Karnataka High Court
Sri.N.Jayaramappa vs Principal Secretary on 21 August, 2023
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
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NC: 2023:KHC:29680
WP No. 5853 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST 2023
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 5853/2022 [S-RES]
BETWEEN :
SRI.N.JAYARAMAPPA
S/O LATE NEELAPPA
AGED ABOUT 56 YEARS,
PRESENTLY WORKING AS A PROFESSOR,
DEPARTMENT OF CIVIL ENGINEERING
BANGALORE UNIVERSITY
JNANABHARATHI CAMPUS
BANGALORE-560056.
... PETITIONER
(BY PROF. RAVIVERMA KUMAR SENIOR ADVOCATE
Digitally
signed by
NARASIMHA FOR SRI. NAGARAJAPPA A., ADVOCATE)
MURTHY
VANAMALA
Location: AND:
HIGH
COURT OF
KARNATAKA 1. PRINCIPAL SECRETARY
DEPARTMENT OF HIGHER EDUCATION,
KARNATAKA GOVERNMENT
SECRETARIAT
MULTISTOREYED BUILDING,
DR AMBEDKAR VEEDHI
BANGALORE-560001.
2. BENGALURU UNIVERSITY
JNANABHARATHI CAMPUS
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NC: 2023:KHC:29680
WP No. 5853 of 2022
BANGALORE-560056
REPRESENTED BY ITS REGISTRAR.
3. PROF L MANJESH
S/O LINGAPPA
AGED ABOUT 54 YEARS
PROFESSOR IN CIVIL ENGINEERING
BANGALORE UNIVERSITY
BANGALORE-560056.
... RESPONDENTS
(BY SRI.B. RAMESH, ADVOCATE FOR R2;
SRI. VIJAYA KUMAR BAJENTRI, ADVOCATE FOR R3;
SMT. LEENA C. SHIVAPURMATH, HCGP FOR R1)
THIS WP IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE RESOLUTION DATED 23.2.2022 APPROVING THE
AGENDA DATED 9.2.2022 IN THE 163 SYNDICATE
MEETING AT ITEM NO.80 IN SO FAR AS RESOLUTION
NO.80 APPOINTING R3 AS A CHAIRMAN OF THE CIVIL
ENGINEERING DEPARTMENT AT SL.NO.5 MARKED AT
ANNEXURE-S ALONG WITH COVER LETTER DATED
24.02.2022 AND APPOINT THE PETITIONER AS A
CHAIRMAN OF THE CIVIL ENGINEERING DEPARTMENT
OF THE R2 W.E.F.20.03.2022.
THIS PETITION COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT
MADE THE FOLLOWING:
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NC: 2023:KHC:29680
WP No. 5853 of 2022
ORDER
The question for consideration in this writ petition is about the inter se seniority between those who are directly recruited and those who are given promotions under the Career Advancement Scheme [for short, 'the CAS'], and this question arises because the third respondent, who is working as a professor with the second respondent's Department of Civil Engineering, is chosen over the petitioner, who is also working as a professor with this department, for appointment as the Chairman of the Department of Studies for Civil Engineering.
2. The petitioner has filed this petition impugning the Resolution dated 23.02.20221 in the second respondent's 163rd Syndicate Meeting and the consequential Communication dated 24.02.2022 addressed by the second respondent's Vice 1 The petitioner's grievance is with the Resolution as per Item No.80 whereby, the decision is to appoint the third respondent as the Chairman of the Department of Studies for Civil Engineering..
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Chancellor to the Members of the Syndicate to approve the Resolution dated 23.02.2022 for the appointment of the third respondent as the 'Chairman' of the Department of Studies for Civil Engineering. This Court on 17.03.2022 has granted interim order directing that the impugned Resolution dated 23.02.2022 shall not be given effect to, and this order is in the light of the interim order passed in the earlier writ petition in W.P. No.3610/2021 on 02.03.2022.
3. The writ petition in W.P. No.3610/2021 is filed by the petitioner in very similar circumstances but challenging the appointment of Dr.A.S.Ravikumar as the Chairman of the afore Department of Studies, and on 02.03.20222, this 2 This Court in order dated 02.03.2022 has observed thus when pointed out on behalf of the petitioner that the only person who could be considered for the appointment as 'Chairman', Department of Studies for Civil Engineering is the petitioner [who is a Professor] because all others were working as 'Associate Professors':
Nevertheless, the learned Senior Counsel submits that at least for the next term, the -5- NC: 2023:KHC:29680 WP No. 5853 of 2022 Court, because it was pointed out that the tenure of Dr.A.S.Ravikumar as the Chairman of the concerned Department of Studies was coming to an end, has directed the second respondent to take a decision on the appointment of the next Chairman in the light of the observations in such order. It must be observed that the impugned Resolution and the Communication are dated 23.02.2022 and 24.02.2022 respectively, and therefore obviously cannot be in the light of this Court's order dated 02.03.2022.
4. The appointment of the Chairman of a Department of Studies is in terms of the Statute notified on 11.11.1991 by the second respondent in exercise of the jurisdiction under Section 36 of the Karnataka State Universities Act, 1976 [for short, 'the respondent-University is required to consider the candidature of the petitioner alone for the post of Chairman of the Department of Civil Engineering at the UVCE, since it is a post on rotation for a period of two years at a time.-6-
NC: 2023:KHC:29680 WP No. 5853 of 2022 Universities Act'] and with reference to the provisions of Section 28[2] thereof. This Statute reads as hereunder:
"Now, therefore, the Senate of the Bangalore University is pleased to make the following statutes.
1. Notwithstanding anything contained in any Statute Ordinance or Order, the Chairman of each Department of Studies/Departmental Council shall be appointed for a period of two years by rotation in the order of Seniority in the following manner.
a. Wherein a Department the number of Professors is more than one, the rotation will be among Professors only;
b. Where there is only one Professor, the rotation will be among the Professor and Readers in the Department.
c. Where there is no Professor and only Readers the rotation will be among the Readers in the Department and d. Where there is no Professor or Reader in a Department, the Syndicate may appoint the Dean of the concerned Faculty or the Chairman of any other Department of Studies of the allied subjects as Chairman for a period not exceeding two years or until a Professor -7- NC: 2023:KHC:29680 WP No. 5853 of 2022 Reader in the Department of studies concerned becomes available."
It is undisputed that if there are two and more professors in a Department, the appointment will be on rotation between or amongst them and based on their inter se seniority, and if there is only one professor, then the appointment will again be based on rotation but amongst the professors and readers. Presently, the readers are called as Assistant Professors.
5. The details of the appointment of the third respondent and the petitioner:
5.1 The third respondent in the year 1994 is appointed as a lecturer with the Department of Civil Engineering, and he has received CAS promotions once every five years. He is initially promoted as a senior lecturer in the year 1999, then as a selection grade lecturer in the year 2004, later as an associate professor in the year 2008, and as a professor on 25.01.2019 but with effect from 11.05.2010.-8-
NC: 2023:KHC:29680 WP No. 5853 of 2022 5.2 The petitioner is appointed as a professor with the Department of Studies for Civil Engineering on 25.07.2019 as against a backlog vacancy. The petitioner was appointed initially as a lecturer with the Department of Studies for Civil Engineering in the month of October 2006, and he is promoted as an associate professor under CAS. The petitioner has worked in this capacity until his appointment as a professor on 25.07.2019.
6. A concise statement of the rival claims to seniority and the second respondent's response:
6.1 The petitioner claims seniority over the third respondent essentially contending that he is appointed directly as a professor as against a 'cadre post', and the third respondent, who is granted promotion under CAS, can only be holding ex-cadre post. The petitioner's case is that because the third -9- NC: 2023:KHC:29680 WP No. 5853 of 2022 respondent does not enter the cadre of professors, he can never claim seniority over the petitioner.
6.2 The petitioner also contends that the second respondent, despite this Court's order dated 02.03.2022 in W.P.No.3610/2021 to operate the resolutions for appointment of Dean/ Chairman after the finalization of the seniority list of professors, yet to finalize such seniority list but decisions are taken to appoint Chairman as in the present case without finalization of the required Seniority List. The petitioner's further contention is that, because he anticipated the appointment of the Chairman of the Departments of Studies without finalization of the seniority list as aforesaid, he has filed objections, but the second respondent has appointed the third respondent as the Chairman of the Department of Studies for Civil Engineering without considering such objections.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 6.3 On the other hand, the third respondent asserts seniority over the petitioner because his promotion is on 25.01.2019 and the petitioner's appointment is on 25.07.2019. This respondent, insofar as the publication of seniority list, contends as follows.
[i] A provisional seniority list of all the
faculty members with the second
respondent is published on
21.06.2019; that his name is shown in the list of professors at serial No. 18 and the petitioner's name is not shown because he is appointed only on 25.07.2019;
[ii] The petitioner was on probation for a period of two years, and therefore, he could not have been considered for the appointment of the Chairman;
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NC: 2023:KHC:29680 WP No. 5853 of 2022 [iii] The petitioner has filed objections to the provisional list published on 21.06.2019, and the final list is published on 19.03.2020, but the petitioner has not challenged this final Seniority list dated 19.03.2020. 6.4 The third respondent also asserts that the second respondent has amended Statute No.263 inserting clause [b] stipulating that the inter se seniority shall be with reference to the date of joining for the Direct Recruits and the date of eligibility for those who are given CAS promotions, and hence, he who is promoted on 25.01.2019, would be senior to the petitioner who is appointed only on 25.07.2019. The third respondent relies upon the amendment which reads as under:
3 This statute is called "Statutes relating to Direct Recruitment and Career Advancement Scheme and Miscellaneous Provisions to implement the UGC Pay Scales revised from 01.01.2006 to Teachers, Librarians, Physical Education Directors in Bangalore University."
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NC: 2023:KHC:29680 WP No. 5853 of 2022 "The inter se seniority between the direct recruits and those were given CAS promotions shall be determined with reference to the date of joining of the concerned direct recruits and the date of eligibility as indicated in the recommendations of the selection committee for those who have received CAS promotions."
6.5 The second respondent, as seen from the statement of objections, has disputed the petitioner's locus to challenge the third respondent's appointment as the Chairman of the Department of Studies for Civil Engineering on the ground that the petitioner, until his probation was declared, was only a temporary employee with his appointment on 25.07.20194. It is also contended that as long as the petitioner remained a temporary employee5 i.e., 4 The petitioner's probation is declared satisfactory on 11.03.2022.
5 The reference is to rule 8 (37) of the Karnataka Civil Services Rules as also the Karnataka Civil Services [Probation ] Rules 1977.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 during the probationary period, he could not have been considered for the appointment as the Chairman. The second respondent has further referred to a couple of writ petitions filed by the petitioner, including the pending writ petition in WP No. 3610/2021 which is referred to supra and the writ petition in W.P.No.39267/20166 filed by the petitioner when he was working as an Associate Professor.
6.6 The second respondent, as regards the law [its Statute] on the question of inter se seniority between Direct Recruits and those who are granted CAS promotions, has relied upon the amendment vide the Notification dated 23.04.2016 to its Statute No. 26 - the Statute Relating to Direct Recruitment and Career Advancement Scheme and Miscellaneous 6 The petitioner along with others has filed the said petition while working as an Associate Professor contending that his and the other similarly placed petitioner's past services with other institutions must be reckoned for the purposes of seniority while granting CAS promotions. This claim is rejected with the rejection of the writ petition.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Provisions to implement the UGC Pay Scales revised from 2006 to Teachers, Librarians, Physical Education Directors in Bangalore University [hereinafter referred to as 'the Statute 2016 - UGC']7 to contend that the such inter se seniority shall be determined with reference to the date of joining for the Direct Recruits and the date of eligibility as indicated in the recommendations of the Selection Committee in the case of those who are granted CAS promotions.
7. It is undisputed that the second respondent's teaching staff is granted promotions under the Career Advancement Scheme contained in the Statute notified on 26.06.1984 and called the University Teachers [Revision of Pay Scale and Career Advancement and Miscellaneous Provisions] Statute, but the question of inter se seniority between CAS Promotees and Direct Recruits has been a vexed question with both the UGC and AICTE amending 7 The same defense that is set up by the third respondent, and this statute is mentioned in Foot Note No.3.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 their respective Regulations and issuing certain clarification.
8. Prof. Ravi Verma Kumar, the learned Senior counsel for the petitioner, Sri Vijay Kumar Bhajantri, the learned counsel for the third respondent and Sri B. Ramesh, the learned counsel for the second respondent, have taken this Court through the different Clarifications, Notifications and Statutes relied upon to bolster the respective responses on the question of inter se seniority between the Direct Recruits and those admitted through CAS promotions [CAS Promotees]. The details of such Clarifications, Notifications and Statutes are as follows.
8.1 AICTE Communication dated 10.09.2003:
The AICTE in its Communication dated 10.09.2003 addressed to the Secretaries [Technical Education] of all the State Governments and Union
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Territories, has clarified that the direct recruits shall be considered as senior to CAS promotees. The clarification, in response to a specific query in that regard, is as follows:
"It was decided that Direct Recruitees will be considered senior to CAS Promotees".
8.2 The State Government's Order dated 28.03.2007:
The State Government by its Order dated 28.03.2007 has extended revised AICTE scales of pay and other conditions to the Teachers employed with UVCE, UBDT Engineering College of Bengaluru and Kuvempu Universities, but without reference to inter se seniority between CAS Promotees and Direct Recruits. However, insofar as CAS promotions, it is stated that, in addition to the sanctioned number of Assistant Professor and Professor posts, qualified and eligible faculty members shall be promoted to the post of Assistant Professor and Professor under CAS
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NC: 2023:KHC:29680 WP No. 5853 of 2022 and these CAS promoted posts shall cease after the retirement.
8.3 The AICTE Notification dated 04.01.2016 clarifying on anomalies on implementation of its Regulations 2010 and 2012 On 04.01.2016, the AICTE vide its Notification issued under the provisions of All India Council for Technical Education Act, 1987 has issued certain clarifications to explain anomalies in the implementation of its Regulation 2010 on the revised Pay Scales, Service Conditions and Qualification for the Teachers and other Academic Staff in Technical Institutions Degree and Diploma] and its Regulation 2012 on Career Advancement Scheme for the Teachers and other Academic Staff in technical institutions [Degree and Diploma]. Insofar as the inter se seniority between the CAS Promotees and Direct Recruits, the clarification is that the seniority
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NC: 2023:KHC:29680 WP No. 5853 of 2022 shall be according to the respective State/UT Government Rules8.
8.4 The second respondent on 09.11.2016 has framed a Statute to implement the AICTE pay scale The second respondent, on 09.11.2016, in exercise of the powers conferred under Section 40[1][k] read with the other provisions of the Karnataka State Universities Act, 2000 has notified Statute called, "Statute Relating to Direct Recruitment, Career Advancement Schemes and Miscellaneous Provisions including the conduct of interviews to Implement the AICTE Pay Scales Revised From 01.01.2006" [hereinafter referred to as 'the Statute 2016 - AICTE']. The Statute 2016 - AICTE does not say anything about the inter se seniority between these two, but it stipulates that 8 This Clarification read as under:
54 Clarification cited on Inter se As per the respective State/ UT Seniority of the CAS promoted Govt. rules (Financial up gradation) faculty and directly recruited faculty
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NC: 2023:KHC:29680 WP No. 5853 of 2022 CAS promotion, being personal to the incumbent to the teacher holding a substantive sanction post, on superannuation of the individual Teacher, the said post shall revert to its original cadre. This stipulation reads as follows:
"The CAS promotion, being a personal promotion to the incumbent teacher holding a substantive sanctioned post, on superannuation of the individual incumbent, the said post shall revert to its original cadre".
The second respondent has amended the Statute, 2016- UGC [which is referred to both by the second and third respondents in their pleadings] insofar as the seniority between CAS promotees and Direct Recruits and the amendment reads9 that such inter 9 Statute No.26 Service Agreement and Fixing of Seniority-
(a) At the time of recruitment in University, every Asst.
Professor, Librarian, Director of Physical Education, shall execute a service agreement signed between themselves and the University. The self appraisal of performance or any other performance report shall form a part of service agreement.
(b) Inter-se seniority between the direct recruited and teachers promoted under CAS:
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NC: 2023:KHC:29680 WP No. 5853 of 2022 se seniority shall be determined with reference to the date of joining for the Direct Recruits and with reference to the date of eligibility as indicated in the selection committee recommendations for the CAS promotees.
8.5 The AICTE Regulation notified on 01.03.2019 The AICTE, in exercise of the powers conferred under the provisions of AICTE Act, 1987, has framed regulations called in short, 'AICTE Regulation, 2019' for the purposes of prescribing Pay Scales, Service Conditions and minimum qualifications for appointment of teachers and other academic staff in technical institutions one officer prescribing the measures for the maintenance of standards and technical degree education. As regards the inter se The inter-se seniority of Direct Recruit shall be determined with reference to the date of joining and for the teachers promoted under CAS with reference to the date of eligibility as indicated in the recommendations of the selection committee of the respective candidates.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 seniority between the directly at o'clock to teachers and promoted, these regulations stipulate as follows;
3.3 Inter-se seniority between the directly recruited teachers and promoted:
The inter-se seniority of a directly recruited teacher shall be determined with reference to the date joining and for the teachers promoted with reference to the date of eligibility as indicated in recommendations of the selection committee of the respective candidates. The rules and regulations the respective Central/State Government/ UT Government shall apply for all other matters of seniority. Similar issues of seniority between directly selected and under CAS in the past, if any fixed on the same basis. The seniority list thus prepared be posted on the institute website.
8.6 The Government of Karnataka Order dated 24.03.2020 The Government of Karnataka, in its Order dated 24.03.2020, has revised the norms for AICTE
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Pay scales in Government/aided Engineering colleges, constituent colleges of technical university and technical university under the control of Department of Higher Education. The Government of Karnataka in this Order, despite the AICTE Notification dated 01.03.2019, and a reference thereto, as regards the inter se seniority between CAS Promotees and Direct Recruits has stipulated that the seniority of the employees shall be determined as per the provisions of the Karnataka Government Servants [Seniority] Rules, 1957 [for short, 'Seniority Rules, 1957'] and providing that that if there is any difficulty in giving effect to the orders, the same shall be considered in the light of the AICTE Regulations, 2019. These stipulations read as under:
"27. INTER SE SENIORITY BETWEEN THE DIRECT RECRUITED AND THE TEACHERS PROMOTED UNDER CAS:
The seniority of employees including the inter se seniority among direct recruitees and Promotees etc shall be determined as per the provisions of Karnataka
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Government Servants' (Seniority) Rules 1957 and orders issued thereunder.
28. OTHER MATTERS If any difficulty arises in giving effect to the above provisions the same may be considered in the light of the provisions contained in "AICTE Pay Scales, Service Conditions and Minimum Qualifications for Appointment of Teachers and Other Academic Staff such as Library, Physical Education and Training & Placement Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education-
(Degree) Regulation, 2019" and amendments issued thereunder read with relevant service rules of the State and if necessary the same may be referred to government for necessary orders/clarifications."
9. A reading of the aforementioned Clarifications, Notifications and Statutes indicate the following.
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NC: 2023:KHC:29680 WP No. 5853 of 2022 [i] The CAS promotions are in addition to the existing/sanctioned strength of a cadre, and with the superannuation of the concerned, the vacancy will be in the original cadre of the concerned. Hence, the CAS promotions are personal to the Promotees.
[ii] Though the AICTE in the year 2003 has clarified that the Direct Recruits will be considered senior to CAS Promotees, it has, on 04.01.2016, clarified that the inter-se seniority between the aforesaid must be as per the respective State/Union Territory Government Rules.
[iii] The second respondent, in exercise of the powers conferred on it under the Universities Act, 2000, has framed the Statute 2016-AICTE on 09.11.2016. The only stipulation is that the CAS
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NC: 2023:KHC:29680 WP No. 5853 of 2022 promotions, being a personal promotion to the incumbent, on superannuation of the individual, the said post shall revert to its original cadre.
[iv] The AICTE Regulations, 2019 stipulates that the inter-se seniority of a directly recruited teacher shall be determined with reference to the date joining and for the teachers promoted under CAS with reference to the date of eligibility as indicated in recommendations of the selection committee of the respective candidates [v] Notwithstanding the AICTE Regulations, 2019, the Government of Karnataka on 24.03.2020 has issued orders, as a matter of policy, revising the Pay-scales of teaching and equivalent staff working in Government/Aided Engineering Colleges
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WP No. 5853 of 2022
and Technical University and its
constituent colleges. Even in this order,
while stipulating that the AICTE
Regulations 2019, shall be considered to resolve difficulties arising in giving effect to the provisions of this Order, it is stipulated that the inter-se seniority between the Direct Recruits and CAS Promotees must be determined according to the provisions of the Karnataka Government Servants' [Seniority] Rules, 1957.
[vi] The Karnataka Government Servants' [Seniority] Rules, 1957 provides for seniority amongst officers appointed to substantive and clear vacancies either by direct recruitment on promotion, but these Rules are silent about the inter se seniority between the Direct Recruits and those who are given in the temporary or personal
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WP No. 5853 of 2022
promotion as in the case of CAS
promotions.
10. The second respondent on 23.04.2016 has amended the Statute No. 26 vide the amendment Statute called Bangalore University [Second Amendment] Statutes Relating to Direct Recruitment and Career Advancement Scheme and Miscellaneous Provisions to implement the UGC Pay Scales Revised from 01.01.2006 to the Teachers, Librarians, Physical Education Directors in Bangalore University-2014, and this provides for determination of inter se seniority between Direct recruits and CAS Promotees. This amendment reads as follows:
"Statute Clause 26(b) consequent to the insertion by amendment [b] Inter se seniority between the direct recruited and teachers promoted under CAS The inter-se seniority of a directly recruited teacher shall be determined with reference to the date joining and for the
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NC: 2023:KHC:29680 WP No. 5853 of 2022 teachers promoted with reference to the date of eligibility as indicated in recommendations of the selection committee of the respective candidates."
11. Prof. Ravi Verma Kumar submits that when the second respondent's Statute [the Statute 2016-AICTE] and the AICTE Regulations stipulate that the inter se seniority should be according to the Seniority Rules 1957, and because these rules are silent about the inter se seniority between Direct Recruits and CAS Promotees, the question in this regard must be considered in view of the decision of the Hon'ble Supreme Court in Dr. Rashmi Srivastava v. Vikram University and others10.
12. Prof. Ravi Verma Kumar emphasizes that the enunciation in this decision is that there is a clear distinction between those who are directly recruited [against cadre posts] and who are given 10 (1995) 3 Supreme Court Cases 653
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NC: 2023:KHC:29680 WP No. 5853 of 2022 personal promotions [which will be ex-cadre or temporary post] and they will be unequals not only because of the source of their appointment but also because of the nature and character of their appointment.
13. Prof. Ravi Verma Kumar argues that the because the Direct Recruits and the CAS Promotees are unequal, the Hon'ble Supreme Court has held that these two categories of employees cannot be treated equally for all purposes, and particularly for seniority and promotion and that the competition for seniority can only be amongst those who are in the cadre posts. The learned senior counsel relies upon the following from the aforesaid decision:
"The aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their
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NC: 2023:KHC:29680 WP No. 5853 of 2022 appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated".
14. Sri Vijay Kumar Bhajantri, the learned counsel for the third respondent, submits that the decision in Dr. Rashmi Srivastava v. Vikram University and others supra is subject to exception where it is shown that the temporary addition to the cadre strength is by the force of statute and the statute provides for inter se seniority resulting in fusion of the two streams. The learned counsel draws support from another decision of the Hon'ble Supreme Court in Dr. Suman Agarwal v. Vice
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Chancellor and others11, and he relies upon the following paragraph:
"The personal promotees get berth through statutory force under S.31A(1) and the post held by the promotee becomes a temporary addition to the sanctioned cadre occupied by direct recruits. Such a provision was absent in the Rashmi Srivastava's case. On the other hand, to avoid stagnation, the benefit has been provided for promotion under s.31A(1) of the Act and it was termed as the "personal promotion" so long as the candidate holds the post. The post remains with the candidate and the post ceases with the ceasation of the service with the retirement of the holder of the post etc. Nonetheless, the post of promotees was made as temporary addition to the cadre strength and the inter-se seniority has been provided between the direct recruits and the promotees. The relative seniority of the candidates from two streams fused into the relevant cadre as Professor or the Reader, as the case may be."
15. Sri Vijay Kumar Bhajantri, as regards the statutory force for temporary addition to the cadre 11 (1996) 1 Supreme Court Cases 632
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NC: 2023:KHC:29680 WP No. 5853 of 2022 strength, relies upon the Statute 2016 - AICTE, and as regards the norm for inter se seniority between Direct Recruits and CAS Promotees, the relies upon;
[1] the second respondent's 23.04.2016 amendment to the Statute No. 26 [which is issued for the UGC pay scales revised from 01.01.2006] stipulating that the inter se seniority of a directory Court shall be determined with reference to the date and for the CAS Promotees the date of eligibility as indicated in the selection committee's recommendations;
[2] the AICTE notification dated 01.03.2019 which is also in similar lines as the amendment to the Statute No. 26 as aforesaid. Sri Vijay Kumar Bhajantri apart from these submissions also contends that the petitioner, who has
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NC: 2023:KHC:29680 WP No. 5853 of 2022 not challenged the Final Seniority List published on 19.03.2020, has no locus to challenge the third respondent's appointment as the Chairman, Department of Studies for Civil Engineering.
16. At the first instance, this Court must refer to the provisions of the Universities Act, 2000 [for short, 'the Universities Act, 2000'] to resolve the question for consideration. The provisions of Section 40[1] of the Universities Act, 2000 contemplate that the Statues12 of the second respondent, subject to its provisions, may provide for different matters that are mentioned therein; and the provisions of Section 40[1][k] thereof contemplate that the Statutes may provide for the method of recruitment of teachers in the universities and affiliated colleges provided that 12 The definition of a Statute is under section 2 [10] of the Universities Act, 2000 , and it reads thus: "Statutes", "Ordinances", "Regulations" and "Rules" means respectively the Statutes, Ordinances, Regulations and Rules of the University made under this Act;
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NC: 2023:KHC:29680 WP No. 5853 of 2022 the scales of pay of the employees, excluding those who are drawing University Grants Commission Scales of Pay, shall be commensurate with the scales of pay applicable to the State Government employees.
17. Significantly, the provisions of Section 40 [2] and [3] of the Universities Act, 2000 mandate that the Statutes shall come into force only from the date of percent of the Chancellor on such date as the Chancellor may direct and the Statutes governing conditions of service of employees, including the emoluments, be in conformity with the policy of the State Government. These clauses reads as under:
"(2) The Statutes shall come into force only from the date of the assent of the Chancellor or on such other date as the Chancellor may direct.
(3) The Statutes governing conditions of service of employees including the emoluments shall be in conformity with the policy of the State Government."
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18. The provisions of Section 41[1] of the Universities Act, 2000 provide for the making of the Statutes and all also its amendment and repeal subject to the procedure as stipulated in the subsequent subclasses. The sub clause [2] envisages 'the Syndicate' taking up for consideration the draft of a Statute either on its own motion or on a proposal made by the Academic Council, and when the draft is not proposed by the Academic Council, the Syndicate must obtain the opinion of the Academic Council before considering the same.
19. It is undisputed that the Statute, 2016 - AICTE is in vogue, and insofar as CAS promotions, it only stipulates that such promotion, being a personal promotion to an incumbent teacher holding a substantive sanctioned post, on superannuation of the individual incumbent, the said post shall revert to its original cadre. This Statute, which is in exercise of the powers under Section 40[1][k] of the Universities
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NC: 2023:KHC:29680 WP No. 5853 of 2022 Act, 2000, as also Section 54 thereof, does not specify the norm for the inter se seniority between the Direct Recruits and CAS Promotees. However, by virtue of Section 40[1][3] of the Universities Act, 2000, the Statutes which prescribe the conditions of service of the employees, including their emoluments, must be in conformity with policy of the State Government.
20. In the present case, it is seen that the second respondent's relevant Statute [the Statute 2016-AICTE], as aforesaid, is silent on the inter se seniority between the Direct Recruits and the CAS Promotees, but the State Government order dated 24.03.2020, which is issued to implement the AICTE Revised Pay Scale in the light of the Regulations 2019, mentions that the inter se seniority shall be according to the Seniority Rules, 1957. It is admitted that these Seniority Rules 1957, which provide for seniority amongst Officers appointed substantively in clear vacancies, is silent about the inter se seniority
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NC: 2023:KHC:29680 WP No. 5853 of 2022 between the Direct Recruits and the CAS Promotees who are only granted personal promotions without any addition in the cadre.
21. The consideration of the subject inter se seniority will be incomplete if the AICTE Regulations 2019 is kept out of consideration in view of the provisions of Section 54 of the Universities Act, 2000 which read as follows:
"Section 54. Appointment in accordance with the promotion schemes.- (1) Notwithstanding anything contained in section 53 but subject to the rules and orders 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 (Selection Grade), Lecturer (Senior Scale) in the constituent Engineering Colleges shall be made by the Syndicate in accordance with the
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NC: 2023:KHC:29680 WP No. 5853 of 2022 scheme governing promotions as prescribed by the Statutes adopting the schemes evolved by the University Grants Commission or All India Council for Technical Education."
It follows from the terms of this Section that the appointments to the post of Professor, Readers and Assistant Professors must be made by the Syndicate in accordance with the schemes for promotions evolved by the AICTE, and this can only mean, especially with the Seniority Rules, 1957 and the Statute 2016 - AICTE being silent about the inter se seniority, that the AICTE Regulations 2019 cannot be ignored and it must have its play. The AICTE Regulations 2019 stipulate that the inter-se seniority of a directly recruited teacher shall be determined with reference to the date of joining and for the teachers promoted under CAS with reference to the date of eligibility as indicated in recommendations of the selection committee of the respective candidates.
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NC: 2023:KHC:29680 WP No. 5853 of 2022
22. The exposition in Dr. Rashmi Srivastava v. Vikram University and others supra is as against the backdrop of this exposition:
"It is true as submitted by learned counsel for appellants that for avoiding stagnation and heart burning promotional avenues should be made available in any service as laid down by this court in number of decisions to which our attention was invited by them. However the short question for our consideration is whether the concerned university Act has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Reader or Professor as the case may be. They would remain ex cadre employees who cannot claim any inter se seniority with direct recruits forming the concerned cadre."
The underlining is by this Court In the peculiarities of this case as delineated above, the second respondent's Statute 2016 - AICTE provides for temporary addition to the cadre, and the
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NC: 2023:KHC:29680 WP No. 5853 of 2022 AICTE Regulations 2019, which would be within the contemplation of the Universities Act, 2000, provide the norm for inter se seniority between the Direct Recruits and CAS Promotees. This statutory scheme must prevail, and the petitioner cannot rely upon the decision of the Dr. Rashmi Srivastava v. Vikram University and others supra.
23. In the light of the afore, this Court concludes that the AICTE Regulation 2019 stipulation viz., that the inter-se seniority of the Direct Recruits shall be determined with reference to the date of joining and for the CAS Promotees the seniority shall be with reference to the date of eligibility as indicated in recommendations of the selection committee must prevail. The question of inter se seniority between the Direct Recruits and CAS Promotees, which would be even for the purposes of appointment of Chairman, Department of Studies, must be considered accordingly. On the inter
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NC: 2023:KHC:29680 WP No. 5853 of 2022 se seniority between the petitioner and the third respondent, it would suffice to observe that the petitioner, who is appointed 25.07.2019, cannot dispute that the third respondent's promotion, based on his eligibility, is recommended by the concerned Selection Committee even before his date of appointment and therefore, the petitioner cannot be aggrieved.
The petition stands disposed of accordingly.
Sd/-
JUDGE SA* Ct:sr