Rama Kant vs State Of U.P. And 6 Others
2014 Latest Caselaw 1129 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                      Court No. - 3
 

 
Case :- WRIT - A No. - 21315 of 2014
 

 
Petitioner :- Rama Kant
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Barrister Singh,Ashok Khare
 
Counsel for Respondent :- C.S.C.,Vivek Verma,Y.K. Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajan Roy,J.

Heard Shri Ashok Khare, learned senior counsel assisted by Shri Barrister Singh, for the petitioner, Shri R.K. Ojha, leaned senior counsel assisted by Shri Yogesh Kumar Singh for respondent no.6 and Shri Manoj Kumar for respondent no.7.

A counter affidavit has been filed on behalf of respondent no.6 by Shri R.K. Ojha along with Shri Yogesh Kumar Singh.

Notice on behalf of respondent no.1 has been accepted by learned Standing Counsel whereas notice on behalf of respondents no.2 to 4 has been accepted by Shri Vivek Verma.

This writ petition questions the validity of the order of the Chancellor, whereby a representation in relation to the dispute of seniority between the petitioner and respondents no.6 and 7 has been decided holding that the seniority be determined, vis-a-vis, petitioner and respondents no.6 and 7 in terms of section 17.14(1) of the Statutes of the Veer Bahadur Singh Purvanchal University, Jaunpur.

The challenge raised has been answered by the contesting respondents by filing a counter affidavit and supporting the impugned order. Learned counsel have proceeded to argue the matter finally as such the petition is being disposed off at this stage itself.

Shri Ashok Khare, learned senior counsel for the petitioner has advanced his submissions contending that seniority has to be determined in terms of Statute 17.10 and the Chancellor has committed a manifest error by invoking the provisions of Statute 17.14 (1), which is not applicable in the present case. He submits that some letter of the Director of Higher Education was obtained on 14.2.2014 in order to arrive at the conclusion that the seniority has to be determined in accordance with the merit/select list prepared by the Higher Education Service Commission without any opportunity to contest the said material. Contention of Shri Khare is that the procedure adopted is in violation of the principles of natural justice, in as much as the petitioner was not given any opportunity to controvert the said letter dated 14.2.2014.

Shri Khare further contended that even otherwise, the long standing seniority which has been determined by the Principal of the institution cannot be overlooked and upturned by the Chancellor. It is urged that the Principal of the institution had circulated a seniority list on 11.8.2008 in which the petitioner was shown to be senior.

After being selected the petitioner was issued a letter of placement on 22.10.2001 and in pursuance thereof, he was issued a letter of appointment on 2.11.2001 and he joined on 2.11.2001 itself. As against this, respondent no.6 was issued a letter of placement on 23.10.2001 but he joined on 3.11.2001, whereas the respondent no.6 Dr. Sanjay Kumar Saroj joined on 2.11.2001. Thus, the seniority so declared continued, and the petitioner was shown to be senior having been appointed and having joined in the institution prior in point of time to the contesting respondents. Learned counsel, therefore, submits that as per Statute 17.10, the date of joining after substantive appointment would be relevant and the petitioner having joined earlier would be senior. Shri Khare, therefore, submits that the order of the Principal considering and determining the seniority by his letter dated 11.8.2008 does not suffer from any infirmity. Shri Khare, then contends that a representation was filed by the contesting respondents no.6 and 7 before the University on 2.10.2008 whereupon a report was called for from the Principal of the institution who submitted his report on 23.9.2009 reiterating the seniority as determined by him vide his order dated 11.8.2008.

Shri Khare has invited the attention of the Court to the order dated 5.10.2009 issued by the Veer Bahadur Singh Purvanchal University, Jaunpur a copy whereof has been filed as Annexure-16 to the writ petition, by which the seniority earlier determined by the Principal of the institution was communicated. Shri Khare submits that the said document is determination of the seniority by the University which was communicated both to the petitioner and the respondents no.6 and 7. Thus, according to him, the said determination having not been subjected to challenge, closes the issue of seniority which has become final in 2009 and he, therefore, submits that the issue of seniority cannot be reopened after about four years, as long standing seniority cannot be disturbed.

Learned counsel for the petitioner further contended that apart from this, the issue relating to the placement of the candidates after selection is made in accordance with the U.P. Higher Education Services Commission Act, 1980. He submits that the Statutes which have been framed do not substitute the word 'selection committee' with the word 'selection commission'. He submits that Statute 17.14 (1) has been framed in a different context, namely, the selections held under the Statute and, therefore, if construed and interpreted accordingly, it would not be applicable in the case of the petitioner, in as much as the placement of the candidate after selection is a process which is undertaken by the various authorities under the Commission Act, 1980 and in such circumstances, it is the date of actual joining after placement that is to be considered for determining the seniority, inter se, even if the selection of the candidates has been held simultaneously by the Selection Board. He further submits that this is not a selection by a selection committee of the degree college itself or the University under the Statutes, but it is a selection that has been undertaken for the entire State for different degree colleges by the Commission under the 1980 Act.

In such circumstances, a provision of seniority, as contained in Statute 17.14 (1) cannot be made the basis of seniority so as to construe a person standing higher in merit to be senior even if he has been placed later on. He then contended that such a provision should be, accordingly, interpreted and interference is called for with the impugned order passed by the Chancellor.

Shri R.K.Ojha, learned senior counsel for respondent no.6 and the learned counsel for the University contended that the determination has to be made only on the basis of merit list prepared in the selection process drawn by the Commission, and in such circumstances the Chancellor has not committed any error. Shri Ojha further submits that so far as the merit of answering respondent no.6 Dr. Omkar Singh is concerned, there is no dispute that the petitioner was at serial no.50 in the merit list of the general candidates whereas answering respondent no.6 was at serial no. 39 in that very list of the general category. The submission further is that the petitioner, even though belongs to other backward category (OBC), yet he was selected in the general category and placed accordingly. In the circumstances, when the select/merit list is undisputed, no other provision is applicable and it is only Statute 17.14 (1) of the Statutes, which is applicable. The contention, therefore, is that the impugned order does not suffer from any infirmity, much less a legal infirmity, so as to warrant interference by this Court under Article 226 of the Constitution of India.

It would be relevant to mention here that the institution was affiliated to the Veer Bahadur Singh Purvanchal University when this dispute arose between the parties and the determination of the dispute has to be, therefore, undertaken in terms of the statutes of the said University. It is also further relevant to mention that such statutes for determining seniority exist in the Mahatma Gandhi Kashi Vidyapeeth University which are at pari materia with the same where the institution is now affiliated after 2009.

Statutes 17.10 and 17.14(1) of the Veer Bahadur Singh Purvanchal University, Jaunpur, as relied upon by the learned counsel for the petitioner, are extracted hereinbelow :

"17.10&&&

¼x½ lEc+) egkfo|ky;ksa ds izkpk;ksZs vkSj v?;kidksa dh T;s"Brk ekSfyd #i ls fu;qDr fd;s tkus ds fnukad ls vuojr lsok dky ds vuqlkj vo/kkfjr dh tk;sxhA

¼?k½ izR;sd gSfl;r ls ¼mnkgj.kkFkZ izkpk;Z ;k v?;kid ds #i esa½ dh x;h lsok dh x.kuk ekSfyd fu;qfDr ds vuqlkj dk;Z Hkkj xzg.k djus ds fnukad ls dh tk;sxhA

17.14(1) tc nks ;k vf/kd O;fDr ,d gh le; esa ,d foHkkx esa ;k ,d gh fo"k; ds fy, v/;kid fu;qDr fd;s tka;s rks mudh lkis{k T;s"Brk ml vf/kekurk ;k ;ksX;rk dze esa] ftlesa p;u lfefr }kjk muds uke dh flQkfj'k dh x;h Fkh] vo/kkfjr dh tk;sxhA"

Having heard the learned counsel for the parties and having perused the documents, that have been filed on record, and having considered the submissions raised by the learned counsel for the parties, we are of the opinion that there does not appear to be any dispute with regard to the fact so far as the selection, date of appointment and date of joining is concerned. There is no challenge raised in the writ petition to the fact that the respondent no.6, Dr. Omkar Singh stood higher in merit than the petitioner in the same selections, and this is also evident from a bare perusal of the impugned order which records that respondent no.6 is at serial no.39 in the merit list of the general category and the petitioner is at serial no.50 in the same list of general category as prepared by the Selection Board.

The question is as to whether it is the date of placement or the date joining that would be relevant for the purpose of determination of seniority. There is no other rule or provision contained under the 1980 Act so as to consider the seniority inter se of teachers appointed in the degree colleges that has to be determined in terms of the Statutes that have been framed by the University to which the college is affiliated. There is no dispute that the Statutes, referred to above,are applicable and the issue has to be answered accordingly considering as to whether Statute 17.10 would apply or statute 17.14(1) of the Statutes would be applicable for determination of seniority.

In our considered opinion, the contention of Shri Khare, as noted above to the effect that the seniority of the contesting private parties is to be determined as per statute 17.10 and not 17.14(1), and that the placement after the merit list is prepared at the time of selection could not be the determining factor, cannot be accepted, as, in the instant case, all the contesting private parties, including the petitioner, were appointed on the same nature of post of lecturer in the same subject of Education (B.Ed.) on the basis of the same selection and in view of the clear and unambiguous language of statute 17.14(1) in such an eventuality, the seniority inter se of such persons appointed at the same time has to be determined as per merit in the order in which their names find mention in the merit list as recommended by the Selection Commission. In view of the provisions of Statute 17.14(1), no other conclusion can be reasonably drawn.

The provisions of Statute 17.10 may be applicable in cases relating to appointments based on separate selections but it would not apply where appointments are made on the basis of the same selection on the same post in the same subject. In such cases, Statute 17.14(1) will apply and the seniority will be determined accordingly. The date of placement and joining are, therefore, an absolutely irrelevant consideration for the purpose of determining the seniority in the instant case. This being the undisputed factual position, the only conclusion which can be drawn is that the respondent no.6 is senior to the petitioner in terms of Statute 17.14(1).

So far as the contention of Shri Khare, that the seniority declared by the Principal that stood affirmed by the Vice Chancellor vide his order dated 5.10.2009, which order was not challenged by the private respondent, had attained finality and it could not be reopened after affiliation of the college in question to Mahatma Gandhi Kashi Vidyapeeth, Varanasi after a lapse of 3-4 years, is concerned, the same is misconceived, for the reason that the seniority as determined by the Principal of the college on 11.8.2008 was challenged by the aggrieved persons, including the respondent No.6 vide their appeal dated 2/3.10.2008 which was not considered by the Vice Chancellor of Veer Bahadur Purvanchal University, Jaunpur.

It appears that a letter dated 30.7.2009 was submitted by the respondent no.7, Dr. Sanjay Kumar Saroj to the Chancellor regarding appointment on the vacant post of the Head of Department after the superannuation of the then incumbent, whereupon the Chancellor vide his letter dated 21.8.2009 requested the Vice Chancellor of Veer Bahadur Singh Purvanchal University, Jaunpur to look into into the matter and in pursuance thereof the University vide its letter dated 7.9.2009 requisitioned the necessary information regarding the determination of seniority between the respondent no.6 and 7.

In response thereto, the Principal of the college communicated the seniority position of B.Ed. lecturers of the college vide his letter dated 23.9.2009. Based on the said communication a letter dated 5.10.2009 was issued to the respondent no.7 informing him about the seniority position.

Thus the letter dated 5.10.2009 is not a decision by the Vice Chancellor on the appeal preferred by the aggrieved persons, as referred above, but, in fact, it is only a communication of the seniority position as determined by the Principal of the college. The letter dated 5.10.2009 was issued merely communicating the contents of the letter dated 23.9.2009 sent by the Principal of the college.

A bare perusal of the letter dated 5.10.2009 leaves no doubt that there is no determination of any 'lis' relating to the seniority dispute by the Vice Chancellor of the University. It does not decide the grievance of seniority on the representation of the respondent No.6, dated 02.10.2008.

Under the relevant statute 17.16, in the event of any dispute relating to the seniority of teachers (other than Principal), the same shall be decided by the Principal of the college who shall assign reasons for his decision. Any teacher aggrieved by such decision of the Principal, may appeal to the Vice Chancellor. If the Vice Chancellor disagrees with the Principal, then he shall give reasons for such disagreement.

In view of the above provision, it is quite apparent that the appeal of the aggrieved persons against the decision of the Principal dated 11.8.2008 had to be decided by the Vice Chancellor of the Veer Bahadur Singh Purvanchal University, but no such decision was taken.

In these circumstances, after the affiliation of the college to the Mahatma Gandhi Kashi Vidyapeeth, Varanasi, the representation/appeal which was pending had to be decided by the Vice Chancellor of the Mahatma Gandhi Kashi Vidyapeeth. The aggrieved persons, therefore, submitted a representation dated 23.10.2009 to the Vice Chancellor of the aforesaid University.

The Vice Chancellor constituted a committee to submit its report in respect of the seniority dispute. After submission of the report of the Committee, the Vice Chancellor decided the seniority dispute and the said decision was communicated vide order dated 13.7.2013. Being aggrieved by this order of the Vice Chancellor dated 13.7.2013, a reference was made under section 68 of the State Universities Act, 1973 to the Chancellor of the University by respondent Singh, Dr. Omkar Singh. It is on this reference that the Chancellor has passed an order on 19.3.2014, which is impugned in the instant writ petition.

In view of the chronology of the events mentioned above, it is amply clear that the letter dated 5.10.2009 is not a decision by the Vice Chancellor, Veer Bahadur Singh Purvanchal University as contemplated under Statute 17.15 and in fact, the appeal of the aggrieved person dated 2/3.10.2008 remained pending and it is only on 13.7.2013 that the decision was taken by the Vice Chancellor.

Thus, it cannot be said that the seniority dispute had become final as the same was under consideration and it is only on 13.7.2013 on the passing of the order by the Vice-Chancellor that the dispute was decided. The aggrieved persons had a cause of action to maintain the reference before the Chancellor against the order dated 13.7.2013 under section 68.

The issue raised that long standing seniority cannot be reopened after more than four years is an argument against facts as on record as the decision of Vice Chancellor had arrived only on 13.07.2013 against which the reference reached the Chancellor whose decision is impugned herein.

In the circumstances, the petitioner is unable to dislodge the claim of the respondent no.6 and, therefore, calling upon the respondent authorities to redetermine the seniority position between him and the contesting respondents in terms of Statute 17.10, or otherwise does not arise. There is no merit in the writ petition and the same is, therefore, dismissed.

Order Dated:-23.04.2014

sc/-