Dr. Rashmi
Srivastava Vs. Vikram University & Ors [1995] INSC 229 (20 April 1995)
Majmudar
S.B. (J) Majmudar S.B. (J) Sawant, P.B. Majmudar, J.:
CITATION:
1995 AIR 1694 1995 SCC (3) 653 JT 1995 (4) 51 1995 SCALE (2)871
ACT:
HEAD NOTE:
1.
These two civil appeals arise out of a common judgment rendered by the High
Court of Madhya Pradesh, Indore Bench on 23rd February, 1994. The High Court allowed two writ
petitions against Vikram University and other contesting respondents. The contesting
respondents after obtaining special leave to appeal fro this court have
challenged the said common judgment of the High Court in these civil appeals.
2. A
common question is involved in these appeals, namely, whether the University teachers
who have been given merit promotion as Readers or Professors, as the case may
be, can claim seniority over directly recruited Readers and Professors on the
ground of continuous officiation in service as Readers or Professors. The High
Court has taken the view that they are not entitled to claim such seniority and
has accordingly allowed the writ petitions moved by the directly appointed
Readers and Professors. The appellants before us are the promotee Readers and
Professors under the merit promotion scheme.
Factual
backdrop:
3. In
order to appreciate the grievance voiced by the appellants, it is necessary to
have a look at the relevant introductory facts leading to these proceedings.
1.
Civil Appeal No.6001/94:
4.
This appeal is moved by the appellant who was earlier working as Lecturer in
the Department of Political Science in Vikram University, Ujjain. The said university, its Registrar and the Kulpati are
respondents 1 to 3 in the appeal. A merit promotion scheme was formulated by
the university Grants Commission (hereinafter referred to as 'Commission')
which has been joined as respondent no. 5 in this appeal pursuant to notice
issued by this court. The said scheme was promulgated in the year 1982. We will
refer to the details of the said scheme in the latter part of this judgment. It
is sufficient to say at this stage that the scheme was to provide opportunities
for professional advancement of teachers working in the University and who
merit academic recognition. Such teachers were to be given promotion on merits an
not on the basis of seniority.
5.Under
the said scheme the appellant was promoted to the post of Reader on 29th June, 1985. Respondent no.4 in this appeal who
was the writ petitioner before the High Court in M.P.No.208/89 was appointed as
Reader in the Department of Political Science as direct recruit. He was so
appointed on 13th
March, 1986. He was
confirmed after a period of two years' probation. The respondent no. 1
university published seniority lists in the year November, 1986;
November,
1987 and the latest list in November, 1988 where under the appellant was shown
as senior to respondent no.4. The appellant was placed at serial no. 14 while
respondent no.4 was placed at serial no.33. That was presum- ably because the
appellant worked as promotee reader from 29.6.1985 while respondent no.4 became
reader by direct re- cruitment later on 13th March, 1986. Respondent no.4 being aggrieved by
the said placement in the seniority list filed the aforesaid writ petition in
the High Court of Madhya Pradesh at Indore on 17th January,
1989. The respondent
no.4 prayed the the name of the appellant be deleted from the seniority list of
Readers and also from the Board of Studies in Political Science and respondent
no. 1 be directed to determine the seniority of Readers in accordance with
Statute No. 16 and to give due seniority to the 4th respondent in the cadre of
Readers. This petition was contested by the university as well as the appellant.As
noted earlier the High Court accepted the case of respondent no.4 writ
petitions and allowed the writ petition.
II.
Facts leading to Civil Appeal No.6002/94:
6. The
respondent no.4 in this appeal was the original writ petitioner before the High
Court. He was appointed as Professor in Physics Department as direct recruit by
respondent no. 1 Vikram University, Ujjain. Ills appointment was confirmed after a period of 2 years' probation on
28th March, 1988. The present appellants who were
respondents no.4,5,8 & 9 in the said writ petition before the High Court
and also original respondents 6 & 7 before the High Court who are
respondents 5 & 6 in this appeal were all promoted under the merit
promotion scheme formulated by the Commission as Professors in the School of
Studies, Vikram University in various subjects. They were promoted on 12th March,
1986. As they were promoted a day earlier than the date on which respondent
no.4 original writ petitioner respondent no.4 was appointed as direct recruit
Professor in Physics Department, the appellants and respondents 5 & 6 were
shown as senior to original writ petitioner. The seniority lists published by
respondent no.
1
university in the years 1987 & 1988 reflected this position. Even in the
later seniority list of 1989 the appellants were shown at serial no. 16, 18
& 20 in the se- niority list while the original writ petitioner was shown
at serial no.22.
7.
That brought respondent no.4 to the High Court by way of writ petition no.
1180/89. He challenged the seniority list on diverse grounds and prayed for the
reliefs as under:- 1 . That the names of the present appellants and respondents
5 & 6 be deleted from the seniority list of Professors and also appointment
of appellant no. 1 be quashed.
2.
That the respondent no. 1 be directed to determine the seniority of Professors
in accordance with the Statute no. 16 and to give due seniority to re- 60 spondent
no.4 (original writ petitioner) in the cadre of Professors.
8.
This petition was opposed by respondent no. 1 university and the contesting
respondents. Respondent nos.2 & 3, the Commission and the State of Madhya Pradesh were also joined in the writ
petition. They also contested these proceedings.
9. As
noted earlier the aforesaid writ petitions raised a common question. They were
heard together by the Division Bench of Madhya Pradesh High Court. By its
common judgment this writ petition was also allowed and that is how the
appellants who were promotee Professors under the merit promotion scheme have
file this appeal. As both these appeals raise common questions of law and
facts, the were heard together and are being dispose of by this common
judgment. In civil appeal no.6001/94 Professors working in various departments
of University of Delhi have been joined as respondents 6 to 4 and 53 to 61 in the
light of an interlocutory application which was granted. Similarly the
Professors working in the different departments in the University College of
Medical Sciences, Delhi have also been joined as
respondents 45 to 52 at their request. While respondent nos.62 to 90 are also
permitted to be joined at their request in this appeal. They are Professors
working in different schools of studies and sciences in this city.
10. In
civil appeal no-6002/94 are joined additional respondents 1 to 19 out of whom
additional respondents 1 to 3 are Professors working in Devi Ahilaya
University, Indore while additional respondent 4 to 19 arc working as Readers
in Dr.H.S.Gaur University, Sagar and one additional respondent Dr. S. Sivaraman
is a Professor in Dr. H.S. Gaur University, Sagar. All these additional
respondents are permitted to be joined as respondents at their request pursuant
to interlocutory application numbers 2,3&4 moved by them and granted by the
order dated 9.9.94. In addition to that there is I.A. no.5/95 in civil appeal
no.6002/94 by which five applicants, working as Professors in various
departments of Jamia Millia Islamia University, New Delhi have also sought to
be joined as respondents. The said application is treated to have been allowed
and they will also be treated as additional respondents in this appeal.
III.
Statutory Provisions;
11.
Before we deal with the main question posed for our consideration, it will be
profitable to have a look at the relevant statutory provisions governing the
proceedings and the impact of the merit promotion scheme promulgated by the
Commission which has brought the appellants in the arena of contest.
12.
Respondent no. 1 university is governed by the Madhya Pradesh Vishwavidyalaya Adhiniyam,
1973. English translation thereof was furnished by learned counsel for the
appellants. It is not in dispute that the various universities functioning in
the State of Madhya
Pradesh arc governed
by the said Adhiniyam. Respondent no. 1 university is functioning at Ujjain, while Shivaji University is located at Gwallor. Sagar university to which some of
the newly added respondents belong is situated at Sagar town of Madhya Pradesh.
13. We
may at this stage usefully refer 61 to the relevant provisions of the Adhiniyam
which have a bearing on the controversy before us. Clause (iv) of Section 4
defines an employee to mean any person appointed by the university and includes
teachers and other staff of the university. Clause (v) defines Executive
Council to mean Executive Council of the university. Clause (ix) deals with
statutes, ordinances and regulations of the university, as the case may be,
enforced for the time being. Clause (xviii) defines University Grants
Commission to mean the Commission established under the University Grants
Commission Act, 1956. Clause (xx) defines teachers of the university to mean
Professors, Readers, Lecturers and such other persons as have been appointed
for imparting education and conducting research with the approval of the
Academic Council in the University or any College or any institution maintained
by the University. Section 6 deals with powers of the university. Clause (15)
of Section 6 empowers the university to institute Professorships, Readerships,
Lectureships and any other academic or teaching posts required by the
University and to appoint persons to such posts in accordance with the
provisions of the Act. Clause (3 1) of Section 6 deals with the power of the
university to exercise control over the salaried officers, teachers and other
employees of the University in accordance with the Statutes and the Ordinances.
Section 19 deals with the authorities of the University which include amongst
others Executive Council, Board of Studies, Academic Planning and Evaluation
Board. Section 23 deals with the Executive Council. Its powers and duties are
prescribed by Section
24.
Clause (xx) of section 24 deals with the power of the executive Council to
institute such Professorships, Readerships, Lectureships or other teaching
posts as may be proposed by the Academic Planning and Evaluation Board. It is
subject to the proviso that no teaching post shall be instituted without the
prior approval of the Madhya Pradesh Uchcha Shiksha Anudan Ayog. Clause (xxxii)
of Section 24 deals with the power of the Executive Council, save as otherwise
provided by this Act, or the Statutes to appoint the officers other that the Kulpati,
teachers and other employees of the University, to define their duties and the
conditions of their service, and to provide for the filling of temporary
vacancies in their posts. Clause (xiii), (xiiii) and (xiiv) of Section 24 refer
to the powers of the Executive Council to entertain, adjudicate upon and if
deemed fit to redress grievances of the employees and the students, to exercise
such other powers and perform such other duties as may be conferred or imposed
on it by or under this Act and to exercise all powers of the University not
otherwise provided for in this Act or the Statutes and all other powers which
are requisite to give effect to the provisions of this Act or the Statutes.
Section 27 deals with various faculties of the University in which teaching can
be imparted to the students. Section 28 deals with Board of Studies. Section 34
deals with Coordination Committee. Sub-section (iv) of Section 34 deals with
powers and discharging of the functions by the Coordination Committee. Amongst
others is found clause (v) which deals with consideration of matters of common
interest to all or some of the Universities. Section 35 deals with Statutes.
Clause
(1) provides for framing statutes regarding qualifications of Professors,
Readers, Lecturers and other teachers in affiliated colleges and recognised
institutions.
Clause
(o) deals with the mode of determining seniority for the purpose of the Act.
62
Section 37 deals with Ordinances and states that subject to the provisions of
the Act the Ordinances may provide for all or any of the matters listed in the
section. At item 15 is found the topic of the duties, qualifications and
conditions of appointment including pay scales of the teachers paid by the university.
14.
Chapter IX of the Act deals with appointment of teaching post in the
university. Section 49 is relevant for our present purpose. It is useful to
extract it in extension.
"CHAPTER
IX APPOINTMENT TO TEACHING POSTS IN THE UNIVERSITY
49.
(1) No person shall be appointed:
(i) as
a Professor, Reader, Lecturer; or (ii) to any other teaching post of the
University paid by the University except on the recommendation of a committee
of selection constituted in accordance with sub-section(2):
Provided
that if appointment to any of the teaching posts aforesaid is not expected to
continue for more than six months and cannot be delayed without detriment to
the interest of the department or institution maintained by the University, the
Executive Council may make such appointment without obtaining the recom- mendation
of the committee of selection constituted under subsection (2) but the person
so appointed, shall not be retained on the same post for a period exceeding six
months or appointed to another post in the service of the University except on
the recommendation of the said committee of selection.' Provided further that
any such appointment purported to have been made under the proceeding proviso
prior to the 13th day of February 1974 and continuing on such date shall
continue till the 30th day of June, 1974 or the filling up of the post in
accordance with sub-section (5), whichever is earlier.
(2)
The members of the committee of selection shall be:
(i) the
Kulapati Chairman.
(ii) omitted.
(ii) omitted.
(iii)one
expert in the subject, not corrected with the University in any manner
whatsoever to be nominated by the Academic Council.
(iv)
Three experts, not connected with the University in any manner whatsoever
nominated by the Kuladhipati.
(v) the
Chairman of the Ayog or a member of the Ayog nominated by him.
(3)
Omitted.
(4)
The committee shall investigate the merits of the various candidates, and shall
recommend to the Executive Council the names, if any, of persons whom it
considers suitable for the posts, arranged in order of merit-.
Provided
that no recommendation shall be made unless atleast three out of the experts
nominated under clause (iii) and (iv) of sub- section (2) an present in the
meeting in which such recommendation is to be decided upon.
(5)
Out of the names so recommended under subsection (4) the Executive Council
shall appoint persons in order of 63 merit .
15.
Section 63 deals with classification of teachers. Sub- section(i) of Section 63
provides for Professors and Readers who are said to be teachers appointed by
the Executive Council on the scales of pay not lower than that approved for
Professors and Readers by the Commission and accepted by the State Government
and when the scale of pay approved by the Commission is higher than that
approved by the' State Government in this behalf then on the scale of pay as
approved by the State Government. Section 64 deals with terms of office of
members of authority of the university.
Sub-section(1)
of Section 64 lays down that wherever in ac- cordance with this Act, any person
is to hold an office or to be a member of any authority by rotation according
to seniority such seniority in the absence of any provisions to the contrary in
the Act, shall be determined in accordance with the Statutes:
Provided
that till the Statutes are made the seniority in a particular cadre shall be
determined by the length of con- tinuous service in such a cadre and where the
length of continuous service of two or more persons in the same cadre is the
same, then 'Seniority' shall be determined by se- niority in age.
16.
Apart from the aforesaid relevant act provisions, Statute 16 and Ordinance no.4
have a direct bearing on the questions posed for our consideration. It is
therefore necessary to note them at this stage, Ordinance no.4 issued as Madhya
Pradesh Vishwavidyalaya First Ordinance 1973 is framed under Section 37 of the
Act. It deals with qualifications and conditions of appointment of the teachers
in the university teaching department and schools of studies. It is not in
dispute that the appellants and contesting respondents have the requisite
qualifications for being appointed as Readers or Professors as the case may be.
17.
Statute 16 deals with seniority of teachers of the university. It is framed
under Section 35(o) of the Act.
Clause
(ii) of Statute 16 lays down that the seniority of Professors and Readers in
college, Assistant Professors or Lecturers shall be in accordance with the
length of continuous service of such person in the cadre concerned (emphasis
applied) taken together with length of continuous service in the cadre which is
equivalent or superior to the cadre concerned. Our attention was also invited
to Ordinance no.4 as applicable to Jiwaji University, Gwalior.
Clause
12 of the said ordinance provides that teachers shall be eligible for merit
promotion scheme recommended by the Commission, New Delhi. The said clause with its subclauses deserves to be noted
in extensio. It reads as under:- " 12. The teachers of the University
shall be eligible for the merit promotion scheme recommended by the University
Grants Commission, New
Delhi.
(i)
Under this scheme, Lecturers and Readers who have completed 8 years of
continuous services in their respective cadres as on 31st December or any date
stipulated by the University of the Calender year in which the applications are
invited of which atleast four years are in the institution, can be considered.
Provided
that not more than one third of the total permanent position of lecturers and
readers within a University teach- 64 ing Department may hold such merit
promotions at higher level at any given time. While calculating the number of
positions for the purpose of this scheme, wherever more than point five (0.5)
fraction arises it may be rounded up as one (0.1). The readers holding such
promotion posts would not count for determining the total posts in the cadre of
readers for purpose of merit promotion to the post of Professors.
ii)
The promotion given to lecturers and readers under this scheme would be
personal to each individual and in the event of his/her retirement on leaving
the University, the post vacated would be the one from which he/she was
promoted.
iii)
The excess work toad of the teacher given merit promotion will be suitably ad- justed.
iv) No
advance increment shall be admissible to a teacher on promotion under this
scheme.
The
pay of the teachers promoted shall, however, be fixed in accordance with the
M.P.
Govt.
Rules.
v) The
following procedure shall be adopted for the merit promotion of Lecturers and
Readers under this scheme.
(a)
The Registrar will issue a notice or- dinarily in the month of November every
year.
(b)
The teachers desirous to be considered for merit promotion should present their
application in hexapulate on prescribed form along with three sets of their
Research Papers, Publications, Books, Reviews, Curriculum Development, Teaching
Aids, Innovation of teaching methods, equipments developed, etc. through their
Heads of the Department to the office of the Registrar latest by 31st December
of the year the applications are called for.
(c)
The Kulpati shall refer the applications together with the enclosures to the
two experts and obtain evaluation reports, which shall be kept confidential and
placed before the committee of selection constituted U/S 49 of Adhiniyam.
(d)
The Committee of selection constituted under section 49 of the Adhiniyam shall
make the recommendations after taking into consideration the evaluation
reports, of the experts obtained by the Kulapati. The final appointment shall
be made by the Executive Council as per provisions of section 49 of the Adhiniyam.
(e)
The teachers who have been considered and not selected for merit promotion in
the initial presentation, shall be allowed to submit his/her work only after a
lapse of two years." 18.Our attention was also invited to the principles
for determining seniority of teachers as laid down by Jawaharlal Nehru
University, New Delhi. Principle no. 1 as laid down in the resolution of the
said university reads as under:- "Subject to the provisions contained in
the following clauses, the seniority of teachers appointed under Statute 27 or
28 or promoted under the merit promotion scheme shall be determined from the
date of their appointment (joining) or promotion to the post:
(i)
Provided that if the date of appoint- ment, promotion of two or more teachers
is the same, their seniority shall be determined:
(a) in
the case of Assistant Professors, on the basis of the order of merit
recommended by the selection committee, and
(b) in
the case of Professors and Associate Professors, on the basis of their length
65 of continuous service in the University in the lower post of Associate
Professors or Assistant Professors, as the case may be;
(ii)provided
further that if both the date of appointment/ promotion and the length of
service in the lower post happen to be the same, the seniority in age shall be
given priority." 19.Now is time for us to refer to the relevant provisions
of the University Grants Commission Act, 1956 under which the Commission
respondent in both these appeals is constituted.
The
Commission Act is enacted to make provisions for the co- ordination and
determination of standards in universities.
The
Commission is established under Section 4 of the Act.
As per
Section 12 it is the general duty of the Commission to take in consultation
with the universities or other bodies concerned, all such steps as it may think
fit for the promotion and coordination of University education and for the determination
and maintenance of standards of teaching, examination and research in
Universities, and for the purpose of performing its functions under the Act.
The Commission may inquire into the financial needs of Universi- ties and
allocate and disburse out of the Fund of the Commission, grants to Universities
established or incorporated by or under a Central Act for the maintenance and
development of such Universities or for any other general or specified purpose.
20.In
exercise of its powers under the Act the Commission by its communication dated
23rd November, 1982 recommended implementation of merit promotion scheme for
University appointed teachers in the Universities and by a later com- munication
dated 31st December, 1982 recommended a similar scheme for College appointed
teachers. The Commission agreed to grant Rs.600 per annum for each person
promoted in accordance with the guidelines circulated with the said com- munication.
This contribution was to be made by the Commission for the remaining period of
the Sixth Five Year Plan after which the expenditure involved under the scheme
was to be undertaken as committed expenditure by the University or the College
concerned from its own resource or with the assistance of grants-in-aid from
the State as the case may be. The guidelines accompanying said communications
referred in their preamble to the role of teachers as being very crucial in the
maintenance of academic standards and discipline in educational institutions,
That great responsibility lies on the teacher to ensure that appropriate
academic atmosphere is maintained in the institution and all academic work is
carried out efficiently and with devotion as a full time employee of the
institution. With a view to providing reasonable opportunities to teachers for
career advancement and recognition the merit promotion scheme was suggested.
The basic objective of the merit promotion scheme were to be as under:
1. The
basic objectives of the scheme should be (1) to recognize 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 subject areas
concerned and (3) to provide for reasonable opportunities for professional
advancement to such teachers, who merit aca- 66 demic recognition, on a
competitive basis.
The
scheme therefore may be appropriately named as "Merit Promotion Scheme for
Uni- versity Teachers." This would be in the nature of a "flexible
complementing scheme" wherein no additional posts are created, and the ex-
isting persons on the basis of critical assessment are promoted to the next
higher level and the position is held by such incumbents as personal to them,
and no resultant vacancy is required to be filled.
Such a
Scheme would considerably encourage the teachers to engage in advanced teaching
and research and make distinct contributions which would merit recognition and
promotion.
21.
For implementing the said scheme a method was suggested to the effect that the
teachers in the University Departments engaged in advanced teaching and
research and whose contribution and achievements are such as to merit
recognition were to be considered for merit promotion in the first instance
after completing 8 years of service in the respective cadre of which atleast
four years should be in the institution where he or she is being considered for
such assessment and merit promotion. Any teacher who was considered and not
selected for merit promotion in the initial presentation could submit his work
after the lapse of two years. The work of the concerned teacher including
research publication, book review, curriculum development, teaching aids, etc.
was to be presented by individual to two referees in the subject discipline
concerned. Referees were to be selected by a panel of names set up according to
the procedure prescribed by the university for Selection Committee. Merit
promotion be given by the appointing authority to a teacher only on
recommendation of the Selection Committee duly constituted after it has given
due consideration to the opinion of the referees. There should be at least two
outside experts on the Selection Committee in the case of promotion to readers
and outside experts for promotion to professors in these cases. As per clause
(f) of the method of implementation the post of reader given to a Lecturer or
the position of a professor given to a Reader through merit promotion would be
personal to the incumbent concerned and the main criteria for promotion under
the scheme would be the merit of the work and not the seniority of the
teachers. As per guideline no.(3) not more than 1/3rd of the number of total
permanent position of lecturers or readers within a department may hold such
merit promotions at next higher level at any given time. The persons holding
such merit promotion would not count for determining the total posts in the
cadre of readers for the purpose of merit promotion to professors. As per
guideline no.6 while making selections for such promotions it is not expected
that the Selection Committee would recommend any advance increment nor it is
expected that any rules for pay fixation on promotion/selection to higher posts
are applied to provide for increment. Only marginal adjustment would be
required to be made within the new scale, nearest to the salary already drawn
by the promotee.
22.
The said merit promotion scheme as recommended by the Commission is said to
have been accepted by all the statutory universities functioning in the
country. So far as respondent no.1 university is con- cerned Govt. of Madhya
Pradesh, Deptt. of Higher Education by order dated 13th March, 1984 sanctioned
implementation of the merit promotion scheme for university teachers referred
to in the letter of 23rd November, 1982 of the Commission, New Delhi from academic
session 1983-84. It was mentioned therein that expenditure incurred on this
scheme will be borne by the university upto 31st March, 1985. Commitment was
given by the State that the State Govt. will incur the expenditure on the
scheme afterwards from 1st April, 1985.
The
expenditure on the scheme from 1st April, 1985 would be treated as maintenance
grant. It was further directed that in order to implement the scheme from
academic session 1983- 84 the university should take appropriate steps
according to the provisions of Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973.
University should see to it that the rules should be framed and ensure
uniformity in all the universities of Madhya Pradesh according to the scheme.
First respondent accordingly adopted the said merit promotion scheme for its
teachers. Thereafter it appears that the concerned universities entertained
doubts regarding the fixation of inter se seniority between promotee readers
and professors under the scheme and directly recruited professors and readers
under the statutory provisions of the Act constitut- ing such universities. In
that connection the Secretary to the Commission by its letter dated 27th April,
1984 addressed to all Vice Chancellors of Universities conveyed the decision of
the Commission at its meeting held on 29th March, 1984 to the effect that the
Commission -felt that the question of seniority of teachers promoted under the
merit promotion scheme vis a vis teachers appointed against regular recruitment
be decided by the University/institution concerned. It appears that thereafter
this question was sought to be resolved at the level of the concerned
universities. So far as Universities situated in Madhya Pradesh arc concerned,
by communication of the Chancellor, i.e., Governor of Madhya Pradesh dated 29th
June, 1987 addressed to the Vice Chancellor, Avtesh Pratap Singh University, Riwa
it was informed that seniority of one Dr. Agrawal who was a merit promotee
should be fixed above the seniority of Dr. R.L. Singh who was later recruited
as Professor. So far as respondent no.1 university is concerned it treated promotee
readers and professors on par with directly recruited professors and readers
and fixed their inter se seniority on the basis of continuous officiation of
the concerned incumbent in the post. Even the Coordination Committee for the
University endorsed that view. Our attention was also invited to Ordinance no.4
promulgated by Jiwaji University, Gwalior. In that ordinance as noted earlier
it is clearly provided that the teachers of the university should be eligible
for merit pro- motion scheme recommended by the Commission, New Delhi. The
resolution dated 26th June, 1988 passed by the Jawaharlal Nehru University was
also pressed into service. The said resolution stated that subject to the
provisions containing the seniority of teachers appointed under statute 27 or
28 are promulgated shall be determined from the date of their appointment of
joining or promotion to the post. Statute 27 referred to the direct
recruitment. While statute 28 referred to special mode of appointment by
Executive Council which may invite a person of high academic excellence to
accept the post of a Professor or Reader in the university.
So far
as Delhi University is concerned learned counsel appearing for the Professors
work- 68 ing in the Delhi University who have been joined as respondents on
their impleading applications submitted that the statute 6(2) framed under the
Delhi University Act, 1922 authorised the Executive Council to appoint from time
to time such Professors, Readers, Lecturers and other members of the teaching
staff as may be necessary on the recommendation of the Selection Committee
constituted for the purpose. That as per Ordinance 11, clause 8(i) all posts of
teachers have to be filled up after advertisement by open recruitment subject
to the proviso that University may appoint Professors, Readers under the merit
promotion scheme of 1983 as accepted by the Executive Council in accordance
with the eligibility conditions and in the manner prescribed in this scheme. As
per clause (ii) of ordinance 11 seniority of teacher in a particular discipline
etc. etc.
shall
be determined in accordance with the principles laid down therein. We were also
taken to the minutes of the Executive Council of Delhi University dated 24th
April, 1983 wherein a decision was rendered regarding selection of university
teachers under the merit promotion scheme to the effect that the composition of
the Screening/ Evaluation Committee for promotion of Lecturers to the post of
Readers and for promotion of Readers to the post of Professors in the
University department shall be the same as that of the statutory Selection
Committee for recruitment of teachers to such posts. Our attention was also
invited to the minutes of the meeting of the Executive Council of the Delhi Uni-
versity dated 29th December, 1990 wherein at item no. 141 was the resolution to
the effect that the recommendation of the Committee constituted by Vice
Chancellor regarding determination of seniority of teachers permitted under
merit promotion scheme vis a vis direct recruit be accepted as set out in
Appendix-1. Appendix -1 states that the committee decided that persons
appointed as Professors or Readers have to be treated alike in the matter of seniority
and cannot be placed in two different compartments merely because two different
pay scales were applicable to these cadres. The committee concluded that
seniority in all these cases should be determined by the date of appointment or
promotion.
23. It
therefore appears that after the merit promotion scheme of 1982 was adopted by
all the statutory universities in the country and when the Commission left the
question of inter se seniority between promotees and direct recruits Professors
and Readers to be determined by the concerned university, respondent no. 1
university and other universities seem to have taken the view that all these
incumbents be treated at par and their inter se seniority should be determined
on the basis of continuous officiation in the concerned post.
24.
The scheme of merit promotion scheme of 1982 underwent a sea change by the year
1987. The Central Govt., Ministry of Human Resource Development, Deptt. of
Education by its communication dated 17th June, 1987 to the Secretary, of ,the
Commission informed that the Govt. of India had after taking into consideration
the recommendation of the Commis- sion decided to revise the scales of pay of
the teachers in Central Universities. The revision of pay of teachers was to be
effective from 1st January, 1986. A similar communication was addressed to the
Education Secretaries of all States regarding revision of pay scales of
teachers in, universities for maintenance of standards in 69 higher education.
It was informed that the Central Govt. had revised the pay scales of teachers
in universities and colleges in order to attract talented teachers. A career
advancement scheme was introduced, and made applicable to the teachers in the
universities and affiliated colleges with effect from 1st January, 1986. As per
the annexure- 1 attached to the aforesaid communication dated 17th June, 1987
the revised scale of pay available to a Reader was Rs.3700-125-4700-160-5300
while the pay scale of Professor was to be Rs.4500-150-5700-200-7300. It was also
provided therein that the existing teachers in Universities and Colleges where
the merit promotion schemes formulated by the Commission, or any other similar
scheme were in operation would have an option to continue to be governed by the
provisions of these schemes provided that they exercise that option in writing
prior to their pay fixation under this scheme, they would also be entitled to
the designations envisaged for various categories of teachers in these schemes,
but the scales of pay would be as follows:- Readers/Lecturers (Selection Grade)
Rs.3000 - 5000 Professor Rs.4500 - 5700 It thus became clear that with effect
from 1. 1. 1986 because of the career advancement scheme introduced by the
Central Govt. the erstwhile merit promotion scheme providing for uniform pay
scale then available to directly recruited Readers and Professors as well as
the merit promoted Professors and Teachers was given a go-by and under the
career advancement scheme uniform revised pay scales were provided for Readers
and Professors with a rider that those existing teachers in Universities and
Colleges who gave in writing to be governed by the merit promotion scheme even
thereafter would get the benefit of that scheme for being promoted to the post
of Professors and Readers as the case may be but their pay scales would be
lower as compared to the pay scales of directly recruited Professors and
Readers.
In
other words, if after 17.6.1987 when the career advancement scheme replaced the
earlier merit promotion scheme, any existing Lecturer or Reader wanted to take
the benefit of merit promotion scheme thereafter and if he got promoted
accordingly to the post of Reader or Professor as the case may be his pay scale
on the promotional post of reader would be Rs.3000 - 5000 as compared to the
pay scale of Rs.3700 - 5300 available to a directly recruited Reader and so far
as merit promoted Professor was concerned his pay scale would be lower, namely,
Rs.4500 - 5700 as compared to the higher pay scale available to a directly
recruited Professor, i.e. Rs.4500 - 7300. By a communication dated 6th January,
1989 addressed by the Under Secretary, Ministry of Human Resource Development, Deptt.
of Education addressed to all Registrars of State Universities a clarification
was issued regarding the merit promotion scheme. It was informed that the Govt.
of India had decided that existing teachers in universities and colleges where
the merit promotion scheme formulated by the Commission in 1983 or any other
similar scheme are in operation will have an option to continue to be governed
by the provision of these schemes provided that they exercise the option in
writing prior to their pay fixation under this scheme. They will also be
entitled to the designations envisaged for various categories of teachers in
these schemes, but the scales of pay 70 will be as follows:-
i)
Lecturer - Rs.2200 - 4000
ii)
Reader - Rs.3000 - 5000
iii)
Professor - Rs.4500 - 5700
25. In
the light of the aforesaid relevant statutory provisions and factual data we
may now turn to the consideration of rival contentions canvassed by the learned
Advocates representing the contesting parties.
IV.
Rival contentions:
26.
Mr. Bobde, learned counsel appearing for the appellants in civil appeal
no.6001/94 submitted that as per statute 16 of the first respondent university,
the seniority of college Professor, Reader, etc. shall be determined in
accordance with the length of continuous service of such person in the cadre
concerned. That cadre is not defined by the Act or the rules. That in law even
a temporary addition to the cadre during the time a promotee Lecturer works as
a Reader has to be considered to be an addition to the cadre of Readers. That
such merit promotion of a Lecturer to the post of a Reader on pure merits and
competition and through a Selection Committee which is the same as the
Selection Committee for directly recruited Readers under Section 49 of the Act
cannot be said to be an ad hoc or stop-gap promotion. It is a regular promotion
on pure merits and therefore the cadre of Reader can be said to have been
enlarged for taking in its fold such promotee Readers. Once that conclusion is
reached it becomes obvious that for deciding inter se seniority of such promotee
Readers and directly recruited Readers there cannot be any discrimina- tion.
They all do the same work, they are selected on merits by the same committee
though the sources of recruitment may be different. But their birth marks would
vanish the moment they formed part and parcel of the same cadre of Readers. Hence,
continuous officiation of the concerned incumbents in the Readers posts would
be the only relevant yardstick for deciding the inter se seniority of promotee vis
a vis directly recruited Readers. Mr. Bobde submitted that the High Court in
the impugned judgment had patently erred in holding that the said promotee
Readers were not part of the cadre of Readers. That even-though the promotion
may be personal to the incumbent, so long as he is in service he remains
entitled to occupy the promotional post and to that extent there is a net
addition to the cadre of Readers.
27.
Reliance was also placed on the decision of the Division Bench of Rajasthan
High Court in Civil Writ No.2558/88 decided on 9th December, 1988 by the Bench of Mr. Justice S.N. Bhargava and Mr. Justice
P.C. Jain. The Division Bench of Rajasthan High Court had taken the view that
once Associate Professors or Professors formed one category of teachers and
once their work was identical there cannot be any discrimination in connection
with pay scales made available to them. Whether a person is promotee Pro- fessor
or directly recruited Professor, he has to be paid the same time scale and a
promoted Professor cannot be given lessor time scale. Mr. Bobde also placed
reliance on the decision of this court in the case of S.B. Patwardhan & Anr.
v. State of Maharashtra & Ors. and K.V. Ramkrishna
& Ors. v. State of Gujarat & Ors. and MG. Raichur & Anr.
v. State of Gujarat & Ors. (1977 (3) SCC 399) to
support his contention that temporary ad- 71 dition to the cadre can be made by
having temporary Post included therein. In this connection, reliance was also
placed on the, decisions of this court in the case of Direct Recruit Class II
Engineering Officers Association v. State of Maharashtra & Ors. (1990 (2) SCC
715) and in the case, of A. Janardhana v. Union of India & Ors. (1983 (3)
SCC 601).
It was
contended that the appellant was entitled to be treated as senior to respondent
no.4 as she become Reader under merit promotion scheme prior to the date on
which respondent no.4 entered the cadre of Reader by direct recruitment. it was
also contended that once the appellant was promoted as a Reader even though it
may be a personal promotion and there may not be any vacancy of a Lecturer
because of such promotion, even then she cannot be treated as merely a Lecturer
for the, purpose of fixation of seniority as has been ordered by the High
Court.
28.
Mr. Dave appearing for the appellants in Civil Appeal No. 6002/94 adopted the
submissions of Sh. Bobde and further submitted that the appellants were
promoted on 12th March, 1986 as Professors under merit promotion scheme, while
respondent no.4, original writ petitioner who was a Professor in a private
college was directly recruited as Professor under Section 49 of the Act on 13th
March 1986 and therefore the appellants were senior to respondent no.4.
That
the merit promotion scheme was adopted by respondent no.1 university. The
Coordination Committee of first respondent by its meeting dated 11th January, 1984 had adopted th said scheme. That
the Commission had left the question of inter se seniority of direct recruits
and promotee professors to the University. Its Coordination Committee by its
meetings dated 27th and 28th October, 1988 had decided that there could be no
discrimination between teachers promoted under merit promotion scheme and
direct recruits and that such a decision could be taken by the Coordination
Committee in exercise of its power under Section 24 of the Act. That the
Executive Council of the university exercising powers under Sections 23 and 24
of the Act adopted this decision of the Coordination Committee on 27th May, 1989. The State Govt. had issued a
letter on 23.9.89 wherein it was clearly stated that Professors promoted under
the merit promotion scheme before 17th June, 1987 shall also be paid Rs.4500 -
150 - 5700 200 - 7 3 00 with effect from 1. 1. 1986 and this clarification was
also adopted by Executive Council of respondent no. 1 university in its meeting
held on 27.5.1988 by resolution no. 179. The net result of the resolution was
that a Professor under the merit promotion scheme before 17-6-87 is entitled to pay scale of Rs.4500 - 7300 with
effect from 1.1.86 and the Professor promoted under the merit scheme after
17.6.87 is to be paid the scale of Rs.4500 - 5700. Mr. Dave invited our
attention to relevant provisions of the Act and submit- ted that once a promotee
is given promotion on pure merit by the very same committee which also selects
direct recruits, and once the promotees prior to 17.6.87 are entitled to the
same pay scale as directly recruited Professors there is no reason why in the
matter of inter se seniority there should be any distinction or difference
between them. Placing reliance on the decision of this court O.P. Singla & Anr.
v. Union of India & Ors. and Sadhu Ram
& Others v. Union of India & Others (1984 (4) SCC 450) it was submitted
that temporary appointees to cadre posts can 72 also be considered to be
incumbents in the cadre as Executive Council has power under Section 24 of the
Act to create posts as laid down by clause 20 thereof. That cadres can be
amalgamated. Placing reliance on the decision of this court in the case of Vinay
Kumar Verma & Ors. v. State of Bihar & Ors. (1990 (2) SCC 647) it was submitted that once cadres are
amalgamated the incumbent of the cadre is brought in with the post.
29.
Learned Advocate, Sh. Sharma appearing for promotee Professors respondents 6 to
61 in Civil Appeal No.6001/94 submitted that the basis of the scheme was to
provide promotional advancement to avoid stagnation, that though University Act
did not envisage internal promotion, the sanctioned strength of Readers and
Professors can be increased by bringing in promotees. Reliance was also placed
on statute 37 of the Delhi University and minutes of Executive Council meetings. Our attention
was also invited to the fact that one Mr. Krishna Kumar was selected as direct
recruit but he opted out for being promoted under merit promotion scheme.
Therefore it could not be said that those who are unfit to be selected as
direct recruits got a back- door entry through merit promotion scheme.
30.
Learned senior counsel, Dr. Dhavan appearing for 56 Professors of Jawaharlal
Nehru University adopted these arguments. The learned Advocate for promotees
teachers further submitted that in the present proceedings only 1983 scheme is
on the anvil and we arc not concerned with the career advancement scheme of
1987. All those who were promoted between 1983 to 1987 as Professors submit
that their seniority vis a vis directly recruited Professors cannot but be
decided on the yardstick of continuous officiation of Professors. That the
scheme of 1982 is to be read with letter of the Commission issued in 1984 which
stated that the question of inter se seniority was left to the concerned
universities. That once the concerned uni- versity decided to accord seniority
to promotees vis a vis direct recruits on the basis of continuous officiation
the matter was at an end. That on the doctrine of promissory estoppel neither
the university nor the direct recruits can take a contrary stand. That the
Scheme of merit promotion can be divided into two parts. The first part dealt
with promotion on pure merits, while the second part wherein new additional
staff was not to be created and the vacancies created on account of the
promotion of the incumbents were not to be filled was based on consideration of
financial crunch but it had nothing to do with the inter se seniority of promotees
and direct recruit Professors. That this amounted to only tightening of the
belt and in that sense the promotion can be considered to be personal. Our
attention was invited to the decisions of this court in the cases of University of Delhi v. Raj Singh & Ors. (1994 Supp. (3) SCC 516) and Col.
A.S. Iyer & Ors. etc. v. V. Balasubramanyam & Ors. (1980 SCR 1036) for
submitting that overdoing of classification should be avoided and merely on the
basis of classification the guarantee of equality under Article 14 does not get
exhausted. Placing reliance on the decision of this court in the case of
Paradise Printers and Others v. Union Territory of Chandigarh and Others (1988
(1) SCC 440) it was submitted that this was a case of promissory estoppel, that
while getting merit promotions the incumbents were promised by the Commission
that their se- 73 niority will be decided by the university concerned and once
the university had decided to give them seniority on the basis of continuous officiation
a clear case of promissory estoppel had arisen in their favour. That decision
of Jawaharlal Nehru University dated 28th June, 1988 in this connection was that the university had decided that
inter se seniority of directly recruited Professors and promotees should be
decided on the basis of continuous officiation.
That for
seniority, entry in service was relevant as decided in the case of Bhey Ram
Sharma & Ors. v. Haryana State Electricity Board & Ors. and Balbir Singh & Ors. v.
Haryana State Electricity Board & Ors. and Sohan Lal Verma & Anr.
v. Haryana State Electricity Board & Ors. (1994 Supp.(1) SCC 276). It
was therefore submitted that the High Court was patently wrong in taking the
view that merit promoted Professors and Readers could not stake their claim of
seniority vis a vis direct recruit Professors and Readers who formed a distinct
class or cadre within which the promotees could not be encompassed.
31.
Mr. Gambhir, learned Advocate appearing for respondents 1 to 3 being Vikram University, its Registrar and Vice Chancellor broadly supported the
arguments of learned counsel for the promotees. He contended that once a merit promotee
is promoted from the post of Lecturer to that of Reader or from the post of
Reader to that of Professor there is no question of any reversion of such a promotee
only on the ground that there is no vacancy of a Reader or Professor. That
Section 49 of the University Act only pre- scribes the procedure for selection
of a Reader or Professor but is not confined to only direct recruitment of such
university teachers. That promotions given to the concerned teachers under the
merit promotion scheme are in accordance with Section 49 of the Act. Once the
Lecturers so promoted enter the cadre of Reader they would be entitled to
further promotion on merits. Our attention was invited to the reply filed by
the university before the High Court for submitting that as original respondent
no.4 was officiating as Reader prior to the original writ petitioner, he was
rightly shown as senior to him. He further submitted that Coordination
Committee had adopted the scheme and that resolution of the Coordination
Committee was further adopted by the Executive Council of the university. Mr. Gambhir
further contended that statutes and ordinances of the university are part of
the Act and they can create new source of recruitment. In this connection
reliance was also placed on Section 34 of the Act which defines powers of
Coordination Committee which can approve or reject statutes or ordinances. In
this connection, Mr. Gambhir invited our attention to paragraph 10(d) of the
return on behalf of respondents no.1 & 2 filed in the High Court. In the
said paragraph it was stated that the merit promotion scheme was formulated by
the Commission in the year 1982 and it was approved in the meeting of the
Coordination Committee by resolution no.23 dated 29.6.1983 and it was decided
to implement this scheme in all the Universities of the State from the academic
session 198384.
It was
also resolved by the Coordination Committee that the scheme can be implemented
without framing any separate ordinance or statute for the purpose and that the
same decision was confirmed in a subsequent meeting of the Coordination
Committee held on 11.1.1984. Mr. Gambhir also referred to the averments 74 made
in paragraph 10(f) of the said counter. It has been pointed out therein that
the Coordination Committee appointed under section 34 of the Vishva Vidyalaya Adhiniyam
has resolved in its meeting held on 27th and 28th October, 1988 as under:
"
12.02 The Coordination Committee decided that no discrimination may be made
between teachers promoted under the Merit Promotion Scheme and those recruited
under section 49 of the Madhya Pradesh Vishva Vidyalaya Adhiniyam 1972 in the
Universities." On the basis of the said resolution it was submitted that
this amounted to creation of an additional source of recruitment of teachers in
the university. In this connec- tion Mr. Gambhir relied on the decision of this
court in the case of Dr. Ms. O.Z Hussain v. Union of India (1990 (Supp) SCC
688). At page 691 in para 7 it has been laid down that there is desirability of
having source of promotion for any service to avoid stagnation and heart
burning and that accordingly the university had recognised this additional
source of recruitment of teachers by way of promotion under the merit promotion
scheme. And once that is accepted on the principle of continuous officiation
original writ peti- tioner would be junior to original respondent no.4 who is
appellant before us.
32.Learned
counsel for the Commission Shri Banerjee submitted that as per the Commission
Act the function of the Commission was to suggest merit promotion scheme to
teachers in the universities to avoid heart burning and frustration but the
Commission was not concerned with the inter se seniority of university teachers.
That question was left to be considered by the concerned universities. That the
Commission in exercise of its powers under Section 12 of the Act had
recommended to the concerned universities to adopt merit promotion scheme and
that is how the scheme was adopted by the concerned universities. That it was
not open to the Commission to direct creation of more posts in the cadre. That
the merit promotion scheme did not contemplate fixing of inter se seniority of
merit promoted teachers and directly recruited teachers. Mr. Banerjee further
submitted that after the Central Government's direction to 'revise the pay
scales of university teachers with effect from 1. 1.
1986,
the then existing merit promotion scheme remained available to the concerned
teachers to exercise their option. But in that they were to receive lessor pay
scales as promoted. Readers or Professors as the case may be if their
promotions were subsequent to 17th June, 1987
when the Govt. decided to revise the pay scales. That for new incum- bents who
arc directly recruited as Readers or Lecturers after 17.6.1987 there was no
merit promotion scheme available but only career advancement scheme was
available.
That
only promotee Readers or Professors who were promoted under the then existing promotion
scheme prior to 17th June, 1987 got their pay protected as per the decision of
the M.P. Govt. Placing reliance on the decision of this court in the case of
Dr. Ms. O.Z Hussain v. Union of India (supra), it was submitted that provision
for promotional opportunities to university teachers was essential for removing
stagnation of the concerned merit oriented teachers and that was the basis of
the scheme.
33.Mr.
Singh, Advocate for respondent no.4 in Civil Appeal No.6001/94 in reply 75
submitted that Section 49 of the Act which was enacted years back in 1973 did
not contemplate any promotions. That the merit promotion scheme which came
years afterwards in 1982 could not therefore be treated to have been
encompassed by Section 49. That the respondent no.4 was appointed as a direct
recruit Reader pursuant to the advertisement issued by the university. From the
date of appointment on 13th March, 1986 he was to be on probation for two
years.
Thereafter
he was confirmed as Reader on 12th April, 1988.
That
merit promotion scheme sought to grant an opportunity for promotion to
Lecturers only by way of personal promotions. No vacancy was thereby created in
the cadre of Lecturers nor any post was created in the cadre of Readers to
accommodate such promotees, that the scheme should be read independently of the
Act. The merit promotees were occupying excadre posts and consequently there
cannot be a combined seniority list of directly recruited Readers who were part
of the cadre of Readers and merit promotee excadre Readers who were having
persona promotions as Readers. That ordinance of Vikram University promulgated under Section 37(xv)
did not say anything about promotion. In this connection our attention was
invited to a decision of this court in the case of Dr. Bal Krishna Agarwal v.
State of Uttar Pradesh & Or. (JT 1995(1 SC 47 1)
wherein it was clearly laid do that in. case of merit promotion scheme unless
university act is amended and such a new source of promotion is contemplate
therein there would be no increase in cad of the concerned teachers. Our
attention was also invited to Appendix- 1 of Ordinance 4 wherein clause 6
provided for recruitment of Lecturers, Readers and Professors to be made
through all India advertisement. In this connection,
Mr. Singh also invited our attention to the reply filed by Vikram University before the High Court. In the return in paragraph 10(a) it
has been stated that respondent no.4 was appointed Reader by promotion in
accord- ance with the scheme which was accepted by the university.
The
appointment of respondent no.4 was not on probation and therefore there was no
question of her confirmation on the said post. Mr. Singh submitted if that was
so a promotee Reader cannot have any confirmed post but would remain on
personal assignment by way of promotion. Our attention was also invited to
paragraph 15 of the petition before the High Court in which it has been stated
that under the 7th Five Year Plan the establishment of the teaching staff of
the university, as per the record of the university, annexed at P/10 is as
follows:
Professor
18 Reader 33 and Lecturer 57 Thus there were only 33 posts of Readers in the
university.
It was
contended in the light of the above said averments which were not denied by the
university, that the 33 posts of Readers, were meant for direct recruitment and
the merit promotee Readers would therefore be outside the cadre or the
sanctioned strength of Readers. In connection with resolution 12.02 of the
Coordination Committee it was submitted that under section 34 of sub-section
(4) such a resolution cannot be passed by the Coordination Committee and
therefore it had no force of law. It was next contended that as per Section
24(xx) no post was recommended by Academic Planning and Evaluation Board nor prior
approval of 76 Madhaya Pradesh Uchcha Shiksha Anudan Ayog was shown to have
been obtained before creation of such posts to be filled up by departmental promotees
under the merit promotion scheme and therefore it would not be correct to
contend that there was a temporary addition to the cadre strength of Readers or
Professors as the case may be. It was further contended that the work load of promotee
Readers is different from work load of directly recruited Readers. Even their
pay scales are different from 1986. 'Mat Section 35(0) which dealt with
seniority provision had to be read with Section 49 which contemplated direct
recruitment only. Placing reliance on the Constitution Bench decision of this
court in the case of The Direct Recruit Class II Engineering Officers'Association
and Others v. State of Maharashtra and others (JT 1990 (2) SC 264) at page 271
(para 13) it was submitted that unequals cannot be treated as equals. An excadre
employee cannot be treated to be a cadre employee for determining their inter
se seniority and therefore the High Court was right in accepting the writ
petition of the direct recruit Reader.
34.
Respondent no.4 in Civil Appeal No.6002/94 who appeared in person, adopted the
line of reasoning as submitted by Shri Singh and further contended that he was
appointed as Professor of Physics pursuant to all India competition. The post was
advertised by inviting applications and in the open competition as contemplated
by Section 49 of the Act, the appellant -candidates were rejected while
respondent no.4 were selected. That though the appellants were merit promoted
as Professors, they were wrongly shown as senior to him and that is why he had
to file the petition in the High Court which was rightly allowed. 'Mat there
were two posts of Professors of Physics in 1986 and for filling up one vacancy
advertisement was issued and interviews were held.
That
though the Selection Committee had considered the cases of appellants for merit
promotion on 13.3.86 after direct recruits were interviewed and recruitment was
over, university had wrongly and mala fide issued promotion orders to the
appellants by way of backdating them on 12.3.1986.
That
merit promotions was purely personal to the incumbent.
The
moment the incumbent retired or resigned or otherwise ceased to be a merit promotee,
there will be no question of promoting somebody else vice him. It was further
contended that merit promotion scheme cannot be implemented without ordinances
or provisions and in the absence of such a provision merit promotions granted
to the appellants were required to be quashed. That they could not be given the
same pay scale as directly recruited Professors. Placing reliance on the
decision of this court in Civil Appeal no.1549/94 it was submitted that the
abstract doctrine of equal pay for equal work was illogical and consequently
the judgment of Rajasthan High Court which had taken the view that merit
promoted Professors should be given the same pay scale as direct recruits could
not be sustained. He submitted that the university had harassed him by showing
him to be junior to promotee Professors and therefore he prayed for Following reliefs:-
1) Respondent no.4 be awarded compensation amounting to Rs. 17.00 lakhs.
2)
Merit promoted Professors should be treated as additional Professors but not as
a full-fledged Professor. 77
3) Pay
scales of merit promoted Professors should be reduced.
35.
Mr. Bobde, Mr. Dave and Dr. Dhavan in rejoinder refuted the contentions of Shri
Singh and respondent no.4 in C.A. No.6002/94 and reiterated their submissions
in support of the appeals.
V.
Points for consideration:
36. In
the light of the aforesaid rival contentions the following points arise for our
consideration-- 1) Whether a merit promotee Reader or Professor as the case may
be in the service of respondent no.1 university can be treated at par with
directly recruited Reader or Professor for the purpose of fixing their inter se
seniority?
2) If
the answer to the first point is in the negative whether such merit promotee Readers
and Professors cannot be considered as Professors and Readers for fixing inter
se seniority of such promotee Readers and Professors and their seniority should
be shown only in the cadre of Lecturer or Reader from which they arc promoted?
3)
Whether respondent no. 1 university is liable to pay any compensation to
respondent no.4 in Civil Appeal No.6002/94?
4)
Whether the pay scales of Professors available to the appellants in C.A.
No.6002/94 should be reduced?
5)
What is final order? 37. We shall now deal with the aforesaid points seriatim.
Point
No.1 38.A resume of relevant provisions of the merit promotion scheme and the
relevant provisions of the Vikram University Act to which we have made
reference earlier clearly shows that when the Act was enacted in 1973 the State
Legislature had not contemplated any promotion of a Lecturer as Reader or
Reader as Professor as the case may be. All the relevant ordinances and
statutes will therefore have to be read in that light. It is not possible to
agree with the contention of the learned counsel for appellants that Section 49
as enacted can take in its sweep even departmental promotees.
A mere
look at Section 49 shows that the Members of the Com- mittee of Selection as
contemplated by subsection (4) of Section 49 have to investigate the merits of
the various candidates and to recommend to the Executive Council the names if
any, of persons whom they consider suitable for the posts, arranged in order of
merit. Sub-section(5) mentions that out of the names so recommended under
sub-section (4) the Executive Council shall appoint persons in order of merit.
This clearly contemplates an open market recruitment procedure by way of direct
recruitment and candidates selected will have to be appointed in order of
merits. It is obvious that there would be no occasion to consider the question
of inter se merit of a departmental promotee and a direct recruit. It is also
pertinent to note that in the year 1973 the subsequent merit promotion scheme
of 1982 would never have been under contemplation of the Legisla- ture. It must
therefore be held on a conjoint reading of the relevant provisions of the Act
that only one source of recruit- 78 ment of university teachers namely,
Professors and Readers and even of Lecturers is contemplated and that source is
by way of direct recruitment. If that is so and if under merit promotion scheme
as recommended by the Commission which was adopted by the respondent no. 1
university, any departmental candidate is to be promoted, he would be so promoted
dehors Section 49 and would obviously be an ex cadre Reader or Professor as the
case may be. Once that happens it would be obvious that there would be no
occasion to fix the inter se seniority of directly recruited Readers and
Professors who are holding cadre posts and ex cadre merit promoted Readers and
Professors who would stand outside the cadre. The first respondent by its
impugned decision which was quashed by the High Court in the judgment under
appeal tried to fuse the inter se seniority of both these classes of employees.
And that itself amounted to treating unequals as equals. It clearly offended
the provi- sions of Articles 14 and 16(1) of the Constitution of India.
Unless
Section 49 is suitably amended and a separate source of recruitment by way of
internal promotion is contemplated by the Act there would remain no occasion of
undertaking any exercise of fixing inter se seniority between ex cadre
employees and cadre employees. It is not in dispute between the parties that
neither the Act nor any ordinances or stat- utes of respondent no. 1 university
even remotely whisper about creation of a separate recognised source of
recruitment of Professors and Readers by way of departmental promotions. It is
of course true as indicated by Dr. Dhavan appearing for the intervenors that in
some of the universi- ties even ordinances have been issued accepting such new
source of promotion of university teachers under the merit promotion scheme.
But even if it is so that would make no difference as it is the parent Act,
namely, University Act concerned which should contemplate creation of new
source of recruitment by way of departmental promotions of university teachers.
Unless that is done mere issuance of ordinances or statutes to that effect
which to that extent would conflict with the parent Act would be of no avail
and would be an exercise in futility. They would also be ultra vires the Act.
It must therefore be held that unless the concerned university Acts under which
the universities are functioning, by suitable amendments provided for an
additional source of recruitment of Readers and Professors by way of
departmental promotions, mere adoption of merit promotion scheme recommended by
the Commission or mere decision of the Coordination Committee or Executive Com-
mittee not to discriminate between merit promotees and direct recruit
university teachers and even issuance of ordinances or statutes to that effect
would be of no avail and will not have any legal effect nor would they permit
the concerned universities to fuse the cadre employees with ex cadre employees
and to prepare a combined seniority list on that basis.
39.It
is true as submitted by learned counsel for appellants that for avoiding
stagnation and heart burning promotional avenues should be made available in
any service as laid down by this court in number of decisions to which our
attention was invited by them. However the short question for our consideration
is whether the concerned university Act has made such a provision. If a
provision is made then there would be no difficulty in the way of the
appellants but in the absence of such a provision mere availability of merit
pro- 79 motion scheme cannot elevate the merit promoted Reader or Professor to
the cadre of such Reader or Professor as the case may be. They would remain ex
cadre employees who cannot claim any inter se seniority with direct recruits
forming the concerned cadre. It is not possible to agree with the contention of
Shri Bobde and Dr. Dhavan that under the merit promotion scheme though the
promotions were per- sonal, to that extent there was a temporary extension of
the cadre of Reader or Professor as the case may be or that they were special
promotions as Dr. Dhavan would like to have it.
The
very guidelines of the scheme suggest that a merit promoted Reader or Professor
will be treated to have a personal promotion. It will not create any addition
to the cadre nor it will create any vacancy in the lower cadre from which he or
she was promoted. The work load has to be so distributed as not to require any
additional staff. Dr. Dhavan said that this was only because of the financial
crunch. That may be so. But ultimately the effect thereof would be that once a
merit promoted Reader or Professor goes out of service there will be no post
which will fall vacant in the promotional avenue. Consequently, it cannot be
said that there was any' temporary addition to the cadre strength of Reader or
Professor as the case may be. We entirely concur with the reasoning adopted by
the High Court while considering the relevant clauses of the merit promotion
scheme when it took the view that Readers and Professors promoted under the
scheme were not entitled to be included in the seniority list of directly
recruited Readers and Professors. Reliance placed by learned counsel for
appellants on statute 16 is also of no avail to the appellants for the simple
reason that statute 16 deals with seniority of teachers of the university. This
statute is promulgated under Section 35(o) of the Act. Section 35(o) of the Vikram
University Act deals with the mode of determining seniority for the purpose of
the Act.
Consequently
it will have to be read with Section 49 meaning thereby when a Professor,
Reader or Lecturer is recruited under Section 49 how his seniority is to be
determined can be decided in the light of the relevant statute framed under
Section 35(o). When we turn to Statute 16 we find that as per clause (2)
thereof the seniority of Professors, College Professors, Readers, Associate
Professors or Lecturers shall be determined in accordance with the length of
continuous service of such person in the cadre concerned taken together with
length of continuous service which is equivalent to or superior to the cadre
concerned. It was submitted by learned counsel for appellants that the word
cadre as employed by statute 16(2) is used in a loose sense. It is difficult to
agree. Statute 16(2) read with Section 35(0) and Section 49 leave no room for
doubt. That all those Readers and Professors who were recruited under Section
49 as direct recruits and who enter the cadres of Professors and Readers as the
case may be shall have their seniority determined in accordance with length of
service in their concerned cadre. As merit promotee Reader or Professor is
outside the cadre there is no question of statute 16(2) operating in his case.
It is also pertinent to note that merit promotee Professors or Readers form a
separate distinct class as compared to directly recruited Professors or
Readers. It is true that as decided by respondent no.1 university, the same
Selection Committee which directly recruits Professors and Readers under
Section 49(2) deals with the question of granting merit promotions to the
concerned Lec- 80 turers as Readers and Readers as Professors. But to that
extent the machinery or infrastructure available under Section 49(2) for
directly recruiting teachers was made available for deciding the eligibility of
departmental candidates for merit promotion but that would not by itself create
a new source of recruitment for promotee Readers and Professors unless Section
49 was suitably amended. That has not been done till now. In this connection,
we can profitably refer to the decision of this court in the case of Dr. Bal
Krishna Agrawal v. State of Uttar Pradesh & Ors. (JT 1995 (1) SC 47 1). In
that case a Division Bench of this court was concerned with the question
whether Professors promoted by Allahabad University governed under Uttar Pradesh State
University Act, 1973 could claim seniority vis a vis directly recruited
Professors. Under Section 31 a merit promotion scheme adopted by Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31 (A) in the University Act with
effect from 10. 10. 1984 a distinct source of recruitment by way of merit
promotion for Lecturers and Readers in university was created by State
Legislature. But that Section which created a distinct source of recruitment by
promotion was effectively brought into force from 10. 10.94. The appellant
before this court was directly appointed as Professor on 9th November, 1984 while the contesting respondents
no.4 & 5 were promoted as Professors under the scheme by Govt. Orders dated
12th December, 1983 and 25th February, 1984.
These
respondents were treated as senior to the appellant before this court. He
unsuccessfully challenged the said fixation of inter se seniority before the
High Court, as the High Court took the view that the appellant had to be
relegated to the alternative remedy available under Section 68 of the Act. In
appeal pursuant to leave granted by this court, S.C. Agrawal, J. speaking for
the Division Bench took the view that appellant was entitled to be treated as
senior to the promotee Professor as Section 31 (A) was not on the statute book
when the respondents 4 & 5 were promoted and therefore their promotions
could be treated as valid only from 21st February, 1985 when Section 31(A) was
enforced.
Before
that date the appellant had already entered the cadre of Professors on 11th November, 1984 and therefore he had to be treated
as senior to respondents 4 & 5. In para 13 of the report the following
observations were made in this connection:- "...... We are of the opinion
that in view of the provisions contained in Section 31 -A and Section 2(14) of
the Act there is no escape from the conclusion that respondents nos.4 and 5
could not be given promotion under the Personal Promotion Scheme till the
necessary provisions prescribing the length of service and the qualifications
for such promotion were made in the statutes and since this was done by
Notification dated February 21, 1985, pro- motion under the Personal Promotion
Scheme could not be made prior to February 21, 1985.
The
Executive Council in its Resolution No. 198 dated November 8, 1984 had accepted
the recommendations of the $election Committee for promotion of respondents
Nos. 4 and 5 on the basis of Government Orders dated December 12, 1983 and
February 25, 1984. At that time Section 31 of the Act provided for appointment
of teachers by direct recruitment and did not envisage promotion from a lower
teaching post to a higher teaching post. The orders of the Government
aforementioned could not be given effect till necessary amendment was made in
the Act making provision for personal promotion. This was done by intro- 81 ducing
Section 31 -A by U.P. Act No. 9 of 1985 with effect from 10th October, 1984. But Section 31 (A) could be given
effect only after the necessary provision was made in the Statutes prescribing
the length of service and the qualifications for personal promotion.
This
was done by the notification dated February 21, 1985. The promotion of respondents Nos.4
and 5 to the grade of Professor under the Personal promotion Scheme could,
therefore, not be made prior to February 21, 1985. The inter se seniority of the appellant and respondents
Nos. 4 and 5 has to be determined on that basis.
In our
view the aforesaid decision of this court is squarely applicable to the facts
of the present case. As seen above in the Uttar Pradesh Act there is already an
amendment by insertion of Section 31 (A) which provided for a distinct source
of promotion. In the Vikram University Act with which we are concerned, there
is no such provision. It is therefore to be held that till appropriate
amendments are effected in the concerned universities Act on the same lines as
Section 31 (A) of the Uttar Pradesh Act there would be no occasion for
considering the merit promotees to have entered the cadre of Reader or
Professor as the case may be and consequently there would arise no occasion for
consideration of the further question of fixation of inter se seniority of such
an ex cadre promotees and the directly recruited Readers or Professors who form
the cadre concerned.
40.At
this stage it would also be appropriate to consider whether the promotee
Readers and Professors under the merit promotion scheme as recommended by the
Commission and adopted by the university concerned, in the absence of any
statutory creation of a distinct and fresh source of recruitment by way of promotion,
can be said to fall in the same class as directly recruited Readers or
Professors. The answer becomes obvious. They cannot be said to be forming the
same class. The following distinct characteristics between these two classes of
employees become at once visible.
i) 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
promotion given to them are purely personal and the posts to which they are
upgraded do not survive their service career. The posts vanish with the
incumbent person like the shadow vanishing with the substance. Such a promotee
fills up no vacancy in the promotional avenue since no post is available by
promotion.
ii)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. The promotee Readers and Professors arc 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 are 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.
iii)Pay
scales of promotee Professors and Readers are different from the pay scales or
directly recruited Readers and Profes- 82 sors atleast after coming into
operation of the career advancement scheme as seen earlier. To recapitulate for
a direct recruit Readers revised pay scale with effect from 1.1.86 is Rs.3700 -
5300 while the pay scale for promoted Reader is Rs.3000 5000. Pay scale of a
direct recruit Professor is Rs.4500 - 7300 while the pay scale of a promotee
Professor is Rs.4500 - 5700. It is also to be noted that as per the letter of
Under Secretary, Department of Education dated 1st January, 1989 the aforesaid difference in pay scales of merit promoted
teachers is clearly brought out. It is of course true that as per the order of
the Madhya Pradesh Govt. the pay scales of promotee Readers and Professors who
were promoted prior to the enforcement of career advancement scheme were
protected.
But
for such protection they would not have been entitled to pay scales of directly
recruited Professors and Readers as revised under the scheme. This difference
in the pay scales itself is a distinct feature so far as promotees under the
merit promotion scheme on the one hand and the directly recruited Readers and
Professors on the other hand are concerned.
iv)The
promotee Readers 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.
v) The
work load of directly recruited Reader and Professor is different from the work
load of promotee Reader or Professor for whom the work load 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.
vi)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 cri- teria for their promotion are entirely distinct and
different as envisaged by the guidelines governing the merit promotion scheme.
vii)There
is no question of promotee Reader or Professor being put on probation. There is
further no question of confirming them in the concerned posts as they do not
occupy any post as such in the promotional avenue. This is unlike the direct
recruits.
41.The
aforesaid distinguishing features clearly indicate that merit promotee
Professors and Readers form a distinct class of ex cadre or supernumerary
appointees as compared to cadre employee, namely, directly recruited Readers
and Professors. They are unequals not only because of the source of their
appointment but also because of the nature and character of their appointment
and of the nature of the posts which they hold. They cannot be treated equally
for all purposes and particularly for seniority and promotion if any. For this
purpose the nature of work they do is ir- relevant. The competition for
seniority can only be amongst those who are in the cadre posts. Otherwise, the
mandate of Articles 14 and 16(1) would get violated. For these reasons, there
would be no occasion to fix inter se seniority of merit promotee Readers and
Professors and directly recruited Readers and Professors by treating them as
forming one, class. Any decision rendered by the university concerned not to 83
discriminate between them in the matter of inter se seniority would be invalid
in the absence of any statutory creation of a distinct source of recruitment by
promotion by way of amending die parent Act. As the first respondent is
governed by the Act which does not contemplate any statutory source of
recruitment by way of promotion, whatever sentiments might have been expressed
by the Executive Committee of the university for not distinguishing between
directly recruited Professors and Readers on the one hand and promotee Readers
and Professors on the other hand in the matter of seniority, have no legal
efficacy. On the contrary, treating them at par for seniority and promotion is violative
of Articles 14 and 16(1) as we have seen above.
It
must therefore be held that the High Court was justified in taking the view
that the action of the first respondent university in fixing inter se seniority
of directly recruited Professors and Readers and merit promoted Readers and
Professors on the yardstick of continuous officiation was illegal and
unconstitutional.
42.Before
parting with discussion on this point we may refer to certain additional
submissions placed for our consid- eration by Mr. Bobde and Mr. Dave learned
counsel for appellants. Placing reliance on Section 6 of the Adhiniyam read
with Section 34 it was submitted by Mr. Bobde that university had full powers
to create posts. When we turn to Section 6 we find that sub- section 30 thereof
lays down that university has power to create administrative, ministerial and
other necessary posts to make appointments thereto. There cannot be any dispute
on this aspect. Simi- larly when we turn to Section 34 we find that the
Coordination Committee has power amongst others to consider matters of common
interest to all or some of the universities. However, we do not read in these
provisions the power to create additional posts of Readers and Professors for
being reserved for promotee Readers and Professors nor is the power exercised
by the university in the present case to create such posts as indeed it could
not in the absence of any statutory provision in the Act permitting it to do
so. A conjoint reading of Section 49 and sub-section 30 of Section 6 would only
indicate that the university can create additional posts of Readers or
Professors for filling them up by the only statutorily permitted source of
recruitment, namely, by direct recruitment under Section 49. As already
discussed earlier in the absence of similar provision like Section 31 (A) of
Uttar Pradesh Act which was considered by this court in the case of Dr. Bal
Krishna Agarwal v. State of Uttar Pradesh & Ors. (supra) no posts could
have been created for promotees by way of extension of cadre of Readers or
Professors as the case may be. As there is no such statutory provision in the
Act governing first respondent university, Section 6 by itself cannot be of any
assistance to learned counsel for appellants. Mr. Dave invited our attention to
Section 50 which deals with payment of salaries to teachers of university. The
said provision is not relevant for deciding the question whether the merit promotees
were ex cadre em- ployees or not. Similarly Section 64(1) to which our
attention was invited by the learned counsel is also of no avail to the
appellants as all that section provides is that wherever in accordance with the
Act, any person is to hold an office or to be a member of any authority by
rotation ac- cording to seniority such seniority in the absence of any
provisions to the contrary in the Act, shall be determined in accor- 84 dance
with the statutes. Untill the statutes are made the seniority in a particular
cadre shall be determined by the length of continuous service in such cadre. As
we have already discussed earlier the said statutes would govern seniority of
cadre employees only and cannot be projected to take in their sweep inter se
seniority of cadre employees on the one hand and ex cadre employees like the promotee
Readers and Professors on the other hand. The University cannot make statutes
contrary to or inconsistent with the provisions of the Act.
43.
Reliance was then placed by the learned counsel for appellants on a decision of
the very same High Court from which the present appeal arise. The said decision
was rendered by the Jabalpu Bench in M.P.No.2064/89. The Bench its order dated
19.7.94 has taken the view that inter se seniority of directly recruited
Readers in Hindi Department of Rani Durgawati Vishwa Vidyalaya and a promotee
Reader under the merit promotion scheme shall be decided on the basis of
continuous officiation. It is difficult to appreciate the reasoning of the
Court, in view of the fact that a directly recruited Reader was a cadre
employee while merit promotee Reader was only an ex cadre employee. This vital
aspect of the matter has been totally missed by the Court in that decision.
Hence, it has to be held that the said decision does not lay down correct legal
position. Our attention was also invited to a decision of Rajasthan High Court,
Jaipur Bench in D.B. Civil Writ Petition No.2558/88 decided by S.N. Bhargava
and P.C. Jain, JJ on 9.12.88. In that case the Division Bench had taken the
view that merit promoted Professors must be given the same time scale as di- rectly
recruited Professors under the Rajasthan University Teachers and Officers
Special Condition of Service Act, 1974. That has been directed on the basis of
equal pay for equal work. We are informed that special leave petition against
the said decision was dismissed by this court on 9.12.88 by a non
speaking-order. The said decision is of no avail to the appellants as we are
concerned with the relevant provisions of the Vikram University Act. The
aforesaid decision was rendered in the light of an entirely different scheme of
statutory provisions governing the controversy between the parties in that
case. But that apart, the Rajasthan High Court was not concerned with the
question with which we are concerned, namely, whether there can be inter se
seniority of ex cadre employees and cadre employees oven if they are drawing
the same salary. We may note at this stage that so far as the present appeals
are concerned it is not in dispute between the parties that the promotee Professors
and Readers who have actually got promoted under the 1982 merit promotion
scheme are being paid the same revised time scale even after the implementation
of the career advancement scheme, in view of the decision of Madhya Pradesh
Government dated 21st March, 1989 wherein it has been clearly directed that
those teachers who have been given promotion under the merit promotion scheme
prior to 19.6.87 will be entitled to draw from 1. 1. 86 or from the date of
their actual promotion (that is between 1.1.86 and 17.6.87), the revised time
scale for Reader i.e. Rs.3000 - 5700 and for the Professor Rs.4700 - 7300. In
the present proceeding, we are not concerned with the pay scales of any merit promotee
who might have opted out for being governed by the merit promotion scheme even
after the implementation of career advancement scheme 85 and who might have
been promoted only after 17.6.87. As we have seen earlier, for them the pay
scales would be lower than the revised pay scale available to a directly recruited
Reader or Professor as the case may be. It must therefore be held that there
would be no justification for the respondent authorities to treat directly
recruited Professors and Readers at par with merit promotee Readers and
Professors for deciding their inter se seniority which as we have already
discussed earlier cannot be countenanced at all.
44. It
was next submitted that on doctrine of promissory estoppel the respondent
authorities must treat promotee Readers and Professors at par with directly- recruited
Readers and Professors. This contention has to be stated to be rejected. No
promise was held out either by the Com- mission or by respondent no. 1
university to these merit promotees that their inter se seniority with direct
recruits in the upper cadres will be reckoned on the principle of continuous officiation
nor is there anything to suggest that but for such a promise a merit promotee
would not have ac- cepted his promotion or that he had changed his position in
any manner relying on such an alleged promise. Such a promise if any also would
have been unconstitutional being violative of Articles 14(1) and 16 of the
Constitution. Dr. Dhavan submitted that such a promise is culled out from a
letter of Commission issued in 1984. In that letter the Commission informed all
concerned that the question of inter se seniority of promotees and direct
recruits will be left to be decided by the concerned universities. It is
impossible to discern any promise about fixation of inter se seniority from
this letter. For all these reasons, the first point under consideration is
answered in the negative.
Point
No.2
45. So
far as this point is concerned we may note that the High Court by the impugned
judgment has taken the view in the last para of the judgment that the
respondent university shall delete the names of respondents nos. 4 to 9 in M.P.
1180/ 89 and respondent no.4 in M.P. 208/89, from seniority list. A grave
exception was taken by learned counsel for appellants to the aforesaid
direction. It was submitted that once the merit promotion scheme recommended by
the Commission was adopted by the respondent university and once the concerned
incumbents were promoted on merit as Reader or Professor as the case may be
they were entitled to work as Readers or Professors even assuming that they
were ex cadre employees. Hence it cannot be said that they should not be
treated as Readers or Professors at all and their seniority should be shown
only in the lower cadre of Reader or Lecturer as the case may be from which they
were promoted on merit as Readers or Professors. In this connection they
invited our attention to para 12 of the judgment to the effect that it is clear
from the scheme annexure P/4 that by virtue of promotion under the said scheme,
it is only the designation of the incumbent which is changed but in reality he
remains in the same lower cadre of either Reader or Lecturer as the case may
be. Consequently respondents 4 to 9 can not be held to have been appointed by
the University on clear vacant posts of professors and their name cannot be
included in the seniority list of professors nor can they be considered senior
to the petitioner. According to us no exception can be taken to the last part
of para 86 no. 12, there it is observed that respondents 4 to 9 cannot be held
to have been appointed on clear vacant posts of Professors nor can they be
included in the seniority list of Professor nor can be considered senior to the
petitioner.
But it
must be clarified at this stage that even though they may not be included in
the seniority list of cadre employees, namely, Professors or Readers it also
cannot be held as assumed by the High Court that their merit promotions were of
no legal effect at all. In this connection, we must keep in view the salient
features of the merit promotion scheme. It cannot be disputed that with a view
to avoid stagnation amongst university teachers the Commission recommended a
scheme of merit promotion. The very preamble of the scheme shows that it is
necessary to give reasonable opportunity for career advancement and recognition
of merits and it is on the basis of competitive test for recognising
outstanding work and merit that such merit promotions were given. Once a
Lecturer is promoted on merit as Reader or a Reader as Professor even though
the promotion may be personal to him he can certainly continue to work as promotee
Reader or Professor till he retires or otherwise ceases to be an employee of
the university or till he is reverted for some valid reasons. There is no
question of such a merit promotee being reverted otherwise to the lower cadre
from which he came. He has to work as a Reader or Professor as the case may be
and share the work load with the cadre employees. In fact as there is no
vacancy created in the lower cadre from which he came on account of his
promotion, he has also to share the burden of work load o the lower post.
Consequently it cannot be said that such a merit promotee is not th Reader or
Professor so far as his work as Reader or Professor is concerned. We cannot
claim to be fitted in the inter se seniority list and may remain outside the
cadre of Reader or Professor as the case may be.
However,
for all other purposes like pay, work and status he is a Reader or Professor as
the case may be.
46.
The question then remains as to how his seniority has to be reckoned as a merit
promotee even though he is an ex cadre Reader or Professor. The answer is
obvious. Amongst person forming the same class to which he belongs, namely,
'merit promotee Readers or Professors their inter se seniority has to be fixed
on the basis of continuous officiation as such merit promotees. Such a separate
seniority list of merit promotee Readers and Professors has to be prepared and
acted upon for purposes other than seniority and promotion in, and to the posts
available to those in the cadre. It is not as if they are still to be treated
as only Lecturers or Readers as the case may be from which posts they got merit
promotion, as wrongly assumed by the High Court. In short there have to be two seniority
lists, one of the cadre Readers and Professors who are direct recruits and the
other of merit promotee Readers and Professors. The directions issued by the
High Court in the impugned judgment in paragraph 16 read with the observations
in paragraph 12 will have to stand modified as aforesaid.
It is
however, clarified that the direction of the High Court that names of
respondents 4 to 9 in M.P. 1180/ 89 and respondent no.4 in M.P.208/89 in the
combined seniority list will have to be deleted has to be sustained. The other di-
rections contained in the later part of paragraph 16 also will have to be
sustained. Point no.2, is answered in the negative but as indicated herein
above.
87
Point
No.3
47. So
far as this point is concerned, it must be noted that even though die
respondent no.4 in his writ petition before the High Court had prayed for
several reliefs in the prayer clause 53, no such relief was claimed against
respondent no.1 university. Not only that, even in the judgment under appeal no
such claim has been considered and no such relief is given to him. He has also
not filed any cross petition in this court claiming such relief. Hence, the
relief cannot be given to him in the present appeal moved by the appellants.
'Mat apart, there is no factual basis by way of any material on record for
awarding any compensation to him for the alleged harassment suffered by him.
Point no.3 is therefore, answered in the negative.
Point
No.4
48. So
far as this point is concerned, respondent no.4 who filed the writ petition
before the High Court had prayed as per prayer (e) of clause 53 that the order
Annexure P/25 revising pay scales of the teachers being discriminatory, be
quashed in the light of the clarification given by the Commission. But such an
argument does not seem to have been pressed into service by him before the High
Court while arguing the writ petition. At least no discussion is found in the
judgment under appeal on this aspect. However, respondent no.4 drew our
attention to paragraph 16 of the judgment which contains a direction that any
other ancillary relief such as appointment as Dean or Head of Department, and
their respective pay scales, are matters of details which the university is
directed to work out and give effect to. It was submitted that this direction
would necessarily mean that the pay scales available to the appellants should
be reduced. It is not possible to agree with this conten- tion. The said
direction is only a consequential direction which flows from the reshuffling of
the seniority list which was found fault with by the High Court and it was a
logical corollary of the deletion of the names of respondents 4 to 9 from the
combined seniority list. This ancillary relief has nothing to do with the
setting aside of exhibit P/25. It has to be kept in view that the State of
Madhya Pradesh by clarificatory order dated 21.3.81 had clearly directed that
those merit promotee Readers and Professors who got promoted under merit
promotion scheme prior to 17.6.87 had to be given pay protection and would be
entitled to draw revised salary of Reader and Professor at par with directly
recruited Reader and Professor. That order of the State of Madhya Pradesh does not appear to have been
challenged by the party in person before the High Court as there is no
discussion on this aspect in the judgment. Not only that but there is no
decision rendered by the High Court in this connection. The respondent no.4 had
not filed any cross petition claiming this additional relief from this court.
Consequently,
it is not open to respondent no.4 to contend in the appeal filed by the
appellants that a more adverse order be passed against the appellants by
depriving them of the enhanced revised time scale made available to them by the
State of Madhya Pradesh. Even otherwise, we do not find any
justification for finding any fault with the directions contained in the State
Govt. Order which tried to protect the pay scales of merit promotees who had
already taken advantage of and who had got benefited by the merit promotion 88
scheme much prior to the coming into operation of the career advancement
scheme. To say the least, it was a discretionary order which was justified on
the facts of the present case. The fourth point is accordingly answered in the
negative.
Point
No.5
49. In
view of the aforesaid discussion and our decision on the concerned points for
determination, the result is that these appeals fail and are dismissed subject
to the modification of the impugned order of the High Court as indicated while
answering point no.2. In the facts and circumstances of the case there will be
no order as to costs.
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