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2011 DIGILAW 166 (KAR)

M. C. Radhakrishna v. Bangalore University

2011-02-09

MOHAN M.SHANTANAGOUDAR

body2011
Judgment :- 1. Petitioner is questioning the Notifications issued by the 1st respondent-University vide Annexure-‘C’ dated 27.5.2009, Annexure – ‘C-1’ dated 24.7.2009, Annexure – ‘C-2’ dated 22.9.2009 and the seniority list vide Annexure – ‘D’ dated 22.9.2008, by filing this writ petition. 2. By virtue of Annexure – ‘D’, the petitioner is placed below respondents, 2,3,4 and 5 in the seniority list. By virtue of Annexure – ‘C’ the 2nd respondent is appointed as Dean of Science faculty. He is appointed as the member of Academic council as per Annexure –‘C-1’. The 2nd respondent is also appointed as the member of the Syndicate as per Annexure – ‘C-2’. Annexures-‘C’, ‘C-1’ and ‘C-2’ are issued by the 1st respondent University based on the seniority of 2nd respondent as found in the seniority list vide Annexure – ‘D’. The petitioner is aggrieved by the seniority list vide Annexure- ‘C’ and consequently, he is aggrieved by Annexure – ‘C-1’ and ‘c-2’. 3. The petitioner was appointed as Lecturer in Physics on 10.8.1981. He was promoted to the post of Lecturer in Physic under Career Advancement Scheme (CAS) on 21.1.1991. Again he was promoted as a Lecturer under Merit Promotion Scheme (MPS) on 1.3.1994. On 31.5.1995, he applied for the post of Professor and on being selected in direct recruitment, he was appointed as a Professor. The University published ht seniority list of Professors as on 1.6.2003 as per Annexure-‘A’. In the said seniority list the petitioner is at Sl.No.13, and whereas, the respondents 2 to 5 are shown at Sl.Nos. 35, 37, 21 and 33 respectively. However, a provisional seniority list is issued subsequently on 20th of November 2006, by which the seniority was sought to be altered. Objections were filed by the petitioner. Ultimately, final seniority list was published as per Annexure-‘D’ dated 22nd September 2008. In the said final seniority list, the respondent Nos. 2,3,4 and 5 are placed at Sl.Nos. 6,7.8 and 9 respectively, and whereas, the petitioner is placed at Sl.No. 12. As respondent No.2 herein is senior among the private respondents herein, he is appointed as Dean of Science faculty and consequently, as Syndicate member and member of Academic Council of the University. 4. 2,3,4 and 5 are placed at Sl.Nos. 6,7.8 and 9 respectively, and whereas, the petitioner is placed at Sl.No. 12. As respondent No.2 herein is senior among the private respondents herein, he is appointed as Dean of Science faculty and consequently, as Syndicate member and member of Academic Council of the University. 4. It is argued on behalf of the petitioner that the seniority list prepared by the University is illegal and arbitrary, inasmuch as, the University has treated the promotions granted to the respondents 2 to 5 to the post of Professors as regular appointments; that respondents 2 to 5 are merely promoted under MPS i.e., Merit Promotion Scheme and they are not appointed regularly, in direct recruitment; whereas the petitioner was appointed as a Professor in direct recruitment and that since respondents 2 to 5 are promoted to the post of Professors under MPS, they will have to be shown below the petitioner in the seniority list. He relies upon the judgments of the Apex Court in the case of DR. RASHMI SRIVASTAVA vs VIKRAM UNIVERSITY AND OTHERS { (1995) 3 SCC 653 } and in the case of PATNA UNIVERSITY ETC. ETC., vs AWADH KISHORE PD. YADAV AND OTHERS ETC. ETC. {1994 (2) SLR 662} to contend that personal promotion under the Time-bound Promotion scheme cannot be treated on par with the promotion from a lower post to higher post where not only seniority, but even merit has to be examined by a duly constituted committee or commission. The writ petition is opposed by learned counsel appearing on behalf of the Bangalore University by contending that the aforecited judgments of the Supreme Court are not applicable to the facts of this case, inasmuch as, the Karnataka Universities Act, 2000, provides specifically for appointment to the post of Professors by promotion. He draws the attention of the Court to Section 54 of the Karnataka State Universities Act, 2000 and the judgment of the Apex Court in the case of DR. BAL KRISHNA AGARWAL - vs- STATE OF U.P. AND OTHERS { (1995) 1 SCC 614 }. 5. Section 53 of the Karnataka Universities Act, 2000, provides for appointment of Teachers/Librarians. He draws the attention of the Court to Section 54 of the Karnataka State Universities Act, 2000 and the judgment of the Apex Court in the case of DR. BAL KRISHNA AGARWAL - vs- STATE OF U.P. AND OTHERS { (1995) 1 SCC 614 }. 5. Section 53 of the Karnataka Universities Act, 2000, provides for appointment of Teachers/Librarians. Sub-section (4) of section 53 of the said Act prescribes that any selection to appointment to the post of Professor, Reader, Assistant Professor, Lecturer or Librarian shall be made by publishing the vacancies widely in at least three issues of two daily news papers. In view of the said provision, appointment to the post of Teachers by direct recruitment shall be made by inviting applications. Consequently, promotion from a lower teaching post to a higher teaching post was not envisaged earlier. It appears, this has led to stagnation and consequent frustration among the teachers in the various Universities governed by the Act. In order to remove this grievance, the Bangalore University has issued a Notification dated 25th February 1994, by which the Statues called “Statutes (Merit Promotion Scheme)” were framed in exercise of powers conferred under Section 36 of the Karnataka State Universities Act, 1976. The Statutes were issued pursuant to the guidelines issued by the University Grants Commission. The Statutes received the assent of the Chancellor on 7.2.1994. Under the scheme, personal promotion was given to a Teacher on the basis of the continuous service rendered in the department for a certain period. It is also decided to grant personal promotion to the post of Reader as well as to the post of Professors on completion of certain years of satisfactory service. Such a scheme is also recognized under Section 54 of the Karnataka Universities Act, 2000. It is also decided to grant personal promotion to the post of Reader as well as to the post of Professors on completion of certain years of satisfactory service. Such a scheme is also recognized under Section 54 of the Karnataka Universities Act, 2000. At this stage, it is beneficial to refer to Section 54 of the said Act, which reads thus: “Section 54: Appointment in accordance with the promotion schemes: (1) Notwithstanding anything contained in Section 53 but subject to the rules and order of the State Government issued from time to time for reservation of appointment and posts for the persons belonging to Scheduled Castes and Scheduled Tribes under Article 16(4) and 16(4A) of the Constitution, the appointment to the post of Professors and Readers, Principals and Assistant Professors in the constituent Engineering Colleges and to the post of principal Grade-I, Principal- Grade-II, lecturer (Section Grade), Lecturer (Senior Scale) in the constituent Engineering Colleges shall be made by the Syndicate in accordance with the scheme governing promotions as prescribed by the Statutes adopting the schemes evolved by the University Grants Commission to All India Council for Technical Education. (2) The selection shall be as prescribed by the Statutes and supplemented by the norms and guidelines of the University Grants Commission to All India council for Technical Education”. A bare perusal of the said provisions reveals that notwithstanding contained in Section 53 (which deals with direct recruitment of the Teachers), the appointment to the post of professors and Readers shall be made by the Syndicate in accordance with the scheme governing promotions as prescribed by the Statutes adopting the scheme evolved by the University Grants Commission. As aforementioned, the Statutes were framed by Bangalore University pursuant to the scheme evolved by University Grants Commission. Thus, it is clear that the Act itself recognizes the appointment to the post of Readers and Professors under the scheme governing promotions. Hence, it cannot be said that the respondents 2 to 5 are inferior to the petitioner in any manner. Their appointments/promotions to the pose of Professors are valid and are on par with the appointments made under direct recruitment. 6. Hence, it cannot be said that the respondents 2 to 5 are inferior to the petitioner in any manner. Their appointments/promotions to the pose of Professors are valid and are on par with the appointments made under direct recruitment. 6. Sir Narayana Bhat, learned counsel appearing on behalf of the petitioner drawing the attention of the Court to Clause 22.2(a) of Bangalore University Statutes contends that the teachers appointed substantively to permanent posts in clear vacancies shall be seniors to the persons appointed to temporary posts in the same cadre of services or class of post. According to him, the respondents 2 to 5 are not appointed to the permanent posts in clear vacancies and therefore, the petitioner should be placed above respondents 2 to 5 in the seniority list. The said submission cannot be accepted, inasmuch as, Clause 22.2(a) of the Statutes is not applicable to the facts of the case. As aforementioned, the promotions of respondents 2 to 5 made to the post of Professors cannot be treated as the appointments made to temporary posts. The relevant clause applicable is 22.2(c) of the Statutes which deals with inter se seniority of the Teachers. The said sub-clause reveals that the seniority inter se of the Teachers in any cadre shall be on basis of continuous length of service in the pose of that cadre. Thus, the seniority will have to be fixed on the basis of continuous length of service in the pose held in the cadre. 7. It is not in dispute that the respondents 2 and 3 were promoted and appointed as Professors on 2.3.1994, respondent No.4 was appointed as Professor on 4.3.1994 and respondent No.5 was appointed as Professor on 18.3.1994, whereas, the petitioner was appointed as Professor on 31.5.1995. Since the petitioner is appointed subsequent to the promotion of respondents 2 to 5 to the post of professors, he cannot be senior to respondents 2 to 5. Therefore, the names of respondents 2 to 5 are rightly shown above the petitioner in the seniority list. 8. It is relevant to note that the petitioner himself is the beneficiary under Merit Promotion Scheme, inasmuch as, he was promoted to the post of Reader from the post of Lecturer under Career Advancement Scheme and thereafter under Merit Advancement Scheme. Therefore, the names of respondents 2 to 5 are rightly shown above the petitioner in the seniority list. 8. It is relevant to note that the petitioner himself is the beneficiary under Merit Promotion Scheme, inasmuch as, he was promoted to the post of Reader from the post of Lecturer under Career Advancement Scheme and thereafter under Merit Advancement Scheme. Therefore, he cannot have any grievance for the promotion made under the said scheme as he himself has taken the benefit while being promoted as Reader. 9. The judgments of Apex Court in Dr. Rashmi Srivastave ( (1995) 3 SCC 653 ) and in the case of Patna University (1994 (2) SLR 662 as aforecited, are not applicable to the facts of this case, inasmuch as, in those matters, there was no provision under the relevant enactment dealing with the Merit Promotion Scheme. Whereas, in the State of Karnataka, the Karnataka Universities Act, 2000, specifically provides, under Section 54 of the Act, for appointment by promotion to the post of Reader as well as to the post of Professor. In the absence of such a Statute, the Apex Court has held that it is improper on the part of the authorities to equate the persons who are promoted under MPS with direct recruitees. But, in the matter on hand, the Statute provides for Merit Promotion Scheme. Hence, no illegality is found in the action of the 1st respondent-University. Petition fails and accordingly, the same is dismissed.