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Gauhati High Court · body

2006 DIGILAW 263 (GAU)

Kamal Kumar v. North Eastern Hill University

2006-03-21

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The three writ Petitioners who are the Professors in the Department of Physics, North Eastern Hill University (NEHU), Shillong, being aggrieved by attachment of the Respondent No. 6, Professor of the Institute called Self Organizing Systems and bio-Physics (hereinafter referred as ISOS and Bio-physics) under NEHU to the department of Physics in which the Petitioners are working, have filed this writ petition making a challenge to the same. Be it stated here that ISOS and Bio-Physics has since been abolished and as a result of such abolition, the service of the Respondent No. 6 has been attached to the department of physics maintaining his status as Professor in the erstwhile Institute. 2. The aforesaid Institute was established under NEHU by an ordinance issued Under Section 26(1)(d) of the NEHU Act, 1973 and approved by the Ministry of Education, Govt. of India's letter dated 21.12.87 with a view to pursue Inter-School multi disciplinary Research work. The Respondent No. 6 was first appointed as a Reader in Bio-Physics in the said Institute. In the year 1990, a UGC expert committee visited NEHU and the Institute, and on the basis of the report submitted by the said committee, the UGC conveyed its decision to close down the Institute. The matter pertaining to closure of the Institute was taken up by the Academic Council (AC) and Executive Council (EC) in the year 1998 and it was resolved that the Institute should not admit the students any further into M. Phil and Ph.D. programmes. Thus, according to the Petitioners, for all practical purpose the Institute stood closed with the resolution adopted by the AC and EC in the meetings, held on 11th and 12th June, 1998. 3. The Respondent No. 6 was promoted as Professor under the scheme called career Advancement on 04.04.01. It is the case of the Petitioners that the Respondent No. 6 could not have been promoted as such at a time when the Institute itself was virtually closed down. In addition, they have also contended that the selection committee which recommended the Respondent No. 6 for such promotion was not dully constituted as required under Statue 20 of the NEHU Statute. 4. In addition, they have also contended that the selection committee which recommended the Respondent No. 6 for such promotion was not dully constituted as required under Statue 20 of the NEHU Statute. 4. It is the contention of the Petitioners that the Respondent No. 6 could not have been attached to the department of Physics as Professor firstly on the ground that his promotion itself as Professor in the ISOS was illegal and secondly his such promotion as Professor being in the Institute, he could not have been inducted to the Department of Physics as Professor. 5. By the impugned notification dated 10.9.03 (Annexure-5), the Registrar of the University conveyed the decision of the University pursuant to 116th resolution of the EC adopted in its meeting held on 21.08.03 to abolish the Institute with immediate effect. By the same very notification, consequent upon abolition of the Institute, the incumbents in the Institute named in the notification have been attached in the respective departments which includes the Respondent No. 6 with his attachment to the Department of Physics. Thereafter, by Annexure-6 notification dated 16.03.04, the University authority pursuant to 117th EC meeting notified that the Professors temporarily attached to various departments consequent upon 116th resolution adopted by EC shall have the rights and privilege being enjoyed by other regular Professors of the Departments. However, such benefit conferred on the attached Professors has been stated to be "until such time as other arrangement are made". Endorsing a copy of the Annexure-5 notification dated 10.09.03 to the Finance Officer, NEHU, it was requested to make payment of salary to the concerned teachers against the departments to which they were attached and to abolish the budget provision of the Institute and to enhance the budget provision suitably to the departments to which the teachers were posted. For a ready reference, the impugned notifications (Annexures 5 and 6) are quoted below: NORTH EASTERN HILL UNIVERSITY P.O. NEHU CAMPUS: SHILLONG No. F. 24/Estt.II/2003/6154 Dated 10th Sept., 2003 NOTIFICATION In pursuance to the 116th E.C.'s Resolution No. FX. 116:2003:8(ii) in its meeting held on 21.08.03, the Vice-Chancellor is pleased to order that the ISOS and Biophysics stands abolished with immediate effect. Accordingly, the following teachers are hereby attached to the departments as mentioned below and the attachment will be temporary. However, the teachers so attached will carry their post which will be treated as personal to them. 116:2003:8(ii) in its meeting held on 21.08.03, the Vice-Chancellor is pleased to order that the ISOS and Biophysics stands abolished with immediate effect. Accordingly, the following teachers are hereby attached to the departments as mentioned below and the attachment will be temporary. However, the teachers so attached will carry their post which will be treated as personal to them. The concerned teachers will function under the direction and control of the concerned Head/Director of the Department. Name of the Teachers Department attached 1) Prof. R.P. Bajpai R.S.I.C. as Professor 2) Dr. Satish Kumar, Department of Physics 3) Dr. Debjani Roy, department of Zoology 4) Dr. Binode Singh, Department of Biochemistry The faculty members as mentioned above shall make a list of all equipments pertaining to projects under them and submit it to the Head/Director of the Department to which they are attached. (Prof. D.T. Kathing) Registrar NORTH EASTERN HILL UNIVERSITY P.O. NEHU CAMPUS: SHILLONG No.F.24/Estt.II/2003(pt.)/0989 Dated 16th March, 2004 NOTIFICATION In continuation to this office Notification No. F. 24/Estt. 11/2003/6154 dated 10.09.03 on condition of the Institute of Self Organizing system and Biophysics vis-a-vis temporary attachment of faculty members of the Institute to various academic departments, it is hereby noticed that the 11 the Executive Council white confirming the minutes of the 116th meeting resolved that the Professor temporarily attached in various Departments consequent upon the 116th resolution No. EC 11 G-2003:5(I)(a) shall have all the fights and privileges enjoy by other regular Professor of the Department(s) he/she shall have all the responsibilities of others regular Professors of that Department until such time as other arrangements are made. Deputy Registrar Establishment-II 6. Being aggrieved by the aforesaid decision of the NEHU authority, the Petitioners submitted individual representation, but the same having not evoked any response, they filed the instant writ petition. By Annexure-10 Circular dated 07.04.04 the University authority circulated the draft seniority list of the three cadre namely he Professor, Reader and Lecturer in which the Respondent No. 6 was included at serial No. 52 while the Petitioner No. 3 at serial No. 8. The Petitioners No. 1 and 2 were placed at serial No. 26 and 50, above the Respondent No. 6. Such assignment of the seniority of the Petitioners and the Respondent No. 6 was on the basis of the respective dates of joining as Professor. The Petitioners No. 1 and 2 were placed at serial No. 26 and 50, above the Respondent No. 6. Such assignment of the seniority of the Petitioners and the Respondent No. 6 was on the basis of the respective dates of joining as Professor. The Petitioners also objected to the inclusion of the Respondent No. 6 in the seniority list by submitting individual representation. According to the Petitioners, entire action of the NEHU authority towards inducting the Respondent No. 6 to the department of Physics adversely affecting the service conditions and prospects of the Petitioners is illegal. They assert that the Respondent No. 6 upon abolition of the Institute for which only he was appointed, became retrenched employee and by no stretch of imagination, could be regarded as a regular incumbent in another department, i.e. Department of Physics, having no nexus with the Institute. 7. The University has filed its counter affidavit supporting the impugned notifications. Highlighting various phases of the Institute, they have contended that the Institute was closed only by Annexure-5 notification dated 10.09.2003 and not before that as has been contended by the Petitioners. They have stated that the decision of the University in the year 1998 not to allow further admission of the students into the programmes of ISOS an Bio-Physics did not mean closure of the Institute; inasmuch as the existing students continued their studies. According to them abrupt closure of the Institute was not possible and the same had to be done in the phased manner which eventually materialized by Annexure-5 notification dated 10.09.03 by which immediate closure of the Institute was notified. 8. As regards the apprehension of the Petitioners that the Respondent No. 6 would score a march over the Petitioner No. 3, her date of joining as Professor in the Department of Physics being later than the Respondent No. 6, the Respondents in their counter affidavit have stated that the posting of the Respondent No. 6 to the Department of Physics would not affect the seniority of the existing faculty members, although overall seniority in the University would continue to hold the field. 9. 9. As regards the promotion of the Respondent No. 6 as Professor which according to the Petitioners was illegal, the Respondent University has contended that absence of the Head of the Institute which post was vacant at the relevant point of time cannot render the selection void and illegal. Referring to Section 37 of the NEHU Act, 1973, it is the case of the Respondents that no act of proceeding of any authority or other body of the University shall be invalidated merely be reason of existence of a vacancy or vacancies among its members. 10. As regards the placement of the Respondent No. 6 to the department of Physics and the apprehension of the Petitioners that their seniority would be affected, the Respondents apart from their aforesaid stand of not affecting the seniority of the existing faculty members, have also made following statements in their counter affidavit: It is stated that the Respondent No. 6 so placed with the new Department was transferred alongwith his post to ensure that the interest of the existing faculty of the department is not affected. it would be clear from the Notification dated 10.09.2003 and 16.03.2004 that there was no move to place the Respondent No. 6; in the matter of Seniority over the existing faculty members. Therefore the attachment of Respondent No. 6 in the Department of Physics as Professor having not affected the rights and interests of the Writ Petitioners, the instant Writ Petition is absolutely misconceived and is liable to be dismissed. However, the Executive Council while placing the Respondent No. 6 in the department of Physics has ensured that the interest of the existing faculty of the Department of Physics is not adversely affected in terms of seniority or otherwise and hence made it clear that the Respondent No. 6 would carry his post along as personal to him. Therefore, in the facts and circumstances the placement of Respondent No. 6 having not infringed any of the rights or interest of the Writ Petitioners the Writ Petition is devoid of merit and is liable to be dismissed. 11. Referring to Section 19 of the NEHU Act, 1973, the Respondents have emphasized the power, function and jurisdiction of the NEHU Court and the Executive Council. 12. 11. Referring to Section 19 of the NEHU Act, 1973, the Respondents have emphasized the power, function and jurisdiction of the NEHU Court and the Executive Council. 12. Sharply reacting to the objection raised by the Petitioners towards induction of the Respondent No. 6 to the Department of Physics, the Respondents in their counter affidavit have stated that even the Petitioner No. 3 who was initially appointed as Lecturer in the centre for School of Mathematics and Science in NEHU, was subsequently transferred and placed permanently in the department of Physics. In this connection, the Respondents in their counter affidavit have annexed the initial appointment order of the Petitioner No. 3 as Lecturer in the department/centre for School of Mathematics and Science and subsequent transfer to the Department of Physics. 13. According to the Respondents, the Respondent No. 6 is from the discipline of Physics and even before the closure of the Institute his services were utilized by the department of Physics time and again. Thus, according to them, there was nothing wrong in placing the service of the Respondent No. 6 in the Department of physics. 14. The Respondent No. 6 has also filed his counter affidavit more or less reiterating the stand of the University authority. He has highlighted as to how he has been confirmed in the service and by the time he was inducted in the department of Physics, he had already rendered 13 years of service in the Institute. In addition, he had 11 years of teaching experience at the Post-graduate level being a faculty member of the Department of Physics in Behrampur University before joining NEHU. Highlighting about his educational qualifications, the Respondent No. 6 has stated that his basic qualification being M. Sc. and Ph. D. in Physics and having regard to the fact that even while working in the Institute he had taken classes in the Department of Physics, there was nothing wrong in placing his service in the department. 15. Referring to the report of the Committee constituted by the UGC, it is the stand of the Respondent No. 6 that the decision to abolish the Institute was of the University and after going through various phases, eventually the Institute was abolished by the impugned Annexure-5 notification. 15. Referring to the report of the Committee constituted by the UGC, it is the stand of the Respondent No. 6 that the decision to abolish the Institute was of the University and after going through various phases, eventually the Institute was abolished by the impugned Annexure-5 notification. As regards his promotion as Professor, the Respondent No. 6 has asserted that his such promotion was full fledged promotion like any other regular promotion and he was duly recommended for such promotion by the selection committee duly constituted as per the requirement of the statue 20 of the University Statutes. As regards the absence of the Head of the Institute, it has been stated that the post of Director (HOD) of the Institute was vacant at the relevant point of time. However, the requirement of forming the quorum of the selection committee was fulfilled and thus, there was nothing wrong in absence of the Head of the Department. 16. Reacting to the plea of the Petitioners that the promotion of the Respondent No. 6 being personal to him and that too as per the recommendation of the selection committee not property constituted in absence of the HOD, the Respondent No. 6 has pointed out as to how the Petitioner No. 2 was also promoted at the same time and in his case also the selection committee did not have the Head of the Physics Department namely Professor Y.S.T. Roa although he was very much in the station. Referring to the observations made by the observer sent by the UGC to monitor the selection procedure, the Respondent No. 6 has contended that as per the said report there was no illegality towards the promotion of the Respondent No. 6. He has also highlighted as to how some others were also promoted as Professor applying the same yardstick and parameters and such promotions were along with the Respondent No. 6. 17. As regards the grievance raised in respect of the attachment of the Respondent No. 6 to the Physics department, the Respondent No. 6 has shown as to how the incumbents of the Institute, namely Professor R.P. Bajpai, doctor Debjani Roy and Dr. Vinod Singh belonging to the same Institute, were also attached to the other departments and there was no objection to the same. Vinod Singh belonging to the same Institute, were also attached to the other departments and there was no objection to the same. The Respondent No. 6 has also stated as to how even when he was in the Institute, his services were utilized by the Physics Department. He has stated that he was engaged to take classes in the Physics Department in the years 1997,1998 and 2001. According to him he was also requested by the Petitioner No. 2 to do works in moderation of the question papers on his behalf. Like that of the official Respondents, the Respondent No. 6 has also stated in his counter affidavit that the draft seniority list published by the University depicts the overall seniority only and not the seniority in the department. His stand is that his initial appointment although was in the Institute, but in fact, was in the University and thus with the abolition of the Institute he can not be thrown out from the University. 18. The Petitioners have filed their rejoinder affidavit to the counter affidavit filed by the University authority reiterating the stand in the writ petition, the Petitioners have questioned the very establishment of the Institute and its subsequent abolition leading to the present problem. As regards the promotion of the Respondent No. 6 as professor, the Petitioners have contended that since his such promotion was only in the Institute and not in the Department of Physics, he could not have been inducted to the department as Professor granting him all the rights and privileges, like that of any other regular Professor of the department. As regards the stand of the Respondents regarding the seniority of the Respondent No. 6 they have contended that it is not only the question of seniority but also other service prospects in the department of Physics which the Respondent No. 6, but for his illegal induction would not have been entitled to. As regards the comparison drawn between the Petitioner No. 3 and the Respondent No. 6 regarding their induction from their erstwhile departments, the Petitioners have tried to bring a distinction by stating that while the Petitioner was inducted to the department from another department, the Respondent No. 6 was inducted to the department upon abolition of the Institute. As regards the comparison drawn between the Petitioner No. 3 and the Respondent No. 6 regarding their induction from their erstwhile departments, the Petitioners have tried to bring a distinction by stating that while the Petitioner was inducted to the department from another department, the Respondent No. 6 was inducted to the department upon abolition of the Institute. They also contended that if nobody objected to the case of the Petitioner No. 3, it does not mean that the same would operate as a bar even against the statutory provision and thus the question of estoppel would not come. 19. Mr. V.K. Jindal, learned Sr. Counsel for the Petitioners; Mr. S. Sen, learned Standing Counsel, NEHU and Mr. S. Chakraborty, learned Counsel for the Respondent No. 6 argued their respective cases supporting the rival contentions of the parties. 20. Amidst the aforesaid rival contentions, the issue to be answered is as to whether the induction of the Respondent No. 6 to the department of Physics is legally valid or not and secondly even if such induction is held to be valid, whether he would carry seniority over the Petitioners in the department. As regards the second issue, it is the stand of the Respondents that although induction of the Respondent No. 6 to the department of Physics would not affect the seniority of the existing incumbents and for that matter the Petitioners, the overall seniority of the Respondent No. 6 to the University on the basis of the date of his joining as Professor would continue to count. This is precisely the reason as to why in the overall draft seniority list the Respondent No. 6 has been placed above the Petitioner No. 3 on the basis of their respective dates and promotion as Professor. The grievance of the Petitioners is that the induction of the Respondent No. 6 would not only tell upon the seniority of the Petitioner No. 3, but the same would also affect their service prospects, such as in the matter of appointment of the Head of the Department and other day to day affairs of the department as well as in the matter of induction to various bodies of the University for which the Respondent No. 6 would be an equal contender effecting the prospects of the Petitioners. 21. In the above context, the stand of the University has been noted above. 21. In the above context, the stand of the University has been noted above. According to them the induction of the Respondent No. 6 has got nothing to do with the seniority of the existing incumbents in the department, but at the same time they have contended that the date of appointment of the Respondent No. 6 as Professor would be reckoned for the purpose of overall seniority taking into account the respective dates of appointment of the incumbents. No department wise seniority list has been published, but it is the overall seniority which has been published by the university authority, placing the Respondent No. 6 above the Petitioner No. 3. Thus, the basic question is not the seniority as such, but the very induction of the Respondent No. 6 to the department conferring upon him all the rights and privileges of the regular incumbents of the department which necessarily leads us to the first issue as to whether the induction of the Respondent No. 6 to the department was legally valid or not. 22. The Respondents in their counter affidavit have highlighted as to how the Petitioner No. 3 was inducted to the Department of Physics from another department to which there was no objection of the other two Petitioners. However, such induction of the Petitioner No. 3 was as Lecturer way back in 1986. If the induction of the Respondent No. 6 to the department is illegal on the basis of an earlier illegality, even if any, same cannot be legalized. However, it can very well be argued that the Petitioner No. 3 is precluded from raising the grievance against the induction of the Respondent No. 6, she herself being the beneficiary of such induction to the department of Physics from another department. 23. It is also on record that some other Professors of the Institute have also been inducted to the regular departments of the university to which no objection have been raised. It is only in respect of the Respondent No. 6, the objection has been raised by the Petitioners. However, on this count also, the Petitioners cannot be precluded from raising the grievance. If no grievance has been raised by any one in respect of induction of other Professors/Teachers of the Institute to other departments, same by itself cannot preclude the Petitioners from raising their grievance. 24. However, on this count also, the Petitioners cannot be precluded from raising the grievance. If no grievance has been raised by any one in respect of induction of other Professors/Teachers of the Institute to other departments, same by itself cannot preclude the Petitioners from raising their grievance. 24. Let us now examine the contentions raised by the Petitioners regarding the very induction of the Respondent No. 6 to the department on the two fold grounds of the very promotion of the Respondent No. 6 as Professor being illegal and he being a professor of the Institute and not of the Physics Department could not have been inducted as such affecting the service prospects of the Petitioners. As regards the promotion of the Respondent No. 6 as Professor, it is the case of the Petitioners that his such promotion was illegal having been recommended by a selection committee improperly constituted. In this connection, they have referred to Statue 20 of the University Statutes as per which the selection committee for appointment to the post of Professor shall consist of: (i) Vice-Chancellor-Chairperson (ii) An Academician nominated by the Visitor (iii) Three experts in the concerned subject/filed not below the rank of Professor nor in the service of the University and nominated by the Executive Council, out of panel of names recommended by the Academic Council. (iv) Dean of the School (v) Head of the Department/Centre (At lease four members, including two experts shall constitute the quorum) 25. In the instant case, the selection committee was consisted of the following members: (i) The Vice Chancellor (ii) Visitor Nominee (iii) Dean of the School concerned (iv) Two experts 26. Thus it will be seen that the members present duly constituted the quorum, but the objection raised on behalf of the Petitioners is the presence of the Dean of the School of Physical Science as member of the selection committee. According to them, the Institute was not under the School of Physical Science. It is on record that at the time of making the selection, the post of the Director of the Institute was vacant and thus, there was no question of inducting the HOD of the Institute as the member of the selection committee. As noticed above, the quorum of the selection committee was constituted. It is on record that at the time of making the selection, the post of the Director of the Institute was vacant and thus, there was no question of inducting the HOD of the Institute as the member of the selection committee. As noticed above, the quorum of the selection committee was constituted. I am of the considered opinion that the very presence of the Dean of physical Sciences in the selection committee cannot render the selection invalid. The Dean of a faculty necessarily comprises various departments and it has not been conclusively established that the institute did not come within the faculty represented by the Dean who was present in the selection. In absence of anything to show that the presence of the Dean of the Physical Science as member of the selection committee did influence the selection process, I am of the considered opinion that the promotion of the Respondent No. 6 as Professor in the Institute can not be set aside on that ground, more particularly when admittedly the quorum of the selection committee was dully formed. The Dean of the Physical Science was not an outsider, but was the Dean of the particular faculty within the University. Further there is no formal challenge to the promotion of the Respondent No. 6 as Professor and only challenge made in the writ petition is in respect of the induction of the Respondent No. 6 to the Department of Physics conferring him rights and privileges of regular incumbents in the Department. 27. Apart from the above, the selection of the Respondent No. 6 made in 2000 by a duly constituted selection committee cannot be put to challenge by filing the writ petition in 2004 without explaining he reasons for delay. The challenge having been made only collaterally, while making the challenge to the notifications (Annexures 5 and 6), on that ground also such challenge is not sustainable in law. Moreover, neither the Selection Committee nor the Dean of Physical Science against whose induction the Petitioners have made grievance are party to this proceeding. Moreover, the plea raised by the Respondent No. 6 in his counter affidavit that the Petitioner No. 2 was also promoted at the same time from the post of Reader to Professor and the selection committee was without the Head of the Department of Physics, has not been denied by the Petitioners. 28. Moreover, the plea raised by the Respondent No. 6 in his counter affidavit that the Petitioner No. 2 was also promoted at the same time from the post of Reader to Professor and the selection committee was without the Head of the Department of Physics, has not been denied by the Petitioners. 28. Having upheld that the selection of the Respondent No. 6 as Professor, the question remains in the fray for consideration is as to whether the induction of the Respondent No. 6 to the department can be said to be illegal and if it is held to be legally valid, whether the would be entitled to claim seniority over the Petitioners and consequently all service benefits. The impugned notifications having been issued pursuant to 116th and 117th meeting of the EC and the resolutions adopted therein, the learned Counsel for the University was requested to produce the said resolutions. During the courts of hearing, he has produced the same. The 116th resolution reads as follows: EC: 116:2003:8(ii): The report of the Committee on the "Placement of the Institute of Self Organizing System and Bio-Physics faculty members, Equipment and other Assets" was considered and the Council RESOLVED to accept its recommendation as under. The institute of Self Organizing system and Bio-Physics be abolished with immediate effect. The teachers already on roll in the Institute be attached to the Department as mentioned below and the attachment will be temporary. However, the teachers so attached will carry their post with them which are personal to them. The Department of Finance be informed of making the payment of salaries of such teachers against the Department to which they are attached. The concerned teachers will function under the direction and control of the concerned Head/Director of the Department. 29. On perusal of the aforesaid resolution, it is seen that although the teachers of the Institute have been attached to the respective departments, their such attachment has been stated to be temporary and the teachers so attached would carry their post with them as personal to them. 29. On perusal of the aforesaid resolution, it is seen that although the teachers of the Institute have been attached to the respective departments, their such attachment has been stated to be temporary and the teachers so attached would carry their post with them as personal to them. However, while confirming the minutes of the meeting of the 116th meeting of the EC by the EC's 117th meeting, the following resolution was adopted: EC: 117:2003: Kit: The Council considered the minutes of the 116th meeting of the Council held on 21st August, 2003 along with the comments of the members and RESOLVED to approve the same with the following amendments. 1) . . . 2) . . . 3) The temporary attachments under RESOLUTION EC; 116:2003:8: (ii) means (a) A Professor temporarily attached, shall have all the rights and privileges enjoyed by other regular Professors of the department, (b) he/she shall have all the responsibilities of other regular Professors of that department, until such time as other arrangements are made. 30. On perusal of the aforesaid resolution, it is seen that the Professors who have been temporarily attached to the respective departments shall have all the rights, privilege enjoyed by other regular Professors of the departments with same responsibility, until such time as other arrangement are made. Thus, on perusal of both the resolutions of EC adopted in its 116th and 117th meetings, it will be seen that service of the Respondent No. 6 and for that matter, all other teachers have been attached to the respective departments only on temporary basis and until an alternative arrangement is made. However, at the same time even for such temporary phases, the incumbents have been conferred with all the rights and privilege of the regular incumbent of the Departments. Thus, really speaking, the University authority is yet to take final decision in the matter. If the attachment of the Respondent No. 6 is temporary and until an alternative arrangement is made, the question necessarily arises as to whether during such temporary attachment the rights and privilege granted to him would also include the benefits having a direct bearing with the service prospects of the Petitioners. 31. The decision on which Mr. Jindal learned Sr. counsel for the Petitioners has placed reliance, i.e. Gurdeep Singh v. Union of India and Ors. 31. The decision on which Mr. Jindal learned Sr. counsel for the Petitioners has placed reliance, i.e. Gurdeep Singh v. Union of India and Ors. ( AIR 1982 SC 1176 ) is of no help to the case of the Petitioners. This case was pressed into service so as to argue that with the abolition of the Institute, the Respondent No. 6 had no claim to hold any post under the University. In the said case the Petitioner who was placed under suspension wanted reinstatement in service, but the Apex Court having noticed that the department itself was abolished, held that his claim to hold any post in that department must fail. Unlike the said case, although the Institute was abolished, but the Executive Council of the University took a decision to continue the service of the Respondent No. 6 and others keeping the post intact as personal to them. 32. In the above context, it will be appropriate to refer to the report of the Expert Committee constituted by the UGC for abolition of the Institute. Dealing with the staff of the Institute and the possibility of setting up a department of Bio-Physics in lieu of the Institute, the committee recommended the following: (b) About the Staff: Detailed discussions with the faculty of the Institute and of the other Departments lead us to make the following specific suggestion. (i) The two Lecturers, Duncan and Bajpai are alumni of the NEHU and perhaps have acceptability if they are transferred along with the posts to Departments of Chemistry, and Physics (or Centre of Science Education) respectively. (ii) Dr. Satis Kumar, a Reader has joined only 3 weeks back and is on lien from his previous post in another University. He can perhaps return to his University. (iii) Dr. D. Roy (Zoologist, whom we could not meet since she was out of town) is form within the NEHU and she could go back to the Department of zoology with her post. (iv) Dr. Vinod Singh is a biochemist and he has attracted research support of external agencies. He could carry on his research activities, with his post, in the School of Life Science, to everyone's befit. (vi) Nongkynrih is a nuclear physicist from NEHU and she could go with her post either to the Department of Physics or the Centre of Science Education. Prof. He could carry on his research activities, with his post, in the School of Life Science, to everyone's befit. (vi) Nongkynrih is a nuclear physicist from NEHU and she could go with her post either to the Department of Physics or the Centre of Science Education. Prof. Bajpai could possibly join the school of Computer Science, with his post. These are admittedly difficult decisions but the individuals as well as the University should realize that these adjustments would lead to the prospect of better performance compared to the frustrations which have prevailed. (c) About a possible Department of Bio-Physics: The possible setting up of the Department of Bio-Physics should be a "bottom up" approach. The NEHU faculty and Academic Council should consider the preposition and make a modest approach to set up such a Department in order that teaching and research in this interesting and exciting filed can be undertaken. Such a Department would be complementary to other specializations already available at NEHU. 33. From the above, it will be seen that although having regard to the tenure of service of the Respondent No. 6 at that point of time (1990), the committee recommended for repatriation of the Respondent No. 6 to his previous post in another University, but in respect of the incumbents mentioned in the report, the Committee recommended for their transfer and attachment to other departments such as Chemistry, Physics, Zoology, Life Science, computer Science etc. Thus, even the committee appointed by the UGC was not opposed to attachment of the incumbents of the Institute to other departments. Although the recommendation for repatriation of the Respondent No. 6 to his former University, having regard to the fact that he was on lien at that point of time was made, but the Institute did not come to closure for long 13 years and the Respondent No. 6 continued in the Institute severing his lien with the University from which he had come. At such distant point of time, there was no question of repatriating him to his earlier University and instead in tune with the recommendations made by the committee constituted by the UGC, his service was attached to the department of Physics. 34. The committee had also recommended for setting up a department of Bio-Physics with the opinion that such a department would be complementary to other specialization already available in NEHU. 34. The committee had also recommended for setting up a department of Bio-Physics with the opinion that such a department would be complementary to other specialization already available in NEHU. It is not known as to whether any such department has been set up by the University and as to whether the University has given any thought to the proposal so made by the committee. If the Department had been set up, the present problem would not have arisen. 35. As noted above, as per the resolutions adopted by the EC in its 116th and 117th meeting, the attachment of the Respondent No. 6 and for that matter all others of the Institute is only temporary and till such time an alternative arrangement is made. During the course of hearing, the learned Counsel for the NEHU submitted that no decision could be taken in the matter was, since the matter is sub-judice in the Court. Thus, as per the own admission of the Respondents, the matter has not attained its finality. If that be so, it is not understood as to how overall seniority of the Respondent No. 6 could be fixed above the Petitioner No. 3. If his presence in the department of Physics is only temporary and until! such time an alternative arrangement is made, irrespective of maintaining his rights and privilege as professor, the conferment of the benefits as a regular Professor of the department so as to affect the service prospects of the Petitioners without finalizing the matter first as to the status of the Respondent No. 6 in the department, would not be in the fitness of the things. 36. The question which necessarily arises is that, even if the induction of the Respondent No. 6 to the department of Physics with the passing of the impugned notifications is upheld, what would be the date of his appointment as Professor in the department. In the case of Dr. M.A. Haque and Ors. v. Union of India and Ors. reported in (1993) 2 SCC 213 the question which arose for consideration was as to whether the Medical Officers recruited by the railways on ad hoc basis as Assistant Divisional Medical Officers between 1968 and October, 1984 would score a march over the officers who were appointed through the UPSC. In the case reported in 1987 Suppl. SCC 497 (Dr. reported in (1993) 2 SCC 213 the question which arose for consideration was as to whether the Medical Officers recruited by the railways on ad hoc basis as Assistant Divisional Medical Officers between 1968 and October, 1984 would score a march over the officers who were appointed through the UPSC. In the case reported in 1987 Suppl. SCC 497 (Dr. A.K. Jain v. Union of India and Ors.), filed by the ad hoc Doctors claiming regularization of their services, the Apex Court directed regularization of their service in consultation with the UPSC on the evaluation of their works and conduct on the basis of their confidential reports in respect of a particular period indicated in the judgment. It was directed that the Doctors so regularized shall be appointed as Assistant Divisional Medical Officer w.e.f. the date from which they had been continuously working as such. 37. Consequent upon the aforesaid direction of the Apex Court, the authority experienced difficult in adjusting the seniority between the ad hoc Doctors and the Doctors who were appointed through regular process of selection conducted by UPSC. The Apex Court while directing that the seniority of the Direct recruits should be determined according to the dates of their regular appointments through UPSC, the ad hoc Doctors regularized through orders of the Apex Court should be placed below them, stated thus: 8. Since the Petitioner-applicants are admittedly not regularly appointed through the UPSC according to the rules but have been directed to be regularized by following the procedure laid down by this Court, it is obvious that they are not appointed to their posts according to the rules. Under no circumstances, therefore, they fall within the scope of guideline (A) laid down in Direct Recruit Class II Engineering Officers' Association's Case (supra). In fact, they do not fall under guideline (B) given therein either, since their regularization is not in accordance with the rules but as a consequence of special procedure laid down by this Court. The expression "in accordance with the rules" or "accordance to rules" used in the said guidelines (A) and (B) means the rules of recruitment and not the special procedure laid down by this Court. The Petitioner-applicants thus fall in an altogether different category not covered under any of the guidelines given in Direct Recruit Class II Engineering Officer's Association's case (supra). The Petitioner-applicants thus fall in an altogether different category not covered under any of the guidelines given in Direct Recruit Class II Engineering Officer's Association's case (supra). We have therefore, to evolve a procedure for fixing their seniority. That procedure can not be in violation of the guidelines laid down in Direct Recruit Class II Engineering Officers Association's case (supra). Secondly, the seniority given to the Petitioner applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below that of the directly recruited erstwhile ad hoc Medical Officers. This is not an cannot be disputed on behalf of the Petitioner applicants. 9. This matter was heard earlier on 14th September, 1992 and was reserved for judgment. At that time, neither the in-service direct recruits nor the outsider direct recruits were made parties to the application. They made separate applications, being I.A. Nos. 2 and 3 respectively for impleadment/intervention and requested that they be heard in the matter before judgment is pronounced. Hence, this matter was set down for a fresh hearing and all the parties were heard on 11th and 18th January, 1993. The anxiety of the interveners, was obvious. In no case their seniority should be disturbed and they be penalized for passing the examinations/interview tests and for coming into the cadre according to the rules through the UPSC, and no premium should be given to the applicants for their refusal to appear for the tests or for their failure to pass the same. This contention of their is unexceptionable and whether they had appeared in the case or not, the Court was bound to protect their interests particularly when the matter was heard in their absence. The Petitioner-applicants, however, relied upon a decision of this Court in Dr. P.P.C. Rawani and Ors. etc. v. Union of India and Ors. (JT 1991 (6) 534). Shri Bhandare, appearing for the Petitioner applicants, made a very fervent plea that in the circumstances, the course adopted by this Court in Dr. Rawani's case (supra) should be followed which will do no injustice to both the categories of direct recruits. We have gone through the said decision and have anxiously considered whether the course adopted there should be adopted in the present case. We are conscious of the fact that the Petitioner applicants have been serving the Railways from the year 1968. Rawani's case (supra) should be followed which will do no injustice to both the categories of direct recruits. We have gone through the said decision and have anxiously considered whether the course adopted there should be adopted in the present case. We are conscious of the fact that the Petitioner applicants have been serving the Railways from the year 1968. It is also possible, as contended on their behalf that many of the outside direct recruits have joined the service long after 1968 and some of them might have even taken initial instructions from the Petitioner applicants. We are also conscious of the fact that candidates in service have a disadvantage as against the fresh candidates in the tests particularly when they face the tests after a long lapse of time. As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularization of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course. What is further, in the present case, come of those like the Petitioner-applicants who were initially recruited on ad hoc basis, have exerted themselves and taken pains to appear for the tests before the UPSC and have enrolled themselves through regular channel unlike in Dr. Rawani's case (supra). We have thus on hand three cases of employees as pointed out earlier, viz., the outside direct recruits, the in-service direct recruits and the ad hoc employees like the Petitioner-applicants who were regularized through the Court's order Further, Dr. Rawani's case (supra). We have thus on hand three cases of employees as pointed out earlier, viz., the outside direct recruits, the in-service direct recruits and the ad hoc employees like the Petitioner-applicants who were regularized through the Court's order Further, Dr. Rawani's case (supra), as has been pointed out on behalf of the Respondents, pertains to the Central Government health Services which has a larger component both at the initial and promotional stages. The course adopted by this Court to direct creation of supernumerary promotional posts at every higher promotional stage there, may not be feasible in the medical service in the Railways. The creation of supernumerary posts has its own limitations, both physical and financial. The burden of additional posts even when they are not necessary and cannot be accommodated, is not easy to carry. We are, therefore, of the view that the direction given in Dr. Rawani's case (supra) has to be confined to the special facts of that case and cannot be extended to other cases. In any case, this Court should no give any such direction to the Railways decide to follow that course, they can do so and nothing prevents them from doing it. We would rather remain from creating a precedent by giving such directions. 10. In the result, we direct that the seniority of the direct recruits both outsiders and insiders should be determined according to the dates of their regular appointment through the UPSC and the Petitioner-applicants should be placed in the seniority list after those direct recruits who are recruited till this date. Among themselves, their seniority will be governed by the dates of their initial appointments. 38. Mr. S. Chakraborty, learned Counsel for the Respondent No. 6 placing reliance on a Book of Bio-Physics, argued that the subject of Bio-Physics is very much integral part of the subject of Physics and the Respondent No. 6 being a Professor of Bio-Physics is as good as Professor of Physics and thus, his induction to the department of Physics is legally valid. Suffice it to say that this Court does not have expertise to come to a definite conclusion that the subject matter involving Bio-Physics and Physics are one and the same. It is for the expert bodies to decide as to whether any equation can be made between the two subjects. 39. Mr. Suffice it to say that this Court does not have expertise to come to a definite conclusion that the subject matter involving Bio-Physics and Physics are one and the same. It is for the expert bodies to decide as to whether any equation can be made between the two subjects. 39. Mr. S. Sen, learned Counsel for the University during the course of hearing submitted that in case of holding the induction of the Respondent No. 6 to the department of Physics as illegal, same will have serious repercussion inasmuch as the teachers who have been inducted in the like manner would be adversely effected. Particularly referring to the attachment of the Teachers of the University campus situated at Mizoram to the NEHU campus at Shillong, he submitted that such course of action has been adopted by the University authority under peculiar facts and circumstances and in case of any interference to the induction of the Respondent No. 6 to the Physics department, same will have far reaching effect on the on going processes of the University. Suffice it to say that those cases are not the issue in this case. Even otherwise also, I am not inclined to interfere with the temporary induction of the Respondent No. 6 to the Physics department since the same is till such time an alternative arrangement is made. However, stand of the University authority that the Respondent No. 6 would be entitled to all the rights and privileges like that of any regular Professors of the department with the counting of overall seniority as Professor from the date of his such appointment is contrary to the own stand of University that such attachment is only temporary and till such time alternative arrangement is made. 40. While not interfering with the rights and privileges of the Professor of the University granted to the Respondent No. 6, I am of the considered opinion, that till final decision is arrived at by the University, it will be inappropriate to confer him with the rights and privileges which may adversely affect the service interest and prospects of the Petitioners. While not interfering with the rights and privileges of the Professor of the University granted to the Respondent No. 6, I am of the considered opinion, that till final decision is arrived at by the University, it will be inappropriate to confer him with the rights and privileges which may adversely affect the service interest and prospects of the Petitioners. The Respondents will also have to bear in mind their own stand that the Respondent No. 6 shall have no claim over the regular incumbents in the Department and cannot rank senior to them, runs counter to their stand that the Respondent No. 6 will retain his overall seniority from the date of his appointment as Professor in the Institute. The question is not what is intended to, but what it ought to be. If the Respondent No. 6 is not entitled to claim seniority over the regular incumbents in the department, he cannot be given such seniority in the name of overall seniority in the University taking into account his appointment as Professor in the Institute. The Respondents will also have to bear in mind that his appointment as Professor was not in the department of Physics but was in the erstwhile Institute, since abolished. 41. In view of the above, while not interfering the induction of the Respondent No. 6 to the Department of physics, having regard to the fact that as per the impugned notifications such induction is temporary and until such time an alternative arrangement is made, the Respondents are directed to take final decision in the matter consistently with the observations made above. Till such time, having regard to the fact that the Respondent No. 6's tenure in the department is only temporarily, the Respondents shall not do anything so as to adversely affect the service prospects of the Petitioners. It will be for the own interest of the University that a final decision is arrived, as early as possible. 42. With the above directions and observations, the writ petition stands disposed of. There shall be no order as to costs.