Allahabad High Court
Dr. Raj Pati Chauhan vs Vice-Chancellor, Sampurnanand ... on 9 February, 1998
Equivalent citations: 1998(2)AWC1056, (1998)2UPLBEC912
Author: Bhagwan Din
Bench: Bhagwan Din
JUDGMENT
S.H.A. Raza and Bhagwan Din, JJ.
1. The petitioner Dr. Raj Pati Chauhan, who is a Reader in the Department of Education in Sampurnanand Sanskrit University, Varanasi, while staking his claim to function as Head of Department of the Education in the University, prayed for issue of a writ in the nature of certiorari quashing the order dated 12.1.1998 by means of which the respondent No. 3 has been asked to continue as Head of Department. No doubt, the respondent No. 3, being the only Professor is the seniormost among all the teachers in the department of education in the University. Dr. Vachaspati Dwivedi, the respondent No. 3 attained the age of superannuation on 4.1.1998. He was allowed to continue as such till 30.6.1998. May be for the reason that he attained the age of superannuation in the mid-session. In that regard, the Statute 16.24, which is relevant for the purposes of deciding the case, is reproduced below:
"16.24. (1) The age of superannuation of a teacher of the University governed by the new scale of pay shall be sixty years.:
(2) The age of the superannuation of a teacher of the University not governed by the new pay scale of pay shall be sixty years.
(3) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes :
"Provided that a teacher whose date of superannuation does not fall on June 30 shall continue in service till the end of academic session, that is, June 30, following, and will be treated as on re-employment from the date Immediately following his superannuation till June, 30, following :
X X X X X X X X X X
2. From the perusal of the proviso, it is evident that such type of continuance of service has been treated by the University Statutes as re-employment. The question as to whether re-employment of such a person, like Professor, will entitle him to remain as Head of Department or Member of the Academic Council, etc. was a matter of debate before this Bench in Ramesh Chandra and others v. University of Lucknow and others, Writ Petition bearing No. 5893 of 1988. In which one amongst us (S. H. Raza. J.) was a member, after considering the Statutes of the Lucknow University, which is more or less analogus to the Statutes in question, the Court observed that on re-employment, such a person cannot hold the office of the Head of Department as well as the Dean of the Faculty.
3. Similar view was expressed in Paras Nath Pandey a. District Inspector of Schools, Basti and others. 1995 (1) UPLBEC 667. Shri Paras Nath Pandey, at the relevant time, was working as a Head of Department of Grammar (Vyakaran) as well as officiating as Principal when he retired and re-employed thereafter. The post of the Principal was advertised in the Press. A mandamus was sought for restraining the respondents from filling up the post of the Principal in the college and quashing the appointment of the respondent. In the light of the aforesaid circumstance, the Court observed :
".....It was held by a Division Bench of this Court that re-employment being different from extension, the petitioner cannot add to his new service which started on his re-employment, his earlier service prior to his superannuation and, therefore, on his superannuation followed by re-employment the next Professor seniormost to him should be treated as senior. It was further held that the expression "continue in service" occurring in the proviso to Statute 16.24 (3) had to be interpreted in the light of legal fiction which has been provided in the same proviso and in the same sentence. That legal fiction is to the effect that a teacher so allowed to continue in service has to be treated as on re-employment and his re-employment is to commence on the date immediately following the date of his superannuation. The expression "continue in service" cannot, therefore, be decisive of the question as it cannot, be Interpreted as if the legal fiction did not exist."
It was further held :
"The net result of the discussion is that it is to be held that the petitioner who immediately after the date of his superannuation gets re-employment under Statute 16.24 (3) of the First Statute of the Sampurnanand Sanskrit University as a teacher ceased to be an officiating Principal of the College with effect from 5.11.1994, the date of his superannuation. In view of the provisions of Statute 12.22 of the First Statutes of the University, the post of Principal of the College having fallen vacant, the seniormost teacher of the College became entitled to act as Principal until a duly selected Principal assumes the office."
4. More or less the same view was expressed in Dr. Prabha Gupta v. Chairman, Municipal Council, Shikohabad and others, wherein it was observed that the petitioner after attaining the age of superannuation, cannot be treated as a seniormost teacher of the College.
5. Learned counsel for the petitioner has drawn our attention towards the observations of the Division Bench in the case of Prof. R.N. Tewari v. Allahabad University, Allahabad and others, (1991) 1 UPLBEC 563. In that case, the Division Bench took the view that as there was only one Professor in the Geography Department of the Allahabad University, even though the seniority of the petitioner may be taken from the date of the re-employment, in view of the provisions of Statutes 18.05 of Chapter XVIII, Part I. the petitioner will be treated to be senior to all the Readers and Lecturers of the Department as the seniormost teacher in the Department under Statutes 2.20 has to act as the Head of the Department the petitioner is entitled to act as the Head of the Department till 30th June, 1991.
6. Although the case of Prof. R. N. Tewari apparently appears to be in conflict with the view expressed in the aforementioned cases, but the fact remains that it is somewhat distinguishable. In the case of Prof. R. N. Tewari before coming into force of the First Statutes, there were two Government Orders in force on that subject, i.e., the Order, dated 7.9.1976 and 26.10.1976, whereby it was provided that during that period of extended tenure, which is called as re-employment, the teacher concerned would not be entitled to be a Member of any academic body of the University in order of seniority and he would also ineligible to hold any office of the Allahabad University in order of seniority. Some representations were made to the State Government which after realising the anamoly in the earlier Government Orders, issued another Government Order, dated 21.3.1984 wherein it was expressly stated that in respect of those departments, where there is only one post of Professor, in respect of period of re-employment during the session, the same Professor would continue to work as Head of Department until 30.6.1984. The matter was considered by the Executive Council. Allahabad University on 17.5.1984 and the Executive Council resolved to implement the aforesaid decision of the State Government. At that time when the case of Prof. R. N. Tewari was decided, there were Government Orders and the First Statutes of the University was in force. After coming into force of the First Statutes of the University, which has been cited above, those Government Orders, dated 7.9.1976 and 26.10.1976 have lost their efficacy and relevance. Now such continuance or re-employment would be guided by the Statutes. Statutes 16.24 does not provide that after re-employment a Teacherr/Professor besides being re-employed, would also enjoy other offices like Head of Department or Membership of the academic council etc. In view of the aforesaid reason, the case of Prof. R. N. Tewari is quite distinguishable with the Division Bench decision of this Court in Ramesh Chandra (supra) ; Paras Nath Pandey (supra) and Dr. Prabha Gupta (supra).
7. Naturally after the respondent No. 3 has attained the age of superannuation, the next seniormost teacher in the Department of Education would take over the post of Head of Department. There is no Statute which prohibits that a Reader cannot act as a Head of Department.
8. In view of the aforesaid reasons, we are of the view that the writ petition deserves to be allowed. The writ petition is accordingly allowed and a writ in the nature of certiorari quashing the impugned Order, dated 12.1.1998 passed by the respondent No. 2 is issued.