Nitya
Nand Va. State of Haryana & Ors. [2009] INSC 1732 (13 November 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7553 OF
2009 (Arising out of SLP (C) No. 15066/2008) Nitya Nand ...Appellant Versus
State of Haryana & Ors. ...Respondents JUDGEMENT R.M. Lodha, J.
1.
Leave granted.
2.
In this appeal by special leave, the judgment of the High Court of
Punjab and Haryana passed on April 30, 2008 has been challenged. By the said
judgment, the High Court allowed writ petition filed by the present respondent
No. 4 fixing his seniority over appellant to the post of Senior Professor
setting aside the communication of the Government of Haryana dated November 30,
2007 and consequential office order dated December 3, 2007 issued by the
Director, PGIMS, Rohtak.
3.
The question that falls to be determined in this appeal by special
leave is: whether "Floating Professor" and "Associate
Professor" are different categories of posts in Haryana Medical Education
Service and, if the answer is in affirmative; is High Court justified in
holding that present respondent No.4, having been selected as Floating
Professor while the appellant continued as a substantive Associate Professor
prior to their promotion as Senior Professor, must rank senior to the appellant
to the post of Senior Professor.
4.
The answer to the aforesaid question, obviously, must be found
with reference to Haryana Medical Education Service Rules 1988 (amended in
2007) (hereinafter referred to as `the Rules' ) but before we do that, it will
be appropriate that material and relevant facts are noticed first.
5.
Dr. Nitya Nand (Appellant) and Dr. P.S. Ghalaut (Respondent No. 4)
joined Haryana Medical Education Service as Lecturer in 1981. The appellant is
said to have been confirmed as Lecturer in the Department of Medicine on July
12, 1984 while respondent No. 4 was confirmed as Lecturer on July 26, 1984. The
issue concerning inter-se seniority between 2 appellant and respondent No. 4 as
Lecturer reached this Court in C.A. No.7608/95, P.S. Ghalaut V. State of
Haryana and Others, (1995) 5 SCC 625, and this Court vide judgment dated August
3, 1995 held that the appellant was senior to respondent No. 4 as Lecturer. The
appellant as well as respondent No. 4 after they were allowed to cross 1st
efficiency bar and on the fulfillment of the requisite qualifications and
experience were re-designated as Reader and upon their crossing 2nd efficiency
bar and fulfilling the qualifications and experience for the post of Associate
Professor, they were re- designated as Associate Professor. The Appellant was
appointed and designated as Reader with effect from June 26, 1986 and Associate
Professor with effect from June 26, 1991 while the respondent No. 4 was
appointed and designated as Reader with effect from September 11, 1986 and
Associate Professor with effect from September 11, 1991. In view of the vacant
posts obtaining then, the appellant was promoted as ad hoc Professor on August
6, 1993, while respondent No. 4 was promoted as Professor on ad hoc basis on
December 23, 1993 but both of them continued to hold substantive posts of 3
Associate Professor. The respondent No. 4, vide order dated July 19, 2006 was
selected as Floating Professor under rule 10 of the Rules. The appellant as
well as respondent No. 4 were promoted as Senior Professor (erstwhile
Professor) substantively with effect from May 2, 2007. It was clarified that
their inter-se seniority shall be decided later on. Ultimately, vide
communication dated November 30, 2007 inter-se seniority of the appellant and
respondent No. 4 to the post of Senior Professor was decided by the Government
whereby the appellant was accorded seniority over respondent No. 4 and office
order came to be issued on December 3, 2007.
6.
The present respondent No. 4 challenged the communication dated
November 30, 2007 and the office order dated December 3, 2007 before the High
Court of Punjab and Haryana. As noticed above the High Court set aside the
communication dated November 30, 2007 and office order dated December 3, 2007;
allowed the writ petition and held that respondent No.4 would rank senior to
the appellant to the post of Senior Professor.
7.
In rule 2 (l), "Service" means the Haryana Medical
Education Service.
Rule 2
(m) defines "teacher" thus :
"teacher"
means a lecturer, Reader and Associate Professor including those when appointed
as Floating Professors under rule 10."
Rule 3
reads thus :
"The
Service shall comprise the posts with designation, scales of pay and other
allowances shown in Appendix A to these rules;
Provided
that nothing in these rules shall affect the inherent right of the Government
to make additions to, or reduction in the number of such posts or to create new
posts with different designation or scales of pay either permanently or
temporarily."
Rule 9,
to the extent it is relevant, reads thus:
"(1)
Recruitment to any post in the Service shall be made as under :-- (a)
..................................................
(b)
.................................................
(c)
...........................................................
(d)
.................................................
(e)
.................................................
(f) in
the case of Professors (Medical/Non- Medical) and Professors (Dental):-- (i)
50% by promotion from amongst the teachers, and (ii) 50% by direct recruitment,
or by transfer or deputation of any officer/official already in the service of
any State Government or the Government of India.:
Provided
that the first post or vacancy of a Professor in each Department shall be
filled in 5 by direct recruitment and the second by promotion and so on.
(g) in
the case of Teachers (Medical/Non-Medical) and Teachers (Dental):-- (i)
appointment shall be made on the post of Lecturer only by direct recruitment
and if no suitable person is available for appointment as Lecturer then by
transfer or deputation from any State Government or Government of India or any
institution;
(ii) a
lecturer shall be re-designated as Reader if he has been allowed to cross 1st
efficiency bar and fulfils the qualifications and experience for the post of
Reader as laid down in column 5 of Appendix B;
(iii) a
Reader shall be re-designated as Associate Professor if he has been allowed to
cross the 2nd efficiency bar and fulfils the qualifications and experience for
the post of Associate Professor as laid down in column 5 of Appendix B:
Provided
that the persons holding the posts of Lecturer or Reader on the commencement of
these rules shall be re-designated as Reader or Associate Professor as the case
may be if he fulfils the qualifications and experience as laid down in column 5
of Appendix B and is otherwise suitable for re-designation on the basis of
record irrespective of the fact whether he has crossed the 1st or the 2nd
efficiency bar, as the case may be;
2.
Appointment by promotion shall be made on the basis of seniority-cum-merit and
seniority alone shall not confer any right to such promotion."
Rule 10
makes provision for appointment as Floating Professors. It reads as follows :
6
"(1) The posts of Floating Professor under this scheme shall be created
subject to the maximum of 5 posts.
(2) Only
those Associate Professors who are working for the last 10 years as Associate
Professors shall be considered for the post of Floating Professor.
(3)
Promotion to the post of Floating Professor under this scheme shall mean an
upgradation of the post which a promotee is holding.
Hence the
post will remain in abeyance till the incumbent is adjusted against the
permanent post or retires.
(4) The
person shall have to appear before the Selection Committee constituted for
deciding his suitability for Floating Professorship.
(5) If
the regular post of Professor falls vacant, the Floating Professor shall be
required to compete for the regular post.
(6) On
the retirement, adjustment, selection against permanent post, the post thus
falling vacant shall be filled in as per procedures laid down above.
(7) As it
is an upgradation of the post that a promotee is holding incumbent shall
continue to perform the duties as heretofore."
Rule 13
provides for inter-se seniority of the members of service. It reads thus :-
"Seniority, inter se of members of the Service, shall be determined by the
length of continuous service on any post in the service :
7
Provided that where there are different categories of posts in the service, the
seniority shall be determined separately for each category :
Provided
further that in the case of two or more members appointed by direct
recruitment, the order of merit determined by the Commission or Selection
Committee shall not be disturbed in fixing the seniority.
Provided
further that in the case of two or more members appointed on the same date, the
seniority shall be determined as follows :-- (a) a member appointed by direct
recruitment shall be senior to a member appointed by promotion or by transfer ;
(b) a
member appointed by promotion shall be senior to a member appointed by transfer
;
(c) in
the case of members appointed by promotion or by transfer, seniority shall be
determined according to the seniority of such members in the appointments from
which they were promoted or transferred ; and (d) in the case of members
appointed by transfer from different cadres, their seniority shall be
determined according to pay, preference being given to a member who was drawing
a higher rate of pay in his previous appointment; and if the rates of pay drawn
are also the same, then by the length of their service in the appointments, and
if the length of such service is also the same, older member shall be senior to
the younger member."
8.
Mr. Aman Lekhi, learned senior counsel for the appellant submitted
that the faculty, as per the Rules, has two cadres viz; `Teacher' and
`Professor' (now designated as Senior 8 Professor in the amended Rules, 2007).
Section 2(m) defines `Teacher' which means Lecturers, Readers, Associate
Professor and Floating Professor (now called Assistant Professor, Associate
Professor and Professor) respectively and once cadre seniority has been fixed,
the same cannot be altered and therefore, the appellant having been held senior
to the respondent No. 4 in the cadre of `Teacher' and inter-se seniority in the
cadre of `Teacher' having been settled right upto this Court, the appellant was
rightly made senior to respondent No. 4 by the Government on their promotion to
the post of Senior Professor. He submitted that High Court seriously erred in
holding that respondent No. 4 having been selected as a Floating Professor, he
would get seniority over the appellant when the post held by both of them is
the same viz, `Teacher'. Learned senior counsel would submit that sub- rule (5)
and (7) of rule 10 of the Rules cannot be disregarded while considering
sub-rule (1) of rule 10 since the selection as Floating Professor keeps the
selectee in the cadre of `Teacher' as defined in rule 2(m) of the Rules. The
learned senior counsel strenuously urged that High Court has misinterpreted 9
and misconstrued the Rules.
9.
On the other hand, Mr. Bali Ram Gupta, learned senior counsel
appearing for respondent No. 4 supported the view of the High Court.
10.
It is true that, as per rule 3, Haryana Medical Education Service
comprises of the posts with designation, scales of pay and other allowances as
shown in Appendix A to the Rules. It is also true that in appendix A, no
separate post of "Associate Professor" and "Floating
Professor" are mentioned.
However,
from the Rules, it is apparent that "Associate Professor" and
"Floating Professor" are different categories of posts in the
service. It is so because as per rule 10 only those Associate Professors who
had been working for the last 10 years can be considered for selection to the post
of Floating Professor. Sub-rule (1) of rule 10 begins with the expression,
"The post of Floating Professor" and provides that these posts shall
be created to the maximum of five posts under the scheme as set out in the
rule. This gives an indication that Floating Professor is a different category
of post in service.
Sub-rule
(3) of rule 10 provides that promotion to the post of 10 "Floating
Professor" shall mean an up gradation of the post which a promotee is
holding and by virtue of Sub-rule (7), the promotee continues to perform the
duties hitherto being done by him. As per sub-rule (4), the suitability for
Floating Professorship is to be decided by a Selection Committee and a
candidate has to appear before such Committee. Although appointed as a Floating
Professor, if the regular post of the Professor falls vacant, as per sub-rule
(5), he is required to compete for the regular post. The survey of scheme
contained in rule 10 leaves no manner of doubt that the Rules do provide for
the post of Floating Professor and that it is a different category of post. As
a matter of fact, rule 10 is a special provision for appointment as Floating
Professor. The selection procedure incorporates ad judgment of suitability for
Floating Professorship by the selection committee. Moreover, had Floating
Professor been not a distinct category, in rule 2(m) that defines
"Teacher", there would not have been mention of "Floating
Professors".
11.
In so far as rule 9 is concerned, it has no application for
selection and appointment as Floating Professor. The very 11 fact that there is
a statutory provision with regard to the appointment as Floating Professor, no
doubt is left that it is a separate category of post, more so, once an
Associate Professor is selected and promoted as Floating Professor, he comes in
a higher pay-scale. In this view of the matter, we hold, as it must be, that
the Rules provide for appointment as Floating Professor and it is a separate
category of post.
12.
Having held that, the question then arises whether High Court is justified
in its view that the present respondent No. 4 having already been appointed as
Floating Professor must rank senior to the appellant to the post of Senior
Professor.
13.
On completion of ten years as Associate Professor, as noticed
above, the candidature of respondent No. 4 for appointment as Floating
Professor was considered; he appeared before the selection committee and was
found suitable for Floating Professorship and was in fact appointed as Floating
Professor on July 19, 2006. The appellant had also completed ten years working
as an Associate Professor but for the reasons best known to him, he did not
choose to appear 12 before the selection committee and, consequently, he
continued on the substantive post of Associate Professor, albeit, he was
working on ad hoc basis as Professor. It is true that on the same date i.e. May
2, 2007, the appellant and respondent No. 4 were promoted to the post of Senior
Professor substantively but for the reasons indicated above, the appellant
could not have been accorded seniority over respondent No. 4 as respondent No.
4 was already selected and appointed as Floating Professor from amongst
Associate Professors under rule 10 and was drawing higher pay-scale. It would
be travesty of justice and rather absurd if respondent No.
4 who had
already been appointed as Floating Professor and was drawing higher pay-scale
than the appellant before his substantive promotion to the post of Senior
Professor is made junior to the appellant who was only holding the substantive
post of Associate Professor (re-designated as a post of Professor under amended
Rules 2007) and was in the lower pay-scale on the date of promotion.
14.
Moreover, since the appellant and respondent No. 4 was in
different categories of posts in service as indicated 13 above, as per Rule 13,
their seniority has to be determined separately. The High Court in this regard
considered the matter thus:
"The
post of Floating Professor, though is part of teacher under Rule 2(m) of the
Rules, but the appointment as Floating Professor is governed and regulated by
Rule 10 of the Rules. Sub-Rule (1) contemplates maximum 5 posts of Floating
Professor.
Still
further, promotion to the post of Floating Professor means an up gradation of
the posts which a promotee is holding. Hence, the post held by the Floating
Professor is to remain in abeyance till the incumbent is adjusted against
permanent post of the lecturer [refer Sub-Rule (3)]. Still further, the
candidate has to appear before the Selection Committee for deciding his
suitability for Floating Professorship. Thus, Floating Professor is a distinct
category of a teacher though part of Service as teacher. Floating Professor is
promoted from amongst eligible Associate Professors after the Selection
Committee finds him suitable. Rule 13 contemplates that the Seniority shall be
determined by the length of continuous service on any post in the Service. It
is further explained that where there are different categories of posts in the
Service, the seniority shall be determined separately for each category,
therefore, the post of Floating Professor is a separate category than that of
Associate Professor and as such the seniority of Floating Professor has to be
determined separately than that of Associate Professor (since amended to read
as Floating Senior Professor).
No doubt,
it is correct that five posts of Floating Professors have been created out of
the cadre of teachers alone and such Floating Professors carry their posts with
them but the number of posts or the nature of promotion is not relevant for
determining the seniority. The seniority has to be determined in respect of
each category of posts in Service. The petitioner who has been promoted as
Floating Professor in the pay-scale of Rs.16400-21800/- is in 14 separate
higher category than the Associate Professor (re-designated as Professor) in
the pay- scale of Rs.14300-18300/-. Both categories of posts are not in the same
category and therefore, not comparable."
15.
We find no legal infirmity in the consideration of the matter by
the High Court. The view of the High Court calls for no interference.
16.
In what we have discussed above, appeal must fail and is dismissed
with no order as to costs.
........................J (Tarun Chatterjee)
........................J (R. M. Lodha)
New Delhi,
November 13 , 2009.
Back
