1. Dispute over appointment of Acting Director involving inter se seniority between a direct recruit Reader and a teacher promoted to Reader via a personal promotion scheme. (Para 2 )
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1995 Supreme(SC) 1238
SUPREME COURT OF INDIA
B.L.Hansaria : K.Ramaswamy : S.B.Majmudar
Suman Agarwal
Versus
Vice-chancellor
Case No. : .
Date of Decision : 11/29/95
Advocates Appeared: Dhavan S.K. : Dhingra M.C. : Mehta Vijay Kumar
Important Points
Inter se seniority between direct recruits and personal promotees in the same cadre is determined by the length of continuous service in that cadre, provided statutory provisions recognize promotees as temporary additions to the cadre rather than being entirely outside it.
Subject
Service Law - Seniority and Promotion
Act Referred
UTTAR PRADESH STATE UNIVERSITIES ACT: S.31(a)
Headnote
U.P. State Universities Act,. 1973 - Section 31 – Claim of compensation – Jurisdiction - At her behest she was imp leaded as a respondent - Division bench of the High court held that since Executive council had not approved of the appointment of the Committee by Vice-Chancellor, and being teacher is entitled to be temporarily kept in-charge of the post of Director. In addition, the High court also directed to appointment to the post of Professor within one month from the date of the order. This order came to be issued Writ Petition No. 10669 of 1995. Thus this appeal by special leave – Held, View expressed by this court in Bal Krishna State of U.P. is also the same, though no reference expressly was made to the above statutes - Therein this court in had specifically stated that under the Statute, as amended by notification it was laid down in clause (b) of Statute 18.05 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 service in such cadre. In that case, Dr Bal Krishna was appointed substantively while Respondents 4 and 5, though appointed earlier, but as the statute came into effect became members of the service as Professors - Therefore, this court held that though the respondents were promoted earlier to Bal Krishna they became junior to him in the cadre as Professors since Bal Krishna was a direct recruit statutory source of recruitment was absent - In case this court observed that in the absence of similar provision like Section 31-A of the U.P. Act as was considered in State of U.P. no post could have been created for promotion by way of extension of the cadre of the Readers or Professors, as the case may be. In the absence of statutory provision in the Act, Section 6 by itself could not be of any assistance to the appellant therein. Thus, this court had pointed out that there is a specific provision in the Act to regulate the inter se seniority which was not available in case - post remains with the candidate and the post ceases with the cessation of the service with the retirement of the holder of the post etc. Nonetheless post of was made as temporary addition to the cadre strength and the inter se seniority has been provided between the direct recruits and - Relative seniority of the candidates form two streams fused into the relevant cadre as Professor or the Reader, as the case may be. In the light of the statutory operation of the provisions referred to hereinbefore, the conclusion reached by us is inevitable – Appeal disposed of
Legal Category Hierarchy
Advocates:
M.C.DHINGRA, S.K.DHAVAN, Vijay K.Mehta
M.C.DHINGRA, S.K.DHAVAN, Vijay K.Mehta
Table of Contents
2. Whether a teacher promoted under a personal promotion scheme enters the regular cadre or remains ex-cadre, thereby affecting seniority claims against direct recruits. (Para 3 )
3. Personal promotion under statutory provisions creates a temporary addition to the cadre, allowing inter se seniority to be determined by length of continuous service in that cadre. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 15 , 16 , 17 )
4. Where statutory provisions treat personal promotions as additions to the cadre, inter se seniority between direct recruits and promotees is determined by length of continuous service. (Para 13 , 14 )
5. Respondent held senior as Reader; University directed to appoint a Professor and regular Director expeditiously, with Respondent continuing as in-charge Director in the interim. (Para 18 , 19 )
6. How is inter se seniority determined between direct recruits and personal promotees in the same cadre?
Inter se seniority of teachers appointed by personal promotion or by direct recruitment in the same cadre is determined according to the length of continuous service in that specific cadre. (Para 13 , 14 )
7. Does a personal promotion to the post of Reader make the teacher a member of the Reader cadre?
Yes, when provided by statutory force, a post held via personal promotion is a temporary addition to the cadre. Both direct recruits and personal promotees form part of the cadre, although promotees cannot occupy the quota reserved for direct recruits. (Para 12 )
8. What distinguishes a statutory personal promotion scheme from a non-statutory merit promotion scheme regarding cadre membership?
A statutory scheme allows promotees to be considered a temporary addition to the cadre for seniority purposes. Without a statutory source, promotees may stand outside the cadre, filling no actual posts, and their promotions are purely personal. (Para 15 , 16 , 17 )
(1) LEAVE granted.
(2) WE have heard learned counsel on both sides. The appellant was a direct recruit as a Reader and was appointed with effect from July 1987 in the Home Science Institute, Agra University. The third respondent, Dr (Mrs) Him Kumar, was appointed as a Lecturer with effect from 6/7/1968 and she was confirmed on 13/5/1969. She was promoted as a Reader on 18/2/1985 pursuant to the personal promotion scheme. On appointment as Vice- Chancellor of Bundelkhand University, Dr (Mrs) S.R Rahquir proceeded on a long leave. Consequently, the post of the Director became vacant. The question then arose as to who is to be nominated to hold that post temporarily till the Director is appointed. Dr (Mrs) Kumar Kumar claimed the post, but the University did not accede to that request. The Vice-Chancellor, to avoid controversy, had appointed a Committee headed by Dr S.V. Pandey and the appellant and the third respondent as the members, with effect from 9/1/1995. Dr (Mrs) Hiru Kumar filed a writ petition in the High court claiming that she had earlier officiated as Director in leave vacancies of the erstwhile Director viz. Dr (Mrs) S.R Rahquir. She is the seniormost teacher in the Institute and consequently, she is entitled to be appointed temporarily as Acting Director. Initially, the appellant was not impleaded as party- respondent to the writ petition. At her behest, she was impleaded as a respondent. The division bench of the High court held that since the Executive council had not approved of the appointment of the Committee by the Vice-Chancellor, and Dr (Mrs) Hiru Kumar being the seniormost teacher is entitled to be temporarily kept in-charge of the post of Director. In addition, the High court also directed to finalise the appointment to the post of Professor within one month from the date of the order. This order came to be issued on 24/5/1995 in Writ Petition No. 10669 of 1995. Thus this appeal by special leave.
(3) SHRI Dhingra, learned counsel for the appellant, contended that the appellant being a direct recruit, by operation of Ss. (3 of Section 31-Aofthe U.P. State Universities Act,. 1973 (for short the Act) which was brought into force by way of an amendment, the post of Reader is reserved for a direct recruit in accordance with the provision of Section 31. The promotion given to Dr (Mrs) Hiru Kumar as a Reader is one-time promotion by operation of para 11.12-B(6 of the statutes. She is not a member of the cadre of Reader. The appellant, having been appointed to a substantive vacancy in the year 1987, is a member of the cadre while the third respondent was appointed as a Reader to an ex-cadre post by Personal Promotion Scheme, which is only personal to her. So she did not become part of the regular cadre. Therefore, she cannot claim seniority over the appellant for appointment as Director. Thereby the appellant alone is entitled to be considered as acting Director, pending appointment of the Director. The contention has been resisted by Shri Dhawan, learned Senior Counsel for the third respondent.
(4) THE question, therefore, is, whether the appellant is senior to the respondent in the cadre as a Reader. The High court has left open the inter se seniority and directed the appropriate authority to consider the question of seniority. The approach of the High court is not correct. Unless this is decided, the question of consideration of the parties as acting Director cannot be solved. Clause (c) of Ordinance 4-A reads as follows:
"THE Institute shall be headed by a Director who shall be appointed from amongst the permanent professors of the Institute."
(5) CLAUSE 4-A(b) of the Ordinance provides that till the regular appointment of a Director, a Professor; and in the absence of a Professor, a Reader of the Institute; and in the absence of a Reader, a Lecturer of the Institute, may be appointed as Acting Director. The appointment of a Lecturer as Acting Director will terminate
