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PETITIONER:

DR. RASHMI SRIVASTAVA

Vs.

RESPONDENT:

VIKRAM UNIVERSITY & ORS.

DATE OF JUDGMENT20/04/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

SAWANT, P.B.

CITATION:

1995 AIR 1694 1995 SCC (3) 653

JT 1995 (4) 51 1995 SCALE (2)871

ACT:

HEADNOTE:

JUDGMENT:

MAJMUDAR, J.:

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

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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

whereunder 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

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seniority of Professors in accordance with the Statute no.

16 and to give due seniority to re-

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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

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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.

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Section 37 deals with Ordinances and states that subject to

the provisions of the Act the Ordinances may provide for all

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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-

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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

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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

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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

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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.

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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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 30

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

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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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