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Judgment
D.M. Dharmadhikari, J.
The petitioner is working as Reader in Hindi Department of Rani Durgawati Vishwa Vidyalaya Jabalpur. By this petition under Art. 227 of the Constitution of India, she claims placement above respondent No. 4 (Dr. Tribhuvan Nath Shukla) in the seniority list of Readers of the university and seeks quashing of the seniority list (Annexure-F) where she has been placed below respondent No. 4.
It is not in dispute that the petitioner and the respondent No. 4 came to be appointed as Lecturer in the Vishwa Vidyalaya on same day i.e. 1.5.1980. It is also not in dispute that they came to be appointed as Readers on the same day on 18.3.1988 with the only difference that the petitioner was appointed as Reader by her selection under the Merit Promotion Scheme of the University Grants Commission, whereas the respondent No. 4 was appointed as a Reader in accordance with section 49 of the Madhya Pradesh Vishwa Vidyalaya Adhiniyam (for short the Adhiniyam) through the regular procedure by the Selection Committee constituted thereunder. In support of her claim for placement in the seniority list of Readers above the respondent No, 4. Learned Counsel for the petitioner submits that the petitioner had experience to her credit on the post of Lecturer in an affiliates college of the University which should have been considered for treating her senior to the respondent No, 4 on the post of Lecturer.-On her behalf, it is also stated that as the petitioner was senior as Lecturer, she-should be assigned her placement as both came to in be appointed to the post of Reader on the same date and the petitioner is also senior in age. Learned Counsel appearing for the petitioner in support of the claim of seniority relied on the provisions of the Statute No. 1ft of the Adhiniyam.
Shri V.S. Dabir, Learned Counsel appearing for the university represented by respondent 1, 2, and 3 and Shri V.K. Tankha, Learned Counsel appearing for the respondent No. 4 have filed separate returns opposing the petitioner''s claim of higher placement in the seniority list and have almost taken a common stand. In their oral submissions. It is urged that although the petitioner and the respondent No. 4 were appointed on the post of Lecturer on the same day but in the select list prepared by the selection committee, the respondent No. 4 was placed above the petitioner and, therefore, the respondent No. 4 should be treated as senior on the post of Lecturer. It is also tried to be submitted that the experience of Lecturer on an affiliated college claimed by the petitioner on the basis of certificates produced cannot be allowed to be added for her seniority for the post of Lecturer because the certificates are not authentic and do not fully explain the period mentioned therein.
So, far as the claim of seniority on the post of Reader is concerned, the stand of the respondents is that the respondent No, 4 having been appointed by a regular mode through a competition by Selection Committee u/s 49 of the Adhiniyam has to he assigned a higher seniority than the petitioner who came to be appointed to the post of Reader under the Merit Promotion scheme framed by the University Grants Commission. On the basis of the contents of the Scheme, it was sought to be argued that it provides an opportunity to the Teachers in the university for career advancement only by up gradation being given to their existing posts. On grant of merit promotion, no additional post is created and the promotee holds the lower post which stands upgraded by giving him benefit of rise in pay of the higher post for which the grant is given by the University Grants Commission. The argument advanced is that a promotee under the Merit Promotion scheme cannot be placed at par with a regular appointee to the post u/s 49 of the Adhiniyam and they cannot be clubbed together for the purpose of fixation of interse seniority. In support of the above argument; Learned Counsel relied on the contents of the Merit Promotion scheme and the provisions contained in section 49 of the Adhiniyam and Statute No. 16 framed thereunder. Learned Counsel Shri Anoop Choudhary, appearing for the petitioner, in his counter-reply submitted that the promotee under the Merit promotion scheme and the regular appointee u/s 49 of the Adhiniyam, once they are allowed to occupy the same post and to discharge the same duties cannot for discriminated in the matter of fixation of their seniority. He relies on Ordinance No. 69 issued by the University to give effect to the Merit Promotion Scheme as also, the letter dated 27th April 1984 issued by the University Grants Commission (filed as Annexure-RJ/3 with the petitioner''s rejoinder). It is pointed out from the above letter that the University Grants Commission had left the question of deciding the principle of in these seniority of promotee under the Merit Promotion Scheme vis-a-vis the teachers regularly appointed under the Act. It is then pointed out on behalf of the petitioner that a decision was taken by the Vice Chancellor on 2nd Feb. 1983 (Annexure-RJ/2) in exercise of powers u/s 52 of the Adhiniyam in the matter of determining the interse seniority of the promotee under the Merit Promotion Scheme and the regular appointees. In that decision, it was stated that the Lecturers appointed to the post of Reader under the above mentioned two modes would carry forward their seniority from the lower post to the higher post. On the basis of the above decision of the Vice Chancellor and the provisions contained in statute No, 16, the contention advanced on behalf of the petitioner is that she has a right to be assigned seniority above the respondent No. 4 on the post of Reader because of her right to higher placement above the respondent No. 4 on the post of Lecturer.
Before deciding the controversy raised by the parties before this Court as to the principle which should be adopted for fixing interse seniority of promotees under the Merit promotion scheme and the regular appointees under the Adhiniyam, a few relevant decisions of the University, the University Grants Commission and the decision of the Vice Chancellor will have to be referred to. The Merit Promotion Scheme evolved by the University Grants Commission for i implementation by various Universities in India has now received a statutory recognition by the University at Jabalpur when it introduced Ordinance No. 69 containing the provisions and the method to he adopted for merit promotion under the scheme of the University Grants Commission. A copy of the said Ordinance No. 69 containing the Merit Promotion Scheme has been filed alongwith the rejoinder of the petitioner as Annexure RJ/9. The Preamble of the scheme contains the aim for which the scheme was implemented namely with a view that the teachers are provided reasonable opportunities for career advancement and recognition of merit. One of the important and relevant objectives contained in the scheme is that it would be in the nature of flexible complementary scheme wherein no additional posts are created and the existing 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. Emphasis was albs laid by the counsel for the parties on clause (f) of the scheme which reads -
The post of a 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. "Similarly, attention was invited to paragraph 5 of the scheme which says "no additional/extra stall can be provided in the category of posts from which a person has received merit promotion to the next higher post consequent upon the implementation of the scheme. The work load should therefore be adjusted suitably without seeking additional posts, "the Secretary of the University Grants Commission, on 27th April 1984, sent a letter to the Vice Chancellors of all the Universities by way of clarification of several doubts and points raised in the matter of implementation of the scheme. A copy of the letter is on record as Annex-RJ/3 with the rejoinder of the petitioner. One of the issues clarified by the latter of the Secretary to the U.G.C. is on the question of seniority of Teachers promoted under the Merit Promotion Scheme vis-a-vis the teachers appointed against direct recruitment quota. In the said letter, the decision of the Commission has been conveyed in the following words:
The Commission felt that the question of seniority of teachers promoted under the Merit Promotion scheme vis-a-vis the teachers appointed against regular recruitment may be decided by the University/Institution concerned.
The Vice Chancellor of the University in purported exercise of powers u/s 52 of the Adhiniyam look the following decision on the question of fixation of interse seniority of Readers appointed under the scheme and under the Adhiniyam :
I also in exercise of my powers u/s 52 of the M.P.V.V. Adhiniyam. 1973. hereby decided that wherever two Readers come to be appointed one by selection and one by merit promotion in any Department on the same date, their interse seniority as Lecturer would be carried forward in reckoning their seniority as in the position of Readers as well.
Under the Vishwa Vidyalaya Adhiniyam, Statute No. 16 is on the subject of seniority of teachers of the University. Paragraph 2 of the said Statute No. 16 is relevant for the purpose of this decision and is reproduced below :
The seniority of Professor. College Professor. Reader. Reader in College. Assistant Professor or Lecturer shall be determined in accordance with the length of continuous service of such person in the cadre concerned taken together with the length of continuous service in a cadre which is equivalent to or superior to the cadre concerned.
Provided that where a Principal is included....
If the length of service of two or more teachers in any cadre calculated in accordance with paragraph (2) above is equal, their seniority interse shall be determined in accordance with the length of continuous service in the cadre immediately below, if any.
If after calculation in accordance with paragraph (3), above, the seniority intense of two or more teachers in any cadre is equal, their seniority interse shall be determined in accordance with the length of continuous service in the cadre if any. immediately below the cadre considered under paragraph (3) above.
If after calculation in accordance with the foregoing provisions to the extent possible, the seniority interse of two or more teacher in any cadre is equal, their seniority interse shall be determined by the total period of continuous service as a teacher in any cadre.
If after applying the forgoing provisions to the extent possible, the seniority of two or more teachers is equal. their seniority intense shall be determined in accordance with seniority in age.
In deciding the controversy of interse seniority of the petitioner and the respondent No. 4 on the post of Reader, it is necessary first to decide the question of their seniority on the post of Lecturer which is the cadre immediate below the cadre of Reader. It has already been stated above that both the petitioner and the respondent No. 4 came to be appointed to the post of Lecturer on the same day i. e. on 1.5.1980. The contention advanced on behalf of the respondent No. 4 cannot be accepted in view of the provisions in Statues No. 16 quoted above that the respondent No. 4 is entitled to be placed above the petitioner in the seniority list of Lecturer only because the Selection Committee in the select list had placed him above the petitioner. The position in the select list is not one of the grounds or basis on which a seniority can be fixed under Statute No. 16 which only governs the question of fixation of seniority on the post of Lecturer. The above quoted paragraphs 2 to 6 of Statute No. 1ft show that the basis of fixation of seniority is only continuous service in a cadre and not placement in the select list by the Selection Committee. The higher placement of the respondent No. 4 in the select list for Lecturers, therefore, has no relevance and can give no benefit to the respondent No. 4.
In the instant case, even if the petitioner''s experience of service in an affiliated college i.e. Navyug Art''s College is totally excluded, she having been appointed simultaneously with the respondent No. 4 on the same date and as the provisions of paragraphs 3.4 and 5 of Statute No. 16 cannot be brought into operation, the inter-se seniority of the two candidates appointed on the same date has to he determined in accordance with the seniority in age. It is not in dispute that the petitioner is senior in age to the respondent No, 4. and therefore, in accordance with paragraph (6) of Statute No, 1 ft. she was entitled to be placed in seniority above the respondent No. 4 on the post of Lecturer.
The next question then remains is of fixation of interse seniority on the post of Reader. The contention advanced on behalf of the petitioner is that as she is senior to the respondent No. 4 in the cadre of Lecturer, she has to be given the same seniority above the respondent No.4 on the post of Reader as both came to be appointed to the post of Reader also on the same date. The contention advanced by the respondent University and the respondent No. 4 on the basis of two different modes of appointment of the petitioner and the respondent No. 4 to the post of Reader now need to be considered. Shri. V.K. Tankha, Learned Counsel for the respondent No. 4 laid much emphasis on the contents of the scheme to contend that it does not envisage creation of any additional post of Reader. According to him, it merely gives an upgradation or rise in salary to an incumbent of a lower post for the higher post, to be paid for by the University Grants Commission through its grant. It is argued that a promotee under the Scheme is not holder of the post of Reader and he cannot be equated with a regular appointee on the said post. The argument is attractive but on close scrutiny has a little force. It is true that under the Merit Promotion Scheme, creation of an additional post is not envisaged and the teachers have to be promoted on the basis of their merit to a higher position without the resultant vacancy to be tilled, meaning thereby that the promotee carries the same post which he was earlier holding. The question before this Court is whether this differentiation in the mode of selection and appointment under the scheme and under the Adhiniyam should have any relevance to the question of fixation of interse seniority. It is not disputed that a Reader promoted under the scheme and the Reader regularly appointed u/s 4 of the Adhiniyam are designated as Readers and discharge the same duties of their post in the University. Both are liable to be considered for promotion to the post of Professor in their turn under the Merit Promotion Scheme or under the Regular recruitment Procedure provided in Section 49 of the Adhiniyam. If the contention advanced by the respondents is accepted, a discriminatory and step motherly treatment has to be meted out to a merit promotee under the scheme compared to a regular appointee to the post under the Adhiniyam. Such a treatment would not only defeat the very purpose of the Merit Promotion Scheme but would also result in gave injustice to the teachers working on the same post coming from two different streams. Once a teacher by whatever mode or procedure is appointed to a post discharges the same duties and functions, a discrimination between them for the purpose of fixation of seniority and higher promotions would be unreasonable discriminatory and violative of Arts. 14 and 1ft of the Constitution of India. The contention advanced on behalf of the respondents based on the scheme therefore has to be rejected.
Learned Counsel for the respondents also assailed the validity of the decision taken by the Vice Chancellor in purported exercise of powers u/s 52 of the Adhiniyam by deciding the principle of fixation of interse seniority of Readers promoted under the scheme and appointed under the Adhiniyam. In the return, it has been stated by the respondents that the above decision of the Vice Chancellor was during the relevant period for a limited duration and for a limited purpose and which cannot hold the field for all times.
Reading the concerned resolution of the Vice Chancellor taken in exercise of powers u/s 52 of the Adhiniyam, this Court cannot read it as being limited to a particular duration or purpose. The decision has reference to the letter of the University Grants Commission which left the matter to the University to decide the question of interse seniority of the merit promotees and regular appointees. The decision taken by the Vice Chancellor was well within his powers u/s 52 of the Adhiniyam and cannot be questioned. The decision is also reasonable as it treats the merit promotees and regular appointees at par for the purpose of reckoning their seniority and for considering them for future promotions.
For the reasons above mentioned, this petition succeeds and is hereby allowed. Seniority list (Annexure-F for the period 1.1.1989 to 31. 12.1989 showing the petitioner at serial No. 40 below the respondent No. 4 at serial No. 39 is hereby quashed. A mandamus is issued to the respondents 1 to 3 to fix the seniority of the petitioner both in the cadre of Lecturer and Reader by assigning her a place above the respondent No. 4. In the circumstances, however, I make no order as to costs. The amount of security if any in deposit be returned to the petitioner.