A. K. Chirappanath v. Dr. M. A. Ittyachan — 1992 DIGILAW 39 (KER)

Judgment :- K.A. Nayar, J. A provision in the Mahatma Gandhi University Act, viz. S.10(24) providing that the Senior most Professor in the University shall exercise the powers and perform the duties of the Vice-Chancellor in the absence of the Vice-Chancellor and the Pro-Vice Chancellor led to a conflicting claim for seniority requiring determination in this writ appeal. The appellant, who is the Professor and Head of the School of Gandhian Studies and Peace Science, Mahatma Gandhi University, joined the Service as Professor on 31-10-1986 and the first respondent in the writ appeal joined as Professor and head of the School of Pure and Applied Physics, Mahatma Gandhi University on 24-10-1986. The seniority was fixed originally by the University by Ext. P1 in which the first respondent was shown as No. land the appellant was shown as No. 2. On an appeal filed by the appellant, his claim for seniority was recognised by Ext. P4 and consequential order was issued as Ext. P5 fixing the seniority of the appellant over the first respondent. These orders, viz. Exts. P4 and P5 were successfully challenged by the first respondent in O.P. No. 8857/1990. The learned Single Judge declared that Ext: P1„ showing the first respondent as senior to the appellant, reflects the correct seniority. The appeal is against the said judgment. 2. The admitted facts are that the appellant, at a time when he was employed in the Karnataka University, was selected for appointment and that was approved by the Syndicate by resolution dated 3-10-1986; The appointment order dated 7-10-1986 was issued to him, on receipt of which he got himself relieved from the Karnataka university on 28-10-1986 and joined as Professor and Head, School of Gandhian Studies and Peace Science, Mahatma Gandhi University on 31-10-1986. The first respondent was selected for appointment and it was approved by the Syndicate on 22-10-1986. The appointment order dated 22-10-1986 was given to him pursuant to which he joined as Professor of Pure and Applied Physics in the University on 24-10-1986. Thus, the first respondent joined as Professor of Pure and Applied Physics on 24-10-1986 and the appellant joined as Professor of Gandhian Studies and Peace Science on 31-10-1986. Therefore, going by the date of joining and date of commencement of continuous service as Professor, the first respondent is senior to the appellant. It is on that basis Ext. Thus, the first respondent joined as Professor of Pure and Applied Physics on 24-10-1986 and the appellant joined as Professor of Gandhian Studies and Peace Science on 31-10-1986. Therefore, going by the date of joining and date of commencement of continuous service as Professor, the first respondent is senior to the appellant. It is on that basis Ext. P1 seniority list was published on 5-7-1989 showing the first respondent as senior to the appellant. The appellant then filed an appeal before the Chancellor and the Chancellor, by Ext. P4, ordered that the date of order of appointment should be the criterion for determining the seniority. The appointment order of the appellant is dated 7-10-1986 and that of the first respondent is dated 22-10-1986. The Chancellor took the view that S.99(2) of the Mahatma Gandhi University Act made all statutes and ordinance under the Kerala University Act, 1974 applicable to the Mahatma Gandhi University. Under Statute 10 Chapter 3 of the Kerala University First Statutes 1977, the Kerala Service Rules and Kerala State & Subordinate Service Rules were mutatis mutandis made applicable to the teachers of the University. This would mean, Rule 27(c) of the Kerala State & Subordinate Service Rules also would apply and the said rule provides that seniority of a person appointed to a class, category or grade in a service shall be determined by the date of first effective advice made for his appointment to such class, category or grade. The date of appointment should be the criterion for determining the seniority. Thus by virtue of S.99(2) of the Mahatma Gandhi University Act read with Statute 10 Chapter 3 of the Kerala University First Statute 1977 and in the light of the principle implied by Rule 27(c) Part II of the General Rules of Kerala State and Subordinate Service Rules, 1958 the Chancellor took the view that the date of the appointment order should be the criterion for determining the seniority and, therefore, the appellant is senior to the first respondent. This view of the Chancellor was successfully challenged by the first respondent in O.P. 8857/90 before the learned Single Judge who held that Ext. P1 reflects the correct seniority of the Professors and that the first respondent is senior to the appellant as Professor. 3. This view of the Chancellor was successfully challenged by the first respondent in O.P. 8857/90 before the learned Single Judge who held that Ext. P1 reflects the correct seniority of the Professors and that the first respondent is senior to the appellant as Professor. 3. Thus the question to be determined in the writ appeal is whether the view taken by the Chancellor regarding the seniority of the appellant and the first respondent is in any way illegal. S.99(2) of the Mahatma Gandhi University Act reads as under: "99. Act 17 of 1974 not to apply, (sub-section (1) omitted). (2) Notwithstanding anything contained in sub-section (1), all Statutes and Ordinances made under the Kerala University Act, 1974 (17 of 1974) and in force on the date of the commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act continue to be in force in respect of the areas referred to in sub-section (1) until they are replaced by the Statutes and Ordinances to be made under this Act" By virtue of the above section, all statutes and ordinances made under the Kerala University Act, 1974 and in force on the date of commencement of the Act, are made applicable to the University. Statute 10 Chapter 3 of the Kerala University First Statutes which was applicable to the Mahatma Gandhi University till Mahatma Gandhi University First Statute 1991 came into force in 1991 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 Services 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" It is useful to extract Statute 3,4,6 and 14 also here which reads as follows: "3. Appointment of Teachers--Teachers of the University shall be appointed by the Syndicate after advertisement inviting applications. Appointment of Teachers--Teachers of the University shall be appointed by the Syndicate after advertisement inviting applications. In making appointments by direct recruitment to posts in any class or category in each departmental under the University, the University shall observe the provisions of clause (a), (b) and (c) of rule 15,16 and 17 of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. It shall however be competent for the Syndicate to appoint in exceptional cases Professors and Readers without advertisement, if it is satisfied that person already in the service are suitable for the post" "4. Selection Committee for appointment of Teachers- (1) When posts are to be filled up after inviting applications by advertisement, the application received shall first be screened by a Committee consisting of the Head of the concerned University Department of Study and Research, and members of the Standing Committee of the Syndicate on Staff, Equipments and Buildings. The applications found in order by 'the said committee shall be referred to a Selection Committee as specified below: (1) The Vice-Chancellor who shall be ex-officio Chairman of the Selection Committee and (ii)(a) For the posts of Professor and Teaching posts of similar status: One Syndicate member to be nominated by the Vice-Chancellor, three outside experts chosen by the Syndicate and the Dean of the Faculty, concerned. (b) For the posts of Reader, Lecturer etc: One Syndicate member to be nominated by the Vice-Chancellor, two outside experts chosen by the Syndicate and the Head of the concerned University Department or the teacher holding charge of the Head of the Department. (2) No member of the Committee who is an applicant for the post or is related to or. interested in any of the applicants or the post shall take part in the deliberations of the Committee, so far as that post is concerned. (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 proposal for the sanction of the Chancellor." "6. Mode of appointment of teacher - (1) Every teacher of the University shall be appointed by a written order. 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 proposal for the sanction of the Chancellor." "6. Mode of appointment of teacher - (1) Every teacher of the University shall be appointed by a written order. (2) A copy of the written order shall be lodged with the Registrar and the order delivered to the teacher concerned and his acknowledgment obtained." "14. Probation and Confirmation- (1) Every teacher of the University shall in the first instance be appointed on probation. He shall, from the date on which he joins duty be or probation for a total period of one year on duty within a continuous period of two 'years: Provided that it shall be competent for the Syndicate to extend the period of probation for a period not exceeding one year. (2) On satisfactory completion of probation, the teacher shall be confirmed by a written order. (3) If, on the expiry of the prescribed period or extended period of probation, the Syndicate decides that the teacher is not suitable for continuance in the post to which he has been appointed, it shall discharge him from service.", R.27(c) of the Kerala State & Subordinate Service Rules is also applicable to appointment. R.27(c) of the Rules reads as under: 27. Seniority, -- xxx xx (a) xx xx xx (b) xx xx xx (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. R.27(c) in term applies only to persons appointed to a class/ category or grade in a ..service on the advice of the Kerala Public Service Commission. It applies only to rank list published by the Public Service Commission for a particular post. In the case of University Professors, selection is not made by the Public Service Commission. R.27(c) in term applies only to persons appointed to a class/ category or grade in a ..service on the advice of the Kerala Public Service Commission. It applies only to rank list published by the Public Service Commission for a particular post. In the case of University Professors, selection is not made by the Public Service Commission. In the case in question, the selection of the appellant and the first respondent are made by the University, not for the post of Professor in the same faculty but for posts of different faculties. applications were different, qualifications were different, interviews were conducted by different interview boards select list was prepared for different posts and the appointments were made for different posts. The select lists of candidates were prepared and appointment orders were issued by the University. The procedure for preparing rank list and advice by the Public Service Commission, issuance of appointment order by the appointing authority pursuant to the advice etc. will not apply in this case. Therefore, even if Statute 10 says that Rule 27(c) will mutatis mutandis apply, Rule 27(c) will not be made applicable to the case in question. The seniority list prepared by the University is not for determining the seniority of a person in a service, class, category or grade. It is only for the purpose of identifying the Professor, for the purpose of S.10(24) as to who will be the senior man in the University entitled to discharge the duties of Vice-Chancellor in the absence of Vice-Chancellor and Pro Vice Chancellor. The learned judge therefore, rightly held that R.27(c) is not applicable in this case. There is yet another reason why R.27(c) should not be made applicable in this case. Clause 3 and 4 of Statute 4 of Chapter 3 of the Kerala University Act already extracted provided that the recommendations of the selection committee shall be placed before the Syndicate which shall make the appointments and if the Syndicate proposes to make appointment otherwise than in accordance with the provisions, the Syndicate can deviate from the select list provided it records its reason and submit the proposal for sanction of the Chancellor. As for as 'the advice of Public Service Commission is concerned, the advice is final and the appointing authority cannot go against the advice. As for as 'the advice of Public Service Commission is concerned, the advice is final and the appointing authority cannot go against the advice. This also would indicate that there is a difference between the procedure followed for appointments through Public Service Commission and appointment by the University after accepting the recommendation of the selection committee. In that view of the matter also, Rule 27(c) is not applicable for determining the seniority of the two Professors, viz. appellant and the first respondent. Therefore, we are of the opinion that the judgment of the learned Single Judge is not liable to be disturbed. 4. Counsel for the appellant contended that the Chancellor's order, Ext. P4, is a policy decision which is beyond the purview of judicial review. He refers to several decisions, viz. in Devi Prasad v. Govt. of A.P. AIR 1980 SC 1185 at para.7, Rajendra Prasad v. Karnataka University, AIR 1986 SC 1448, Director, Lift Irrigation Corporation v. P.K. Mohanty (1991 (2) SCC 295 and in Ramakrishna Filial v. Gopinathan Nair, ILR 1977 (2) Ker. 557. In Dew Prasad v, Govt. of A.P., AIR 1980 SC ll85, the validity of the special weightage or benefit given by the rule to Supervisors acquiring A.M.I.E. qualification while in service came for consideration. Supervisors were given credit as Junior Engineer for half the period of their service as Supervisor subject to a maximum of four years. The A.M.I.E. is equal to an engineering degree and virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer. The Government has tried to mitigate the hardship by framing the rule. The A.M.I.E. is equal to an engineering degree and virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer. The Government has tried to mitigate the hardship by framing the rule. It is in that context the Supreme Court held that it is a matter of Government Policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service and held that "But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal." In the decision reported in Rajendra Prasad v. Karnataka University, AIR 1986 SC 1448, the determination of equivalance of examination of other universities, with the examination of the particular university came for consideration and it was held that the University is best fitted to decide whether any examination held by a University outside the State is equivalent to an examination held within the State having regard to the courses, the syllabus, the quality of teaching etc. In Director, Lift Irrigation Corpn. v. P.K. Mohanty, (1991) 2 SCC 295, the Supreme Court held that the decision to amalgamate the existing cadres by reorganizing into two cadres was a policy decision taken on administrative exigencies and such a policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle. The decision rendered by the Division Bench of this Court in Ramakrishna Filial v. Gopinathan Nair and Others, ILR 1977 (2) Ker. 557 is only to the effect that the absence of statutory rules, ad hoc instructions of the University assigning seniority on the basis of age between persons appointed on the same day will not be interfered with, in exercise of jurisdiction under Art.226 of the Constitution of India. But this decision will not apply in the present case. The question whether R.276(c) of the Kerala State & Subordinate Service Rules will apply in this case is not the one left to the policy decisior of the Chancellor or the Officers of the University. As stated already, R.27(c) of the K.S.& S.S.R. will not apply to fix the seniority of the two Professors selected by different board in the different discipline at different time. As stated already, R.27(c) of the K.S.& S.S.R. will not apply to fix the seniority of the two Professors selected by different board in the different discipline at different time. The order of the Chancellor also cannot be justified as an executive instruction. It is well settled that in the absence of a rule relating to fixation of seniority continuance length of service is the criterion for fixing the seniority. Reference can usefully be made to the decisions reported in Union of India v. Anusekhar Guin, AIR 1989 SC 377 at para.5, Nirmal Kumar v. State of Bihar, AIR 1988 SC 394 at p. 396 para.4, K.S. Yora v. State of Gujarat, AIR 1987 SC 2348 and in A. Janardhana v. Union of India, AIR 1983 SC 769. In the decision reported in Union of India v. Anusekhar Guin, AIR 1989 SC 377 it is held that the seniority can be fixed by counting continuous length of service. The Supreme Court observed that: "Counting continuous length of service for fixation of-seniority is a well-accepted rule when the service rule does not prescribe a mode of fixing inter se seniority. The test adopted by the Tribunal appears to be just and we do not propose to interfere." In the decision reported in 1988 SC 394 also the Supreme Court held that the length of service test should be applied for determining seniority where employees were amalgamated into one department from different wings. The Supreme Court approved it as a well settled position in law. The seniority would ordinarily be depend upon the length of service. The Supreme Court approved it as a well settled position in law. The seniority would ordinarily be depend upon the length of service. The Supreme Court held that "It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members beloinging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Art.16." The Supreme Court approved the earlier observation in AIR 1983 SC 769 as under: "In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority." In view of these the fixation of seniority of the first respondent based on continuous service in the absence of rule will have to be upheld. 5. Admittedly, the first respondent joined duty as Professor in the service of the University well before the appellant joined duty infact, when the first respondent joined duty on 24-10-1986 as Professor, the appellant was in the service of the Karnataka University and he got relieved from there only from 28-10-1986. That means, even before the appellant was in a position to join duty by getting himself relieved from the employer, the first respondent was already in the service of the Mahatma Gandhi University. Therefore, going by the law declared by the Supreme Court, the first respondent is senior to the appellant. No policy can operate against the decision of the Supreme Court which is the law of the land. Hence, Exts. P4 and P5 cannot be justified as policy decision. 6. Ext. P1 is the seniority list prepared. The seniority fixed in Ext. P1 has been altered by Chancellor in appeal. The source of power for passing Ext. P4 order, it is argued, is S.7(4) of the Mahatma Gandhi University Act. It says that: 7. The Chancellor 1. xx xx 2. xx xx 3. xx xx 4. 6. Ext. P1 is the seniority list prepared. The seniority fixed in Ext. P1 has been altered by Chancellor in appeal. The source of power for passing Ext. P4 order, it is argued, is S.7(4) of the Mahatma Gandhi University Act. It says that: 7. The Chancellor 1. xx xx 2. xx xx 3. xx xx 4. The Chancellor may, by order in writing annual any proceeding of any of the authorities of the University which is not inconformity with this Act, the Statutes, the Ordinances, the Regulations, the rules or the bye-laws: Provided that, before making any such order, the Chancellor shall call upon such authority to show cause why such an order should not be made and consider the cause, if any, shown by such authority within a reasonable time. The Chancellor can annull the proceedings of "authorities" only. The authorities of the University are named in S.16. Vice Chancellor is not one of the authorities of the University and he is only one of the Officers of the University as mentioned in S.9 of the Mahatma Gandhi University Act. Ext. P1 is made by the Vice Chancellor and against Ext. P1 no appeal is competent and the Chancellor is not competent under S.7(4) to hear an appeal against the decision of the Vice Chancellor. In that view of the matter also, Exts. P4 and P5 are vitiated. 7. Much of the arguments were directed regarding the meaning of the word mutatis mutandis. The principle is seen adumbrated in the decision reported in Cochin University v. N.Raman Nair, AIR 1974 SC 2319. S.6(2) of the Cochin University Act therein provided that "In making appointments to posts in any service, class or category under the University, the University, shall mutatis mutandis, observe the provisions of Clauses (a), (b) and (c) of R.14 and the provisions of Rr.15,16 and 17 of the Kerala State and Subordinate Service Rules as demanded from time to time." The Court held that the power to apply the rules mutatis mutandis does not include the power of amending the substantial provisions in the rules. Formal and inconsequential changes for dovetailing the rules into the framewormk of the Act alone seems to be contemplated. Formal and inconsequential changes for dovetailing the rules into the framewormk of the Act alone seems to be contemplated. The Supreme Court held: "We think that the High Court was right in confining the power of the University to making only what are necessary "adaptations" so as to make the rules applicable to those in the service of the University in place of the Government servants for whom they were promulgated. It could include a power to ignore only - such parts as maybe inapplicable or in conflict with the Act itself. An instance of this would be as pointed out above, commencement of the application of the rules after the Act came into force instead of in 1967 when, according to a note in Rule 15, the Rules had to be enforced. The High Court rightly held that the Syndicate could not, in any case, alter the provisions of S.6(2) of the Act itself which made it incumbent on the University to apply the rotation rule as contemplated under the rules to every "service, class or category under the University". It held that "if Section 6(2) were to operate on its own terms, selection to the post of Reader, for the first time made by the University should in the first turn go to the candidate adjudged best on open competition, and only on the next turn or turns to candidates on the principles of communal rotation" This decision will not help the appellant for compelling the University to fix the seniority of the Professors. The submission is the principle of R.27(c) is made applicable infixing the seniority. We have already stated that the principle will not apply for fixing the seniority of Professors selected for the different disciplines by different selection committees. Their names are arranged according to the date of appointment order. The word "mutatis mutandis" in Statute 10 Chapter 3 of the Kerala University First Statute will not be applicable to settle seniority of the Professors in this case. That rule applies only for fixation of seniority of a person appointed to a class, category or grade in a service. The appointments in this case are not made by the advice of the Public Service Commission. That rule applies only for fixation of seniority of a person appointed to a class, category or grade in a service. The appointments in this case are not made by the advice of the Public Service Commission. The list referred to R.27(c) of the Kerala State & Subordinate Service Rules must be a list of candidate selected after interview made by the Public Service Commission to a particular appointment. It will not apply to different appointment orders to different departments made by different selection committees. To get the assistance of R.27(c) through the interpretative device to mutatis mutandis will therefore be far fetched. We find no merit in the writ appeal. The Writ Appeal is dismissed.