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2004 DIGILAW 55 (JK)

Ab. Rashid Khan (Prof. ) v. State Of J. &K.

2004-03-18

R.C.GANDHI

body2004
Petitioner has approached this Court challenging nomination of respondent No. 4 as Dean Faculty of Science, University of Kashmir, Srinagar vide order dated 1.8.2003 for a period of three years in terms of Section 29 of the Kashmir and Jammu Universities Act, 1969 on the ground that the petitioner is senior to respondent No. 4 2. On consideration of the interim application filed along with the writ petition on 11.9.2003 the court passed the following order:- "Petitioner has challenged the appointment of respondent No. 4 to the post of Dean made by the Vice Chancellor, University of Kashmir, Srinagar in exercise of power under Section 21 of the J&K Universities Act, 1969 as a Mandate. Mr. Haqani, Advocate has submitted that petitioner is senior to respondent No. 4 and the petitioner should have assigned the job of Dean. Appointment of respondent No. 4 is against the Mandate of Section 29 of the University Act. He has drawn the attention of the court on Annexure-I which is the list of the Professors. This list indicates that the petitioner was appointed as Professor on 01.01.1991 whereas respondent No. 4 on 16.03.1997. Section 29 of the Act envisages that the Dean should be nominated by the VC by rotation, according, to the seniority. Petitioner appears to be the senior most and the appointment of the respondent No. 4 prima-facie appears to be against the Mandate of Section 29 of the Act. Admit. Issue notice. Counter within three weeks. In the meantime, subject to the objections of the other side, the impugned order shall remain stayed till next date." 3. This order was challenged by means of LPA No. 15 and on 15.10.2003, ,the LPA came to be disposed of in the following terms:- "Accordingly, order impugned is not interfered with this stage leaving it open to the appellants to file the objections within one week from today and on filing of the objections Registry is directed to list the writ petition alongwith CMP before the learned Single Judge and we have no manner of doubt that on the date the case is listed before learned Single Judge, the matter would be decided as the issue involved is in regard to the appointment of Dean, Faculty of Science of University of Kashmir, Srinagar." 4. The respondent have filed the objections to the CMP on 20.10.2003. In the meantime respondents also appointed Dr. The respondent have filed the objections to the CMP on 20.10.2003. In the meantime respondents also appointed Dr. M. Z. Chesti, Professor Zoology, Junior to the petitioner as Dean Faculty of Science vide order dated 24.9.2003 to look after the day to day affairs. The petitioner filed CMP No. 3051/2003 for taking action against the respondents for appointment of Dr. Chesti and also for staying the order. The court observed in the course of the proceedings that this order has been made without taking the court in confidence; the respondent on the said observation of the court has withdrawn the order. 5. Respondent have also filed CMP No. 323/2003 seeking permission of the court for making alternative appointment by way of appointment of a Professor as Dean in consequence of the interim order dated 11.9.2003. Petitioner has also filed CMP No. 352/2004 seeking direction to the respondents to accord consideration to the petitioner for his nomination as Dean Faculty of Science, University of Kashmir. 6. The admitted facts are that respondent No. 4 Professor Dr. K. S. Jamwal and the petitioner, ,in the year 1988 were working Readers in their respective Departments Kashmir University. Respondent No. 4 came to be promoted as professor (Physics) in the pay scale of Rs. 4500-5700 on 19.9.1988 in accordance with the Merit Promotion Scheme (hereinafter to be referred as " the Scheme") introduced by the University Grant Commission in the year 1983. The petitioner was also promoted as Professor from 1.1.1991 under the said Scheme. The University issued an Advertisement Notice on 20.2.1995 for selection of professors in other disciplines including the Professor (Physics) in the pay scale of Rs. 4500-7300. The respondent No. 4 applied for the post and was selected and appointed on 15.3.1997 on probation for a period of one year. He joined the post on 16.3.1997. 7. There was an anomaly in the pay scales of the post of Professor to be filled up by the direct recruitment (selection) and under the Scheme, the UGC vide notification dated 24.12.1998 removed the disparity and uniform pay scale of Rs. 4500-7300 was introduced with effect form 1.1.1996. Petitioner accordingly was placed in the pay scale of Rs. 4500-7300 from 1.1.1996. By this time respondent No. 4 was already working in the pay scale of Rs. 4500-7300 on his selection and appointment with effect from 15.3.1997. 4500-7300 was introduced with effect form 1.1.1996. Petitioner accordingly was placed in the pay scale of Rs. 4500-7300 from 1.1.1996. By this time respondent No. 4 was already working in the pay scale of Rs. 4500-7300 on his selection and appointment with effect from 15.3.1997. There is no dispute that the respondent No. 4 is senior to the petitioner as on 1.1.1996. 8. Dispute raised by Mr. Haqanee, learned counsel for the petitioner is that the petitioner is senior for the reason that respondent No. 4 was appointed to the post of Professor by selection against the advertised post on 15.3.1997 and with the removal of pay anomaly under notification dated 24.12.1998 the petitioner being placed in the pay scale of Rs. 4500-7300 with effect from 1.1.1996 is, therefore, ,senior. His another limb of the argument is that since the past service and the pay of respondent No. 4 has not been protected by the University nor the respondent No. 4 opted for its protection, therefore, his services as professor shall be counted only from the date of his appointment as Professor on 15.3.1997. The dispute is to be determined at the final disposal of the writ petition. However, learned counsel for the parties have agreed for disposal of the Interim Relief application alone. 9. Respondent No. 4 was senior as Lecturer, as Reader and as a Professor till the pay anomaly was removed. There is only mode of direct recruitment to the post borne on the Teaching cadre of the University under The Kashmir and Jammu Universities Act, 1969. There is no rule or provision for promotion to the higher post. The University has introduced the Scheme which does not create the post but gives an incentive of promotion. Mr. Haqanee learned counsel for the petitioner, to make out that petitioner is senior to the respondent has relied upon a judgment of the Supreme Court delivered in case titled "K. Rajaiah v. State of Andhra Pradesh and Ors", AIR 1987 SC 2005, where the court has held that the seniority should be counted from the date of appointment. He has also relied upon a judgment delivered in the case titled "Suraj Parkash Gupta and Others v. State of J&K Ors.", 2000 SLJ 163, wherein the Court has held the same view. 10. He has also relied upon a judgment delivered in the case titled "Suraj Parkash Gupta and Others v. State of J&K Ors.", 2000 SLJ 163, wherein the Court has held the same view. 10. In rebuttal M/s J. A. Kawoosa and Tassaduq Hussain Khaja learned counsel have relied upon a judgment delivered in case titled "Vikram Universities and Ors v. Dr. B.D. Srivastava and Others", 1995 (3) SCC 653 wherein the dispute was with regard to the inter seniority of the direct recruits and the promotees, promoted under the Merit Promotion Scheme. The Court pronounced that: "In view of the distinguished features of the Scheme (whereunder promotion to be purely personal to each individual, excess workload of the promotees to be suitably adjusted, pay scales and process of selection of the promotees different from the direct recruits etc.,) promotees and direct recruits differ in respect of not only source of appointment but also nature of appointment and nature of posts held by them,______. As such the 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 amount to treating unequals as equal in violation of Arts, 14 and 16(1)" 11. The appointment and selection to a post borne on the cadre of the University is to be governed by the Regulations contained in the University Statute. Para 3.4 whereof envisages as under:- "3.4 : All appointments to permanent posts of teachers in the University shall be made by the University Council/Syndicate, on the recommendations of a Selection Committee in accordance with the provisions of the Act after such posts have been duly advertised and the candidates have been interviewed by the Selection Committee. Every teacher thus selected shall be placed on probation for a period of one year. On the expiry of this period he shall be confirmed on his/her post. However, the Vice Chancellor, may, for sufficient reasons, extend the probation period for a further period of one year. If the work of the teacher is not found satisfactory during the probationary period his services may be terminated with a notice of two months. The teacher shall be deemed to be confirmed if no decision is taken by the University/Council/Syndicate within the prescribed period of two years. If the work of the teacher is not found satisfactory during the probationary period his services may be terminated with a notice of two months. The teacher shall be deemed to be confirmed if no decision is taken by the University/Council/Syndicate within the prescribed period of two years. Provided that, if a teacher in the permanent service of the University is appointed on probation to a higher post in the same department, he shall not lose his lien on his substantive post nor shall he be deprived of leave and provident fund benefits which he was entitled at the time of appointment to the higher post during the period of his probation. 12. Para 3.7 of the University Statute also reads as : "All departmental candidates selected for higher posts:- (a) shall be deemed to be promoted the higher posts. 13. The conjoint reading of the aforesaid regulations would indicate that if a departmental candidate is selected and appointed to a higher post, it shall be deemed as promotion to the higher post and shall not pose his lien on his substantive post. 14. The dispute of seniority has to be resolved by final determination of the petition but as noticed that respondent No. 4 has also been placed in the pay scale of Rs. 4500-7300 with effect from 1.1.1996 as the petitioner was placed in the pay scale on the same date. This placement is not by way of selection against a post of Professor as the post is only to be filled by direct recruitment. Respondent No. 4 has been the Professor in higher pay scale to that of the petitioner. Therefore, balance of convenience prima facie and tentatively tilts towards the respondent No. 4. The purpose of granting Interim Relief is to maintain the balance keeping in view the public interest and the rights of the parties till the dispute is finally determined. 15. In view of the above, the CMPs are disposed of with a direction to the respondent-University to permit respondent No. 4 to work as Dean Faculty of sciences, till disposal of the writ petition. However, it is made clear that any observation made in the course of this order shall not prejudice the rights of any party and that any party shall not seek any support at the final hearing of the petition from the aforesaid observations.