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2016 DIGILAW 1380 (ALL)

BRAHMACHARI SHAMBHU NATH v. STATE OF U. P.

2016-04-13

PRABHAT CHANDRA TRIPATHI, TARUN AGARWALA

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JUDGMENT By the Court.—We have heard Sri Manish Goyal, the learned counsel for the petitioner, the learned Standing Counsel for the respondent No. 1, Sri Neeraj Tripathi, the learned counsel for the respondent No. 2-Chancellor, Mahatma Gandhi Kashi Vidyapeeth, Varanasi. Sri Alok Mishra, the learned counsel for the respondent No. 6 and Sri Punit Khare, the learned counsel for the respondent Nos. 5 and 7. No one has appeared for the respondent Nos. 3 and 4. 2. The present dispute relates to the inter se seniority list of the petitioner vis-a-vis Dr. Nilay Kumar, the respondent No. 6. The petitioner was appointed on 13.3.1989 on ad hoc basis in Jagatpur Post Graduate College, Jagatpur, Varanasi. The respondent No. 6 was also appointed on ad hoc basis on 7.3.1989. Under Section 31-C of the U.P. Higher Education Service Commission Act, 1980, the services of the petitioner and that of the respondent No. 6 were regularized on substantive post with effect from 22.11.1991. Initially, the Institution was affiliated with Veer Bahadur Singh Purvanchal University, Jaunpur in the year 1989 and thereafter in the year 2009 this Institution was affiliated with Mahatma Gandhi Kashi Vidyapeeth, Varanasi. It seems that the Institution prepared a seniority list in which the respondent No. 6 was shown to be senior to the petitioner primarily on the basis of their initial appointment on ad hoc basis. This seniority list was supplied to the University as indicated in the affidavits filed by the respective parties. 3. The controversy with regard to the seniority arose when the Principal of the Institution retired in the year 2006 and the respondent No. 6 was appointed as Officiating Principal by the Committee of Management. One Dr. Vinod Kumar Rai objected to the appointment of the respondent No. 6 as Officiating Principal and raised an objection before the Vice-Chancellor of the Purvanchal University which remained unaddressed and eventually when the Institution got affiliated with Mahatma Gandhi Kashi Vidyapeeth, Varanasi, the Vice-Chancellor of this University took up the matter and invited objections from all the teachers. 4. The petitioner filed objections. 4. The petitioner filed objections. The Vice-Chancellor, after considering the objections of Vinod Kumar Rai and that of the petitioner and also considering the submissions of the respondent No. 6 as well as of the Institution, issued an order dated 1.4.2010 holding that under the Statute, the seniority has to be determined from the date of appointment in the substantive capacity which in the case of the petitioner and the respondent No. 6 was 22.11.1991. The Vice-Chancellor also considered the Statute contending that where the appointment on substantive post is made on the same date, in which case seniority has to be determined on the basis of age, namely the person who is senior in age would be senior in the seniority list. The Vice-Chancellor found that the petitioner’s date of birth was 14.9.1956 and the date of birth of the respondent No. 6 was 30.8.1958 and accordingly held that the petitioner was senior to the respondent No. 6. 5. The respondent No. 6, being aggrieved by the order of the Vice-Chancellor, filed Writ Petition No. 21117 of 2010, which was dismissed by judgment dated 23.4.2010 on the ground of alternative remedy directing the said respondent to avail the remedy by way of filing a Reference under Section 68 of the Uttar Pradesh State Universities Act, 1973. The said respondent accordingly filed a Reference before the Chancellor, which was considered and allowed by the impugned order dated 15.10.2010. The Chancellor relied upon the decision of this Court in Dr. Asha Saxena v. Smt. S.K. Chaudhary and others, (1991) 2 UPLBEC 1202 (FB) and restored the seniority list on the ground that no objection was filed for last 17 years and, therefore, the seniority list cannot be touched or agitated upon at this belated stage. The petitioner being aggrieved by order of the Chancellor has filed the present writ petition. 6. After hearing the submissions of the learned counsel for the parties at some length, we find that the relevant Statues are 17.10 and 17.13 of the Statues of the Purvanchal University, which is pari materia to the Statutes 15.10 and 15.13 of the Mahatma Gandhi Kashi Vidyapeeth, Varanasi. Statute 17.10 of Purvanchal University and Statute 15.10 of Mahatma Gandhi Kashi Vidyapeeth indicate that seniority list has to be made on the basis of substantive appointment. Statute 17.10 of Purvanchal University and Statute 15.10 of Mahatma Gandhi Kashi Vidyapeeth indicate that seniority list has to be made on the basis of substantive appointment. Statute 17.13 of Purvanchal University and Statute 15.13 of Mahatma Gandhi Kashi Vidyapeeth indicate that if substantive appointments are made on the same date in which case the seniority would be considered on the basis of seniority in age. In view of the said provisions, we find that in the instant case, the substantive appointment of the petitioner and the respondent No. 6 was made on 22.11.1991. Since both were appointed on the substantive post on the same date, the seniority list is required to be considered in the light of the provisions of the Statute 17.13 of Purvanchal University read with Statute 15.13 of Mahatma Gandhi Kashi Vidyapeeth. The petitioner was born in the year 1956 in comparison to the respondent No. 6 who was born in the year 1963. Thus, the petitioner will have to be treated as senior to the respondent No. 6. 7. We find that the Chancellor nonsuited the petitioner on the ground that no objection was raised by him or by Vinod Kumar Rai for 17 long years. The Committee of Management contends that the seniority list was prepared by the Principal of the Institution in the year 1993 which was sent to the University and no objection to it was filed by any of the teachers including that of the petitioner and, therefore, at this belated stage, no changes in the seniority list could be made. The Chancellor as well as counsel for the respondents have placed reliance upon a decision of the Full Bench of this Court in Dr. Asha Saxena v. Smt. S.K. Chaudhary and others, (1991) 2 UPLBEC 1202 (FB) as well as decision of the Full Bench in Smt. Shanti Kunwar Chaudhary v. Manager, Committee of Management, Vidyawati Darbari Girls College, Lukerganj, Allahabad and others, (1990) 1 UPLBEC 516 (FB) and the judgment of Supreme Court in Shiba Shankar Mohapatra and others v. State of Orissa and others, 2010 (12) SCC 471 , on the proposition that the seniority list could not be challenged after a lapse of 17 years. We find that there is no controversy of the proposition advanced in the aforesaid two cases. We are of the opinion that these decisions are not applicable in the instant case. We find that there is no controversy of the proposition advanced in the aforesaid two cases. We are of the opinion that these decisions are not applicable in the instant case. We repeatedly asked the learned counsel for the respondents-Committee of Management as well as counsel for the respondent No. 6 to indicate and produce any document by which the Court could find that the seniority list prepared in the year 1993 by the Principal of the Institution was circulated to the teachers and whether any objection was invited by the Institution. We are constrained to observe that the Committee of Management and the Institution in question have not filed any counter-affidavit and the counter-affidavit of the respondent No. 6 is silent on this issue. We can consequently assume that the seniority list prepared by the educational institution in the year 1993 was never circulated nor objections were invited from the teachers and consequently the petitioner could not be nonsuited on the ground of delay. Vinod Kumar Rai objected to the seniority list when the educational institution appointed the respondent No. 6 as Officiating Principal. The Officiating Principal can only be appointed if he is the senior most teacher in the College. Vinod Kumar Rai objected and thereafter the petitioner objected. In our opinion, when the petitioner and Vinod Kumar Rai were unaware of the seniority list, their claim cannot be defeated on the ground of delay. 8. On the other hand, we find that the Director of Higher Education issued a letter dated 1.9.2006 modifying the seniority list in which it was indicated that the respondent No. 6 is the senior most on the basis of initial appointment made on 7.3.1989 and indicating the petitioner’s appointment as 13.3.1989. We find that the seniority list on the basis of the initial appointment on ad hoc basis cannot be made in view of the specific statutory provisions namely Statute 17.10 of the Purvanchal University and Statute 15.10 of the Kashi Vidyapeeth. 9. In the light of the aforesaid, we are of the opinion that the order of the Chancellor dated 15.10.2010 cannot be sustained and is quashed. In our opinion, the order of the Vice-Chancellor is perfectly correct and in accordance with the provisions of Statute. We accordingly hold that the petitioner is senior to the respondent No. 6. The writ petition stands allowed.