S. RAVINDRA REDDY v. GULBARGA UNIVERSITY — 1999 DIGILAW 375 (KAR)

CHANDRASHEKARAIAH, J. ( 1 ) THE petitioners in W. Ps. 12525 and 12526 of 1992 have sought for quashing of the order dated 30/31-3-1992 passed by respondent 1 (Annexure-D) promoting respondents 2 to 7 to the post of Assistant Office superintendent and also have sought for striking down Item 8 in the schedule to the Statutes governing the Cadre and Recruitment Rules of non-teaching employees and for other reliefs. ( 2 ) THE petitioners in W. Ps. 37606 and 37607 of 1995 have sought for a direction directing respondents 1 and 2 to consider the case of the petitioners for retrospective promotion to the cadre of Assistant Office superintendents with effect from 13-4-1986 and 20-4-1986 respectively or from the date when vacancy became available and further to review the promotions by considering their case for the post of Office Superintendents in the promotion quota from the date of their eligibility and to give all consequential benefits including monetary benefits. ( 3 ) THE petitioners in W. Ps. 12525 and 12526 of 1992 joined the service of the 1st respondent-Gulbarga University as First Division Clerks in the year 1981. Respondents 2 to 7 also joined the services of the 1st respondent as Stenographers in the year 1981. Respondents 2 to 7 were appointed as Stenographers earlier to the appointment of the petitioners as VDC. The petitioners in W. Ps. 37606 and 37607 of 1995 are respondents 4 and 5 in W. Ps. 12525 and 12526 of 1992. ( 4 ) THE Statutes governing the service conditions of non-teaching employees of respondent 1-University insofar as it relates to the post of assistant Office Superintendents reads as follows. SI. No. SI. No. in Schedule Designation of post Existing provision Amendment proposed How it reads after amendment 2. 8 Asst. Office Superintendent. 50% by direct recruitment. 50% by promotion from the cadre of FDC and Stenographers having put in a service of not less than 5 years in that cadre and who have passed the Departmental test prescribed by the University. In Col. No. 5, after the words "departmental test prescribed by the University", the words "or by deputation" shall be added. 50% by direct recruitment. 50% by promotion from the cadre of FDC and Stenographers haying put in a service of not less than 5 years in that cadre and who have passed Departmental test prescribed by the University or by Deputation. No. 5, after the words "departmental test prescribed by the University", the words "or by deputation" shall be added. 50% by direct recruitment. 50% by promotion from the cadre of FDC and Stenographers haying put in a service of not less than 5 years in that cadre and who have passed Departmental test prescribed by the University or by Deputation. as per the above Statutes, 50% of the Assistant Office Superintendents is to be filled up by direct recruitment and remaining 50% by promotion from the cadre of First Division Clerks and Stenographers. Since the said statute has not provided or specified the ratio for the purpose of promotion from two channels such as FDC and Stenographers, the Syndicate of the University has passed a resolution dated 29-6-1988 fixing the ratio of 5:2, i. e. , five from the cadre of FDC and 2 from the cadre of Stenographers. This resolution was challenged by respondent 4 and others in W. Ps. 11344 to 11346 of 1988 connected with w. Ps. 14176 and 14177 of 1988. This Court by its order dated 5-6-1989 disposed of the said writ petitions observing thus:"4. The Syndicate in its meeting held on 29-6-1988 have resolved to promote FDCs and Stenographers in the ratio of 80:20 hereafter and to regulate the present promotion in the ratio of 5:2. Mere expression of desire or decision to make promotions of fdcs/stenographers by the Syndicate in the ratio stated above without suitably amending the statute, will not serve the purpose. Decision will not ipso facto supersede a statute governing promotion to the cadre of Assistant Office Superintendent. As and when statute is amended in accordance with law incorporating the decision, present statute gets superseded and amended statute can be given effect to and not otherwise. 5. Hence, the first series are allowed; a writ in the nature of mandamus shall be issued to respondents to forbear from giving effect to the Resolution (without suitably amending the statute ). Rule issued and made absolute. In view of this conclusion, latter series are dismissed". ( 5 ) AT this stage, it is also necessary to mention that during the pendency of those writ petitions, pursuant to the order dated 16-12-1988, the petitioners and respondent 2 in W. Ps. 12525 and 12526 of 1992 were promoted and appointed as Assistant Office Superintendents. In view of this conclusion, latter series are dismissed". ( 5 ) AT this stage, it is also necessary to mention that during the pendency of those writ petitions, pursuant to the order dated 16-12-1988, the petitioners and respondent 2 in W. Ps. 12525 and 12526 of 1992 were promoted and appointed as Assistant Office Superintendents. This promotion was withdrawn consequent on passing of the final order in the above said writ petitions. ( 6 ) THE order with drawing the promotion of the 2nd respondent was challenged by the 2nd respondent in W. P. No. 9546 of 1989. The said writ petition was disposed of since the 2nd respondent was subsequently promoted to the post of Assistant Office Superintendent by the order which is now impugned in these petitions. ( 7 ) AS per the Rules of Recruitment, the promotion to the post of assistant Office Superintendent is from two channels viz. , FDC and stenographer. The University for the reasons best known to it has promoted only the persons from the channel of Stenographers on the basis of their length of service without considering the case of FDCs, though the Rules provide for promotion from both the channels. Therefore, the petitioners have filed these petitions challenging the promotion of respondents 2 to 7. ( 8 ) THE 1st petitioner-Ravindra Reddy in W. P. No. 12525 of 1992 has been directly appointed as Assistant Office Superintendent during the pendency of these petitions. In view of this changed circumstance, this petitioner is not entitled for relief of promotion since he is not serving in the University as FDC as on today. Therefore, this petition is liable to be dismissed. ( 9 ) THE petitioner in W. P. No. 12526 of 1992 has joined the services of the University as FDC on 1-12-1981. Whereas respondents 2 to 7 joined the services as Stenographers earlier to the appointment of petitioner as fdc. The Rules of Recruitment do not provide for any combined seniority list of both the FDCs and Stenographers for the purpose of promotion to the post of Assistant Office Superintendents. In fact the University also has not prepared and published any combined seniority list of both the FDC and the Stenographers. The Rules of Recruitment do not provide for any combined seniority list of both the FDCs and Stenographers for the purpose of promotion to the post of Assistant Office Superintendents. In fact the University also has not prepared and published any combined seniority list of both the FDC and the Stenographers. But on the basis of length of service put in by respondents 2 to 7 as Stenographers, the University has promoted them as Assistant Office Superintendents, which in my opinion is contrary to the Statutes governing the conditions of non-teaching employees of the Gulbarga University. According to the Statutes, 50% of the post of assistant Office Superintendents is by promotion from the cadre of fdcs and Stenographers. In the absence of any such ratio or quota specified in the Statute, if the Statute is taken as it is, the first vacancy shall go to the FDC and the next vacancy go to the Stenographers. In the case on hand all promotional vacancies which have been filled up from among the cadre of Stenographers ignoring the FDCs, in my opinion is contrary to the Statutes. ( 10 ) SRI S. Vasanth Kumar, learned Counsel appearing for the petitioners in W. Ps. 37606 and 37607 of 1995 contended that in the absence of specifying the ratio or quota for the purpose of promotion the University was right in taking length of service of persons from among the fdcs and Stenographers for the purpose of promotion to the next higher cadre. No doubt, the University has taken the length of service by combining both the feeder channels for the purpose of promotion. The Statutes as stated above has not provided for taking the length of service merging both the feeder channels into one for the purpose of promotion. In the absence of such a provision there is no reason for the University to take the length of service by combining both the cadres for the purpose of promotion. The University also has not prepared and published any combined seniority list of both the feeder channels for the purpose of promotion to the higher cadre. In the absence of any such Rule and also in the absence of any publication of any combined seniority list, the promotion of the contesting respondents is not correct. The University also has not prepared and published any combined seniority list of both the feeder channels for the purpose of promotion to the higher cadre. In the absence of any such Rule and also in the absence of any publication of any combined seniority list, the promotion of the contesting respondents is not correct. ( 11 ) NO doubt the University for administrative reasons or for administrative exigencies cannot keep the posts vacant for a considerable length of time. Therefore, the promotions now made by the University, since are not in accordance with the Statutes of the University, are to be treated as ad hoc promotions. ( 12 ) THE Syndicate of the University has passed a Resolution earlier specifying the ratio in respect of the two feeder channels for the purpose of promotion at the ratio of 80:20 and for the relevant time at 5:2. The said resolution was directed not to be given effect to till the statutes are suitably amended in W. Ps. 14176 and 14177 of 1988. It is submitted that on the basis of the said decision the University has taken a decision to amend the statutes and submitted to the State Government for the assent of the Chancellor. Now the Chancellor has given assent on 9-6-1988 fixing the ratio at 4:1 for the FDC and the Stenographers respectively. This shows that the unamended Statutes which provided for promotion to the post of Assistant Office Superintendents is not workable. Therefore, the Syndicate of the University itself has suggested for amendment of the Statutes since no ratio has been provided between two channels similar to the ratio found in the Service Rules of the State government. Now as on date the Statutes have been amended and ratio has been specified in respect of both the feeder channels. Therefore, the university shall be directed to prepare the separate seniority lists of fdc and Stenographers and thereafter consider the case of all eligible candidates for promotion as per the ratio specified as on today. All the promotions hitherto made in the absence of any ratio is contrary to the then existing statutes and therefore the said promotions are liable to be quashed. ( 13 ) THE petitioners in W. Ps. 37606 and 37607 of 1995 have sought for a direction to give retrospective promotion from 13-4-1986 and 20-4-1986, i. e. , the dates on which vacancy occurred. ( 13 ) THE petitioners in W. Ps. 37606 and 37607 of 1995 have sought for a direction to give retrospective promotion from 13-4-1986 and 20-4-1986, i. e. , the dates on which vacancy occurred. At the time of arguments sri Vasanth Kumar, learned Counsel for the petitioners submitted that if it is not possible for the University to consider the case of the petitioners for promotion from the year 1986, at least their case may be considered from the year 1989 i. e. , the date on which certain persons were promoted to the posts of Assistant Office Superintendent. Under the Service Rules, an employee cannot claim the promotion as a matter of right. At best an employee can ask for consideration of his case for promotion provided he is eligible. It is not the case of the petitioners that their juniors have been promoted in the year 1986 ignoring their seniority. If that is so, the question of directing the respondents to give promotion to the petitioners from the year 1986 does not arise. The further case of the petitioners in these two writ petitions is that the petitioners in W. Ps. 12525 and 12526 of 1992 are admittedly juniors to the petitioners and were promoted in the year 1989. No doubt the petitioners in the said writ petitions were promoted in the year 1989, but the said promotion was withdrawn consequent on the order passed by this Court in W. Ps. 11344 to 11346 of 1988. Therefore, it cannot be said that the juniors of the petitioners have been promoted ignoring the seniority of the petitioners in these petitions. Even assuming that there are promotions on the basis of the seniority, since the said promotions are now held to be invalid in W. Ps. 12525 and 12526 of 1992 the question of directing the respondent to give promotions to the petitioners retrospectively does not arise. ( 14 ) IN the result, I pass the following order. (a) W. P. Nos. 12525 of 1992 and 37606 and 37607 of 1995 are dismissed. (b) W. P. No. 12526 of 1992 is allowed. The promotion of respondents 2 to 7 in W. P. No. 12526 of 1992 are quashed. ( 14 ) IN the result, I pass the following order. (a) W. P. Nos. 12525 of 1992 and 37606 and 37607 of 1995 are dismissed. (b) W. P. No. 12526 of 1992 is allowed. The promotion of respondents 2 to 7 in W. P. No. 12526 of 1992 are quashed. (c) Direction is issued to the University to prepare and publish separate seniority lists for both the FDCs and Stenographers and thereafter consider the case of all eligible candidates for promotion as per the present existing statute as early as possible, not later than six months from today. (d) However, the promotion of respondents 2 to 7 in W. P. No. 12526 of 1992 shall not be disturbed till the process of publication of seniority lists and promotion are completed. --- *** --- .