Suman Agarwal Vs. The Vice-Chancellor & Ors  INSC 758 (29 November 1995)
K.Ramaswamy, K.Hansaria B.L. (J) Majmudar S.B. (J)
1996 SCC (1) 632 JT 1995 (9) 238 1995 SCALE (7)320
O R D
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.
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 order came to be issued on May 24, 1995 in writ Petition No.10669/95. Thus
this appeal by special leave.
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.
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.
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.
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
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.
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
seen that Section 31-A reads thus:
"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
such qualifications, as may be prescribed, may be given personal promotion
respectively to the post of Reader or Professor, as the case may be.
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.
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:
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:
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
(11) is relevant in this case which reads as follows :
: 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." 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
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.
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:
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.
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:
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 recruited Readers and
Professors are recruited pursuant to the only source of appointment
contemplated by Section 49, that is by way of direct recruitment.
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
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
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
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, 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.
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.
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.
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.
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.
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
would continue until a regular incumbent takes charge as a Director.
appeal is accordingly disposed of. No costs.