Dr. H.P. Hajela Vs. N.S. Verma &
Ors [1986] INSC 103 (2 May 1986)
NATRAJAN, S. (J) NATRAJAN, S. (J) SEN, A.P.
(J)
CITATION: 1986 AIR 1638 1986 SCR (2) 967 1986
SCC (3) 292 1986 SCALE (1)1202
ACT:
University-Seniority of teachers - Kanpur
University old statutes/First Statutes, 11.34/18.10 and 18.16 - Affiliated
col1eges - Whether deputation service effects a break of service resulting in
loss of seniority.
HEADNOTE:
The appellant was granted extra-ordinary
leave on the request of the Government of India for being sent on a teaching
assignment to the University of Aden (South Yeman) on the express condition
that his lien on the post of Head of the Department of Zoology in a college
affiliated to the Kanpur University will be maintained and his seniority will
be protected. After having fulfilled the aforesaid teaching assignment and on
return to India, he sought to resume his post in the college. The first
respondent who was acting as the Head of the Department of Zoology in the
college refused to handover charge on the ground that he had attained seniority
over the appellant. The Principal also rejected the appellant's claim to
seniority. Thereafter, the appellant challenged the order of the Principal
before the Vice-Chancellor of Kanpur University on the ground that he had not
suffered a break in service and his seniority over the first respondent
remained intact all through his period of service on deputation. The
Vice-Chancellor upheld the appellant's claim and held that he was entitled to
his rightful place of seniority. The Chancellor, in appeal by the first
respondent, affirmed the order of the Vice- chancellor.
The first respondent filed a writ petition in
the High Court. A learned single Judge of the High Court held that in terms of
either the old Statutes or the First Statutes of the Kanpur University, the
appellant is not entitled to reckon the period of service at the University of
Aden for computing length of service in the DAV College and as such the
recognition of the seniority of the appellant over the first 968 respondent by
the Vice-Chancellor and the Chancellor in their respective orders cannot be
sustained.
Allowing the appeal, ^
HELD: l. The High Court has not properly
comprehended the Statutes. Because of the failure of the High Court to have
applied the appropriate provision in the Statutes, the period of service of the
appellant on deputation has been wrongly held to be non-includible in the total
length of service of the appellant. The Principal, as the Head of the
Institution, was undoubtedly competent to grant leave on loss to pay to the
appellant in order to enable him to take up a foreign assignment on deputation
basis. The period of leave granted to the appellant was utilised in holding
another position involving similar work and therefore, the appellant is
automatically entitled to the benefit of sub- clause (4) of old Statute 11.34.
[976 D; 978 G] 2.(i) & b-clause (1) of statute 11.34 of the Old Statutes
deals with the reckoning of seniority on the basis of the length of service in
one and the same college and in the same cadre and grade; sub-clause (2)
provides for the addition of service in another University or
associated/affiliated college etc. provided the University is situate in Uttar
Pradesh and the college is affiliated to or associated with one of the
Universities in the State;
sub-clause (3) excludes service in an
officiating capacity and grants recognition of temporary service only if it has
continuity with a subsequent permanent appointment; and lastly sub-clause (4) prescribes
for tacking on of leave period with the total length of service provided ; (1)
the period of leave has been spent in holding another position involving
similar work or (2) it was medical leave.[976 D-F] 2.(ii) The case of the
appellant would not fall under sub-clause(2) because his service in the
University of Aden will not constitute such kinds of services as are envisaged
in the sub-clause. However, sub-clause (4) would undoubtedly cover the case of
the appellant because he had been granted leave of absence on loss of pay for a
period of three years for rendering service in the University of Aden on
deputation basis. The word "unless during such leave another position 969
involving similar work was held" would squarely apply to the A period of leave
of the appellant. It is significant to note that the qualifying words
"University or College situated in Uttar Pradesh and the Colleges
affiliated to or associated with one of the Universities in the State"
occurring in sub-clause (2) are conspicuously absent in sub- clause (4). [976
F-G; 977 A-B] B 2.(iii) As there is no conflict between sub-clause (4) of
Statute 11.34 of the Old Statutes and any provision in the First Statutes,
there is no room or scope for invoking the overriding provision contained in
Statute 1.02(1) for denying the application of Old Statute 11.34(4) to the case
of the appellant. On the other hand, the appellant will be entitled to claim
the benefit of First Statute 18.16 which preserved "inter seniority of
teachers employed in the University from before the commencement of the
Statute."[977 C-D]
3. Sub-clause (2) and (4) of Old Statute
11.34 contemplate different situations and act in different fields. While
sub-clause (4) contemplates service rendered elsewhere during the period of
leave, sub-clause (2) does not contemplate any such service but contemplates
the service rendered elsewhere without taking leave from any institution.
proper exposition of the fields of operation of sub-clauses (2) and (4) of Old
Statute 11.34 will at once bring to light the merit in the contentions of the
appellant and the error that has been committed by the High Court.
Moreover, the provision contained in
sub-clause (4) of Old Statute 11.34 has not been disturbed in any manner by the
First Statutes and hence the appellant will be entitled to the benefit of this
provision, especially in terms of statute 18.16 of the First Statutes. [977
D-H; 978 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1477 of 1986.
From the Judgment and Order dated 20th May,
1985 of the Allahabad High Court in Writ Petition No. 3710 of 1985.
S.N. Kacker and R.B. Mehrotra for the
Appellant.
S.C. Birla for the Respondents.
The Judgment of the Court was delivered by
970 NATARAJAN, J. This appeal by special leave is directed against the order of
a learned Single Judge of the Allahabad High Court in Civil Misc. Writ Petition
No. 3710 of 1985 filed in the High Court by the first respondent herein. The
appeal lies within a narrow compass as the limited question for consideration
is whether the extraordinary leave granted to the appellant for the period
24.12.80 to 31.7.83 on the request of the Government of India for his being
posted on a teaching assignment in the University of Aden (South Yemen)
effected a break in service so as to deprive the appellant his seniority in the
Department of Zoology in the D.A.V. College, Kanpur.
The facts which are not in controversy, of
the case, are briefly as set out below.
On 1.9.49 the appellant was appointed as
Lecturer in Zoology in a substantive capacity in the D.A.V. College, Kanpur.
About six weeks' later i.e. On 12.9.49 the first respondent was also appointed
as a Lecturer in Zoology in the same college. In the year 1974 the appellant
was appointed as the Head of the Department of Zoology in the said College. On
24.12.80 the appellant was granted extraordinary leave on the request of the
Government of India for being sent on a teaching assignment to the University
of Aden (South Yemen) on the express condition that his lien on the post in the
College will be maintained and his seniority will be protected. On the basis of
such an arrangement the appellant fulfilled his teaching assignment at the
University of Aden and on return to India he sought to resume his post in the
College. The first respondent who was acting as the Head of the Department
refused to hand over charge on the ground he had attained seniority over the
appellant. It is relevant to mention here that the first respondent did not
also continuously serve the College but left its services and went to other
teaching institutions, and after stints of service therein, he rejoined the
Department of Zoology in the D.A.V. College, Kanpur. It would appear that the
first respondent went over on 21.1.78 as Principal of the D.A.V. College,
Dehradun and thereafter he went over as Principal of the D.B.S. College, Kanpur
and subsequently he came back to the D.A.V. College, Kanpur.
971 As the first respondent refused to hand
over charge of the Department, the appellant made a representation to the
Principal and sought his intervention. After considerable delay the Principal
refused to countenance the appellant's claim to seniority and sustained the
stand taken by the first respondent.
The appellant challenged the order of the
Principal before the Vice-Chancellor of Kanpur University. While contending
that he had not suffered a break in service and his seniority over the first
respondent has remained intact all through his period of service on deputation,
the appellant further contended that the first respondent had in fact suffered
break in service because of his spells of service at the D.A.V. College, Dehra
Dun and the D.B.S. College, Kanpur and as such the first respondent's claim of
continuous service was an untenable one. The Vice-Chancellor upheld the
appellant's claim that he had not suffered any break in service and by virtue
of his lien he was entitled to his rightful place of seniority. Aggrieved by
the order of the Vice-Chancellor, the first respondent preferred an appeal to
the Chancellor but the Chancellor affirmed the order of the Vice-Chancellor and
dismissed the appeal.
Thereafter the first respondent filed Civil
Misc. Writ Petition No. 3710 of 1985 under Article 226 of the Constitution
before the High Court of Allahabad. By the impugned order a learned Single
Judge of the High Court allowed the writ petition holding that in terms of
either the Old Statutes or the First Statutes of the Kanpur University the
appellant herein is not entitled to reckon the period of service at the
University of Aden for computing the length of service in the D.A.V. College
and as such the recognition of the seniority of the appellant over the first
respondent by the Vice-Chanceller and the Chancellors in their respective
orders cannot be sustained.
Accordingly the learned Judge has issued a
rule in favour of the first respondent and it is against that order this appeal
by special leave has been filed.
While presenting the case of the appellant
before us Shri S.N. Kacker, learned counsel did not press the alternative
contention of the appellant that the first 972 respondent had suffered break in
service in the D.A.V. College, Kanpur and as such he has no locus to claim
seniority. Consequently, the only ground on which the order of the High Court was
assailed is that the High Court was in error in holding that the deputation
service of the appellant has effected a break of service and as such he has
lost his original seniority in the Department of Zoology. As the High Court has
held that neither under the Old Statutes nor under the First Statutes of the
Kanpur University the appellant is entitled to tack on his service in the
University of Aden with his service in the D.A.V. College, Kanpur it is
necessary to advert to the relevant provisions in the two Statutes. However,
before such advertence, it will be relevant to refer to the letter of consent
issued to the appellant by the then Principal viz. Shri S.C. Srivastava of the
D.A.V. College, Kanpur as a condition precedent for his accepting the teaching
assignment abroad.
The letter, addressed to the Ministry of Home
Affairs, is worded as under :- "From :
Principal D.A.V. College, Kanpur, U.P. India.
To Ministry of Home Affairs, Department of
Personnel and Administrative Reforms, (Foreign Assignment Section) New Delhi.
Assignment of Indian Experts abroad Certified
that the appellant Dr. K.P. Hajela, Head of Zoology Department, D.A.V. College,
Kanpur, will be relieved for service abroad on foreign service terms in public
interest (i.e. retaining the applicant's lien and protecting his seniority
within thirty days of selection if need be. It is 973 further stated that the
applicant, Dr. Hajela, can be released for service abroad for a total period of
three years.
August 21, 1978. Sd/- S.C. Srivastava"
It may be seen from this letter that the appellant had been granted leave for a
period of three years and a specific undertaking had been given on behalf of
the College that the appellant's lien in the College will be retained and his
seniority also will be protected during his period of service abroad. It will
also be relevant to mention in this context itself that even now the present
Principal, who has declined to uphold the seniority of the appellant, has
conceded in his order dated September 1, 1983 that the appellant's lien has
been maintained. The relevant portion in the order is contained in para 6 and
reads as under :
"Dr. Hajela's lien has been maintained
on his post here in so far as he was granted extraordinary leave without pay
for the period of contract service abroad and that no appointment was made in
his place. Other claims are not admissible." No doubt the first respondent
and the present Principal of the College have taken the stand that the former
Principal had no authority to guarantee the appellant his lien in the
Department and his rank of seniority. The merit of this stand will be gone into
later but for the moment we would only like to point out that one part of the
undertaking given by the former Principal namely, retention of lien has been
conformed to and what is disputed is only the guarantee regarding the
protection of seniority.
Now coming to the Statutes the relevant one
in the Old Statutes is 11.34 and the one in the First Statutes is 18.10. They
are in the following terms:- Old Statutes:
"Seniority of teachers in Affiliated
Colleges :
11.34(1) Subject to the provisions of this
Statute the seniority of teachers in a particular college 974 shall be
determined by the length of service in that College in the same cadre and in
the same grade.
(2) The periods of service in another
University associated/affiliated college in the same or higher cadre and grade
shall also count towards seniority if the University of College is situated in
Uttar Pradesh and the College is affiliated to or associated with one of the
Universities in the State.
(3) Service in an officiating capacity shall
not be counted. Temporary service shall be counted only if it is in
continuation of a subsequent permanent appointment.
(4) The period of leave without pay shall not
be counted in calculating the seniority unless during such leave another
position involving similiar work was held or it was medical leave." First
Statutes "Seniority of Principals and Teachers of affiliated colleges.
18.10 The following rules shall be followed
in determining the seniority of Principals and other teachers of affiliated
colleges :
(a) the Principal shall be deemed senior to
other teachers in the College ;
(b) the Principal of a post-graduate college
shall be deemed senior to the Principal of a Degree College ;
(c) the seniority of Principals and teachers
of the affiliated colleges shall be determined by the length of continuous
service from the date of appointment in substantive capacity ;
975 (d) service in each capacity (for
example, as Principal or as a teacher), shall be counted from the date of
taking charge pursuant to substantive appointment ;
(e) service in a substantive capacity in
another University or another degree or post-graduate college whether affiliated
to or associated with the University or another University established by law
shall be added to his length of service." Another provision, which has not
been adverted to by the High Court, is also set out, as it has relevance : C
"18.16 : The statutes contained in this Chapter shall not affect the inter
seniority of teachers employed in this University from before the commencement
of these statutes".
In order to give operative force to the First
Statutes over the Old Statutes in the event of any conflict in the provisions
of the two Statutes a specific provisions has been made in Chapter I Section
50(1) 1.02(1) and it is worded as under :
"All existing Statutes and all such
Ordinances in force in the University, as are inconsistent with these Statutes
are to the extent of such inconsistency, hereby rescinded and shall forthwith
cease to have effect except as respects things done or omitted to be done
before the commencement of these Statutes".
The High Court has taken the view that there
is no inconsistency between Statute 11.34 of the Old Statutes and Statute 18.10
of the First Statutes and as such the seniority of the appellant should be
determined in accordance with Statute 11.34(2). As it is provided in sub-
clause (2) of Statute 11.34 that the periods of service in another University
or College would count for seniority only if the University or College is
situated in Uttar Pradesh and the College is affiliated to or associated with
one of the Universities in the State, it has been held that the appellant 976
cannot tack the period of his service in the University of Aden with his
service in the D.A.V. College for purposes of seniority. The High Court has
further held that even if the First Statutes are held applicable the appellant
will fare no better because under sub-clause (e) of Statute 18.10 it is only
the service rendered in a substantive capacity in another University or
affiliated or associated College in the University or another University
established by law that would count. As the University of Aden would not fall
within the definition of "University or another University established by
law" envisaged in the sub-clause the High Court has stated that any
service rendered in a foreign University has to be necessarily excluded while
computing the length of continuous service.
On a careful consideration of the matter we
find that the High Court has not properly comprehended the Statutes.
Taking up Statute 11.34 of the Old Statutes
it may be seen that sub-clause (1) deals with the reckoning of seniority on the
basis of the length of service in one and the same College and in the same
cadre and grade; sub-clause (2) provides for the addition of service in another
University or associated/ affiliated College etc. provided the University is
situate in Uttar Pradesh and the College is affiliated to or associated with
one of the Universities in the State; sub-clause (3) excludes service in an
officiating capacity and grants recognition of temporary service only if it has
continuity with a subsequent permanent appointment;
and lastly sub-clause (4) prescribes for
tacking on of leave period with the total length of service provided; (1) the
period of leave has been spent in holding another position involving similar
work or (2) it was medical leave.
Admittedly, the case of the appellant would
not fall under sub-clause (2) because his service in the University of Aden
will not constitute such kinds of services as are envisaged in the sub-clause.
However, sub-clause (4) would undoubtedly cover the case of the appellant
because he had been granted leave of absence on loss of pay for a period of
three years for rendering service in the University of Aden on deputation
basis. The words "unless during such leave another position involving
similar work was held" would squarely apply to the period of leave of the
appellant. It is significant to note that the qualifying words "University
or College situated in Uttar Pradesh and the 977 Colleges affiliated to or
associated with one of the Universities in the State" occurring in
sub-clause (2) are conspicuously absent in sub-clause (4). It is not the case
of the first respondent and for that matter there can be no such contention
also that the position held by the appellant in the University of Aden did not
involve the performance of work similar to the one he was performing in the
D.A.V. College, Kanpur. Unfortunately, this sub-clause which is the one
directly governing the case of the appellant has not been noticed by the High
Court. As there is no conflict between sub-clause (4) of Statute 11.34 of the
Old Statutes and any provision in the First Statutes there is no room or scope
for invoking the overriding provisions contained in Statute 1.02(1) for denying
the application of Old Statute 11.34(4) to the case of the appellant. On the
other hand the appellant will be entitled to claim the benefit of First Statute
18.16 which preserves "inter seniority of teachers employed in the
University from before the commencement of the Statutes- The High Court has
failed to notice that sub-clauses (2) and (4) of Old Statute 11.34 contemplate
different situations and act in different fields. The service contemplated
under sub-clause (2) is a distinctly different service and has no bearing with
the service rendered in the particular institution in which seniority is
claimed. Even so, a link is provided between the services rendered elsewhere
and the services rendered in the concerned University or College because of the
similarity of features in the two services and the integral connection between
the Universities situated in the State and the affiliation or association of
the Colleges with one or the other of the Universities in the State. On the
other hand the service contemplated under sub-clause (4) is the service
rendered elsewhere during leave period even while the teacher continues to be
on the rolls of the institution in which he has been rendering service. Thus
while sub-clause (4) contemplates service rendered elsewhere during the period
of leave, sub-clause (2) does not contemplate any such service but contemplates
the service rendered elsewhere without taking leave from any institution. A
proper exposition of the fields of operation of sub-clauses (2) and (4) of Old
Statute 11.34 will at once bring to light the merit in the contentions of the
appellant and the error that has been committed by the High Court. As we have
already stated the provision contained 978 in sub-clause (4) of Old Statute
11.34 has not been disturbed in any manner by the First Statutes and hence the appellant
will be entitled to the benefit of this provision, especially in terms of
Statute 18.16 of the First Statutes.
Because of the failure of the High Court to
have applied the appropriate provision in the Statutes, the period of service
of the appellant on deputation has been wrongly held to be non-includible in
the total length of service of the appellant and this has led to the denial of
the appellant's rightful seniority.
As the appellant's case falls squarely within
Old Statute 11.34(4) there is no need or necessity for resorting to the
provisions of the First Statutes for determining the appellant's claim of
seniority. It is not the case of the appellant that he had rendered service in
a substantive capacity in another University or another affiliated or
associated College established by law as contemplated by sub-clause (e) of
First Statute 18.10. On the other hand his claim is that he had all along
continued to be in the service of the D.A.V. College, Kanpur notwithstanding
his service on deputation in a foreign University because he had been granted
extraordinary leave on loss of pay with guaranteed lien and seniority of
service.
It was hesitantly contended by the counsel
for the first respondent that the former Principal of the D.A.V. College had no
authority to guarantee the appellant the lien on his post and his seniority
rights and that such powers vested only with the University. This contention
does not require examination because the Principal, as he Head of the
Institution, was undoubtedly competent to grant leave on loss of pay to the
appellant in order to enable him to take up a foreign assignment on deputation
basis. Once it is proved by the appellant that the period of leave was utilized
in holding another position involving similar work the appellant is
automatically entitled to the benefit of sub-clause (4) of Old Statute 11.34.
On account of this irrefutable position it is needless for us to consider
whether the Principal had acted within his powers or had exceeded his powers in
committing the College to confer rights of lien and seniority status to the
appellant when he was granted leave.
979 In the light of our conclusion the appeal
has to succeed. Accordingly it will stand allowed and the judgment of the Court
is set aside. The parties will, however, bear their respective costs.
M.L.A. Appeal allowed.
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