S. Ranganayaki v. University of Allahabad — 1982 DIGILAW 73 (ALL)

ORDER 1. The petitioner is lecturer in the Chemistry Department of the Allahabad University. She has approached this court under Art. 226 of the Constitution for the issue of a writ of certiorari quashing the order of the Chancellor dated May 31, 1978, rejecting her representation against the fixation of her seniority. The petitioner has further claimed relief for the issue of a writ of mandamus directing the University of Allahabad to treat the petitioner senior to respondents Nos. 3 to 14 who are teachers in the Chemistry Department of Allahabad University. 2. Initially the petitioner was appointed ad hoc Lecturer in November 1962 in the Department of Chemistry of Allahabad University. Her services were, however, terminated before summer vacation. In July 1963 the petitioner was again appointed Lecturer in temporary capacity. While serving as temporary Lecturer, the petitioner made an application for grant of Ex-India Study Leave. She was granted leave without pay in October, 1968 for 8 months to persue her study in Sir George Williams University, Montreal, Canada. Meanwhile applications were invited by the University for regular appointment to the posts of Lecturers. The petitioner and the respondent applied for the same. On 3-4-1969 the Selection Committee met which selected the petitioner in absentia for the post of permanent lecturer in the Chemistry Department along with respondents Nos. 3 to 13 for permanent appointment as Lecturers in the Department of Chemistry. On 26-4-1969 the Executive Counsel of the University accepted the recommendations and appointed the petitioner and respondents Nos. 3 to 14 to the posts of permanent Lecturer on probation. The respondents Nos. 3 to 13 hereinafter referred to as respondents who were already working as temporary lecturers in the Department of Chemistry of Allahabad University, joined their duties as Lecturers on permanent posts on 27-4-1969, while respondent No. 14 joined his duty as permanent lecturer on 28-4-1969. On 29-4-1969 the Registrar of the University sent appointment letter to the petitioner at her Canada address. In that letter it was stated that the petitioner was appointed on probation for 2 years with effect from 26-4-1969 or the date of joining whichever is later. She was asked to confirm if she was willing to accept the offer. 3. On July 23, 1969 she joined her duties on the permanent post of lecturer. In that letter it was stated that the petitioner was appointed on probation for 2 years with effect from 26-4-1969 or the date of joining whichever is later. She was asked to confirm if she was willing to accept the offer. 3. On July 23, 1969 she joined her duties on the permanent post of lecturer. It appears that before joining her duties, the petitioner had by her letter dated 22-5-1969 requested the Vice Chancellor to grant her Ex-India Study Leave with full average pay instead of without pay as she had been appointed a permanent lecturer. The University vide its letter dated July 5, 1969 informed her that the order of her appointment on substantive basis would be effective only when she resumed her duty and till then she was not entitled to leave with average pay treating her to be a permanent Lecturer. This information was given to the petitioner in pursuance of the decision taken by the Vice Chancellor after considering the practice prevailing in the University. The Vice Chancellor was of the view that since the petitioner was a temporary teacher and she had been granted leave without pay, she could not be granted leave with average pay treating her a permanent teacher unless she joined her duties. The petitioner thereafter joined her duties in the forenoon of July 23, 1969. The petitioner again made an application on 25-7-1969 stating that she had resumed her duties on the reopening day after summer vacation on 23-7-1969 and she should be treated to have joined her post with effect from 28th May, 1969 the date on which the University closed for summer vacation. Her case was considered by the Executive Council at its meeting on 24th January 1970, and the council accepted her request and resolved that the date of her permanent appointment be taken to be 28th May 1969. 4. In the financial statement prepared by the University, the petitioners name was shown below respondents Nos. 3 to 14. In 1977 the petitioner made a representation that she was senior to respondents Nos. 3 to 14 and the seniority list may be corrected accordingly, but her representation was not considered, by the University on the ground of delay. Thereupon she made a representation to the Chancellor. The Chancellor by his order dated 31-5-1978 rejected her representation holding the petitioner was junior to respondents Nos. 3 to 14 and the seniority list may be corrected accordingly, but her representation was not considered, by the University on the ground of delay. Thereupon she made a representation to the Chancellor. The Chancellor by his order dated 31-5-1978 rejected her representation holding the petitioner was junior to respondents Nos. 3 to 14 as she joined her post on 28th May, 1969. Aggrieved, the petitioner has approached this court by means of this petition under Art. 226 of the Constitution. 5. The Chancellor held that since the date of substantive appointment of respondents as lecturers was earlier in time than the petitioners, they were senior to her. In coming to that conclusion the Chancellor placed reliance on Statute 205(2) framed under the Allahabad University Act, 1921. The Chancellor rejected the petitioners contention that she was lecturer in the department with effect from July 16, 1963, without any break, as such she should be given seniority on the basis of continuous length of service. The Chancellor held that there is no violation of the provisions of the Act and statutes framed thereunder which were in force at the relevant time and as such the petitioner was not entitled to any relief. 6. Learned counsel for the petitioner urged that old statute 205(ii) framed under the Allahabad University Act, 1921 lays down criteria for determining seniority of a teacher on the basis of the date of appointment. Placing reliance on the resolution of the Executive Council dated 26-4-1969 (Annexure 4 to the petition), appointing the petitioner as Lecturer substantively, he urged that the petitioner became entitled to seniority from the date of the resolution of the Executive council as the resolution did not lay down any condition that the petitioners appointment would be effective on joining her duties. The Registrar had no power to impose any condition which was not imposed by the Executive Council, therefore the direction contained in the Registrars letters dated 29-4-1969 and 5-7-69 informing the petitioner that the order of her appointment on substantive basis would be effective only when she joined her duties was in excess of his authority. Having given our anxious consideration to the questions raised by the petitioner, we do not find any merit in the petition. 7. Having given our anxious consideration to the questions raised by the petitioner, we do not find any merit in the petition. 7. Firstly, statute 205 does not support the petitioners case as the date of her substantive appointment as contemplated by statute 205(ii) is later in time than that of the respondents. Secondly, statute 205 does not regulate the determination of inter se seniority of teachers and as such the petitioner cannot draw any support from that provision. 8. The relevant portion of Statute 205 is as under: "205. The seniority of teachers for the purpose of holding an office or for membership of the Authorities and Bodies of the University shall be determined by the length of their service reckoned in the manner hereinafter laid down subject to the following condition: (i) A Professor shall be regarded as senior to Reader and a Reader as senior to a lecturer, as the case may be; (ii) Service rendered in each rank as Professor, or Reader or Lecturer shall be counted from the date of substantive appointment in that capacity." 9. A mere reading of Statute 205 makes it amply clear that the provisions contained therein regulate the seniority of a teacher for the purpose of holding an office or for membership of Authorities and Bodies of the University. For that purpose the seniority of a Professor, Reader or Lecturer is to be determined by length of service subject to the condition that a Professor shall be senior to a Reader and a Reader shall be senior to a Lecturer. It further lays down that the service rendered in each rank shall be counted from the date of substantive appointment in that capacity. While considering the question of seniority of lecturers the criterion for determining the seniority would be the date of substantive appointment as lecturer. The question which falls for consideration is as to what is the Petitioner's date of substantive appointment as lecturer. The petitioner was appointed substantively on a permanent post of lecturer by the Executive Councils resolution dated 26-4-1969. In pursuance of that resolution the Registrar of the University sent appointment letter to the petitioner which contained a specific clause that the order would take effect from the date of appointment or the date when she resumed her duties whichever was later. In pursuance of that resolution the Registrar of the University sent appointment letter to the petitioner which contained a specific clause that the order would take effect from the date of appointment or the date when she resumed her duties whichever was later. The appointment letter further contained a condition that the offer of appointment would be effective only on acceptance of the same by the petitioner. It is true that the Executive Council did not place these conditions while appointing the petitioner but in the counter affidavit filed on behalf of the University, it has been asserted that the University had been following this practice since long. Whenever the Executive Council accepted the recommendation of the Selection Committee and it decided to appoint a person as lecturer, a letter was issued by the University offering the appointment to that person. It was always open to the person concerned to accept or not to accept the offer of appointment. The offer of appointment always became effective after its acceptance. But if the person concerned was continuing in service, the order was effective on his joining the new appointment. The petitioner was only a temporary lecturer, she was granted study leave without pay. She was not present in India on the date she was appointed as lecturer, therefore, the date of the resolution of the Executive Council could not be the date of her appointment. While appointing the petitioner the Executive Council did not resolve that her appointment would be with immediate effect, in the absence of any such direction the petitioners appointment could not take effect with effect from 26-4-1969. 10. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Amarjeet v. State of Punjab ( AIR 1975 SC 984 ) : (1975 Lab I C 613), in support of his contention that the date of substantive appointment would be 26-4-1969. In that case the Supreme Court considered the test for determining the seniority of officers appointed from two groups in accordance with the Government memorandum dated 25th October, 1965 which provided that the seniority of Deputy Director and Assistant Directors in the cadre of the Public Health on integration in PCMS-1 would be determined with reference to the length of continuous service from the date of appointment in the group. The Supreme Court observed thus (Para 10) : - "An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment would be effective only when the person appointed assumes charge of the post that would be the date of his appointment. It would be then that he is appointed. But in case of the second kind, which is the one with which we are concerned, since the order dated 8th April, 1964, appointed respondents Nos. 3 to 19 to PCMS Class, I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment." Proceeding further the Supreme Court held that the length of continuous service is to be counted on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to salary and allowances attached to the post until he assumes charge of the post. The observations of the Supreme Court make it amply clear that where the appointment is with immediate effect, the date of appointment would be the date of the order of appointment notwithstanding the fact that the person concerned joined his post later on. It is, however, significant to note that the Supreme Court itself made it clear that an order of appointment may be simpliciter without saying as to when the appointment shall take effect. The Supreme Court had no occasion to deal with the third category of order of appointment. Where the order of appointment does not say as to when it shall take effect, in such an event, the order of appointment cannot take effect unless the offer of appointment made to the person concerned is accepted. Since the respondents had joined their duties as permanent lecturers on April 27, 1969, they became senior to the petitioner as she joined her duties much later in time. Since the respondents had joined their duties as permanent lecturers on April 27, 1969, they became senior to the petitioner as she joined her duties much later in time. Amarjeets case (1975 Lab IC 613), therefore, does not support the petitioner's contention. 11. Learned counsel then urged that the petitioner had sent her acceptance to the Registrar in advance by a letter dated 26-4- 1969 the date on which the Executive Council passed the resolution appointing the petitioner substantively on the post of permanent lecturer. Reliance was placed on the averments contained in paragraph 16 of the petition which states that the letter of acceptance was handed over to the Registrar by Ram Babu Agrawal Ex-Member of the University Court on 26-4-1969. Sri Ram Babu Agarwal, has also filed his affidavit in support of the petitioner's contention wherein he has stated that he had received the letter of acceptance in advance from the petitioner and he was present outside the meeting hall of the Executive Council on 26-4-1979 and that on coming to know of the petitioners appointment, he presented the letter of acceptance of the petitioner to the Registrar of the University. It is further urged that since the petitioner had accepted the offer of appointment on 26-4-1969, the date of her substantive appointment should be taken as 26-4-1969. In the counter affidavit filed on behalf of the University, it is denied that any such letter was handed over by Sri Ram Babu Agrawal to the Registrar. Counsel for the University placed original file maintained by the University in the matter before us and on perusal of the same, we find that the petitioner had made this claim before the Vice Chancellor also thereupon an enquiry was held but it was found that no such letter was available on the records of the University. In the circumstances, it is not possible for us to accept the petitioners contention that she had accepted the offer of appointment on 26-4-1969. It is indeed beyond comprehension that the petitioner while studying in Canada had known that on 26-4-1969 she would be appointed substantively to the post of lecturer and that she should accept the appointment and for that purpose she had sent a letter in advance to Sri Ram Babu Agrawal. It is indeed beyond comprehension that the petitioner while studying in Canada had known that on 26-4-1969 she would be appointed substantively to the post of lecturer and that she should accept the appointment and for that purpose she had sent a letter in advance to Sri Ram Babu Agrawal. Having regard to these facts and circumstances we are not inclined to accept the story set up by the petitioner in this behalf. 12. Statute 205(ii) does not lay down criteria for determination of inter se seniority of teachers in the University. Statute 205(ii) instead provides for determining the seniority of Professors, Readers and Lecturers for the purpose of Membership of the Authorities and Bodies of the University. Statute 205(ii) is of limited application and it does not fix the seniority of teachers qua other purposes. If the intention of the Statute was to fix inter-se seniority, it was wholly unnecessary to imply the words "for the purpose of Authorities and Bodies of the University seniority shall be determined." The use of the words "for the purpose of" limit application of Statute 205(ii) to fixation of seniority for membership of Authorities and Bodies of the University which may include the "Executive Council, Academic Council and the Senate". We are, therefore, of the opinion that statute 205(ii) is not applicable for determining inter se seniority of teachers of the University. 13. The question then arises as to whether the Registrar exceeded his authority in incorporating a condition in the appointment letter which was issued to the petitioner directing that her appointment would take effect on her joining the duties of Lecturer. It is true that the Executive Council while accepting the recommendation of the Selection Committee and appointing the petitioner to the substantive post of Lecturer on 26-4-1969 did not expressly resolve that the order of appointment shall take effect on petitioner's joining her duties, but the appointment letter which was issued under the signature of the Registrar contained the condition that the order would be effective on her joining the duties. As noted earlier this condition was inserted in the letter of appointment in accordance with the practice followed by the University. The Executive Council, however, considered the matter again at its meeting held on 24th January, 1970 and it resolved that the date of petitioners substantive appointment should be taken to be 28th May 1969. As noted earlier this condition was inserted in the letter of appointment in accordance with the practice followed by the University. The Executive Council, however, considered the matter again at its meeting held on 24th January, 1970 and it resolved that the date of petitioners substantive appointment should be taken to be 28th May 1969. The necessary facts which led to passing of this resolution of the executive Council have already been stated in the earlier part of this judgment. The petitioner joined her duties in the forenoon of July 23, 1969. She made an application that she has resumed her duties on the reopening day of the University after summer vacation and she should be deemed to have joined her duties with effect from 29th May, 1969. The matter was placed before the Executive Councils meeting on 24th January 1970, when the Executive Council accepted her request and resolved that the petitioner's date of substantive appointment shall be 28th May, 1969. The petitioner accepted the decision of the Executive Council and continued in service without any demur. Thus the Executive Council itself ratified the direction issued by the Registrar to the petitioner to the effect that the order of appointment shall take effect on her joining the duties of lecturer. The petitioners contention therefore must fail. 14. Section 32 of the Allahabad University Act, 1921, provides for framing of Ordinances. Cl. (f) of sub-section (2) of Section 32 provides for making of Ordinances relating to the number, qualifications, emoluments and other conditions of service (including age of retirement) of teachers and salaried officers of the University and preparation and maintenance of record of their service and activities. In pursuance of this provision Ordinances have been framed which regulate appointment of teachers and their service conditions. These Ordinances are contained in Chapter XI. Ordinance 3 as occurring in Chapter XI lays down criteria for determining seniority of a teacher. It is in the following terms : - "3. In the case of permanent appointment of a teacher in the cadre, leave and increment shall count from the date on which he actually assumes the duties of the post. Ordinance 3 as occurring in Chapter XI lays down criteria for determining seniority of a teacher. It is in the following terms : - "3. In the case of permanent appointment of a teacher in the cadre, leave and increment shall count from the date on which he actually assumes the duties of the post. The date of confirmation within a particular grade shall determine seniority in that grade: Provided that if a teacher is appointed on a higher salary than the initial pay of the grade of the post his position in the grade shall be determined by the Executive Council." The above Ordinance firstly lays down that in case of permanent appointment of a teacher in a cadre benefit of leave and increment shall count from the date on which he actually assumes duties of the post. Thus the joining of duties of the post to which a teacher's appointment is made is necessary for the purpose of leave and increment. The ordinance further lays down that the date of confirmation in a particular grade shall be the criterion for determining seniority in that grade. The Ordinance further provides that every appointment of a teacher on a permanent post shall be made on probation for two years. After the completion of the probationary period the teacher is confirmed by the Executive Council. Ordinance 3 provides that the date of confirmation in a particular grade shall be the criterion for determining Seniority in that grade. Thus where several persons are appointed as Lecturers in the University, the date of their confirmation shall determine the seniority in the grade of Lecturers. In our opinion, Ordinance 3 prescribes criteria for determining seniority of teachers in a particular grade. While statute 205 is of limited application for the purposes as mentioned therein, Ordinance 3 is of general application for the purposes of determining inter se seniority of teachers in a particular grade. There is no dispute that on the expiry of the probationary period the petitioner was confirmed as Lecturer with effect from 28-5-1971 under the resolution of the Executive Council dated 6-11-1971, whereas respondents Nos. 3 to 14 were confirmed on the post of Lecturer with effect from April, 1971. Thus respondents Nos. 3 to 14 were confirmed earlier as Lecturers than the petitioner. Accordingly, the petitioner is junior to respondents Nos. 3 to 14 were confirmed on the post of Lecturer with effect from April, 1971. Thus respondents Nos. 3 to 14 were confirmed earlier as Lecturers than the petitioner. Accordingly, the petitioner is junior to respondents Nos. 3 to 14 on the application of the criteria laid down by Ordinance 3. In this view of the matter the order of the Chancellor is sustainable in the law and the petitioner is not entitled to any relief. 15. Learned counsel for the respondent University urged that the petitioner was offered appointment and she accepted the same in July. 1969, and thereafter on her representation she was granted benefit of summer vacation and as such she was deemed to have joined her duties as a Lecturer on the post of permanent Lecturer with effect from 28th May, 1969 namely, the date from which the summer vacation commenced. The petitioner never challenged her order of appointment. On the other hand, she accepted the decision of the University. and joined her duties and continued to work as Lecturer without any demur. Later on when the Executive Council confirmed her the petitioner was treated as Junior to respondents Nos. 3 to 14 and yet she did not challenge that order of confirmation. The petitioners contention that she had challenged the decision of the Executive Council and that she had been making representations does not carry any conviction as she did not make any representation to the Chancellor within a reasonable period of time. The petitioner thus acquiesced to the decision of the Executive Council and as such it was not open to her to re-open the question of seniority at such a late stage. 16. In view of the above discussion we do not find any reason to interfere with the order of the Chancellor as it does not suffer from any manifest error of law. 17. The petition therefore fails and is accordingly dismissed, but there will be no order as to costs.