JUDGMENT 1. - Bone of contention in this case is the post of the Head of Department of Sociology in the Jai Narain Vyas University, Jodhpur (for short 'the University' hereinafter). The petitioner and the respondent No. 3 are the rival contenders, the University having decided in favour of respondent No. 3. 2. The appointment to the post of Head of the Department is governed by the Statutes of the University, clause 8 of the Statutes of the University. Clause 8 of the Statutes relates to the composition of the faculties and terms of office. Clause 8(1)(c) of the Statutes provides that each Department shall have a Head who shall be appointed in the order of preference given in the clause. The portion relevant for the purpose of this case is Clause 8(1)(c)(i)(ii) which provides that in case there is no Professor or all Professors are on leave, Readers by rotation by seniority shall be appointed Head of the Department. There is no dispute that the post of Reader is now re-designated as Associate Professor. 3. For appreciation of the controversy involved in the case, it is necessary to compare the career graphs of the petitioner and the respondent No. 3. The petitioner entered the service of the University as a lecturer (re-designated as Assistant Professor) on July 20, 1967. The respondent No. 3 came into the service of the University as lecturer (re-designated as Assistant Professor), on August 8, 1963. In the year 1985, process for direct recruitment to the posts of Associate Professor was undertaken by the University and it is common ground that direct recruitment by all India Competition was the only mode of appointment to the post of Associate Professor. A Selection Committee was constituted for the purpose as per law. On October 18, 1985, candidates were interviewed by the Selection committee. The Selection Committee recommended the selection of the petitioner and placed him at No. 1 and one Miss Kirti Khanna (now Smt. Kirti Rajimvale) was placed at S. No. 2. The respondent No. 3 was not recommended. The recommendations of the Selection Committee had to be placed before the meeting of the Syndicate which was expected to be held every two months. The respondent No. 3 was not recommended. The recommendations of the Selection Committee had to be placed before the meeting of the Syndicate which was expected to be held every two months. However, the meeting took place on January 3, 1986 and in that meeting, the recommendation about the selection of the petitioner was accepted by the Syndicate and letter of appointment was issued to him on January 4, 1986. 4. In the meanwhile, personal promotions under Section 11 of the Rajasthan Universities, Teachers and Officers (Selection for Appointment), Act 1974 (hereinafter referred to as 'the 1974 Act'), were considered and the Selection Committee for the purpose met on December 30, 1985. As the petitioner had not known the result of his selection, he also appeared before the Selection Committee along with respondent No. 3 and others. As the promotions are given by seniority-cum-merit, one Smt. Tara Laxman Gehlot and respondent No. 3 were selected being senior to the petitioner for promotion under Section 11 of the 1974 Act. Recommendations of the Selection Committee under Section 11 of the 1974 Act were also kept before the Syndicate at the same meeting of the Syndicate dated January 3, 1986 in which the recommendation of the Selection Committee as regards direct appointments to the posts of Associate Professors was kept. Recommendations were accepted by the Syndicate at the aforesaid meeting dated January 3, 1986 and on the same day i.e. on January 3, 1986 the respondent No. 3 was given his appointment letter. The respondent No. 3 is claiming his seniority over the petitioner on the basis that his appointment letter was dated January 3, 1986 whereas the appointment letter issued to the petitioner was of January 4, 1986. 5. The petitioner has raised two contentions in the case. Firstly, he submits that in the matter of appointment of Head of the Department, only Associate Professors holding cadre posts are eligible to be considered and not ex-cadre Associate Professors promoted under Section 11 of the 1974 Act by way of personal promotion. Secondly, it is contended that the respondent No. 3 cannot be given seniority over the petitioner only because he could secure his appointment letter on the same day as the meeting of the Syndicate which accepted the recommendations of the Selection Committee was held, whereas the petitioner was given his letter of appointment on the next day. 6. Secondly, it is contended that the respondent No. 3 cannot be given seniority over the petitioner only because he could secure his appointment letter on the same day as the meeting of the Syndicate which accepted the recommendations of the Selection Committee was held, whereas the petitioner was given his letter of appointment on the next day. 6. In order to properly appreciate the rival contentions on the first point, it is necessary to consider the provisions for and nature of personal promotion granted under Section 11 of the 1974 Act. The relevant portion of the provision of 1974 Act is reproduced hereunder: CLAUSE--11 (1) Notwithstanding anything contained in the relevant law or in this Act, the State Government may, in order to provide promotional opportunities to stagnant deserving teachers, create ex-cadre posts of Professors or Readers in each faculty of a University to the extent of one-third of eligible persons as on 1st January of each year. (2) A Lecturer or a Reader in a University shall be entitled to only one personal promotion under this section during his service in any of the Universities subject to his being eligible for such promotion under this section. (3) ... (4) ... (5) ... (6) ... (7) ... (8) ... (9) ... (10) ... (11) The personal promotions granted against ex-cadre posts under this Section shall be entirely personal to the teacher concerned and the ex-cadre posts to which such personal promotion is granted shall cease to exist as soon as the teacher promoted to such a post ceases to hold that post permanently for any reason and on ceasing of such ex-cadre post, the original post from which such personal promotion was made of a teacher shall revive. (12) The inter-se seniority of Readers and Professors regularly appointed in a University under the relevant law or in pursuance of the selection made under Section 5 and Section 6 and of all those who are granted personal promotions to an ex-cadre post after the date of commencement of the Rajasthan Universities' Teachers and Officers (Special Conditions of Service) (Amendment) Act, 1984 shall be regulated by the date of their regular appointment or, as the case may be, personal promotion to an ex- cadre post. 7. 7. The respondent's claim is mainly based on Section 11(12) of the 1974 Act which provides that inter se seniority of Assistant Professors and Professors regularly appointed in the University and all those who are granted personal promotion to the ex-cadre post shall be regulated by the date of their regular appointment or as the case may be on the date of their personal promotion. 8. The learned Counsel for the petitioner has heavily relied on the recent decision of the Supreme Court in Dr. Rashmi Srivastava v. Vikram University and Ors. (1995) 3 SCC 653 , in which it was held that unless the University Acts concerned under which the Universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of merit promotion scheme recommended by the Commission or mere decision of the Coordination Committee or Executive Committee not to discriminate between merit promotees and direct recruit University teachers and even issuance of Ordinances or statutes to that effect would be of no avail and will not have any legal effect nor would they permit the Universities concerned to fuse the cadre employees with ex-cadre employees and to prepare a combined seniority list on that basis. 9. On the other hand the respondent contends that there is a direct provision made for reckoning of seniority in the 1974 Act governing the present case and therefore Dr. Rashmi Srivastava's case (supra), would not adversely affect the case of the respondent. According to the respondent, in the case before the Supreme Court there was no Statutory provisions for reckoning of seniority amongst the direct recruits and personal promotees and that is why it was held by the Supreme Court in absence of the provisions in the Statute, combined seniority list of direct recruits and personal promotees on the same post cannot be prepared. 10. A close examination of the decision in Dr. Rashmi Srivastava's case (supra), would show that the Supreme Court has laid stress on employees belonging to the same cadre for preparation of a seniority list. It has been observed that unless the employees belonged to the same cadre, they cannot be treated as equals and no combined seniority list of cadre employees along with ex-cadre employees can be prepared. The following excerpts from Paras 37 and 40 of Dr. It has been observed that unless the employees belonged to the same cadre, they cannot be treated as equals and no combined seniority list of cadre employees along with ex-cadre employees can be prepared. The following excerpts from Paras 37 and 40 of Dr. Rashmi Srivastava's case (supra), would make this crystal clear: PARA-37: "It must therefore be held on a conjoint reading of the relevant provisions of the Act that only one source of recruitment of University teachers namely, Professors and Readers and even of Lecturers is contemplated and that source is by way of direct recruitment. If that is so and if under merit promotion scheme as recommended by the Commission which was adopted by Respondent 1 University, any departmental candidate is to be promoted, he would be so promoted dehors Section 49 and would obviously be an ex-cadre Reader or Professor as the case may be. Once that happens it would be obvious that there would be no occasion to fix the inter se seniority of directly recruited Readers and Professors who are holding cadre posts and ex-cadre merit promoted Readers and Professors who would stand outside the cadre. The first respondent by its impugned decision which was quashed by the High Court in the judgment under appeal tried to fuse the inter se seniority of both these classes of employees. And that itself amounted to treating unequals as equals. It clearly offended the provisions of Articles 14 and 16(1) of the Constitution of India. Unless Section 40 is suitably amended and a separate source of recruitment by way of internal promotion is contemplated by the Act there would remain no occasion of undertaking any exercise of fixing inter se seniority between ex- cadre employees and cadre employees. It is not in dispute between the parties that neither the Act nor any Ordinance or statutes of Respondent 1 University even remotely whisper about creation of a separate recognised source of recruitment of Professors and Readers by way of departmental promotions. It is of course true as indicated by Dr. Dhavan appearing for the intervenors that in some of the Universities even Ordinances have been issued accepting such new source of promotion of University teachers under the merit promotion scheme. It is of course true as indicated by Dr. Dhavan appearing for the intervenors that in some of the Universities even Ordinances have been issued accepting such new source of promotion of University teachers under the merit promotion scheme. But even if it is so that would make no difference as it is the parent Act, namely, University Act concerned which should contemplate creation of new source of recruitment by way of departmental promotions of University teachers. Unless that is done mere issuance of Ordinances or statutes to that effect which to that extent would conflict with the parent Act would be of no avail and would be an exercise in futility. They would also be ultra vires the Act. It must therefore be held that unless the University Act concerned under which the Universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of merit promotion scheme recommended by the Commission or mere decision of the Coordination Committee or Executive Committee not to discriminate between merit promotees and direct recruit University teachers and even issuance of Ordinance or statutes to that effect would be of no avail and will not have any legal effect nor would they permit the Universities concerned to fuse the cadre employees with ex-cadre employees and to prepare a combined seniority list on that basis. PARA- 40: The aforesaid distinguishing features clearly indicate that merit promotees Professors and Readers form a distinct class of ex-cadre or supernumerary appointees as compared to cadre employee, namely, direct recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For their purposes the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. Any decision rendered by the University concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act. As the first respondent is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the University for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, "have no legal efficacy. On the contrary, treating them on a par for seniority and promotion is violative of Articles 14 and 16(1) as we have seen above. It must therefore be held that the High Court was justified in taking the view that the action of the first respondent University in fixing inter se seniority of directly recruited Professors and Readers and merit promoted Readers and Professors on the yardstick of continuous officiation was illegal and unconstitutional. 11. The respondents contention that the provisions made in the Act providing for personal promotions and for inter se seniority between the direct recruits and the personal promotees would take out the case from the pale of Dr. Rashmi Srivastava's case (supra) as these provisions would constitute the requisite amendment, of the statute in absence of which combined seniority list was held to be invalid in that case. The contention cannot be accepted. The provisions in the Statute which would save the situation for the personal promotees should be provisions creating a different channel of promotion to the same cadre. The contemplated provisions are such which create two sources of recruitment to the post of Assistant Professors, one by direct recruitment and the other by personal promotion. The condition is that the cadre should be one and no combined seniority of teachers belonging to the cadre and teachers outside the cadre could be prepared. The contemplated provisions are such which create two sources of recruitment to the post of Assistant Professors, one by direct recruitment and the other by personal promotion. The condition is that the cadre should be one and no combined seniority of teachers belonging to the cadre and teachers outside the cadre could be prepared. This has been made further clear in Dr. Rashmi Srivastava's case (supra) itself by referring to the decision of the Supreme Court in Dr. Bal Krishna Agarwal v. State of U.P. and Ors. (1995) 1 SCC 614 . The following excerpts from Dr. Rashmi Srivastava's case would be useful in appreciating the point: PARA- 38: "It is true as submitted by learned Counsel for appellants that for avoiding stagnation and heart burning promotional avenues should be made available in any service as laid down by this Court in number of decisions to which our attention was invited by them. However the short question for our consideration is whether the University Act concerned has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Readers or Professors as the case may be. They would remain ex-cadre employees who cannot claim any inter se seniority with direct recruits forming the cadre concerned." ...... ......"In this connection, we can profitably refer to the decision of this Court in the case of Bal Krishna Agarwal (Dr) v. State of U.P. In that case a Division Bench of this Court was concerned with the question whether Professors promoted by the Allahabad university governed under the Uttar Pradesh State University Act, 1973 could claim seniority vis-a-vis directly recruited Professors. Under Section 31-A merit promotion scheme adopted by the Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31-A in the University Act with effect from 10.10.1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in the University was created by State legislature"..... ......."As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. ......."As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. It is therefore to be held that till appropriate amendments are effected in the Universities Act concerned on the same lines as Section 31-A of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre of Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such ex-cadre promotees and the directly recruited Readers or Professors who form the cadre concerned." 12. For further clarity, It would be useful to reproduce Section 31-A of the Uttar Pradesh State Universities Act, 1973. It reads as under: "31-A. Personal Promotion to Teachers of University--(1) Notwithstanding anything to the contrary contained in any other provision of this Act, a Lecturer or Leader in the University substantively appointed under Section 31, who has put in such length of service and possesses such qualifications, as may be prescribed, may be given personal promotion, respectively to the post of Reader or Professor. (2) Such personal promotion shall be given on the recommendation of the Selection Committee, constituted under Clause (a) of Sub-section (4) of Section 31, in such manner and subject to such conditions as may be prescribed. (3) Nothing contained in this section shall affect the posts of the teachers of the University to be filled by direct appointment in accordance with the provisions of Section 31." 13. A bare reading of this section leaves no doubt that it creates a separate channel of promotion to the posts of Readers and Professors from the cadres of Lecturers and Readers respectively, unlike the provisions in the Act which more than once speak of personal promotees being holders of ex-cadre post. Obviously, in the present case the State Legislature never intended to create a combined cadre of direct recruits and persona] promotees in the posts of Associate Professors or Professors. Obviously, in the present case the State Legislature never intended to create a combined cadre of direct recruits and persona] promotees in the posts of Associate Professors or Professors. Separate channel for promotion to the post of Associate Professors or Professors has not been provided and on the contrary it has been made sufficiently clear that the personal promotees shall hold ex-cadre post and they will not be treated as belonging to the regular cadre of Associate Professors or Professors. In such a situation no combined list could be allowed to be prepared showing inter-se seniority of Associate Professors holding cadre post and personal promotees Associate Professors, holding ex-cadre posts. 14. In view of the aforesaid discussion, it has to be held that as a necessary consequence of the decision in Dr. Rashmi Srivastava's case, Section 11(12) of the Act so far as it directs preparation of inter se seniority of Readers and Professors regularly appointed in the University and those who are granted personal promotion to ex-cadre posts is ultra vires the Constitution of India being, violative of Articles 14 and 16 of the Constitution of India for treating unequals as equals. 15. The consequence of the view we have taken would naturally be that while considering the appointment of the Head of Department only Associate Professors and Professors holding cadre post would be eligible for consideration. The relevant provision is Clause 8(i)(c)(1)(2) which provides that each Department shall have a Head and in case there is no Professor or all Professors are on leave, Readers by rotation by seniority shall be appointed as the Head of Department. In our view, the term 'Reader' used in the provision can only mean 'Reader holding a cadre past'. Persons holding ex-cadre post of the Reader or Professor by virtue of their personal promotion cannot be included in it because they are not part of the cadre and the posts they hold are not permanent posts in the cadre but are posts which have life co-extensive with the tenure of the incumbent. Moreover, since the provision speaks of the appointments being given by rotation by seniority, it is clear that only those who find place in the seniority list would be eligible. As already discussed, a combined seniority list of teachers holding the cadre posts and teachers holding ex-cadre posts cannot be prepared. Moreover, since the provision speaks of the appointments being given by rotation by seniority, it is clear that only those who find place in the seniority list would be eligible. As already discussed, a combined seniority list of teachers holding the cadre posts and teachers holding ex-cadre posts cannot be prepared. The combined effect of all these provisions, therefore, is that under the existing provisions only Professors and Associate Professors occupying the cadre posts can be considered for appointment to the post of Head of Department. 16. The other point is about the factual seniority between the petitioner and the respondent No. 4. In the light of the above discussion, this question should not arise as no combined seniority of cadre and ex-cadre appointees can be prepared. However, since the point has been raised we will decide that also. The only post on which the University is treating the respondent No. 3 as senior to the petitioner is that the appointment letter was issued to and received by respondent No. 3 on January 3, 1986, the date on which the Syndicate Meeting decided to grant him personal promotion, whereas the petitioner was given the letter of appointment on the next day i.e. January 4, 1986. It is palpably unjust to decide inter se seniority amongst employees on the basis of fortuitous circumstances of issue and receipt of letter of appointment. This cannot be a just basis of deciding inter-se seniority. Only because an employee is smart enough in getting the letter of appointment on the same date as the Syndicate decides he cannot steal march over any other person whose appointment was also decided in the same meeting, only on the basis of winning the race for receiving the appointment letter. We were not prepared to believe that appointment letter could be issued at such a breath-taking speed and we thought that there must be something not above board. However, we were assured by the learned Counsel for the University that it has been the general practice in the University that when the Syndicate Meetings are held and appointments are being considered, candidates though in the university premises and as soon as the Syndicate Meeting is over, the process for issuing appointment letters and delivering them to those successful candidates who are present, starts. Granting that such a practice exists, it is beyond comprehension that an appointee's seniority is made dependent on his ability to virtually snatch the appointment letter immediately after the Syndicate Meeting before his competitors can do so or before they receive their appointment letters in due course. We strongly deprecate such a practice and would expect the University to resort to well established and better known practices of reckoning seniority. 17. As we have found the basis of reckoning seniority to be incorrect and as there are no provisions of law brought to our notice as to how the seniority is to be reckoned, in such a situation, seniority will have to be reckoned on the basis of fairness. In this case not only that the petitioner was selected in direct recruitment in which the respondent No. 3 lost to him but the Meeting of the Selection Committee for the purpose of direct recruitment had taken place earlier on October 18, 1985 and the, recommendations were to be placed before the Meeting of the Syndicate which is expected to be held every two months. The last Meeting of the Syndicate was held in the month of September 1985 and therefore next Meeting was expected to be held in the month of November - December 1985. That such Meeting was not held as per schedule but was held on January 3, 1986, was not a fault of the petitioner. On the other hand the interviews for personal promotions were held on December 30, 1985 and the recommendations of the Selection Committee came before the same Meeting of the Syndicate dated January 3, 1986 on which date the appointment of direct recruits were also put up before the Syndicate. In such a situation, it would be just and proper to reckon the petitioner as senior to respondent No. 3. 18. For the aforesaid reasons, we allow this petition, declare the provisions relating to inter se seniority between the direct recruits and personal promotees ultra vires the Constitution. The appointment of respondent No. 3 to the post of Head of Department is quashed. The respondent University is directed to appoint Head of Department in accordance with the rules considering only the regular cadre post holders as eligible for appointment. No ex- cadre post holder shall be considered for the post. The appointment of respondent No. 3 to the post of Head of Department is quashed. The respondent University is directed to appoint Head of Department in accordance with the rules considering only the regular cadre post holders as eligible for appointment. No ex- cadre post holder shall be considered for the post. As it is an admitted position before us that the petitioner is senior most eligible candidate in the cadre of Associate Professors for being appointed as Head of the Department, we direct the respondent- University to appoint the petitioner Head of Department within two weeks from today. There shall be no order as to costs.Petition allowed. *******