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PETITIONER:

DR BAL KRISHNA AGARWAL

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT10/01/1995

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

FAIZAN UDDIN (J)

CITATION:

1995 SCC (1) 614 JT 1995 (1) 471

1995 SCALE (1)116

ACT:

HEADNOTE:

JUDGMENT:

The judgement of the court was delivered by

S.C. AGRAWAL, J--Leave granted.

2. We have heard learned counsel for the parties.

+From the Judgment and Order dated 6-1-1994 of the Allahabad

High court in C.M.P.W.PNo. 15566 of 1988

3. This appeal involves the question regarding inter se

seniority of the appellant, Dr Bal Krishna Agarwal, and

Respondents 4 and 5,Dr Murli Manohar Joshi, and Dr PK.

Sharma as Professors in Physics in the Allahabad University

(hereinafter referred to as "the University"). The

Executive Council of the University by resolution dated

16-7-1978, declared Respondents 4 and 5 as senior to the

appellant. Writ Petition No. 15566 of 1988 filed by the

appellant against the said resolution of the Executive

Council was dismissed by the Allahabad High Court by

judgment dated 6-1-1994 on the ground that alternative

remedy of reference to the Chancellor under Section 68 of

the Uttar Pradesh State Universities Act, 1973 (hereinafter

referred to as "the Act") was available to the appellant.

4. Section 31 of the Act provides for appointment of

teachers. In subsection (10) of Section 31 it is prescribed

that no selection for any appointment shall be made except

after advertisement of the vacancy in at least three issues

of two newspapers having adequate circulation in Uttar

Pradesh. In view of the said provision appointment of

teachers in the University could only be made by direct

recruitment by inviting applications and promotion from a

lower teaching post to a higher teaching post was not

envisaged. This led to stagnation and consequent

frustration among, the teachers in the various universities

governed by the Act. In order to remove this grievance the

Government of Uttar Pradesh, by order dated 12-12-1983,

framed a Personal Promotion Scheme where under personal

promotion was to be given to a teacher on the basis of

continuous service rendered in the department for a certain

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period. By order dated 25-2-1984 the said order dated

12-12-1983 was modified and it was decided to grant personal

promotion to the post of Reader to all those full-time and

regularly appointed lecturers on the Government approved

posts of universities governed and administered by the Act

who possess Ph.D. degrees and have completed 13 years'

approved, full-time regular and continuous service and those

who are not Ph.D. after 16 years' approved, full-time and

regular and continuous service. It was also decided to

grant personal promotion to the post of Professor to Readers

after IO years' continuous and regular service as Reader

from the date of taking over charge after issue of the said

order. In the said order it was stated that the personal

promotion would be granted to teachers subject to the

restrictions set out in sub-paragraphs (1) to (12) of

paragraph in the said order. In sub-paragraph (12) it was

stated that the seniority of teachers would be regulated as

per regulations of the university concerned. By the said

letter the Vice-Chancellors of all the State Universities

were directed to send the draft regulation for carrying out

necessary amendment in the regulations of the university

concerned to the Education Department for approval. In

order to give effect to the policy contained in the

aforesaid orders of the Government of Uttar Pradesh, Section

3 1 -A was inserted in the Act by U.P Act No. 9 of 1985

which came into force on 10-10-1984. Section 3 1 -A

provides as under:

"31-A. Personal promotion to Teachers of

University.- (1) Notwithstanding anything to

the contrary contained in any other

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provision of this Act, a Lecturer or Reader in

the University substantively appointed under

Section 3 1, who has put in such length of

service and possesses such qualifications, as

may be prescribed, may be given personal

promotion, respectively to the post of Reader

or Professor.

(2) Such personal promotion shall be given on

the recommendation of the Selection Committee,

constituted under clause (a) of sub-section

(4) of Section 31, in such manner and

subject to such conditions as may be

prescribed.

(3) Nothing contained in this section shall

affect the posts of the teachers of the

University to be filled by direct appointment

in accordance with the provisions of Section

31."

5. In view of sub-section (1) of Section 31-A personal

promotion as envisaged by Section 31-A could be given only

after the length of service and the qualifications were

prescribed. The word 'prescribed' is defined in Section

2(14) of the Act to mean prescribed by the Statutes. The

necessary amendment to give effect to the scheme of personal

promotion as envisaged by Section 31 -A of the Act was made

in the Statutes of the University by notification dated

21-2-1985 whereby Statute 11.12-B was introduced and the

categories of teachers of the University who would be

eligible for the personal promotion to the post of Readers

and Professors and the mode of such promotion were

prescribed.

6. The appellant and Respondents 4 and 5 were employed as

Readers in the Physics Department of the University. In

October 1983 an advertisement was published inviting

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applications for direct recruitment on one permanent post of

Professor in the Physics Department of the University. In

response to the said advertisement applications were

submitted by the appellant and Respondents 4 and 5 along

with other applicants. The said applications were

considered by the Selection Committee under the Faculty of

Science and the Selection Committee, in its report dated 22-

7-1984, recommended a panel containing the names of the

appellant and Respondents 4 and 5 for appointment on the

post of Professor in Physics. The name of the appellant was

placed at the top in the said panel. The Selection

Committee also considered the appellant and Respondents 4

and 5 for promotion to the grade of Professor under the

Personal Promotion Scheme and in its report dated 22-7-1984

the Selection Committee recommended all three of them for

such promotion. The said recommendations of the Selection

Committee were considered by the Executive Council of the

University at the meeting held on 8-11-1984. By Resolution

No. 197 the Executive Council accepted the recommendations

of the Selection Committee and recorded that the appellant

be appointed as Professor in Physics substantively. By

Resolution No. 198 the Executive Council accepted the

'recommendations of the Selection Committee under the

Personal Promotion Scheme and recorded that the appellant

and Respondents 4 and 5 be promoted to the grade of

Professor in terms of Government Orders dated 12-12-1983 and

25-2-1984. In the said

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resolution the names of the appellant and Respondents 4 and

5 were shown in the following order:

1. Dr Bal Krishna Agarwal (appellant)

2. Dr M.M. Joshi (Respondent 4)

3. Dr PK. Sharma (Respondent 5)

7. On the basis of the said resolutions, by order dated 9-

11-1984, the appellant was appointed on the post of

Professor in Physics. Respondents 4 and 5 were promoted in

the grade of Professor under the Personal Promotion Scheme

on 9-11-1984. The appointment of the appellant on the post

of Professor was on probation for one year and he was

confirmed on the said post of Professor with effect from 9-

11-1985. The matter of inter se seniority of the appellant

and Respondents 4 and 5 was considered by the Seniority

Committee of the Faculty of Science in its meeting held on

22-12-1986 and 4-1-1987. The Committee came to the

conclusion that the appointments on cadre posts and personal

promotion cases constitute two different categories and

could not be intermingled for the purpose of determination

of seniority and that the seniority of teachers in the cadre

posts should be maintained separately from that of the

personal promotees and that the teachers appointed on cadre

posts of direct recruitment should be treated senior to

those teachers appointed under Personal Promotion Scheme

irrespective of their date of appointment. The Seniority

Committee decided to place the appellant, who was holding

the cadre post of Professor, above Respondents 4 and 5 who

were promoted to the grade of Professor under the Personal

Promotion Scheme. Feeling aggrieved by the said decision of

the Seniority Committee Respondents 4 and 5 submitted

representations which were considered by the Executive

Council in its meeting held on 16-7-1988. The Executive

Council altered the seniority as fixed by the Seniority

Committee and placed Respondents 4 and 5 above the

appellant. The said decision of the Executive Council was

assailed by the appellant by filing the writ petition giving

rise to this appeal.

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8. The High Court has observed that there was controversy

in regard to every question of fact inasmuch as there was a

dispute with regard to nature of appointments since the

appellant claimed that he had been appointed against a

regular vacancy which was assailed by the respondents who

asserted that all three had been granted personal promotion

and that there was also a dispute regarding the date on

which the appellant joined the post of Professor. The High

Court was of the view that the question as to whether the

impugned order had been passed without affording an

opportunity of hearing to the appellant was a question which

can be appropriately decided only after investigation in the

disputed questions of fact and that this was not a fit case

in which the appellant should be allowed to bypass the

alternative remedy of reference to the Chancellor provided

under Section 68 of the Act. The High Court. therefore,

dismissed the writ petition on the ground of availability of

alternative remedy and directed that if the representation

of the appellant under Section 68 of the Act was filed

within a period of two

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weeks, the bar of limitation would not be applied against

the same and it should be decided on merits.

9.The learned counsel for the appellant has urged that the

High Court was in error in dismissing the writ petition of

the appellant on the ground of availability of an

alternative remedy having regard to the fact that the writ

petition had been filed in 1988 and it had been admitted and

was pending in the High Court for the past more than five

years. The learned counsel has also urged that the High

Court was not right in saying that there was dispute on

questions of fact. According to the learned counsel there

is no dispute that the appellant had been selected by the

Selection Committee for appointment on the permanent post of

Professor which was advertised and the said recommendation

of the Selection Committee was accepted by the Executive

Council in its Resolution No. 197 dated 8-11-1984. The fact

that the name of the appellant was also included in the list

of Readers for personal promotion to the grade of Professor

in Resolution No. 198 of the Executive Council would not

mean that the appointment of the appellant to the post of

Professor was by way of personal promotion and not on the

basis of selection for the cadre post of Professor which was

advertised. The learned counsel also submitted that it is

not the case of the appellant that he joined the post of

Professor in Physics on 8-11-1984 and that his case is that

the appellant as well as Respondents 4 and 5 all joined as

Professors in Physics on 9-11-1984.

10.Having regard to the aforesaid facts and circumstances,

we are of the view that the High Court was not right in

dismissing the writ petition of the appellant on the ground

of availability of an alternative remedy under Section 68 of

the Act especially when the writ petition that was filed in

1988 had already been admitted and was pending in the High

Court for the past more than five years. Since the question

that is raised involves a pure question of law and even if

the matter is referred to the Chancellor under Section 68 of

the Act it is bound to be agitated in the court by the party

aggrieved by the order of the Chancellor, we are of the view

that this was not a case where the High Court should have

non-suited the appellant on the ground of availability of an

alternative remedy. We, therefore, propose to go into the

merits of the question regarding inter se seniority of the

appellant and Respondents 4 and 5. We may, in this context,

mention that Respondent 4 has already retired in January

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1994.

11.Provisions with regard to seniority of teachers of

University are contained in Chapter 18 of the First Statute

of the University. Prior to the amendments made by

Notification dated 21-2-1985 the statutes having bearing on

the seniority of teachers of the University were as under:

"18.05. The following rules shall be followed

in determining the seniority of teachers of

the University:

(a) A Professor shall be deemed senior to

every Reader, and a Reader shall be deemed

senior to every Lecturer.

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(b) In the same cadre, seniority of a

teacher shall be determined according to the

length of his continuous service in a

substantive capacity in such cadre:

Provided that where more than one appointment to posts in a

cadre have been made at the same time, and an order of

preference or merit was indicated by the Selection Committee

or by the Executive Council, as the case may be, the

seniority of the persons so appointed shall be governed by

the order so indicated.

(c) When any teacher holding substantive

post in any University (other than the

University of Allahabad) or in any constituent

college or in any institute whether in the

State of Uttar Pradesh or outside Uttar

Pradesh is appointed whether before or after

1-8-1981, to a post of corresponding rank or

grade in the University, the period of service

rendered by such teacher in that grade or rank

in such University shall be added to his

length of service.

(d) When any teacher holding substantive

post in any college affiliated to or

associated with any University is appointed

whether before or after the commencement of

these Statutes as a Lecturer in the

University, then one half of the period of

substantive service rendered by such teacher

in such college shall be added to his length

of service.

(e) Service against an administrative

appointment in any University or institution

shall not count for the purposes of seniority.

Explanation.- In this Chapter, the expression

"administrative appointment" means an appointment made under

sub-section (6) of Section 13.

(f)Continuous service in a temporary post to

which a teacher is appointed after reference

to a Selection Committee, if followed by his

appointment in a substantive capacity to that

post under Section 31(3)(b) shall count

towards seniority.

18.06. Where more than one teacher are entitled to count

the same length of continuous service in the cadre to which

they belong, the relative seniority of such teachers shall

be determined as below:

(i) in the case of Professors, the length of

substantive service as Reader shall be taken

into consideration;

(ii) in the case of Readers, the length of

substantive service as Lecturer shall be taken

into consideration;.

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(iii) in the case of Professors, whose length

of service as Readers is also identical, the

length of service as Lecturer shall be taken

into consideration.

18.07. Where more than one teacher are entitled to count

the same length of continuous service and their relative

seniority cannot be

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determined in accordance with any of the foregoing

provisions, then the seniority of such teachers shall be

determined on the basis of seniority in age.

18.08 (1) Notwithstanding anything contained in any

other Statute, if the Executive Council--

(a) agrees with the recommendation of the

Selection Committee, and approves two or more

persons for appointment as teachers in the

same Department, it shall, while recording

such approval, determine the order of merit of

such teachers;

(b) does not agree with the recommendations

of the Selection Committee and refers the

matter to the Chancellor under Section

31(8)(a), the Chancellor shall, in cases where

appointment of two or more teachers in the

same Department is involved, determine the

order of merit of such teachers at the time of

deciding such reference;

(2) The order of merit in which two or more

teachers are placed under clause (1), shall be

communicated to the teachers concerned before

their appointment.

By virtue of the amendments that have been introduced in the

Statutes by Notification dated 21-2-1985, clause (b) of

Statute 18.05 was substituted as under:

" (b) In the same cadre, inter se seniority of

teachers, appointed by personal promotion or

by direct recruitment, shall be determined

according to length of continuous service in a

substantive capacity in such cadre:

Provided that where more than one appointment

have been made by direct recruitment at the

same time and an order of preference or merit

was indicated by the Selection Committee or by

the Executive Council, as the case may be, the

inter se seniority of persons so appointed

shall be governed by the order so indicated:

Provided further that where more than one

appointment have been made by promotion at the

same time, the inter se seniority of the

teachers so appointed shall be the same as it

was in the post held by them at the time of

promotion."

12. The learned counsel for the appellant has submitted

that since the appellant, was appointed on the post of

Professor in Physics on 9-11-1984, the seniority should be

regulated by the provisions contained in the Statutes as

they existed on the said date and that the amendments which

were made in the Statutes by Notification dated 21-2-1985

would have. no application in the matter of determination of

his seniority. Under clause (b) of Statute 18.05, as it

stood on 9-11-1984, when the appellant joined as Professor

in Physics, appellant, who was holding the selection post of

Professor in Physics Faculty, was senior to Respondents 4

and 5 who were promotees under the Personal Promotion

Scheme. In this connection, the learned counsel has urged

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that although Section 31-A, which provides for personal

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promotion, was introduced in the Act with effect from 10-10-

1984 but the said provision could be given effect to only

after the length of service as well as the qualifications

were prescribed in the Statutes and that this was done only,

by the amendments that were introduced in the Statutes by

Notification dated 21-2-1985 and, therefore, personal

promotion of Respondents 4 and 5 could have legal effect

only from the date of such amendment in the Statutes and

that Respondents 4 and 5 should be treated to have been

promoted under Personal Promotion Scheme on the grade of

Professor in Physics with effect from 21-2-1985. Since the

appellant joined as Professor in Physics on 9-11-1984, he

should be treated as senior to Respondents 4 and 5.

13. Shri Sanyal, the learned Senior Counsel appearing for

Respondent 5, has, however, urged that since the validity of

appointment of Respondents 4 and 5 with effect from 9-11-

1984 has not been assailed by the appellant, he should not

be permitted to raise this question at this stage. It is no

doubt true that the validity of promotion of Respondents 4

and 5 has not been assailed by the appellant but all that he

is pointing out is that in view of the provisions contained

in Section 31-A of the Act the promotion of Respondents 4

and 5 under the Personal Promotion Scheme could be made only

after the length of service and qualifications were

prescribed by the Statutes and provisions in this regard

were made in the Statutes only on 21-2-1985. In other

words, what the appellant is saying is that the promotion of

Respondents 4 and 5 to the grade of Professor can be

regarded to have been made legally only with effect from 21-

2-1985. This does not involve a challenge to the validity

of their promotion but only raises the question about the

date from which it can be given effect to in law. We are of

the opinion that in view of the provisions contained in

Section 3 1 -A and Section 2(14) of the Act there is no

escape from the conclusion that Respondents 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 21-2-1985, promotion under the Personal Promotion

Scheme could not be made prior to 21-2-1985. The Executive

Council in its Resolution No. 198 dated 8-11-1984 had

accepted the recommendations of the Selection Committee for

promotion of Respondents 4 and 5 on the basis of Government

Orders dated 12-12-1983 and 25-2-1984. 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 introducing Section 3

1 -A by U.P. Act No. 9 of 1985 with effect from 10- 10-

1984. But Section 3 1 -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 21-2-

1985. The promotion of Respondents 4 and 5 to the grade of

Professor under the Personal Promotion Scheme could,

therefore, not be made prior to 21-2-1985

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and it has to be treated to have been made with effect from

21-2-1985. The inter se seniority of the appellant and

Respondents 4 and 5 has to be determined on that basis.

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14. Shri Sanyal has also contended that since the seniority

of the appellant and Respondents 4 and 5 was determined by

the Executive Council after the Statutes had been amended by

notification dated 21-2-1985 the criterion for fixing the

seniority would be that laid down in the Statutes on the

date when such determination was made and that the seniority

was properly determined in accordance with the provisions of

the Statute 18.05 as amended by Notification dated 21-2-

1985. We are unable to agree. Even under the Statutes as

amended by Notification dated 21-2-1985, it is laid down in

clause (b) of Statute 18.05 that in the same cadre, inter se

seniority of teachers, appointed by personal promotion or by

direct recruitment, shall be determined according to length

of continuous service in a substantive capacity in such

cadre. Since the promotion of Respondents 4 and 5 can be

treated to be valid only with effect from 21-2-1985 their

service in the cadre of Professor has to be counted from 21-

2-1985 while the service of the appellant has to be counted

from 9-11-1984. The appellant is, therefore, entitled to be

placed above Respondents 4 and 5 insofar as seniority in the

cadre of Professor is concerned.

15. Shri Arun Jaitley, the learned counsel appearing for

Respondent 4, has invited our attention to Statute 18.06 and

has submitted that since the appellant and Respondents 4 and

5 joined as Professors on the same date and have the same

length of continuous service in the cadre of Professor,

their inter se seniority should be determined by virtue of

the length of their service as Readers and on that basis

Respondents 4 and 5 would rank senior to the appellant since

they had longer length of service as Readers than the

appellant. This contention also proceeds on the basis that

Respondents 4 and 5 were validly promoted to the grade of

Professor on 9-11-1984 and the said contention would have no

validity if it is held that promotion of Respondents 4 and 5

to the grade of Professor under the Personal Promotion

Scheme could only be legally effected from 21-2-1985.

16. For the reasons aforementioned, it must be held that

the appellant should have been treated as senior to

Respondents 4 and 5 in the cadre of Professor in Physics and

the Executive Council was not justified in placing him

junior to the said respondents. The appeal is, therefore,

allowed, the judgment of the High Court dated 6-1-1994 is

set aside and the writ petition filed by the appellant is

allowed and it is directed that the appellant should be

treated as senior to Respondents 4 and 5 as Professor in the

Physics Department of the University. There is no order as

to costs.

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