Delhi High Court
Najma Siddiqui (Prof.) vs University Of Delhi on 16 January, 1998
Equivalent citations: 1998IAD(DELHI)619, 1998(46)DRJ216
ORDER Case Note: Service Law - Selection--Procedure--Practice of an institute cannot substitute the recruitment rules--The inter se seniority must be counted on the basis of continuous length of service as provided by the rules--Appointment of junior as a Head of Department, not proper Direction given for appointment on the basis of seniority. Usha Mehra, J.
1. This petition raises important questions of law pertaining to the seniority of University Professors coming from different source. Questions involved are (1) whether petitioners, who were directly appointed as Professors in the Department of Education, by open selection, for the projects under the Centrally sponsored scheme are not the employees of University of Delhi, hence have no locus standi to challenge the appointment of respondent No. 2. (2) Whether the seniority of the professors appointed under the Merit Promotion Scheme can be at par with the Professors appointed against regular cadre in the University, alternatively can Merit promotion be reckoned at par for seniority purposes with persons selected in open selection as Professors? (3) Whether University can give retrospective seniority or deemed seniority under its Act, rules, Statute and Ordinance.
2. So far as the question of locus standi is concerned, respondent,s argument has been that the petitioners were not appointed by the University of Delhi for its Education Department. They were in fact appointed by Delhi State Government for its project sponsored by the Central Government. This was made clear in the advertisement in response to which petitioners applied. This fact finds mention in their appointment letters also. It was specifically pointed out mentioned that they were appointed as Professors for a specific project. The petitioner No.1 was appointed in a project known as Institute for Advance Studies in Education (in short IASE). The petitioner No.2 was appointed for a project known as Maulana Azad Centre for Elementary and Social Education (in short MACESE). IASE and MACESE schemes are the projects sponsored by the Central Government. These are run by Delhi Government in the Department of Education. Employees of these project are not the employees of University of Delhi. Being the employees of the project petitioners cannot claim seniority with the respondent No.2 who was appointed in the Department of Education of University of Delhi. The University appoints teachers. Those who are appointed by the University are paid by the University. The petitioners being not the employees of the University are not paid their salary by the University. Hence have no locus standi to challenge the action of the University in treating respondent No.2 as senior to petitioners.
3. Mr. Prashant Bhushan appearing for the petitioners refuted these averments, inter alia, on the ground that the petitioners were appointed to the posts created at the instance of the Delhi University. These posts were sanctioned by the Central Government for the University hence formed part of the University of Delhi. University of Delhi got these posts created by following regular procedure. These posts were created because of the Resolution of the Academic and Executive Council's of the University of Delhi. Attention was drawn to the Office order No.132 of the University dated 13th November, 1990. Reading of which shows that these posts on which petitioners were selected were created by the Resolution of the Academic Council and Executive Council. Pursuance to that Resolution an advertisement was issued by the University in the Newspaper thereby inviting applications for the posts of Readers and Professors. In response to the advertisement the petitioners applied for the posts of Professors. They were selected by the Selection Committee constituted by the University of Delhi as per the University Statute and rules. Therefore, even though the petitioners were appointed for a project yet they remained employees of the University because their appointment was made by the University for the University and their salaries have also been paid by the University.
4. In order to resolve the controversy as to whether petitioners were appointed by the University or not, reference can be had to the office order No.132 dated 13th November, 1990 'Annexure A' filed with the Rejoinder of the petitioners. Perusal of the same shows that Government of India, Ministry of Human Resource Development (in short HRD) (Department of Education) created on temporary basis two posts of Professors in MACESE beside creating two posts of Readers, three Lecturers, one Research Associate and two Field Workers. One post of Processor and one post of Reader was created for IASE. Annexure 'A' was issued with the authority of the Academic Council of the University dated 26th July, 1990 and of the Executive Council of the University dated 11th August, 1990. Reading of the minutes of the meeting of the Faculty of Education, University of Delhi dated 19th April, 1989 show that faculty of Education constituted a subcommittee to initiate action with regard to the Centrally Sponsored Schemes of the Ministry of HRD, Government of India. The said subcommittee submitted its report thereby recommended adoption of the IASE scheme in its modified form in order to create a new unit to be known as Maulana Azad Centre for Elementary and Social Education within the Department of Education of the University. Subcommittee's report was approved by the Faculty of Education in its meeting held on 19th April, 1989. This report was also approved by the Staff Council of the Department of Education, University of Delhi in its meeting held on 17th April, 1989. The subcommittee had in fact recommended creation of certain academic posts. On that basis proposal was forwarded by the Faculty of Education, University of Delhi to the Government of India seeking sanction for the creation of posts of Professors and Readers. This was done vide letter dated 21st December, 1989. The creation of these posts in IASE and MACESE was approved by the Academic Council and Executive Council of University of Delhi as per the University Statute and rules. From the documents placed on record by the petitioners i.e. Annexures A, B, C, D-1, D-2 and D-3, it becomes clear that the posts occupied by the petitioners were created in IASE and MACESE by the University of Delhi with the financial support of the Ministry of HRD under centrally sponsored scheme. In order to ensure the continuation of these created posts, the University of Delhi sought clarification from the University Grants Commission (in short UGC) regarding the status of these posts. The UGC in turn clarified that these posts would continue and there would be no uncertainty with regard to the continuing nature of these posts. Moreover the Executive Council of University of Delhi in its meeting held on 23rd April, 1994 resolved to regularise the services of the teachers appointed under IASE/MACESE in the Department of Education of the University. From the above facts it can be said that these posts created by the recommendation of the subcommittee of the Faculty of Education of University of Delhi were approved by the concerned Ministry of Government of India. These posts formed part of the Department of Education of University of Delhi. It was only after these posts were created for the University that the University advertised for the same. It was in pursuance to this advertisement that the petitioners applied and were got selected by the Selection committee duly constituted by University of Delhi. Their appointment was approved by the Academic Council and Executive Council as per the University Statute and rules. Not only petitioners were selected as Professors by the University, they in fact have been serving on various Statutory Committees/Bodies of the University and the Departments on the basis of the orders passed by the University. They have also been undertaking teaching and research assignments as per orders of the Head of the Department. This fact find support from the confirming status of the Professors appointed in IASE and MACESE units of the Department as regular university employees and faculty members, University had appointed the petitioners No.2 as representative of the University on the Governing Body of the College of Education w.e.f. 12th December, 1997. The Universitys letter of 3rd November, 1997 i.e. Annexure `F` & `G` show that petitioners as Professors were included as University Members under Statute 2(1)(xiv)(a). The Notification dated 30th September, 1997 Annexure `H` show that Mrs.N.Panchapakesan, a Professor appointed in the IASE-MACESE unit of the Department of Education has been given charge as Head of the Department of Education and also to act as Dean of the Faculty of Education, University of Delhi. From the above fact it is clear that the persons appointed in IASE-MACESE unit of the Department can be appointed as Head of the Department and Dean (Education) as in the case of Professor (Mrs.) N.Panchapakesan. Petitioners have also placed on record the document Annexure `J` to show that the University accepted permanent status of these posts created by the university under IASE-MACESE unit. Since these posts were created by the University as per the University Statute and rules and the petitioners were appointed by the University and are continuing against those posts hence it can safely be concluded that they are employees of the University. They have locusstandi to challenge the appointment of respondent No.2.
5. Before dealing with other points raised in the petition, I would like to discuss another preliminary objection raised by respondent No.2 i.e. that this petition suffers from delay and latches. Main grievance of Mr.S.S.Vats, counsel for respondent No.2 is that the seniority of the respondent No.2 relates back to the year 1983, when the respondent No.2 was declared senior as Reader. Again on 1st January, 1994 when he was promoted as Professor. Petitioners did not challenge the seniority list issued by the University since 1983 hence the petition suffers from delay. This shows petitioner waived and acquiesced. I find no force in this submission. There are two reasons for rejecting this contention. Firstly the picture of seniority between directly appointed Professors and Merit Promotees got cleared by the Apex Court in 1995 in the case of Dr.Rashmi Srivastava Vs. Vikram University. Therefore, petitioners asserted their right. Secondly petitioners felt aggrieved when respondent No.1 inspite of the Supreme Court decision appointed respondent No.2 as Head of the Department. Moreover, the cause of action is continuing one. For these reasons, I find no merits in this objection.
6. Turning to the question of interse seniority of the petitioners, directly appointed Professors visavis respondent No.2, appointed on the basis of Merit Promotion Scheme, let us understand the provisions of the Delhi University Act/Statute/Ordinance. Section 2(f) of Delhi University Act (in short the Act) defines what is relevance of Statutes, Ordinance and Regulation. As per Section 2(f) of the Act, it means the Statute, Ordinance and Regulations of the University made under the Act have a force of law.
7. Section 4 of the Act deals with the power of the University. Sub Section 6 and 7 of Section 4 of the Act provides following powers to the University :-
Sub Section (6) :
To institute Professorship, Readerships, Lectureship and any other teaching posts required by the University.
Sub Section (7) :
To appoint or recognise persons as Professors, Readers or Lecturers, or otherwise as teachers of the University.
8. The Statute of the University (hereinafter called the Statute) deals with various subjects, namely, the Constitution of the Code, Executive Council, Academic Council, Faculties, Powers of Faculties, Finance Committees etc. The Statute deals with the functioning of the Executive Council with regard to its Management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for. Statute 6(2) deals with the powers of Executive Council in addition to all other powers vested in it. Those are (i) to appoint, from time to time, the Registrar, Librarian, Principles of colleges and Institutions established by the University such as Professors, Readers, Lecturers and other members of the teaching staff as may be necessary on the recommendations of Selection Committees constituted for the purpose, (ii) to create administrative, ministerial and other necessary posts, (iii) to grant leave of absence to any officer of the University, other than the chancellor, the Pro-Chancellor and the Vice Chancellor, (iv) to manage and regulate the finances, accounts, investments etc., (v) to invest any money belongings to the University, (vi) to transfer or accept transfers of any movable or immovable property on behalf of the University, (vii) to provide the buildings, premises, furniture and apparatus and other means needed for carrying on the work of the University. (viii) to enter into, vary, carry out and cancel contracts, to entertain, adjudicate upon, and if it thinks fit, to redress any grievances of the officers of the University, the teaching staff, the students and the University's servants etc.
9. Statute 8 deals with the power of the Academic Council in addition to all other powers vested in it. One of the powers provided under Statute 8 is to make recommendations to the Executive Council with regard (a) to the creation of teaching posts in the university and colleges maintained by the University and the abolition thereof, and (b) the classification of the posts referred to in subitem (a) and their emoluments and the duties attached thereto.
10. Statute 37 deals with the seniority, which is reproduced as under :-
37 (1) Whenever, in accordance with these Statutes, any person is to hold an office or be a member of any Authority of the University by rotation, according to seniority such seniority shall be determined according to the length of continuous service of such person in his grade or post, as the case may be, and in accordance with such other principles as the Executive Council may, from time to time, prescribe.
(2) It shall be the duty of the Registrar to prepare and maintain, in respect of each class of persons, to whom the provisions of this Statute apply, a complete and up-to-date seniority list in accordance with the provisions of the foregoing clause.
(3) If two or more persons have equal length of continuous service in a particular grade or post, or the relative seniority of any person or persons is otherwise in doubt, the Registrar may on his own motion, and shall, at the request of any such person, submit the matter to the Executive Council whose decision thereon shall be final.
11. The University beside having the Act and Statutes has also issued Ordinances. Ordinance XI deals with the University appointed Teachers. Para 8 of Ordinance XI which is reproduced as under provides sources of recruitment.
8 (1) All posts of teachers shall be filled after advertisement and by open recruitment save in cases specified in the second, proviso to Clause 2(i) of Statute 6 or in respect of posts appointment to which may be required to be made urgently in the interest of organisation of teaching in the departments concerned for a period not exceeding one year.
Provided that the University may appoint Professors and Readers under the Merit Promotion Scheme of 1983 as accepted by the Executive Council in accordance with the eligibility conditions and in the manner prescribed in this scheme in this behalf.
Provided further that the University may also promote Lecturers to Lecturers in Senior Scale/Lecturers in Reader's Grade/as Reader under the Merit Promotion Scheme of 1987 as accepted by the Executive Council in accordance with the eligibility conditions and in the manner prescribed in this scheme in this behalf.
12. Mr.Prashant Bhushan appearing for the petitioners contended that the Act stipulates institution of Professorship, Readership, Lectureship i.e. creation of regular posts of Professors, Readers etc. on which appointments have to be made by the University by direct recruitment by open selection. The Act does not envisage filling up of these regular posts by merit promotions. Merit promotees do not form part of the cadre. Their promotion is personal to them. The Act only talks of appointment to posts. The University by amending part 8 of Ordinance XI thereby adding proviso I could not circumvent the provisions of the Act. The Act only talks filling the posts of Professors by open selection meaning thereby there is only one source of appointment. By Ordinance the University cannot enlarge the scope of the Act. To support his arguments, reliance was placed on the decision of Supreme court in the case of Dr. Rashmi Srivastava Vs. Vikram University, . Mr. Prashant Bhushan urged that the ratio of the Supreme Court in Dr. Rashmi Srivastava squarely apply to the facts of this case. In that case the Apex Court in no uncertain words held that the persons promoted as Readers, Professors, under the Merit Promotion Scheme do not fall within the cadre of Readers, Professors nor can compete with cadre employees in seniority and promotion. The persons promoted under the Merit Promotion Scheme form a distinct class from the cadre employees namely directly recruited Readers and Professors. The direct recruiters and the promotee Professors cannot be treated equally for the purpose of seniority and promotion. Fixing inter se seniority between them on the basis of continuous officiation would be illegal. Particular reference was made to paras 39 and 40 of that judgment, which are reproduced as under.
Para No.39:
......It is not in dispute between the parties that neither the Act nor any ordinances or statutes of respondent No.1 University even remotely whisper about creation of a separate recognised source of recruitment of Professors and Readers by way of departmental promotions. It is of course true as indicated by Dr. Dhawan appearing for the interveners that in some of the universities even ordinances have been issued accepting such new source of promotion of university teachers under the Merit Promotion Scheme. But even if it is so that would make no difference as it is the parent Act, namely, University Act concerned which would contemplate creation of new source of recruitment by way of departmental promotions of university teachers. Unless that is done, mere issuance of ordinances or statutes to that effect which to the extent would conflict with the parent Act would be of no avail and would be an exercise in futility. They would also be ultra vires the Act. It must, therefore, be held that unless the concerned University Acts under which the universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of Merit Promotion Scheme recommended by the Commission or mere decision of the Coordination Committee or Executive committee not to discriminate between merit promotees and direct recruit university teachers and even issuance of ordinances or statutes to that effect would be of no avail and will not have any legal effect nor would they permit the concerned universities to fuse the cadre employees with excadre employees and to prepare a combined seniority list on that basis.
Para No.40:
......The very guidelines of the scheme suggest that a merit promoted Reader or Professor will be treated to have a personal promotion. It will not create any addition to the cadre nor it will create any vacancy in the lower cadre from which he or she was promoted. The work load has to be so distributed as not to require any additional staff, Dr. Dhawan said that this was only because of the financial crunch. That may be so. But ultimately the effect thereof would be that once a merit promoted Reader or Professor goes out of service, there will be no post which will fall vacant in the promotional avenue. Consequently, it cannot be said that there was any temporary addition to that cadre strength of Reader or Professor as the case may be.
13. Relying on the above observations, Mr. Prashant Bhushan contended that the only way merit promotees could be made part of the regular cadre of Processors is by way of an amendment to Section 4 (6 & 7) of the Act thereby providing that even merit promotees holding personal promotions would also form part of the cadre. In Ordinance XI no specific provisions have been made by which personal promotions of merit promotees could be treated as appointment to regular posts in the cadre of Professors nor the Ordinance XI provides that these personal promotions would be considered to be temporary addition to the posts in the cadre. There is no mention of merit promotees in the Statute of the University. The merit promotees continue to occupy their original posts of Lecturers and Readers from where they were given personal promotion which are coterminous with their service coming to an end as Professors/Readers. Thus the issue being no longer resintegra and having been exhaustively considered and decided by the Supreme Court, respondent No.2 who was promoted on the basis of Merit Promotion Scheme cannot be treated at per with petitioner much less senior to them. To stress this arguments petitioners relied on Section 5 of Aligarh Muslim University Act which is Para aterial the same as Section 4 of the Act. While dealing with Section 5 of Aligarh Muslim University Act, the Allahabad High Court in the case of Dr. Shinin Moosvi decided on 4th April, 1997 held that despite the adoption of the Merit Promotion Scheme by the Muslim University, by a Resolution of the Executive Council, the merit promotees could not be considered part of the cadre of regular Professors/Readers. Allahabad High Court while interpreting Section 5 of the Aligarh Muslim University Act distinguished the case of Dr. Suman Agarwal Vs. Vice Chancellor, decided by the Apex Court and reported in 1996 (1) SLR page 633. In this case specific amendments had been brought about in the Act itself thereby providing merit promotees to be a temporary addition of the cadre to the posts of Professors/Readers. They were to be treated at par with direct recruits for the purpose of seniority. Whereas under Aligarh Muslim University Act as in the present Act no provisions have been made to treat merit promotees at par with directly appointed Professors. By issuing Ordinance XI and in particular adding proviso to para 8, Mr. Prashant Bhushan contended that it would not amount that the Act stood amended. Section 4 (6 & 7) of the Act provides only one source of appointment i.e. directly appointed Professors/Readers against a post. By issuing an Ordinance the University cannot add in the Cadre additional post by making merit promotions because merit promotees are not holding any post in the cadre. When they cease to be in service there does not remain any post vacant. In fact the post fall vacant in the promotional avenue. The merit promotee do not hold regular posts, therefore, they are not part of the regular cadre of Professors under the Act. Their promotion is personal and on vacation of the same that post does not get merged with the strength of the cadre of the professors. No additional post has been created of the Professor in the cadre on account of personal promotion given to respondent No.2. The vacancy caused on retirement would be of the original post on which he was directly appointed. Therefore, merit promoted person cannot be equated with directly recruited. In the absence of the Act having been amended, the respondent No.2 cannot be treated at par with the petitioners who were directly recruited to the cadre post.
14. At the first flash the proposition urged by Mr. Prashant Bhushan appears to be vary attractive. However, if we go deep into the matter it becomes clear that the matter is not that simple as the petitioners have tried to make. Reasons are obvious, reading of Sub Section (6) of Section 4 of the Act nowhere provides the source of appointment. It simply talk of institution of Professorship, Readership etc. The word "institution" in the Ordinance of parlance would not mean filling up of the posts. It only means that the University has the power to create posts of Professorship, Readership and any other teaching posts. As per Concise Oxford Dictionary "Institute" means, (i) Establish, found, (2) initiate, (3) begin. Therefore, when the Act says "institute" it means to establish the posts of Professors, Readers etc. Sub Section (7) talks about the filling of the same i.e. by making appointment or recognising a person or Professor or otherwise as teachers of the University. The Act is silent as to how appointment to these posts instituted under Sub Section (6) of Section 4 of the Act. The Act nowhere says that instituted Professorship can only be filled only by directly appointed Professors. In fact the Act does not restrict the source to any particular category either by direct recruitment or by promotion. The Act only says that University has the power to appoint or recognise a person as Professor, Reader or Lecturer etc. These Sub Sections 6 and 7 of Section 4 of the Act do not lay down any source of appointment or how the post of Professors, Readers or Lecturers are to be filled. Since the Act is silent about the source of appointment hence the University vide Ordinance XI indicated the source. Subsequently proviso 1 to para 8 was added vide amendment dated 29th July, 1983. Reading of proviso I to para 8 of Ordinance XI (which was added on 29th July, 1983) shows that beside the direct recruitment the University has also got power to appoint persons as Professors under the Merit Promotion Scheme. Thus through the proviso 1 para 8 of Ordinance XI the University provided both sources of appointment to the posts established under Sub Section (6) of Section 4 of the Act. Prior to the addition of proviso 1 to para 8 of Ordinance XI there was only one source of appointment. That one source also originated from the ordinance and not from the Act. By inserting proviso I the University acquired the power to appoint the Professors on the basis of Merit Promotion Scheme also. So the Ordinance XI authorised the University to make appointment from both the source i.e. by direct recruitment as well as by promotion. It would not be correct to say that the Act provides source of appointment or under the Act there is only one source of appointment. In fact as observed above the Act is silent So far as the source of appointment is concerned. It is the Ordinance XI which deals with the power of the University to make appointment to the posts created/established under the Act. By the amendment to the para 8 of the Ordinance XI the University derived the powers to make appointment from both the sources. It was not necessary for the University to amend the Act in order to make appointment from both the sources. In the facts of this case the case of Dr. Rashmi Srivastava is distinguishable and would be the case of Allahabad High Court distinguishable. Similarly, the case cited by the petitioners of Dr. Veer Singh Vs. the Punjab University, Chandigarh & ors., reported in 1996(4) SLR page 584 is distinguishable. In that case the Court relied on Regulation 4, 5 and 6 of Chapter V(A) which provided only one source of appointment i.e. by direct recruitment. In the scheme which was adopted by the Punjab University it was provided that the persons holding merit promotion would not count in the cadre. It was in this background the Court concluded that promotion to the post was only an excadre and it ceased on his retirement. Further, the promotion scheme made it clear that merit promotee would not form part of the cadre. The Court accordingly held that person promoted on the basis of promotion scheme could not be treated at par with the direct recruited persons. But that again is not the case in hand. On the other hand, in the present case, para 8 of Ordinance XI provides two source of recruitment. The Ordinance as per the Section 2(F) of the Act has a statutory force. It is issued under the Act. Though the appointment to the post of Professor by personal promotion would cease to exist on the cessation of the occupant of this post but by operation of Para 8 of Ordinance XI the case of Dr. Veer Singh (Supra) is distinguishable. The Apex Court in Dr. Rashmi Srivastava's case was dealing with the provisions of Vikram University Act which did not provide two source of appointment. It was in that background the Apex Court held that Professors appointed under the Promotion scheme could not be treated at per with regular appointed Professors. Observation of the Apex Court in paras 39 and 40 of Dr. Rashmi Srivastava's case were keeping in view the Act and Statute of Vikram University. If the Act provides only one source of appointment then by Ordinance the Act cannot be amended. For that the University was required to amend its parent Act. By simply incorporating in the Ordinance second source the University could not take advantage. But as pointed out above in the case in hand the parent Act itself does not provide any source of appointment, the sources are provided under the Ordinance XI itself, therefore, by adding proviso to para 8 of the Ordinance XI the University could make both the sources for appointment. Hence, the observations of the Supreme Court in Dr.Rashmi Srivastava's case keeping the facts of this case are of no help to the petitioners. On the other hand, Supreme Court in the case of Dr. Suman Agarwal (supra) deals with almost identical facts. In that case the Apex Court after analysing the provisions of the Act, Ordinance and Statute concluded that personal promotion does not have any effect on the post held by the direct recruit by operation of Clause 11(i). The post held by a promotee on personal promotion to the cadre of Reader or Professor is coterminus with the post ceasing to exist either on retirement or termination, removal, dismissal etc. In other words both the direct recruits as well as the temporary promotees on personal promotion would form part of the cadre as Reader or the Professor, as the case may be. If a teacher is appointed as a Reader by personal promotion, his/her continuous length of service in the cadre of Reader should be determined and the inter se seniority should be decided accordingly. 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 Dr.Rashmi Srivastava`s case. On the other hand, to avoid stagnation, the benefit has been provided for promotion under the Merit Promotion Scheme and it was termed as the "personal promotion" so long as the candidate and the post ceases with the cessation 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. The relative seniority of the candidates from two streams fused into the relevant cadre as Professor or the Reader. In Dr.Suman Aggarwal's case (supra) Supreme Court also referred to its earlier decision in the case of Dr.Bal Krishna Agarwal Vs. State of U.P., 1995 (1) SLR 686 (SC). Therein the Court specifically stated that under the Statute as amended by Notification dated 21st February, 1985 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 recruit shall be determined according to length of service in such cadre. In the case in hand in para 8 of Ordinance XI provisions have been made w.e.f. 29th July, 1983 to have Professors from both the sources. Respondent No.2 herein as per the observation of the Supreme Court in the case of Dr.Suman Agarwal (supra) got berth through Ordinance XI and the post held by him has been added temporarily to the cadre. To avoid stagnation, beneficial provision in para 8 of Ordinance XI has been provided. No doubt this is a personal promotion, but so long as the candidate continues to hold the post this is coterminus with the termination of incumbent of that post. Therefore, this temporary post of promotee on the basis of para 8 of Ordinance XI is a temporary addition to the cadre strength and inter se seniority has to be determined keeping these facts in view. The case of Dr. Suman Aggarwal can be applied with advantage in the facts of this case. In the absence of a source having been provided in the Act and the same having been provided under the Ordinance it is not necessary for the University to amend the Act. As observed above Ordinances issued by the University has a force of law. The same are issued under the Act. In fact harmonious reading of Section 4 (6 & 7) of the Act, Statute and Ordinance XI makes it clear that provisions of para 8 of Ordinance XI do not infringe or violate the provisions of the Act. In view of my above discussions, I am of the considered view that the personal promote Professors and the directly recruited Professors have to be treated at par so far as their appointment is concerned.
15. The question yet to be determined is, once the personal promotee gets a berth temporarily in the cadre though coterminus and personal to him, how to reckon interse seniority between him and the directly recruited Professors. For that we have to look to Statute 37 of the Statutes. According to Statute 37 interse seniority has to be determined on the basis of length of continuous service. In order to determine the length of continuous service of the petitioners vis-a-vis, respondent No.2, we may have to refer to few of the facts. Petitioners were selected by the Executive Council/Selection Committee constituted by the University of Delhi. Their appointment was notified by the University of Delhi on 23rd June, 1994. The same Executive Council/Selection Committee considered the application of the respondent No.2 applied for promotion as Professor under the Merit Promotion Scheme. That application of respondent No.2 for promotion to the post of Professor under the scheme was considered and it was decided vide meeting held on 23rd June, 1994 vide item No.14 that the case of the respondent No.2 be considered after one year under the rules. This shows that the candidature of respondent No.2 for promotion in that meeting was not approved. He was not selected. The respondent No.2 again applied under the personal promotion scheme. His application was considered and accepted by the Executive Council in March, 1995. The Executive Council on 4th March, 1995 allowed the respondent No.2's application for merit promotion to the post of Professor with a further rider that promotion would be effective from the date of his eligibility to be determined by the Vice Chancellor. The Vice Chancellor decided that the respondent No.2 be appointed as Professor w.e.f. 1st January, 1994. This was a deemed appointment with retrospective effect. Grievance of the petitioners is that the deemed seniority or seniority with retrospective effect can not be given. His first application for promotion on the basis of merit promotion scheme having been rejected by a duly constituted Selection Committee in its meeting held on 23rd June, 1994 and the petitioners having been selected by the same Selection Committee as Professors on 23rd June, 1994, the respondent No.2 became their junior. His length of continuous service as Professor has to be counted from March, 1995 and not from 1st January, 1994. Respondent No.2's application having not been accepted in June, 1994 the second Selection Committee could not promote him with retrospective effect. That would tantamount to nullifying the earlier decision of the previous Selection Committee who declined to promote the respondent in June, 1994. The second Executive Council while reconsidering respondent No.2's second application for promotion could not review the decision of the earlier Selection Committee nor could thus nullify the results of the previous Selection Committee. I am in agreement with the contention of the counsel for the petitioners that the Executive Council/Selection Committee under the grab of considering the second application of the respondent No.2 could not allow him seniority with retrospective effect thereby nullify the decision of the previous duly constituted Selection Committee. The Executive Council/Selection Committee is not above law. It has to be governed by the Statutes. Statute 37 of the Statutes provides that interse seniority has to be reckoned by continuous length of service. The continuous length of service would be counted when the petitioner was selected and started working as such the respondent No.2 was selected in March, 1995 and thereafter started working as Professor. Hence his length of service was to be counted from March, 1995 and not from the date of deemed promotion. Petitioners were promoted as Professors and started working as such since June, 1994. Even if it is presumed that respondent No.2 was eligible to be appointed as Professor w.e.f. 1st January, 1994 but the Selection Committee which met in June, 1994 did not select him rather asked this respondent to apply after one year. A person who was not selected by a duly constituted Selection Committee could not be given deemed date of promotion which happens to be even prior to the date the first Selection Committee met i.e. June, 1994. The first Selection Committee having rejected his application on 23rd June, 1994 the second Selection Committee vide its order dated 4th March, 1995 could not declare him eligible with retrospective effect nor for that matter it could circumvent the decision of the first Selection Committee of 23rd June, 1994. By no stretch of imagination or law the appointment can relate back to January, 1994. There is no provision for deemed seniority either under the Act or under the Statute or Ordinance nor any such provisions were brought to my notice. The mere fact that University has been following such like practice would not make it a law. The law is well settled that once Statute provides that inter se seniority has to be counter from continuous length of service then the inter se seniority of the respondent No.2 vis-a-vis the petitioners has to be from the date they were selected by the Selection Committee and started working as Professors. This is possible by looking at the dates of their appointment as Professors and of performing duties as Professors. Petitioners were appointed Professors earlier then respondent No.2 hence would rank senior. Petitioners have established by documentary evidence that they were appointed as Professors on 23rd June, 1994 whereas respondent No.2 was appointed on 4th March, 1995. Therefore, as per Statute 37 the inter se seniority of the petitioners and the respondent No.2 has to be reckoned from those dates. There is no denying the fact that the Executive Council is competent to decide the inter se seniority but the Executive Council has also to abide by the Statute. It could not have given deemed seniority arbitrarily particularly when the earlier Selection Committee had not selected him. By doing so it appears that second Selection Committee applied the rule of thumb. Once the Statute provides that inter se seniority be counted in a particular way then it has to be worked out accordingly. By giving deemed proportion or seniority with retrospective effect the respondent No.2 could not be made senior nor provision of Statute 37 could be given a gobye. Vice Chancellor or for that matter the Executive council could not give deemed seniority or seniority with retrospective effect to respondent No.2 whose first application was rejected on 23rd June, 1994 wherein these very petitioners were selected and made Professors. Thus while answering this question I have no hesitation to hold that petitioners being senior to respondent No.2 as Professors, the appointment of respondent No.2 as Head of the Department on the basis of alleged seniority cannot be sustained. Directions are accordingly given to respondent No.1 to appoint the head of the Department keeping the above observations in view.
16. With these observations, the petition stands disposed of.