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2002 DIGILAW 479 (KER)

Manu Bhaskar v. University of Kerala

2002-07-18

M.R.HARIHARAN NAIR

body2002
Judgment :- Petitioner –Dr. Manu Bhasker and the third respondent – Dr.M. Indukumary applied, among others, to the 1st respondent – University of Kerala for recruitment as Lecturer in Sociology. There were two vacancies, one of which was reserved for candidates belonging to the Backward Community. Ultimately, both were selected –vide Ext.P3 minutes. The 3rd respondent got the second rank in the open merit vacancy and the petitioner got the second rank in the reserved quota. The 3rd respondent joined duty on 25-3-1982 and the petitioner joined on 2-4-82. However, probation of the petitioner was declared earlier because of the fact that the 3rd respondent entered on leave on medical ground for nearly three months. That was confirmed as per Ext.P2 order. 2. Under the U.G.C Scheme, both posts were upgraded as that of Reader as per Ext.P14 order. The 3rd respondent being the senior in the list, got the promotion with effect from 29-3-1990, whereas the petitioner got it with effect from 2-4-1990. Thus, the 3rd respondent continued to be the senior. 3. The petitioner had staked her claim for seniority over 3rd respondent on the ground that her probation as Lecturer was declared earlier. As per Ext.P22 order, the University, however, decided on 31-10-91 that the 3rd respondent was senior to the petitioner. When the post of professor fell vacant in the year 1995, the 3rd respondent was nominated as Professor vide Ext.R3 (h) order dated 29-6-95. While so, a regular vacancy of Reader arose in the Department, which was advertised for being filled up through direct recruitment. The petitioner applied for the post and got selected and she became Reader in the regular post on 21-5-1998 as mentioned in Exts. P28 and P23 order. 4. The contention of the petitioner is that Ext.R3 (h) nomination has to be cancelled being irregular and violative of the right that the petitioner has as senior of the 3rd respondent by virtue of the earlier declaration of probation and also in view of her direct recruitment. The petitioner also challenges the very upgradation of the post held by the 3rd respondent in so far as, according to her, the 3rd respondent was not possessing the requisite qualifications and the promotion was based on no selection process; but simply pursuant to an office note which itself was misleading as regards the qualifications of the 3rd respondent. The petitioner also challenges the very upgradation of the post held by the 3rd respondent in so far as, according to her, the 3rd respondent was not possessing the requisite qualifications and the promotion was based on no selection process; but simply pursuant to an office note which itself was misleading as regards the qualifications of the 3rd respondent. The prayers in O.P.No. 8720 /93, as it stands amended, are the following: (i) Ext.P1 order as per which the petitioner and 3rd respondent were appointed as Lecturers itself is liable to be struck down in so far as there was no inter se comparison of their merits. The petitioner was put in the reservation quota whereas actually she was more meritorious than the 3rd respondent and as such was entitled to be included in the merit list in the place of the 3rd respondent. (ii) Ext.P2 order which declares the probation of the petitioner and the 3rd respondent with effect from 2-4-83 and 2-7-83 respectively is also liable to be struck down because the period of leave without allowance availed by the 3rd respondent was liable to be excluded from her total service. (iii) The direction in Ext.P20 that existing teachers who were not promoted as Readers prior to 1-4-90 and opt for merit promotion scheme will have their pay fixed as Lecturers in the lower scale of Rs.2200-4000 and will be eligible for promotion as Readers in the smaller scale of Rs.3000-5000 only should be struck down being discriminator; the date 1-4-90 having no special relevance or significance. (iv) The 1st respondent- University should be directed to pass appropriate orders to the effect that the petitioner is qualified to be selected in open merit quota and her selection to reserved Ezhava quota without her knowledge and without giving her an opportunity to contest in the open merit quota is illegal. (v) The petitioner should be declared as senior to the 3rd respondent and given all the financial benefits under the UGC Scheme as given to the 3rd respondent and other teachers who were upgraded along with the petitioner re-fixing the cut off date appropriately, i.e., in modification of Ext.P20. 5. (v) The petitioner should be declared as senior to the 3rd respondent and given all the financial benefits under the UGC Scheme as given to the 3rd respondent and other teachers who were upgraded along with the petitioner re-fixing the cut off date appropriately, i.e., in modification of Ext.P20. 5. Sri.T.P. Kelu Nambiar, who appeared for the 3rd respondent, submitted that the recruitment and subsequent promotions were all done in accordance with law and that the petitioner is not entitled to claim seniority over the 3rd respondent, who had joined duty as Lecturer and Reader earlier than the petitioner According to him, the prayers in the Original Petition are all barred by limitation in so far as in the Original Petition filed in the year 1993 the petitioner is trying to upset even the order by which she was appointed for the first time in the University in 1982 (Ext.P1) as also Ext.P2 order of the year 1989 whereby the satisfactory completion of the probation of the parties was declared with effect from 2-4-83 and 2-7-93 respectively. Even on the merits, the prayer that the selection made nearly 20 years back should be upset by changing the quota to which the parties were recruited is also barred and untenable. As regards seniority, it is pointed out that on 31-10-91 vide Ext.P22 order the University had declared in unambiguous terms that the 3rd respondent was senior and that even in the present petition there is no challenge made with regard to that order and such being the case, there is no question of granting the relief sought for. 6. As regards the direct recruitment claimed by the petitioner as Reader, it is stated that no claim can arise there from in view of the fact that the post was held only during the period from 21-5-98 before which the 3rd respondent even completed her probation in the rank of Professor as evident from Ext. R3 (j). 7. The learned counsel for the petitioner relied heavily on the decision in Dr. Rashmi Srivastava v. Vikram University ((1995) 3 SCC 653) (for short vikrom University case). There, the subject matter was seniority dispute between teachers who were given upgradation under the merit promotion scheme of the UGC from Lecturer to Reader and from Reader to Professor. R3 (j). 7. The learned counsel for the petitioner relied heavily on the decision in Dr. Rashmi Srivastava v. Vikram University ((1995) 3 SCC 653) (for short vikrom University case). There, the subject matter was seniority dispute between teachers who were given upgradation under the merit promotion scheme of the UGC from Lecturer to Reader and from Reader to Professor. Persons who got upgradation earlier than direct recruits claimed seniority to the post; but it was held that unless the Act governing the University was amended providing for upgradation as an additional source of recruitment, such persons who were upgraded cannot claim seniority over the persons who are directly recruited. It was held that promotees constitute a distinct class and despite similarity in nature of work, treating them on a par with the direct recruits for determining inter se seniority on the basis of length of continuous officiation would be violative of Articles 14 and 16(1) of the constitution. The reason is that notwithstanding the upgradation which entitled them to get higher remuneration, the vacancy that would result in the event of their ceasing to occupy the same based on retirement, death etc., would be only in the lower post to which they were originally recruited. 8. I have carefully perused the decision and I do not think that the petitioner can rely on the said decision in support of her claim. The reason is the Rules and fact situation involved in the two cases are entirely different. 9. In the Vikram University case, the appointments and promotions were governed by an Act by name Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973, which provided for direct recruitment as the only source of appointment to various posts thereby recognizing only direct recruits as persons holding the regular cadre. The merit promotees under the UGC regulation would fall outside the cadre and unless the Act was amended introducing promotion as an additional source of recruitment, they would not be entitled to be considered along with the direct recruits in the matter of seniority in the cadre. 10. The Court also noted that statute 16 governing the teachers of that University provided that the seniority of Professors, Readers, Assistant Professors and Lecturers would be in accordance with the length of continuous service of such person in the cadre concerned. In this view there was no question of considering non-cadre occupants for fixing seniority. 10. The Court also noted that statute 16 governing the teachers of that University provided that the seniority of Professors, Readers, Assistant Professors and Lecturers would be in accordance with the length of continuous service of such person in the cadre concerned. In this view there was no question of considering non-cadre occupants for fixing seniority. Clause 12 of the Ordinance of the University also provided that promotion given to Lecturers and Readers under the UGC Scheme would be personal to each individual and in the event of his/her retirement or leaving the University, the post vacated would be the one from which he/she was promoted indicating that the cadre post occupied by them was the lower post of direct recruitment only notwithstanding the upgradation given under the UGC Scheme. 11. Another distinction drawn by the Apex Court in the said judgment is the fact that upgradation given did not involve any selection process and the persons holding such merit promotion would not be reckoned for determining the total post in the cadre concerned. Ultimately, the court concluded that the merit promotees were occupying ex cadre posts and consequently there cannot be a combined seniority list of direct recruits and UGC promotees in view of the wording in sec.49 of the Act aforementioned. The promotes, it was held, formed a distinct class of ex cadre or supernumerary appointees and hence a separate seniority list of merit promotes was to be prepared and acted upon for the purpose other than seniority and promotion in and to the post available to those in the cadre. 12. Dr. Suman Agarwal v. Vice Chancellor ((1996) 1 SCC 632) (for short, ‘Suman’) is a later decision of the Apex Court and the larger Bench, which decided that case relating to the Agra University consisted of one of the Judges who decided the Vikram University’s case as well. It was held there in that personal promotes under the special Scheme can be senior to direct recruits. Such personal promotion posts would be a temporary addition to the cadre of Reader or Professor, as the case may be, held by direct recruits. It was held there in that personal promotes under the special Scheme can be senior to direct recruits. Such personal promotion posts would be a temporary addition to the cadre of Reader or Professor, as the case may be, held by direct recruits. In view of statute 17.05(b) which provided that in the same cadre inter se seniority of teachers appointed by personal promotion or by direct recruitment shall be determined according to length of continuous service in such cadre, the persons promoted on regular basis, though by way of personal promotion as Readers, can be treated as seniors to the direct recruits who came in subsequently. 13. The earlier decision (Vikram University) was distinguished in ‘Suman on the ground that in the former the promotes did not form part of the same cadre and they got promoted under a different scheme which was personal to the incumbent which would cease with the retirement of the candidate. The difference between the two cases, it was held, is the operation of sec. 31-A(1) of the U.P. State Universities Act, 1973 which provided that a Lecturer or a Reader in the University substantively appointed and has put in such length of service and possesses such qualification as may be prescribed, may be given personal promotion to the respective post of Reader or Professor. Such promotion would also be based on the recommendation of the Selection Committee as also with the operation of Statute 17.05(b) about which reference has already been made i.e., the Rule which provides that inter se seniority of personal promotes and direct recruits shall be determined under the length of continuous service in the cadre. 14. What is evident from a comparative study of ‘Vikram University’ and ‘Suman’ is that the deciding factor is whether the Act concerned enables appointment from the only source of direct recruitment or whether promotion also is contemplated as a source for filling up the posts higher than the lowest in the hierarchy. The position in the present case may be considered bearing in mind the above said crucial criterion. 15. Sec 73(1) of the Kerala University Act, 1974 provides as follows : “73. Conditions of service. (1) save as otherwise provided by or under this Act, every salaried officer and teacher of the University shall be appointed by a written order”. The position in the present case may be considered bearing in mind the above said crucial criterion. 15. Sec 73(1) of the Kerala University Act, 1974 provides as follows : “73. Conditions of service. (1) save as otherwise provided by or under this Act, every salaried officer and teacher of the University shall be appointed by a written order”. Under Rule 1 Chapter 3 of the Kerala University First Statutes, 1977, the senate shall be competent to create the posts of Professors, Readers and Lecturers and under Statute 3 of the chapter, teachers of the University are to be appointed by the Syndicate after advertisement inviting applications. The Syndicate, however, is enabled to appoint in exceptional cases Professors and Readers without advertisement, if it is satisfied that persons already in the service are suitable for the post. Statute 4 further provides that when posts are to filled up after inviting applications by advertisement the applications received have to be referred to a Selection Committee whose recommendations should be placed before the Syndicate which shall, in turn, make the appointment. In Statute 6, it is further provided that every teacher of the University shall be appointed by a written order. Statute 14 makes it clear that every teacher of the University shall, in the first instance, be appointed on probation for a period of one year on duty within a continuous period of two years. 16. The petitioner has a contention that the promotion given to her and to the 3rd respondent, as Reader was not based on any appointment order or selection process and that they were also not put on probation in the post of Reader. The argument built upon this edifice is that there has not been any appointment of teacher or creation of post of Reader involved in the up gradation and that there is hence no question of applying the decision in Dr.Suman Agarwal V. Vice Chancellor and others ((1996) 1 SCC 632). 17. There is little merit in the above submissions. Ext.R3 (i) shows that a post of Professor was created in the Kerala University to provide a berth to the 3rd respondent as Professor consequent on up gradation granted to her. 17. There is little merit in the above submissions. Ext.R3 (i) shows that a post of Professor was created in the Kerala University to provide a berth to the 3rd respondent as Professor consequent on up gradation granted to her. The impact of Ext.R3 (i) is that when the 3rd respondent relinquishes the post the resultant vacancy will arise in the cadre of Professor and not in the cadre of Lecturer, as was not the position in Vikram University case. Ext. R3 (j) order produced by the 3rd respondent shows that the probation in respect of merit promotion granted to the 3rd respondent was duly declared. A specific appointment order was also given promoting the 3rd respondent to the Grade of Professor. Unlike the position in the Vikram University’s Case (supra), the Kerala University Act contemplates appointments other than through direct recruitment as well. Under Sec. 2(27) of the Kerala University Act, all teaching posts including that of Professor comes within the scope of the definition of ‘Teacher’. Under Sec.5 (xxv) OF THE Act, the University has the power to create posts of various categories including that of Professor and to appoint persons therein. According to Sec.19, the Senate of the University is the supreme authority in the university with power even to review the action of the Syndicate and the Academic Council. Under Sec.19 (2)(e), its power extends to the creation of Professorship and other teaching or research posts. Under Sec.23 (viii), the syndicate has the power to appoint teachers and other employees of the University and to prescribe their duties. Under Sec.25, the Academic Council of the University has the power to advice the Senate and the Syndicate on all academic matters; to prescribe qualifications of teachers; to make proposals for the institution of professorships and other teaching and research posts. Statute 1 chapter 3 of the Kerala University First Statutes 1977 also provides that the Senate shall be competent to institute Professorships and such other teaching posts on the motion of the Syndicate and /or on the proposals of the Academic Council and endorsed by the Syndicate. 18. Under Statute 3 of the same Chapter, teachers of the University have to be appointed by the Syndicate after advertisement inviting applications. In making appointments by direct recruitment, the relevant provisions of the Kerala state and Subordinate Service Rules, 1958 have to be followed. 18. Under Statute 3 of the same Chapter, teachers of the University have to be appointed by the Syndicate after advertisement inviting applications. In making appointments by direct recruitment, the relevant provisions of the Kerala state and Subordinate Service Rules, 1958 have to be followed. However, the position that direct recruitment is not the only mode in which appointments can be made is clear from the other statements in the same Statute which reads as follows: “…It shall however be competent for the syndicate to appoint in exceptional cases Professors and Readers without advertisement, if it is satisfied that persons already in the service are suitable for the post.” The above provisions make it abundantly clear that as far as the Kerala University is concerned, more than one method of appointment is contemplated and as far as the creation of posts also subject to the compliance which Statute 1 of Chapter 3, the Senate is fully competent to create additional posts. This will certainly include upgradation of posts as well. 19. It is in this background that the question of propriety of issuance of Exts. R3 (i) and P24 orders upgrading the posts held by the 3rd respondent and petitioner respectively from Reader to that of Professor has to be considered. It may straightaway be mentioned that such appointment is not in the circumstances or situations as arose in the Vikram University case where the only source of appointment was direct recruitment and there was no power left under the relevant Act (Adhiniyam) to appoint or promote persons other than through recourse to the provisions relating to direct recruitment. 20. As far as the facts of the present case are concerned, the position is covered by the decision in Prof. S.S.Siddiqui V. Prof.M.Wajid Khan and others ((1992) 2 SCC 1) involving the Aligarh Muslim University (hereinafter referred to as ‘AMU’ case). This is one on which the 3rd respondent and the University heavily relied on. The question that arose therein was also more or less similar. The appellant therein was a Reader in the Aligarh Muslim University and was promoted as Professor on 14-3-1987 under Merit Promotion Scheme. The 1st respondent therein was appointed as Professor subsequently. In the lower post held by them also, the appellant was senior. The question that arose therein was also more or less similar. The appellant therein was a Reader in the Aligarh Muslim University and was promoted as Professor on 14-3-1987 under Merit Promotion Scheme. The 1st respondent therein was appointed as Professor subsequently. In the lower post held by them also, the appellant was senior. However, the 1st respondent contended that the appellant’s promotion as Professor under the Merit Promotion Scheme cannot be considered for seniority on the ground that the promotion of the 1st respondent alone was through regular selection, the promotion of the appellant being under the Merit promotion Scheme. Following the decision in Vikram University’s case, the High Court directed the separate seniority lists should be prepared in respect of direct recruits and persons promoted under the Merit promotion Scheme and that those in the latter category should not be appointed or continued as Chairman/Dean of any Department or Faculty of the University. 21. The Apex Court drew a distinction between the fact situation in the Vikram University’s case and in the AMU case (1999) 2 SCC 1). Reference was made to ‘Suman’ ((1996) 1 SCC 632) referred to in para-7 above also. It was found that the principles in Vikram University case can apply only to cases where direct recruitment is the only method for filling up the post of Professor and that in cases where the relevant Act contemplates other methods of promotion or appointment as well, the principles therein cannot apply. 22. In AMU case reliance was also placed on earlier decision in Bal Krishna Agarwal (Dr.) V. State of U.P. ((1995) 1 SCC 614) where it had been held that as between direct appointees and persons promoted under the Merit Promotion Scheme, inter se seniority was to be determined according to the length of service in the cadre. The seniority of the appellant in AMU case was upheld. 23. In view of the aforesaid legal position, the principles in Vikram University case cannot apply to the facts of the present case. The inter se seniority of the petitioner and the 3rd respondent has to rest on their seniority position based on the length of service as Reader and viewed from this perspective, the 3rd respondent is definitely senior to the petitioner and she had rightly been promoted as Professor vide Ext.R3 (i). The inter se seniority of the petitioner and the 3rd respondent has to rest on their seniority position based on the length of service as Reader and viewed from this perspective, the 3rd respondent is definitely senior to the petitioner and she had rightly been promoted as Professor vide Ext.R3 (i). The finding in Ext.P22 that the 3rd respondent is senior to the petitioner has therefore to stand. 24. It is to be mentioned here that the merit promotion given to the 3rd respondent was after complying with the procedure followed by the University viz., based on an application, which was considered by the Syndicate and placed before the Academic Council which recommend the proposal and forward it to Syndicate and ultimately approved by the Senate also. In fact, the same procedure was followed in the matter of grant of promotion to the petitioner also which came out in the form of Ext.P24. 25. The only other aspect to be considered is the validity of the cut off date fixed in Ext.P20 viz., 1-4-90 for getting the regular UGC Scale. The petitioner is aggrieved that the 3rd respondent gets a higher scale, her date of promotion as Reader being 29-3-90 whereas the petitioner gets only a lesser scale, though both were recruited together. The reason for the anomaly is evident in Ext.P20 itself. It was on 27-3-1990 that the Government of Kerala issued a G.O. granting option to existing teachers in view of the introduction of the UGC Scheme with effect form 1-4-90. It is not unusual that while implementing wage reforms a cut off date is fixed. A line has to be drawn somewhere and naturally those on the other side of the line may get only reduced benefits. Such grievance will never be capable of redressal because if not A; B will be there on the other side of the line. Suffice it to say that the date fixed is not arbitrary. The petitioner, in the circumstances, is not entitled to get any relief in this Original petition. The Original Petition is without merit and accordingly, it is dismissed.