Lal Mani vs The State Of U.P. And 3 Others on 15 December, 2023

[Cites 22, Cited by 0]

Allahabad High Court

Lal Mani vs The State Of U.P. And 3 Others on 15 December, 2023

1. This intra-court appeal is filed by the appellant, Lal Mani, against the judgment and order dated 25.08.2023, passed by the Single Judge in Writ-A No.10696 of 2023 (Jeet Lal Saroj Vs. The State of U.P. And 3 Others).

2. The appellant was the respondent in the writ petition filed before the learned Single Judge. He was appointed as 'Assistant Teacher' in 'Physical Education' on 05.10.2006 in L.T. Grade. He sought transfer to Saraswati Shiksha Sadan Intermediate College, Marron, Handia, District Prayagraj (herinafter referred to as 'Institution') and the same was allowed vide order dated 07.01.2016. The appellant consequently joined on 01.02.2016.

3. As against the case of appellant, the respondent/writ petitioner was appointed as Lecturer on substantive basis on 08.12.2010. His appointment was pursuant to the recruitment exercise undertaken by the U.P. Secondary Education Service Selection Board vide Advertisement No.1 of 2009. The respondent/writ petitioner actually joined on 04.01.2011 in a different institution. He too sought transfer, which was allowed on 28.06.2019 and he acutally joined on 04.07.2019.

4. The substantive post of Principal in the institution fell vacant. It transpires that the appellant claimed benefit of two Government Orders dated 28.02.1990 and 25.10.2000 and asserted that he is entitled to the post of Lecturer w.e.f. 05.10.2016, upon completion of ten years' service in the L.T. Grade. The claim of appellant in that regard was intially rejected on 26.11.2018. Certain proceedings were then initiated by the State Scheduled Castes Commission and the Authorities had a change of heart and a fresh order came to be passed on 14.05.2023, granting the benefit of the post of Lecturer to the appellant w.e.f. 05.10.2016. Once that was so, the appellant was treated senior as a Lecturer to the respondent/writ petitioner and was consequently allowed to officiate as Principal. We may note that under the applicable provisions upon transfer of a teacher from one institition to another, he is to be placed at the bottom of the seniority.

5. Aggrieved by the order of the District Inspector of Schools, Prayagraj, the respondent/writ petitioner approached this Court by filing Writ-A No.10696 of 2023 (Jeet Lal Saroj Vs. The State of U.P. And 3 Others), which has been allowed by the learned Single Judge vide judgement and order dated 25.08.2023. Thus aggrieved, the respondent in the writ petition has challenged the judgment and order of learned Single Judge by filing the present special appeal.

6. Shri Rahul Agarwal, learned counsel for the appellant contends that the object of the two Government Orders is to grant benefit of higher pay-scale to a teacher placed in a Lower Grade, consequent upon satisfactory working of specificed length i.e. ten years, wherein he has taught students of a higher class. In order to appreciate the contentions so advanced by learned counsel for the appellant, it would be relevant to take note of the two Government Orders, which are relied upon by the appellant in support of its case. The first Government Order in that regard dated 28.02.1990 is reproduced hereinafter:-

"विषयः- वेतन पुनरीक्षण समिति, उत्तर प्रदेश, 1989 की संस्तुतियों पर लिये गये निर्णयानुसार अशासकीय सहायताप्राप्त उच्चतर माध्यमिक विद्यालयों/इण्टर कालेजों मे शैक्षिक पदों पर पुनरीक्षित वेतनमानो की स्वीकृति।

महोदय, उपर्युक्त विषयक शासनादेश संख्या- 4749/15-8-89/3087/89 दिनांक 4 अक्टूबर, 1989 के पैरा-3 के अनुक्रम में मुझे यह कहने का निदेश हुआ है कि कला, व्यायाम, भाषा, गृह विज्ञान, शिल्प, संगीत, त्रिभाषा, पेंटिग, टंकण, आशुलिपिक तथा क्राफ्ट विषयों को कक्षा 9-10 में पढ़ाने वाले सी.टी. ग्रेड में निर्धारित अर्हता के अधीन नियुक्त अध्यापकों को जब कक्षा 9-10 में पढ़ाते हुए 10 पर्ष पूरे हो जाये तो उन्हें एल. टी. ग्रेड के साधारण वेतनमान 1400-40-1800-द.रो.-50-2300 दिया जाये।

2- उक्त विषयों के कक्षा 11-12 में पढ़ाने वाले एल. टी. ग्रेड के ऐसे अध्यापकों को, जिनकी नियुक्ति निर्धारित अर्हता के अधीन हुई है, जब कक्षा 11-12 में पढ़ाते हुए 10 वर्ष पूरे हो जायें तो उन्हें प्रवक्ता वेतनमान रू० 1600-50-2300-द.रो.-60-2600 दिया जाये।

3- भविष्य में उपर्युक्त विषयों को पढ़ाने वाले अध्यापकों की एल. टी. एवं प्रवक्ता वेतनमान में नियुक्ति के लिए सम्बन्धित व्यवसाय की अर्हता के साथ क्रमशः स्नातक/ स्नातकोत्तर अर्हता निर्धारित की जाती है।

4- ये आदश वित्त (वेतन आयोग) अनुभाग-2 के अशासकीय संख्या-वे.आ. (2) 55/10-90 दिनांक 28 फरवरी, 1990 में प्राप्त उनकी सहमति से जारी किये जा रहे हैं।"

The Second Government Order, relied upon dated 25th October, 2000 is also reproduced hereinafter-

"विषयः अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों के कला, व्यायाम, शिल्प आदि विषयों के अध्यापकों को प्रवक्ता पद की निर्धारित अर्हता रखने पर प्रवक्ता पद नाम दिये जाने के सम्बन्ध में।

महोदय, उपर्युक्त विषयक निदेशालय के प्रत्रांक साख (1)/शि./ 8744/2000-2001 दिनांक 4 सितम्बर, 2000 के सन्दर्भ में मुझे यह कहने का निर्देश हुआ है कि अशासकीय सहायता प्राप्त ऐसे माध्यमिक विद्यालयों (इन्टर कालेजों),जो कला, व्यायाम, भाषा, शिल्प आदि विषयों से इण्टर स्तर तक मान्यता प्राप्त है, मै कार्यरत उक्त विषयों के ऐसे अध्यापकों जो निरन्तर 10 वर्ष से इण्टर में पढ़ा रहे हैं तथा प्रवक्ता वेतनमान प्राप्त कर रहे हैं, को निम्न शर्तों एवं प्रतिबन्धों के अधीन 'प्रवक्ता' पद नाम दिये जाने की श्री राज्यपाल सहर्ष स्वीकृति प्रदान करते हैं।

(1) जिन अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों (इण्टर कालेजों) मे कला, व्यायाम, भाषा, शिल्प, संगीत आदि विषयों में प्रवक्ता के पद सृजित नहीं है, उनमें प्रवक्ता वेतनमान में कार्य करने वाले अध्यापकों को स्नातक श्रेणी के मूलपद को समाप्त करते हुए प्रवक्ता पद में उच्चीकृत किया जायेगा तथा प्रवक्ता वेतनमान प्राप्त अध्यापकों को यदि वे प्रवक्ता पद हेतु निर्धारित अर्हता रखते हों, उपर्युक्तानुसार उच्चीकृत पदों के सापेक्ष नियुक्त कर दिया जायेगा।

(2) प्रवक्ता वेतनमान प्राप्त ऐसे अध्यापक जो प्रवक्ता पद हेतु निर्धारित अर्हता नहीं रखते है, वे पूर्ववत स्नातक वेतनक्रम की भांति शिक्षा प्रदान करते रहेगें तथा उनकी सेवानिवृत्ति के उपरान्त स्नातक श्रेणी का पद उसी तिथि से समाप्त होकर प्रवक्ता पद में परिवर्तिति हो जायेगा।

(3) उपर्युक्त प्रस्तर-1 एवं 3 में वर्णित सुविधा केवल उन्हीं अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों के अध्यापकों की प्राप्त होगी, जिन्हें संबंधित विषय में इण्टर स्तर की मान्यता प्राप्त हो।

(4) सम्बन्धित अध्यापक को शासनादेश संख्या 1121/15-8-90/3087/89, दिनांक 28 फरवरी 1990 के प्रस्तर-3 के अधीन सम्बन्धित व्यवसाय की अर्हता के साथ स्नातकोत्तर उपाधि की अर्हता रखना आवश्यक है।

(5) यह सुविधा केवल उन्हीं अध्यापकों को अनुमन्य होगी जो संबंधित विषयों में कक्षा-11 एवं 12 को पढ़ाते हुए 10 वर्ष की निरन्तर संतोषजनक सेवा पूरी करते हुए प्रवक्ता का वेतनमान 1600-2660 (पुराना) वैयक्तिक रूप से प्राप्त कर चुके हो।

(6) उक्त विषयों के केवल उन्हीं अध्यापकों को प्रवक्ता पद नाम अनुमन्य होगा जो,इस आदेश के जारी होने की तिथि तक निर्धारित अर्हता पूरी कर चुके हो।

(7) प्रवक्ता पद पर कार्यभार ग्रहण करने वाले अध्यापकों की ज्येष्ठता उक्त पद पर कार्यभार ग्रहण करने की तिथि से ही निर्धारित की जायेगी। उनकी पूर्व सेवायें स्नातक श्रेणी के रूप में मानी जायेगी तथा प्रवक्ता पद का कार्यभार ग्रहण करने के बाद स्नातक श्रेणी की सेवाओं का कोई लाभ प्रवक्ता के चयन/ प्रोन्नत वेतनमान दिये जाने हेतु अनुमन्य नहीं होगा।

(8) पदनाम परिवर्तित होने के फलस्वरूप यदि किसी प्रकार का व्यय भार उत्पन्न होगा तो उसका बटन राज्य सरकार अथवा शिक्षा विभाग के मुख्यालय द्वारा नहीं किया जायेगा और न ही इस विषय में किसी प्रकार का अनुदान किसी भी श्रोत से उपब्ध कराया जायेगा।

(9) उपर्युक्तानुसार प्रवक्ता पद की अर्हता/रखने वाले अध्यापकों को पदनाम दिये जाने से पूर्व उनके लिखित अण्डर टेकिंग ले ली जायेगी ताकि ज्येष्ठता निर्धारित आदि के संबंध में बाद में कोई विवाद उत्पन्न न हो।

2. यह आदेश वित्त (वेतन आयोग) अनुभाग-2 के अशासकीय संख्या वे.आ. (2) 1507/दस/2000 दिनांक 25 अक्टूबर 2000 में प्राप्त उनकी सहमति से निर्गत किये जा रहे है।"

7. The core issue involved in the case is with regard to the determination of inter-se seniority between the appellant and the respondent/writ petitioner. The seniority on the post of Lecturer is to be governed by Regulation 3 framed under Chapter-II of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act of 1921'). Regulation 3 (1) being relevant is reproduced hereinafter:-

"3(1). The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions:-

(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;

(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age; .............................."

8. The provisions of the Act of 1921 as well as regulations framed thereunder would continue to govern appointment and promotion in various recognized educational institutions, in so far as they are not inconsistent with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982. Section 32 of the Act of 1982 has cleary pointed out this position and is reproduced hereinafter:-

"32. Applicability of U.P. Act No. II of 1921. - The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act [or the rules or regulations made thereunder] shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher."

9. It is to be borne in mind that appointment and promotion on the post of Assistant Teacher and Lecturer in an institution recognized under the Intermediate Education Act, 1921 is regulated by the U.P. Secondary Education Service Selection Board Act, 1982. Section 16 of the Act of 1982 is reproduced hereinafter:-

"16. Appointment to be made only on the recommendation of the Board. - (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of ["Sections 12, 18, 21-B, 21-C, 21-D, 21-E, 21-F, 21-G, 33, 33-A, 33-B, 33-C, 33-D, 33-F and 33-G"], every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board.

Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply.

Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.

[Provided also that the dependent, of a teacher or other employee of an Institution dying-in-harness who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under sub-section (4) of Section 9 of the said Act.] (2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."

10. For any appointment to be lawfully made in an educational insitituon recognized under the Act of 1921 it would have to be consistent with the provisions of the Act of 1982. Appointment under the Act of 1982 would include promotion for which separate procedure is prescribed under Section 12 of the Act of 1982 read with Rule 14 of the Rules of 1998. The procedure for promotion specified under the Act of 1982 read with Rules of 1998 unless are followed, no substantive promotion to the post of Lecturer can be said to have been made. It is to be noticed that any promotion made in an institution without following the procedure prescribed under the Act of 1982 would be void by virtue of Section 16(2) of the Act of 1982.

11. The above statutory scheme is specific and has to be borne in mind when this Court is called upon to interpret the provisions of the government order issued by the State Government. Government Order dated 28.02.1990 provides that the teacher appointed on the specified post in C.T. Grade and if has been teaching students of Classes 9th and 10th , then upon completion of ten years of such service, he would become entitled to salary in the pay-scale of an L.T. Grade Teacher. Similarly, L.T. Grade teachers possessing requisite qualification when is teaching students of Classes 11th and 12th for ten years would become entitled to salary in the pay-scale of a Lecturer. The Government Order of 28.02.1990 therefore merely extends the benefit of a higher pay-scale to a teacher otherwise having qualification, if he has been teaching on such higher posts for more than ten years. Similarly, the Government Order dated 25.10.2000 states that such teachers, who have been teaching for the last ten years in intermediate section and are receing salary in the Lectureres' Grade, would be entitled to the benefit of designation of the post of Lecturer. Clause 6 of the Government Order dated 28.02.1990 indicates that its benefit was to be extended to such teachers, who had requisite qualification on the date of issuance of the Government Order dated 25.10.2000. It would be worth noticing at this stage that a subsequent Government Order has also been issued on 06.10.2015, which interprets the aforesaid Government Orders. Paragraph Nos.2 and 4 of this Government Order is relied upon by leanred counsel for the appellant, which are reprouduced hereinafter:-

"2. प्रश्नगत शासनादेश दिनांक 30 अक्टूबर, 2000 में प्रावधान किया गया कि जिन अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों (इण्टर कालेजों में) कला, व्यायाम, भाषा, गृहविज्ञान, शिल्प, संगीत, त्रिभाषा, पेंटिग, टंकण, आशुलिपिक, क्रांफ्ट आदि विषयों में प्रवक्ता के पद सृजित नहीं है, उनके प्रवक्ता वेतनमान मे कार्य करने वाले अध्यापकों को स्नातक श्रेणी के मूल पद को समाप्त करते हुए प्रवक्ता पद में उच्चीकृत किया जाय तथा प्रवक्ता वेतनमान प्राप्त अध्यापकों को यदि वे प्रवक्ता पद हेतु निर्धारित अर्हता रखते हो, उपर्युक्तानुसार उच्चीकृत पदों के सापेक्ष नियुक्त किया जायेगा। प्रश्नगत शासनादेश में उल्लेख है कि यह सुविधा केवल उन्हीं सहायक अध्यापकों को अनुमन्य होगी जो सम्बन्धित विषय में कक्षा-11 एवं 12 को पढ़ाते हुए 10 वर्ष की निरन्तर संतोषजनक सेवा पूरी करते हुए प्रवक्ता का वेतनमान 1600-2660 (पुराना) वैयक्तिक रूप से प्राप्त कर रहे हो।

4. उल्लेखनीय है कि कतिपय जनपदों के जिला विद्यालय निरीक्षकों द्वारा वर्ष 1996 के बाद नियुक्त एल० टी० ग्रेड के व्यायाम शिक्षकों को, उनकी 10 वर्ष की सेवा के आधार पर वित्त एवं लेखाधिकारी का परामर्श प्राप्त कर, प्रवक्ता पदनाम अनुमन्य किया गया है। उपरोक्त के फलस्वरूप प्रवक्ता पद पर मौलिक रूप से चयनित/पदोन्नति प्राप्त प्रवक्ता, एल० टी० ग्रेड के उन शिक्षकों से कनिष्ठ हो रहे हैं, जिन्हें प्रवक्ता पदनाम अनियमित रूप से अनुमन्य किया गया है।"

12. The thrust of appellant's submission is that once benefit of pay-scale and designation of the post of Lecturer is accorded to the teacher by virtue of his having taught in intermidiate section for ten years, the concerned teacher would be entitled to become a Lecturer and consequently would be entitled to seniority on the post of Lecturer.

13. The argument advanced on behalf of the appellant is strongly opposed by Shri R. K. Ojha, learned Senior Counsel assisted by Shri Shivendu Ojha, learned counsel for the respondent/writ petitioner and Shri Ramesh Chandra Dwivedi, learned counsel for the Committee of Management. The respondent/writ petitioner contendes that merely on acccount of grant of higher pay-scale or designation, the appointment of appellant would not be converted into a substantive appointment on the post of Lecturer, which alone would confer benefit of seniority on such teacher.

14. We have already indicated that the aforesaid Government Orders would have to be read in the context of the statutory scheme, which specifies the manner and mode of appointment of a teacher as well as the promotion to a higher post. The Act of 1982 as well as Rules framed thereunder specifies the procedure for such substantive appointment and promotion. It is admitted that the appellant has not been substantively promoted to the post of Lecturer for which specific provision has been laid down in Rule 14 of the Rules of 1998, which is reprouduced hereinafter:-

"14. Procedure for recruitment by promotion. - (1) Where any vacancy is to be filled by promotion, all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the Trained graduates grade, as the case may be, without their having applied for the same.

Note.- For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit.

(3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the pro forma given in Appendix 'A'.

(4) Within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from die record of his office and forward the list to the Joint Director.

(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.

(6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorisation under its resolution issue the appointment order in theproforma given in Appendix 'F' to such candidate."

15. In view of Section 16 of the Act of 1982, any substantive appointment or promotion unless is made in accordance with the provisions of the Act of 1982 or the Rules framed thereunder, such appointment or promotion would be void by virtue of Section 16 of the Act of 1982. The Government Orders therefore will have to be treated as granting benefit, which is personal to the teacher concerned.

16. The Government Order of 25th October, 2000 upgrades the post of L.T. Grade teacher in specified circumstances and also grants benefit of designation on the post of Lecturer as also seniority from the date a person joins on the post of Lecturer. The benefit in that regard is personal to the teacher concerned inasmuch as the post of L.T. Grade teacher would be treated to have been abolished. Such promotion cannot be treated to be a substantive promotion in the grade and cadre of Lecturer since the procedure for appointment to the post of Lecturer as per the Act of 1982 is not followed. Such promotion at best can be treated personal in nature to the teacher concerned against an ex-cadre post or else the Government Order itself would become inconsistent with the Act of 1982. The seniority of teacher who is granted the benefit of personal promotion under the Government Order dated 25th October, 2000 therefore would have to be separately maintained. The benefit of seniority in the cadre of Lecturer therefore cannot be granted under Regulation 3 framed under Chapter-II to the Act of 1921.

17. In Dr. Rashmi Srivastava Vs. Vikram University and others, 1995(3) SCC 653 a similar issue came up for consideration before the Apex Court. Claim of seniority between direct recruits and those promoted under the merit promotion scheme was examined. In paras 37 and 38 of the judgment, the Apex Court observed as under:-

"37. A resume of relevant provisions of the merit promotion scheme and the relevant provisions of the Vikram University Act (sic M.P. Vishwavidyalaya Adhiniyam, 1973) to which we have made reference earlier clearly shows that when the Act was enacted in 1973 the State Legislature had not contemplated any promotion of a Lecturer as Reader or Reader as Professor as the case may be. All the relevant ordinances and statutes will therefore have to be read in that light. It is not possible to agree with the contention of the learned counsel for appellants that Section 49 as enacted can take in its sweep even departmental promotees. A mere look at Section 49 shows that the Members of the Committee of Selection as contemplated by sub-section (4) of Section 49 have to investigate the merits of the various candidates and to recommend to the Executive Council the names if any, of persons whom they consider suitable for the posts, arranged in order of merit. Sub-section (5) mentions that out of the names so recommended under sub-section (4) the Executive Council shall appoint persons in order of merit. This clearly contemplates an open market recruitment procedure by way of direct recruitment and candidates selected will have to be appointed in order of merit. It is obvious that there would be no occasion to consider the question of inter se merit of a departmental promotee and a direct recruit. It is also pertinent to note that in the year 1973 the subsequent merit promotion scheme of 1982 would never have been under contemplation of the Legislature. It must therefore be held on a conjoint reading of the relevant provisions of the Act that only one source of recruitment of University teachers namely, Professors and Readers and even of Lecturers is contemplated and that source is by way of direct recruitment. If that is so and if under merit promotion scheme as recommended by the Commission which was adopted by Respondent 1 University, any departmental candidate is to be promoted, he would be so promoted dehors Section 49 and would obviously be an ex cadre Reader or Professor as the case may be. Once that happens it would be obvious that there would be no occasion to fix the inter se seniority of directly recruited Readers and Professors who are holding cadre posts and ex cadre merit promoted Readers and Professors who would stand outside the cadre. The first respondent by its impugned decision which was quashed by the High Court in the judgment under appeal tried to fuse the inter se seniority of both these classes of employees. And that itself amounted to treating unequals as equals. It clearly offended the provisions of Articles 14 and 16(1) of the Constitution of India. Unless Section 49 is suitably amended and a separate source of recruitment by way of internal promotion is contemplated by the Act there would remain no occasion of undertaking any exercise of fixing inter se seniority between ex cadre employees and cadre employees. It is not in dispute between the parties that neither the Act nor any ordinances or statutes of Respondent 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 Dhavan appearing for the intervenors 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 should 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 that 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 University Acts concerned 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 Universities concerned to fuse the cadre employees with ex cadre employees and to prepare a combined seniority list on that basis.

38. 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 University Act concerned 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 Readers or Professors as the case may be. They would remain ex cadre employees who cannot claim any inter se seniority with direct recruits forming the cadre concerned. It is not possible to agree with the contention of Shri Bobde and Dr Dhavan that under the merit promotion scheme though the promotions were personal, to that extent there was a temporary extension of the cadre of Reader or Professor as the case may be or that they were special promotees as Dr Dhavan would like to have it. 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 will it create any vacancy in the lower cadre from which he or she was promoted. The workload has to be so distributed as not to require any additional staff. Dr Dhavan 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 the cadre strength of Reader or Professor as the case may be. We entirely concur with the reasoning adopted by the High Court while considering the relevant clauses of the merit promotion scheme when it took the view that Readers and Professors promoted under the scheme were not entitled to be included in the seniority list of directly recruited Readers and Professors. Reliance placed by learned counsel for appellants on Statute 16 is also of no avail to the appellants for the simple reason that Statute 16 deals with seniority of teachers of the University. This statute is promulgated under Section 35(o) of the Act. Section 35(o) of the Vikram University Act (sic M.P. Vishwavidyalaya Adhiniyam, 1973) deals with the mode of determining seniority for the purpose of the Act. Consequently it will have to be read with Section 49 meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49 how his seniority is to be determined can be decided in the light of the relevant statute framed under Section 35(o). When we turn to Statute 16 we find that as per clause (2) thereof the seniority of Professors, College Professors, Readers, Associate Professors or Lecturers shall be determined in accordance with the length of continuous service of such person in the cadre concerned taken together with length of continuous service which is equivalent to or superior to the cadre concerned. It was submitted by learned counsel for the appellants that the word cadre as employed by Statute 16(2) is used in a loose sense. It is difficult to agree. Statute 16(2) read with Section 35(o) and Section 49 leaves no room for doubt, that all those Readers and Professors who were recruited under Section 49 as direct recruits and who enter the cadres of Professors and Readers as the case may be shall have their seniority determined in accordance with length of service in their cadres concerned. As merit promotee Reader or Professor is outside the cadre there is no question of Statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to directly recruited Professors or Readers. It is true that as decided by Respondent 1 University, the same Selection Committee which directly recruits Professors and Readers under Section 49(2) deals with the question of granting merit promotions to the Lecturers concerned as Readers and Readers as Professors. But to that extent the machinery or infrastructure available under Section 49(2) for directly recruiting teachers was made available for deciding the eligibility of departmental candidates for merit promotion but that would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 was suitably amended. That has not been done till now. In this connection, we can profitably refer to the decision of this Court in the case of Bal Krishna Agarwal (Dr) v. State of U.P. [(1995) 1 SCC 614 : 1995 SCC (L&S) 356 : JT (1995) 1 SC 471] In that case a Division Bench of this Court was concerned with the question whether Professors promoted by Allahabad University governed under Uttar Pradesh State University Act, 1973 could claim seniority vis-à-vis directly recruited Professors. Under Section 31 a merit promotion scheme adopted by Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31-A in the University Act with effect from 10-10-1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in the University was created by State Legislature. But that section which created a distinct source of recruitment by promotion was effectively brought into force from 10-10-1994. The appellant before this Court was directly appointed as Professor on 9-11-1984 while the contesting Respondents 4 and 5 were promoted as Professors under the scheme by Government Orders dated 12-12-1983 and 25-2-1984. These respondents were treated as senior to the appellant before this Court. He unsuccessfully challenged the said fixation of inter se seniority before the High Court, as the High Court took the view that the appellant had to be relegated to the alternative remedy available under Section 68 of the Act. In appeal pursuant to leave granted by this Court, S.C. Agrawal, J. speaking for the Division Bench took the view that the appellant was entitled to be treated as senior to the promotee Professor as Section 31-A was not on the statute book when Respondents 4 and 5 were promoted and therefore their promotions could be treated as valid only from 21-2-1985 when Section 31-A was enforced. Before that date the appellant had already entered the cadre of Professors on 11-11-1984 and therefore he had to be treated as senior to Respondents 4 and 5. In para 13 of the report the following observations were made in this connection: (SCC pp. 621-22) "We are of the opinion that in view of the provisions contained in Section 31-A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21-2-1985, promotion under the Personal Promotion Scheme could not be made prior to 21-2-1985. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10-10-1984. But Section 31-A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2-1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985 and it has to be treated to have been made with effect from 21-2-1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis."

In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. It is therefore to be held that till appropriate amendments are effected in the Universities Act concerned on the same lines as Section 31-A of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre of Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such ex cadre promotees and the directly recruited Readers or Professors who form the cadre concerned."

(emphasis supplied by us)

18. This Court in Bharti Roy Vs. Deputy Director of Education-II, Kanpur and others, 2008 (2) ADJ 134, has also taken the view that benefit of seniority cannot be granted unless the appointment or promotion is in accordance with the Regulations and the Act of 1982. After referring to Division Bench judgment of this Court in Madan Gopal Agrawal and others Vs. The District Inspector of Schools, Bijnor and others, 1996 (3) ESC 202, this Court observed as under in paras 26 to 29:-

"26. Same view was taken by another Hon'ble Single Judge (Dr. B.S. Chauhan, J.) in Madan Gopal Agrawal and Ors. v. The District Inspector of Schools, Bijnor and Ors. 1996 (3) ESC 202 (All). However, this Court also held that grant of LT grade under the aforesaid Government Orders is personal and it does not mean posting in LT grade, inasmuch as, when such a person would retire, it would result in a vacancy in CT grade and not in LT grade since the incumbent cannot be said to hold the post of Assistant Teacher in LT grade. The observations of this Court are as under:

"7. ... under the different Government Orders issued from time to time the teachers working in C.T. Grade become eligible to be considered for L.T. Grade as a personal pay scale. This does not mean the posting in L.T. Grade and the post which becomes vacant after the retirement of such a teacher would not be deemed to be a vacant post in L.T. Cadre nor such a person can take benefit on the post of the L.T. Grade for promotion and seniority as he is not holding the post in Grade in L.T. Grade vide Rashmi Srivastava v. University , Virendra Pandey v. State of U.P. 1994 (24) ALR (H) 19, Writ Petition No. 30754 of 1991 Madljuri Devi v. Regional Inspectress of Girls Schools, decided on 20.3.1995 and Vipin Kumar v. District Inspectress of Schools 1993(2) Educational and Service Cases 456.

8. It is not to be treated as their promotion in L. T. Grade till they are promoted to the post in L.T. Grade strictly in accordance with law."

27. Same view has been expressed by another Hon'ble Single Judge (Hon. Ashok Bhushan, J.) in Civil Misc. Writ Petition No. 39731 of 2000, Ansan Lal Jha v. District Inspector of Schools and Ors. decided on 13.2.2006.

28. A pari material Government Order was issued on 28.2.1990 for grant of Lecturer Grade to those teachers who were working in L.T. Grade and had completed ten years of service and were imparting education to the students of XI and XII class continuously for ten years. The incumbent was granted Lecturer's Grade pursuant to the Government Order dated 28.2.1990 and he raised a similar contention which came up for adjudication before a Division Bench of this Court in Vipin Kumar v. District Inspector of Schools (1993) 3 UPLBEC 1900 and in paragraphs No. 6, 9 and 13 the Court held:

"6. ...A teacher may be given lecturer's pay scale even though there is no vacancy to the post of lecturer. The grant of lecturer's pay scale is not correlated with the filling of vacancy in a particular post. In a college where teachers are appointed in L. T. grade and they are given lecturer's pay scale, then in that situation there would not occur any vacancy to the post of lecturer and on the other hand the post may not exist but the teachers are given lecturer's pay scale. The word "grade" has different connotations in the context of a particular statute."

"9. The word "grade" used in Para 4(2) of the Removal of Difficulties Order, 1981, Rule 9 of U.P. Secondary Education Service Commission Rules, 1983 and Regulation 6 of Chapter II of Intermediate Education Act, 1921 must be taken as "post" of lecturer. A teacher, who is working in L T. Grade is to be promoted to the post of lecturer's grade in the sense that he is to be promoted to the post of lecturer in an institution. A teacher may be given lecturer's pay scale but he may not be given the post. Unless he is given a post the mere fact that he has been given lecturer's pay scale will not be taken as to have given him the post of lecturer unless he is duly promoted to the said post in accordance with the provisions of a Statute."

"13. The seniority of a teacher of a lecturer's grade is also to be considered from the date of appointment to the post in lecturer's grade and not from the date of payment of lecturer's pay scale. Regulation 3 of Chapter II of Regulations of the Intermediate Education Act contemplates seniority from the date of appointment and the same principle has to be made applicable in case of persons appointed on ad hoc basis. The seniority cannot be fixed on the basis of grant of pay scale given by the Government under its own orders."

29. In view of the aforesaid authorities which are binding on this Court as well and even otherwise, I am also in respectful agreement with the law laid down therein, it is evident that the first petitioner even if treated to have been granted L.T. grade w.e.f. 1.7.1992 after completion of ten years of service in C.T. Grade, that would not entitle her to claim seniority on the post of Assistant Teacher (L.T. Grade) unless she is appointed or promoted in accordance with the Regulations and 1982 Act on the said post. Neither there is any averment in any of the petitions filed by the first petitioner nor any order is available on record to show that the first petitioner was ever promoted on the post of Assistant Teacher (L.T. Grade) in accordance with 1982 Act read with Regulations framed under 1921 Act. In these circumstances, I am clearly of the view that she could not have been granted benefit of seniority on the post of Assistant Teacher (L.T. Grade) and could not have been placed above the second petitioner who admittedly was appointed directly as Assistant Teacher (L.T. Grade) and was regularised on the said post on 27.1.1994. Thus, the entire claim and dispute raised by the first petitioner loses its ground resulting in vitiating the order dated 12.7.2006 passed by Joint Director of Education, Kanpur Region whereby she has been declared first petitioner senior to the second petitioner ignoring the exposition of law on the subject in its entirety."

19. Since the promotion of the appellant has not been substantively made on the post of Lecturer as such he is not entitled to the benefit of seniority on the post of lecturer. The substantive appointment of the appellant would continue to be that of L.T. Grade teacher notwithstanding the grant of higher pay-scale as well as the designation, which remains personal to the appellant concerned. The order passed by the D.I.O.S., Prayagraj granting benefit of post of Lecturer to the appellant has thus rightly been set aside by the learned Single Judge. Any benefits, which are granted to the appellant by virtue of the aforesaid Government Orders would remain personal to the appellant concerned and would not amount to his having been appointed substantively on the post of Lecturer.

20. It is however made clear that any benefit of pay-scale or designation granted to the appellant relying upon the aforesaid Government Orders would not be withdrawn and would remain personal to the appellant concerned.

21. The order of D.I.O.S., Prayagraj dated 14.05.2023 as well as the order passed by learned Single Judge stands modified in terms of the above directions.

22. Subject to the above observations and submissions, the special appeal stands disposed of.

Order Date :- 15.12.2023 Zafar

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