Ittyachan v. Mahatma Gandhi University — 1991 DIGILAW 463 (KER)

Judgment :- It is not inter-discipline conflict that has brought a professor of school of Pure and Applied Physics and a professor of Gandhi an Studies and Peace Science, arrayed on opposite sides before this Court. A unique provision in the Mahatma Gandhi University Act - unique in the sense such a provision is absent in the Acts establishing the other four Universities in the State - 5.10(24), is, according to learned counsel representing the petitioner, the cause of the litigation. S.10(24) reads as follows: "10(24): In the event of a temporary vacancy occurring in the office of the Vice-Chancellor. or where the Vice-Chancellor is temporarily absent, the Pro-Vice-Chancellor shaSi exercise the powers and perform the duties of the Vice-Chancellor "and in the event of temporary vacancies occurring in the offices of the Vice-Chancellor and the Pro-Vice-Chancellor or where the Vice-Chancellor and the Pro-Vice-Chancellor are temporarily absent, the senior most professor in the University shall exercise the powers and perform the duties of the Vice-Chancellor". When the University drew up a seniority list of professors, Ext.P1, the petitioner was ranked above the 3rd respondent. On as appeal before the Chancellor the ranking was changed and petitioner was placed below the 3rd respondent. It is this order, Ext.P4, which is under challenge in this original petition. "L The dispute to be resolved is whether it is the date of the order of appointment or the date of joining duty that is relevant for deciding! lie seniority between professors working in different departments of the University, The order of appointment of the 3rd respondent as professor in Gandhian Studies and Peace Science is dt.7-10-1986 whereas the order of appointment of the petitioner as professor in the Department of Pure and Applied Science is dt. 22-10-1986. When the petitioner joined the duty on 24-10-1986, the 3rd respondent joined duty only on 31-10-1986. Since the petitioner started his service under the University earlier than the 3rd respondent, the University treated him as senior to the 3rd respondent and ranked him above 3rd respondent in Ext.P1. The 3rd respondent, in his appeal before the Chancellor, contended and successfully too, that what is relevant is the date of the order of appointment and not the date of joining duty, relying on the provision contained in R.27(c) of K.S. and S.S.R. 3. The 3rd respondent, in his appeal before the Chancellor, contended and successfully too, that what is relevant is the date of the order of appointment and not the date of joining duty, relying on the provision contained in R.27(c) of K.S. and S.S.R. 3. In Statute 10 of Chapter 3 of Kerala University First Statutes (which was applicable to the Gandhiji University also, till the M.G. University First Statute 1991 came into force on 11-2-1991), the provisions contained in K.S. and S.S.R. are made applicable to the University Teachers. Statute 10 reads as follows: "10. Applicability of certain Rules to University Teachers:--Subject to the provisions of the Kerala University Act, 1974 and the Statutes issued thereunder, the Kerala Service Rules, the Kerala State and Subordinate Service Rules and the Kerala Government Servant's Conduct Rules for the time being in force as amended from time to time shall mutatis mutandis apply to the teachers of the University, with such modifications as the context may require and the expression "Government" in those Rules shall be construed as a reference to the "University"." R.27(c) of the Kerala State and Subordinate Service Rules reads as follows: "27(c). Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list." 4. The petitioner would contend that R.27(c) has no application to the present case for reasons three fold. The provision under Cl.(c) of R.27 is meant for fixing the seniority of a person appointed to a class, category or grade in a 'service' and 'service' is defined under R.2(15) of K.S. and S.S.R. as a group of persons classified by State Government as a State or Subordinate Service as the case may be. The provision under Cl.(c) of R.27 is meant for fixing the seniority of a person appointed to a class, category or grade in a 'service' and 'service' is defined under R.2(15) of K.S. and S.S.R. as a group of persons classified by State Government as a State or Subordinate Service as the case may be. The seniority fixed under Ext.P1 is not a seniority in a 'service' as defined under R.2(15) of K.S. and S.S.R. Secondly, the appointment of the petitioner and the 3d respondent were not made on the advice of P.S.C. as contemplated by R.27(c). Thirdly, the advice list referred in R.27(c) is the list of candidates advised for appointment to a particular Department. Admittedly, the petitioner and the 3rd respondent are not appointed in the state Department. For these reasons, the petitioner contends that R.27(c) has no application for fixing inter se seniority of professors working in different Departments. 5. The petitioner further contends that when he joined the service of the University on 24-10-1986, the 3rd respondent was still in the service of Karnataka University at Darward. He was relieved from there only on 28-10-1986 and he joined duty in the services of M.G.University only on 31-10-1986. Having thus started his service earlier than the 3rd respondent in the Mahatma Gandhi University, he is entitled to be treated as senior to 3rd respondent. 6. Relying on the wording of Statute 10 in Chap. 3, the 3rd respondent would contend, necessary modifications can be made as the context may require while applying the provisions of R.27(c) of K.S. and S.S.R. to the University Teachers. The argument is that the P.S.C. should be-equated to the selection committee constituted under Statute 4 of Chap.3 and the select list placed before the Syndicate should be equated to the rank list of the P.S.C. Referring to Black's dictionary, learned counsel for the 3rd respondent submitted that the word 'recommendation' used in C1.3 of Statute 4 in Chapter 3 would mean only 'advice'. Learned counsel further submitted that there is no reference to appointment exclusively to one Department in Cl.(c) of R.27 and that what is laid down in CL(c) is only the principle as to how seniority in a class, category or grade could be determined when the incumbents are appointed after a selection process. 7. Sri. V.K. Beeran, learned addl. Learned counsel further submitted that there is no reference to appointment exclusively to one Department in Cl.(c) of R.27 and that what is laid down in CL(c) is only the principle as to how seniority in a class, category or grade could be determined when the incumbents are appointed after a selection process. 7. Sri. V.K. Beeran, learned addl. Advocate General appearing on behalf of the Chancellor, submitted that since there is no provision in the University Act and Statutes by which the date of joining duty can be taken as the crucial date for determining the seniority, the Chancellor took the view that the provisions contained in R.27(c) would govern the situation. 8. R.27 (c) contemplates an advice by the P.S.C. and an appointment on the basis of such advice. It also refers to a list of candidates advised by the P.S.C. The mandate under Cl.(c) is that the seniority of a person appointed on the advice of the Commission, shall be determined by the date of the first effective advice made for such appointment. Cl. (c) does not direct that the seniority shall be decided on the basis of the date of the order of appointment. In the matter of appointment through P.S.C, there are three distinct stages. The first stage is drawing up of a select list by the P.S.C. after the selection process. Second, advise of the candidates from the select list on the basis of the requisition made by the appointing authority and third issue of order of appointment by the appointing authority. The seniority has to be fixed with reference to the second Stage, namely, the date of first effective advice and not the date of the order of appointment subsequent to the effective advice. Therefore, the view taken by the Chancellor that the date of order of appointment is relevant for fixing the seniority is unsustainable even going by the provisions contained in sub-rule (c) of R.27. 9. Learned counsel appearing for the 3rd respondent alternatively contended that the date of the select list drawn up by the selection committee should be treated as the relevant date for fixing the seniority. The advise by the P.S.C. cannot be equated to the recommendation of the selection committee which has to be placed before the Syndicate as provided under Statute 4(3) of Chapter 3 of the first Statutes. The advise by the P.S.C. cannot be equated to the recommendation of the selection committee which has to be placed before the Syndicate as provided under Statute 4(3) of Chapter 3 of the first Statutes. C1.3 and 4 of Statute 4 read as follows: "3. The recommendations of the Selection Committee shall be placed before the Syndicate, which shall make the appointments. 4. Provided that when the Syndicate proposes to make the appointment otherwise than in accordance with the above provisions, the Syndicate shall record its reasons and submit its proposals for the sanction of the Chancellor". As far as the advice of the P.S.C. is concerned, it has a finality and no appointing authority can go against ?he advice list of the P.S.C. But, the Syndicate, which is the appointing authority in the University, has been given the power to deviate from the recommendation after recording its reasons and subject to sanction of the Chancellor. The above would show that there is marked difference in the character of an effective advice made by the P.S.C. and the recommendation made by the selection committee, and therefore the date of the select list drawn up by the selection committee cannot be treated as the basis of fixing seniority. 10. A feeble contention was raised by learned counsel appearing on behalf of the 3rd respondent to the effect that even if Rule 27(a) of K.S. and S.S.R. is applied, the 3rd respondent is to be treated as senior to the petitioner. R.27(a) provides that "Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade". This contention is only to be rejected in view of the definition of the term' appointed to a service' under R.2(1) of K.S. and S.S.R. A person is said to be 'appointed to a service' when in accordance with these rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. Admittedly, the 3rd respondent started discharging duties in the post of professor much later than the petitioner. Admittedly, the 3rd respondent started discharging duties in the post of professor much later than the petitioner. Therefore, R.27(a) will not be of any help to him to gain seniority over the petitioner. Reliance made on the Rules framed by the Syndicate of the M.G. University to govern the seniority of teachers in the private affiliated colleges, is also without any merit. The rule reads as follows: "The date of appointment or the ranch obtained in the selection list for the post shall be the deciding factor for fixing the seniority and not the date of joining duty." A mere reading of the Rule would show that its provisions are applicable only in the matter of fixing the seniority of persons included in the same selection list and therefore not applicable when a seniority list of professors of different Departments is drawn up. 11. It is admitted on all sides that there were no specific provision in the Statute during the relevant period directing as to how the seniority between the professors of different departments in the University should be decided. Under these circumstances, if the University took into consideration the actual date of joining the service of the University as the relevant date for fixing the seniority, it cannot be held as unfair, unreasonable or arbitrary. After the coming into force of the Mahatma Gandhi University First Statute, 1991 of Ch.2 shall govern the situation. It proves that the seniority of the professors of the University shall be determined by the Vice-Chancellor on. the basis of the length of service as professor. In the result, it is held that the view taken by the first respondent that the seniority of the professor of the University is to be fixed by applying R.27(c) of K.S. and S.S.R, is erroneous. Exts.P4 and P5 are set aside and its declared that Ext.P1 reflects the correct seniority of the professors of the Mahatma Gandhi University. The original petition is allowed, but in the circumstances, without any order as to costs.