Sub-section (3) of Section  31A preserves to the direct recruits their quota of posts  in each cadre, i.e., Reader or Professor. However, that conclusion  does not  give satisfactory solution to the problem of  inter-se  seniority  unless  we  look  into  the statues. Statute 11.12-B provides thus:      "Notwithstanding   anything    to    the      contrary contained  in Statute  11.02 or      in  any  other  Statute,  the  following      categories of teachers of the University      shall be eligible for personal promotion      to the post of Readers or Professors, as      the case may be."      Thus, conditions  of eligibility have been provided for promotion to  the post of Reader and Professor with which we are not concerned in this case. Sub-clause (2) provides that the services  referred to  in  clause  (1)  must  have  been rendered on  an approved  post in a permanent capacity or ad hoc capacity  in the  University or  any other  universities enumerated in  clause (b).  Clause (6)  is relevant  for the purpose of this case which reads as follows:      "The benefit of personal promotion shall      be admissible to Lecturers for promotion      to the post of Reader only and Reader so      appointed  by  promotion  shall  not  be      entitled to  personal promotion  on  the      post of Professor."      In  other  words,  a  Lecturer  appointed  on  personal promotion to  the post  of Reader  will be eligible only for one time  promotion as  a Reader  and thereafter  as  Reader he\she has  no right  to claim  promotion  to  the  post  of Professor. However,  by operation of Clause (b), as a result of personal  promotion, there  shall be  no reduction in the workload of  the teacher of the University with which we are no concerned in this case. The work load of the Lecturer and Reader are  distinct and separate. On the facts of the case, it is not necessary to elaborate the same.      Clause (11)  is relevant  in this  case which  reads as follows :      "11(i) : The post of Reader or Professor      to which  personal  promotion  is  made,      shall be temporary addition to the cadre      of Professor  or Reader, as the case may      be, and  the post  shall stand abolished      on the incumbent ceasing to occupy it."

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    The personal promotion, though does not have any effect on the  post held  by the  direct recruit  by  operation  of clause 11(i),  the post  held by  the promotees  on personal promotion to  the cadre  of Reader or Professor, as the case may be,  will be  a temporary  addition to  the cadre of the Reader or  the Professor,  as the  case may  be, will  be  a temporary addition  to  the  cadre  of  the  Reader  or  the Professor, as the case may be. In other words, the temporary promotions so  long as  the candidate  continues to hold the post as  Reader or  Professor will  be in  addition  to  the sanctioned  strength  of  the  reader  or  Professor  direct recruit. The post held by a promotee is conterminus with the holder of  the post  ceasing to exit either on retirement or termination, removal,  dismissal etc.  In other  words, both the direct  recruits as  well as  the temporary  promotee on personal promotion would form part of the cadre as Reader or the Professor,  as the  case may  be. But  the  promotee  is ineligible to get a berth into the quota of direct recruits. He\she would  only be a temporary addition to the sanctioned quota to  which direct recruit alone is eligible to hold the post as a reader or Professor, as the case may be.      The question,  then, is  how would  inter se  seniority between direct  recruit  and  promotee  is  required  to  be determined. This  has specifically  been provided in Statute 17.05. Clause (b) is relevant which reads as follows:      "In the  same cadre,  inter-seniority of      teachers,    appointed    by    personal      promotion  or   by  direct  recruitment,      shall be  determined according to length      of continuous service in such cadre."      If a  teacher is  appointed as  a  Reader  by  personal promotion, his\her continuous length of service in the cadre of Reader  should be  determined and  the inter-se seniority should be  decided accordingly.  It is seen that admittedly, Dr. (Mrs.)  Hiru kumar  was promoted  on  regular  basis  by personal promotion  as a  Reader on February 18, 1985, while the appellant  was recruited as a direct recruit on July 19, 1987. Thereby  Dr.(Mrs.) Hiru  Kumar becomes  senior to  the appointment as a Reader.      Shri Dhingra, learned counsel for the appellant, placed strong reliance on the judgement of this Court in Dr. Rashmi Srivastava vs. Vikram University and Ors. [(1995) 3 SCC 653] to which  one of  us (Majumdar,  J.) was a member. That case was to  deal with  an appeal arising from the Madhya Pradesh Vishwavidyalaya Adhiniyam,  1973. Therein,  this  Court  has pointed  out   that  there   was  no  statutory  source  for appointment by  promotion on personal promotion scheme. This Court pointed  out the  distinguishing features  between the claims  of   the  direct  recruit  and  the  claims  of  the promotees, which  are relevant  in this  case,  and  are  as follows:      "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 promotions given      to them  are  purely  personal  and  the      posts to  which they are upgraded do not      survive their  service  career.  Such  a      promotee fills  up  no  vacancy  in  the      promotional  avenue  since  no  post  is      available  by  promotion.  The  directly

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    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 are      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      were 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.  Pay  scales  of      promotee  Professors   and  Readers  are      different  from   the  pay   scales   of      directly    recruited     Readers    and      professors and  Readers at  least  after      coming  into  operation  of  the  career      advancement scheme in 1987. The promotee      Reader 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. The workload      of   directly   recruited   Reader   and      Professor is different from the workload      of promotee Reader or Professor for who,      the workload  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. 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 criteria  for  their  promotion  are      entirely  distinct   and  different   as      envisaged by  the  guidelines  governing      the merit  promotion scheme. There is no      question or promotee Reader or Professor      being put on probation. There is further      no question  of confirming  them in  the      posts concerned  as they  do not  occupy      any post  as  such  in  the  promotional      avenue.  This   is  unlike   the  direct      recruits".      In that  case, the  promotees did  not form part of the same cadre. On the other hand, they entered into the service under a  different scheme  which was  personal to  the  post which ceases  with the  retirement by the candidate. Though, in this  case, the  ceasation has  been  provided  for,  but operation of s.31A(1) reads with Statute 17.05-B and Statute 11.12-B, clause  (6) makes  all the  difference in the case. The personal  promotees get  berth through  statutory  force under s.31A(1)  and the  post held by the promotee becomes a temporary addition  to  the  sanctioned  cadre  occupied  by direct recruits.  Such a  provision was absent in the Rashmi Srivastava’s case.  On the  other hand, to avoid stagnation,

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the benefit  has been  provided for promotion under s.31A(1) of the  Act and it was termed as the "personal promotion" so long as  the candidate holds the post. The post remains with the candidate  and the post ceases with the ceasation of the service with  the retirement  of the holder of the post etc. Nonetheless, the  post of  promotees was  made as  temporary addition to  the cadre  strength and  the inter-se seniority has been  provided  between  the  direct  recruits  and  the promotees. The relative seniority of the candidates from two streams fused  into the  relevant cadre  as Professor or the Reader, as  the case  may be.  In the light of the statutory operation of  the provisions  referred to  hereinbefore, the conclusion reached by us is inevitable.      The view  expressed by  this Court  in Dr.  Bal Krishna Agarwal vs.  State of U.P. & ors. [(1995) 1 SCC 614] is also the same,  though no  reference expressly  was made  to  the above  statutes.   Therein  this   Court  in   para  14  had specifically stated  that under  the Statute,  as amended by notification dated 21.2.1985, it was laid down in clause (b) of Statute  18.05 that  in the same cadre inter se seniority of teachers  appointed by  personal promotion  or by  direct recruit shall  be determined  according to length of service in such  cadre. In  that case,  Dr. Bal  Krishna Agarwal was appointed  substantively   on  November   9,   1984,   while respondents 4  and 5,  though appointed  earlier, but as the statute came  into effect  from February  21,  1985,  became members of  the service  as a Professors w.e.f. February 21, 1985. Therefore, this Court held that though the respondents were promoted  earlier to  Bal Krishna  Agarwal, they became junior to  him in  the cadre as Professors since Bal Krishna Agarwal was a direct recruit w.e.f. November 9, 1984. In Dr. Rashmi’s case,  statutory source  of recruitment was absent. In Dr. Rashmi’s case this Court observed that in the absence of similar  provision like  Section 31A  of the U.P. Act, as was considered in Dr. Bal Krishna Agarwal vs. State of U.P., no post  could have  been created  for promotion  by way  of extension of  the cadre  of the Readers or Professor, as the case may  be. In  the absence  of statutory provision in the Act, Section  6 by  itself could not be of any assistance to the appellant therein. Thus, this Court had pointed out that there is  a specific  provision in  the Act  to regulate the inter se  seniority which  was not available in Dr. Rashmi’s case.      Thus, we  hold that  in the  cadre of Reader, Dr. (Mrs. Hiru Kumar  is senior  to the  appellant, but whether she is entitled  to  regular  promotion  as  Professor  or  she  is entitled to  the post  of Director  on regular  basis  would depend upon  the filling  up the  post of a Professor. Since the High  Court has already directed to consider the case of the candidates  for appointment as a Professor, we reiterate that  the   University  should  determine  and  appoint  the eligible candidate  as a Professor as expeditiously possible within 6  weeks from  the  date  of  receiving  this  order. Consequential thereto,  appointment on  regular basis to the post of  Director should  be made.  We are informed that Dr. (Mrs.) Hiru  Kumar has  already been made incharge Director. She would continue until a regular incumbent takes charge as a Director.      The appeal is accordingly disposed of. No costs.