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Allahabad High Court · body

1991 DIGILAW 638 (ALL)

R. N. Tiwari v. Allahabad University, Allahabad

1991-04-22

K.K.BIRLA, V.K.KHANNA

body1991
JUDGMENT V.K. Khanna, J. - The petitioner was appointed in Allahabad University as Lecturer on ad hoc basis in July, 1954. Thereafter the petitioner was made permanent Lecturer in August, 1958. On 24th May, 1970, the petitioner was made permanent Reader in Geography in Allahabad University. On 1st July, 1982, the petitioner was promoted as Professor in Geography and since then the petitioner has been regularly working as Professor. It may be pertinent to mention that there is only one post of Professor in the Geography Department of the Allahabad University and as such the petitioner being the only Professor has acted as Head of the Department right from the year 1954. 2. Before the enforcement of the First Statutes of the Allahabad University the age of superannuation of a teacher was 62 years. However, after commencement of new Statutes i.e. First Statutes of Allahabad University the age of superannuation of all the teachers is 60 years (for those opting the new pay scale like the petitioner). However, the relevant Statutes of the Allahabad University provides that in case a person is superannuated during mid-session then he is to continue till 30th June, next, so that the students do not suffer any loss on account of sudden break of service of the teacher concerned. 3. It may be pertoinent to note that before coming into force of the First Statutes there were two Government Orders in force on this subject i.e. the order dated 7th Sept. 1976 and 26th Oct. 1976 whereby it was provided that during this period of extended tenure which is called as re-employment the teacher concerned would not be entitled to be a Member of any academic body of the university in order of seniority and he would also be ineligible to hold any office of the Allahabad University in order of seniority. According to the petitioner there was certain representation made in this connection and the State Government after realising the anomaly in the earlier Government Order issued another Government Order dated 21st March, 1984 and in the said Government Order it was expressly stated that in respect of those departments where there is only one post of Professor, in respect of period of re- employment during the session, the same Professor would continue to work as Head of the Department uptil 30th June next. It may be pertinent to mention that the same Government Order dated 21st March, 1984 was considered by the Executive Council, Allahabad University on 17th May, 1984 and the Executive Council resolved to implement the aforesaid decision of the State Government. 4. The date of birth of the petitioner being 1st January, 1931 he was scheduled to be superannuated on 31st Dec. 1990. However, in view of the provisions of the First Statutes of the Allahabad University the petitioner is entitled to continue uptil 30th June, 1991. It may be noticed that on this fact there is no dispute between the parties that the petitioner will be in employment in the Allahabad University on the post of Professor till 30th June, 1991. It appears that in pursuance of the Government Order and the resolution of the Executive Council. the Allahabad University had been following the decision of the Government and the Executive Council by permitting the only Professor to continue as Head of the Department. It would be evident by a letter issued by the University on 8th February, 1990 contained in Annexure 6 to the writ petition. 5. The petitioner duly intimated the University that he was prepared to accept the re-employment as provided by the First Statutes of the Allahabad University. The petitioner was in fact working as the Head of the Department till he received the letter of the Registrar of the Allahabad University of dated 11th March, 1991 contained in Annexure 9 to the writ petition in which it has been clearly stated that consequent upon the retirement of Prof. R. N. Tiwari, Sri Savindh Singh, Reader in the Geography Department being the senior-most teacher in the Geography Department has been appointed as the Head of the Geography Department with immediate effect under the provisions of Clause 2.20 of the First Statutes, 1976. It is after receiving of the aforesaid letter that the present writ petition has been filed by the petitioner praying for quashing of the impugned order dated 11th March, 1991 passed by respondent No. 1 contained in Annexure 9 to the writ petition. The petitioner has further prayed for a writ of mandamus commanding the respondents not to interfere with the working of the petitioner as Head of the Department of Geography in the Allahabad University till 30th June, 1991. 6. The petitioner has further prayed for a writ of mandamus commanding the respondents not to interfere with the working of the petitioner as Head of the Department of Geography in the Allahabad University till 30th June, 1991. 6. At the admission stage we have heard Shri S.N. Upadhyaya, learned counsel appearing for the University and Shri R.N. Singh, learned counsel appearing for respondent No. 5 Shri Savindh Singh, Reader in the Department of Geography. The writ petition is thus being disposed of finally in accordance with the Rules of the Court. 7. From the facts narrated above it is clear that the only question which is arising for determination in this writ petition is as to whether a Professor in Allahabad University who has attained the age of superannuation i.e. 60 years on 31st December, 1990 and who is allowed to be re-employed till 30th June, 1991 will be entitled to continue as Head of the Department as being the only Professor in the Department. 8. The University has taken the view that even though there is no Professor in the Department, the Reader in the Department will be entitled-to-work as Head of the Department of Geography in the University. To the same effect is the argument raised by the learned counsel appearing for respondent No. 5 Shri Savindh Singh. 9. The learned counsel appearing for the petitioner has mainly urged that in view of the provisions of the First Statutes of the Allahabad University the petitioner after re-employment will be deemed to be a Professor and a Professor being senior to the Reader and the Lecturer, according to the Statutes 2.20 and 18.05 was entitled to work as Head of the Department. Reliance has been placed on a Division Bench decision of this Court in "Dr. Avinash Kumar v. State of U.P., 1983 UPLBEC 264 : 1983 All LJ 901. The learned counsel appearing for the Allahabad University has, however, placed strong reliance on a Division Bench decision of this Court in "Ramesh Chandra Viyas v. University of Lucknow, (1989) 2 UPLBEC 58. It has been strenuously urged that after reaching the age of superannuation, the services of the Professor could not be extended and he was deemed to be re-employed on the post of Professor which has been held in the case of "Ramesh Chandra Viyas" (supra). It has been strenuously urged that after reaching the age of superannuation, the services of the Professor could not be extended and he was deemed to be re-employed on the post of Professor which has been held in the case of "Ramesh Chandra Viyas" (supra). For adjudicating the controversy involved in the present case it will be useful to first reproduce the relevant provisions of the First Statutes of the Allahabad University which have a hearing on the question sought to be adjudicated in this writ petition. 10. Under the Statutes 1.03 (e) of the First Statutes of the Allahabad University words and expressions used in the Act but not defined in these Statutes shall have the meaning assigned to them in the Act. 11. Section 2(18) defines "teacher" meaning a person employed for imparting instruction or guiding or conducting research in the University or in an institute or in a constitute, affiliated or associated college and includes a Principal or Director. 12. Section 2(19) defines "teacher of the University" as a teacher employed by the University for imparting instruction or guiding or conducting research either in the University or in an institute or in constituent college maintained by the University. Clause 10.01 of Chapter X of the First Statutes says that there shall be following clauses of teachers of (1) Professors (2) Readers (3) Lecturers 13. There is another clause of Professors of academic eminence and out -standing merit which can be employed on special contract as provided under Clause 10.03 of Chapter X. Clause 10.03 lays down as follows : "10.03. There is another clause of Professors of academic eminence and out -standing merit which can be employed on special contract as provided under Clause 10.03 of Chapter X. Clause 10.03 lays down as follows : "10.03. The Executive Council may on the recommendations of the Academic Council, appoint - (1) Professors of academic eminence and outstanding merit on special contract in accordance with the Ordinance in that j' behalf; (2) Honorary Emeritus Professors who ' shall - (a) deliver lectures on special subjects; (b) guide research; (c) be entitled to be present in meeting of the Board of Faculty concerned and to take part of the discussions but will not have the right of vote; (d) be provided with facilities for study and research in the libraries and laboratories of the University as far as possible; and (e) be entitled to attend all Convocations; Provided that a person shall not, merely by virtue of holding the post of a Professor in the Department as an Honorary Emeritus Professor, be eligible to hold any office in the University or in any Authority or body thereof'. (Emphasis provided). 14. As far as seniority of the teachers of the University is concerned Statutes 18.05 of Chapter XVIII Part I provides - "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 length of his continuous service in a substantive capacity in such cadre". 15. Statutes 2.20 provides that the seniormost teacher in each department of teaching in the University shall be the Head of that Department. 16. Part III of the Statutes makes provision for the age of superannuation. Statutes 16.24 provides : "(1) The age of superannuation of a teacher of the University governed by the new scale of pay shall be sixty years. (2) The age of superannuation of a teacher of the University not governed by the new scale of pay shall be sixty two years. (3) No extension in service beyond the age of superannuation shall be governed to any teacher after the commencement of these Statutes. (2) The age of superannuation of a teacher of the University not governed by the new scale of pay shall be sixty two years. (3) No extension in service beyond the age of superannuation shall be governed to any teacher after the commencement of these Statutes. Provided that if the date of superannuation of a teacher does not fall on June 30, the teacher shall continue in service till the and of the academic session i.e. June 30 following and he will be treated as on re-employment from the date immediately following the date of his superannuation till June 30 following." 17. Shri R.N. Singh, learned counsel appearing for respondent No. 5, has urged that the re-employment of the petitioner is not on any post after his reaching the age of superannuation. According to him he has not been employed by the University and cannot be deemed to be a teacher of the University. We are unable to accept this contention. The petitioner who immediately after the date of his superannuation gets re-employment on the post of Professor and performs the same functions which he was performing on the date of his superannuation, by no stretch of imagination can be said that he is not a teacher of the University as defined under the State Universities Act. 18. The crucial question then arises for determination is as to whether in view of what has been stated in the case of "Ramesh Chandra Viyas" (supra), the petitioner will be deemed to be holding a post somewhat similar to an ex-cadre post which post is not included in the hierarchy of the "teachers of the University" though it runs parallel to it closely. 19. In our opinion the facts in the case of "Dr. Ramesh Chandra" (supra) were different and that case will have no application to the present one. The re-employment letter of the petitioner in that case contains the following conditions : (i) The petitioner would be treated as temporary employee during the period of re-employment. (ii) The petitioner will not be entitled to avail any leave, which may be due to him prior to attaining the age of superannuation, during his re-employment. The re-employment letter of the petitioner in that case contains the following conditions : (i) The petitioner would be treated as temporary employee during the period of re-employment. (ii) The petitioner will not be entitled to avail any leave, which may be due to him prior to attaining the age of superannuation, during his re-employment. (iii) During the period of re-employment the petitioner would not be entitled to hold any office or Membership of University Body which he might have been entitled to in order of seniority according to the State Universities Act and Statutes. 20. Condition No. (iii) is very important which postulates that if this condition was not written in the re-employment letter, the petitioner would have become entitled to in order of seniority according to the State Universities Act and Statutes to hold the post of Head of the Department. This is such a condition which clearly provides that during the period of re-employment the teacher would not be entitled to hold any office or Membership of University Body. In the present case no such condition has been laid down while re-employing the petitioner. 21. The next question which arises for consideration is as to whether in view of the Government Order dated 26th October, 1976 the petitioner was not entitled to the post of Head of the Department. At the very out-set it may be stated that provision for superannuation in the First Statutes of Allahabad University has been made by first amendment dated 15th April, 1977. It is thus clear that prior to adding proviso to Statutes 16.24 there was no provision in the First Statutes of the Allahabad University regarding re-employment of a teacher whose date of birth did not fall on June, 30 up to the end of the academic session i.e. June, 30. In our opinion after the Statute of the Allahabad University occupied field in this connection, the Government Orders which were issued earlier will have no application and for Tetermining the question which is arising in the present writ petition it is the provisions of the First Statutes of the Allahabad University which will have to be interfered. 22. A very pertinent thing maybe marked that while making a provision for appointing an Honorary Emeritus Professor under Statutes 10.03 under Chapter X care was taken to provide under the proviso to Cl. 22. A very pertinent thing maybe marked that while making a provision for appointing an Honorary Emeritus Professor under Statutes 10.03 under Chapter X care was taken to provide under the proviso to Cl. 10.03(2)(e) to the effect that : "Provided that a person shall not, merely by virtue of holding the post of a Professor in the Department as an Honorary Emeritus Professor be eligible to hold any office in the University or in any Authority or Body thereof." 23. As has been stated earlier provision has been made under Part III regarding the age of superannuation. In case the intention was that the teacher is no case on the re-employment could be eligible to hold any post in the University or any Authority or body thereof similar provision which has been made in the case of Honorary Emeritus Professor would have been made here also. 24. In this case, therefore, we find that neither there is any condition laid down in the letter of re-employment debarring the petitioner from holding any office in the University or in any office or body thereof, nor the provision of Part III dealing with the ago of superannuation anywhere provides that the petitioner will not be entitled to hold such an office in the University or in any Authority or body thereof. 25. On the facts and circumstances of the case we are in respectful agreement with the view taken by this Court in the case of "Dr. Avinash Kumar v. State of U.P., 1983 UPLBEC 264 : 1983 All LJ 901. As has been stated above the case of "Ramesh Chandra Viyas" (supra) is clearly distinguishable and has no application to the present case. 26. As there is only one Professor in the Geography Department of the Allahabad University even though the seniority of the petitioner may be taken from the date of the re-employment, in view of the provisions of Statutes 18.05 of Chapter XVIII, Part I the petitioner will be treated to be senior to all the Readers and Lecturers of the Department as the senior most teacher in the Department under Statutes 2.20 has to act as the Head of the Department, the petitioner is entitled to act as the Head of the Department till 30th June, 1991. The order contained in Annexure 9 to the writ petition is therefore liable to be quashed. 27. The order contained in Annexure 9 to the writ petition is therefore liable to be quashed. 27. For the reasons stated above the present writ petition is allowed with costs and the impugned order dated 11-3-1991 is quashed.