TMI Blog1995 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as the Act ) was available to the appellant. 4. Section 31 of the Act provides for appointment of teachers. In subsection (10) of Section 31 it is prescribed that no selection for any appointment shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in Uttar Pradesh. In view of the said provision appointment of teachers in the University could only be made by direct recruitment by inviting applications and promotion from a lower teaching post to a higher teaching post was not envisaged. This led to stagnation and consequent frustration among, the teachers in the various universities governed by the Act. In order to remove this grievance the Government of Uttar Pradesh, by order dated 12-12-1983, framed a Personal Promotion Scheme where under personal promotion was to be given to a teacher on the basis of continuous service rendered in the department for a certain period. By order dated 25-2-1984 the said order dated 12-12-1983 was modified and it was decided to grant personal promotion to the post of Reader to all those full-time and regularly appointed lecturers on the Government approved posts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment to give effect to the scheme of personal promotion as envisaged by Section 31 -A of the Act was made in the Statutes of the University by notification dated 21-2-1985 whereby Statute 11.12-B was introduced and the categories of teachers of the University who would be eligible for the personal promotion to the post of Readers and Professors and the mode of such promotion were prescribed. 6. The appellant and Respondents 4 and 5 were employed as Readers in the Physics Department of the University. In October 1983 an advertisement was published inviting applications for direct recruitment on one permanent post of Professor in the Physics Department of the University. In response to the said advertisement applications were submitted by the appellant and Respondents 4 and 5 along with other applicants. The said applications were considered by the Selection Committee under the Faculty of Science and the Selection Committee, in its report dated 22- 7-1984, recommended a panel containing the names of the appellant and Respondents 4 and 5 for appointment on the post of Professor in Physics. The name of the appellant was placed at the top in the said panel. The Selection Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Personal Promotion Scheme. Feeling aggrieved by the said decision of the Seniority Committee Respondents 4 and 5 submitted representations which were considered by the Executive Council in its meeting held on 16-7-1988. The Executive Council altered the seniority as fixed by the Seniority Committee and placed Respondents 4 and 5 above the appellant. The said decision of the Executive Council was assailed by the appellant by filing the writ petition giving rise to this appeal. 8. The High Court has observed that there was controversy in regard to every question of fact inasmuch as there was a dispute with regard to nature of appointments since the appellant claimed that he had been appointed against a regular vacancy which was assailed by the respondents who asserted that all three had been granted personal promotion and that there was also a dispute regarding the date on which the appellant joined the post of Professor. The High Court was of the view that the question as to whether the impugned order had been passed without affording an opportunity of hearing to the appellant was a question which can be appropriately decided only after investigation in the disputed questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994. 11.Provisions with regard to seniority of teachers of University are contained in Chapter 18 of the First Statute of the University. Prior to the amendments made by Notification dated 21-2-1985 the statutes having bearing on the seniority of teachers of the University were as under: 18.05. The following rules shall be followed in determining the seniority of teachers of the University: (a) A Professor shall be deemed senior to every Reader, and a Reader shall be deemed senior to every Lecturer. (b) In the same cadre, seniority of a teacher shall be determined according to the length of his continuous servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be determined in accordance with any of the foregoing provisions, then the seniority of such teachers shall be determined on the basis of seniority in age. 18.08 (1) Notwithstanding anything contained in any other Statute, if the Executive Council-- (a) agrees with the recommendation of the Selection Committee, and approves two or more persons for appointment as teachers in the same Department, it shall, while recording such approval, determine the order of merit of such teachers; (b) does not agree with the recommendations of the Selection Committee and refers the matter to the Chancellor under Section 31(8)(a), the Chancellor shall, in cases where appointment of two or more teachers in the same Department is involved, determine the order of merit of such teachers at the time of deciding such reference; (2) The order of merit in which two or more teachers are placed under clause (1), shall be communicated to the teachers concerned before their appointment. By virtue of the amendments that have been introduced in the Statutes by Notification dated 21-2-1985, clause (b) of Statute 18.05 was substituted as under: (b) In the same cadre, inter se seniority of teache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of Respondents 4 and 5 with effect from 9-11- 1984 has not been assailed by the appellant, he should not be permitted to raise this question at this stage. It is no doubt true that the validity of promotion of Respondents 4 and 5 has not been assailed by the appellant but all that he is pointing out is that in view of the provisions contained in Section 31-A of the Act the promotion of Respondents 4 and 5 under the Personal Promotion Scheme could be made only after the length of service and qualifications were prescribed by the Statutes and provisions in this regard were made in the Statutes only on 21-2-1985. In other words, what the appellant is saying is that the promotion of Respondents 4 and 5 to the grade of Professor can be regarded to have been made legally only with effect from 21- 2-1985. This does not involve a challenge to the validity of their promotion but only raises the question about the date from which it can be given effect to in law. We are of the opinion that in view of the provisions contained in Section 3 1 -A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be valid only with effect from 21-2-1985 their service in the cadre of Professor has to be counted from 21- 2-1985 while the service of the appellant has to be counted from 9-11-1984. The appellant is, therefore, entitled to be placed above Respondents 4 and 5 insofar as seniority in the cadre of Professor is concerned. 15. Shri Arun Jaitley, the learned counsel appearing for Respondent 4, has invited our attention to Statute 18.06 and has submitted that since the appellant and Respondents 4 and 5 joined as Professors on the same date and have the same length of continuous service in the cadre of Professor, their inter se seniority should be determined by virtue of the length of their service as Readers and on that basis Respondents 4 and 5 would rank senior to the appellant since they had longer length of service as Readers than the appellant. This contention also proceeds on the basis that Respondents 4 and 5 were validly promoted to the grade of Professor on 9-11-1984 and the said contention would have no validity if it is held that promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could only be legally effected from 21-2-1985. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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