Allahabad High Court
Dr. Divya Mehrotra vs King George Medical University ... on 29 August, 2022
Bench: Attau Rahman Masoodi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4
Case :- WRIT - A No. - 5308 of 2022
Petitioner :- Dr. Divya Mehrotra
Respondent :- King George Medical University Lucknow Thru. Registrar And 4 Others
Counsel for Petitioner :- Apoorva Tewari,Parth Anand
Counsel for Respondent :- Shubham Tripathi
Hon'ble Attau Rahman Masoodi,J.
Sri K.M. Shukla has filed his Vakalatnama on behalf of opposite party no.5 and Sri Apoorva Tewari, learned counsel for the petitioner has filed affidavit of service. The same are taken on record.
The preliminary objection raised by the opposite parties as recorded in the order dated 24.08.2022 in view of the judgment relied upon by the petitioner, is overruled.
Heard Sri Apoorva Tewari,learned counsel for the petitioner, Sri Shubham Tripathi,learned Counsel for the University and Sri K. M. Shukla, learned counsel appearing on behalf of opposite party no.5.
The petitioner by means of this petition has questioned the correctness of the decision arrived at by the Executive Council under Agenda Item no.5 in its 42nd regular meeting held on 08.06.2020 which is based on the recommendation of Seniority Committee forwarded on 18.04.2020. In furtherance thereof, the Registrar of King George's Medical University, Lucknow has issued a consequential order dated 15.06.2020 whereby the inter-se seniority of the petitioner vis-a-vis opposite party no.5 has been determined. The impugned order places the opposite party no.5 above the name of the petitioner in the grade of Professors working in the Dental faculty of the King George's Medical University, Lucknow.
The relevant facts for the purpose of determination of inter-se seniority are summarized in the chart as under:-
Sl. No
Name
Post
Date of appointment
1.
Dr. Diya Mehrotra
Lecturer/Assistant Professor
14.03.2002
2.
Dr. Nand Lal
Assistant Professor
14.03.2002
3.
Dr. Diya Mehrotra
Associate Professor
14.03.2006
Dr. Nand Lal
Associate Professor
14.03.2006
5.
Dr. Diya Mehrotra
Professor
20.04.2010
6.
Dr. Nand Lal
Professor
25.03.2011
The petitioner was initially appointed as Lecturer but his appointment was rectified as Assistant Professor by a subsequent order dated 23.10.2002. Retrospectivity of the said appointment as Assistant Professor w.e.f. 14.03.2002 was granted by order dated 19.10.2006. Since joining of the opposite party no.5 on the post of Assistant Professor was earlier in point of time and he being older in age, both these factors counted for his being treated as senior to the petitioner in the grade of Assistant Professor. The position of inter-se seniority continued to be the same in the next higher grade i.e. Associate Professor. It was only in the grade of Professor to which the promotion of the petitioner as well as opposite party no.5 was made under the Personal Promotion Scheme but the resultant inter-se seniority has come to vary. The petitioner was appointed as Professor on 20.04.2010 prior to which the opposite party no.5 having been considered for the promotion in the same grade i.e. Professor stood rejected. The opposite party no.5 based on the selection under the Personal Promotion Scheme qualified for next higher promotion as Professor on 25.03.2011 and was accordingly given the benefit of next higher grade and of the salary.
It is to be noted that after promotion of the opposite party no.5 as Professor on 25.03.2011, the petitioner's order of promotion w.e.f. 20.04.2010 was preponed to an earlier due date i.e. 14.03.2010.
Admittedly, the petitioner was appointed as Professor prior to the date of the promotion of opposite party no.5 as Professor.
For the purposes of appointment as Dean of the faculty, section 31 (4) reads as under:-
"There shall be a Dean of each Faculty who shall be chosen from amongst the professors by rotation in order of seniority and shall hold office for three years."
The statute applicable in this behalf i.e. 2.06(2) which is to be read in conjunction with the relevant provision extracted above is also reproduced hereunder :-
"The Vice-Chancellor shall appoint the Senior most Professor of the Faculty as the Dean."
A bare reading of aforesaid provisions makes it amply clear that the inter-se seniority between the eligible candidates holding the post of Professor is decisive for appointment as Dean of the Faculty.
Sri Apoorva Tiwari, learned counsel for the petitioner would contend that irrespective of inter-se seniority of the petitioner vis-a-vis opposite party no.5 in the grade of Assistant Professor or Associate Professor, it is the inter-se seniority in the grade of Professor which is relevant for petitioner's consideration to be appointed as Dean of the Faculty. Indisputably, the petitioner by virtue of his appointment as Professor would rank higher in the order of seniority, therefore,the determination of inter-se seniority by the Executive Council in terms of the statute 11.10 is erroneous and has completely ignored the relevant consideration. The promotion orders according to which, the petitioner is senior could not be ignored is the precise submission put forth.
Sri Shubham Tripathi as well as Sri K.M. Shukla, learned counsel for opposite parties in order to justify the impugned decision, have argued that the petitioner was junior to opposite party no.5 in the lower grades and in the matter of personal promotions, it is the seniority of lower grades which remains intact and is decisive for the purpose.
Statute 11.10 applicable at the relevant point of time is extracted hereunder:-
"(1) (a) A Professor shall be deemed senior to the Associate Professor and an Associate Professor shall be senior to an Assistant Professor.
(b) The seniority of a teacher shall be determined with respect to his/her date of joining on the post of designation both in case of direct lateral entry as well as personal promotion in the University.
(2) A teacher ranked higher in the order of merit by the Selection Committee, shall be senior to the others whose merit position is lower in the selection list. This shall be applicable irrespective of the date of joining.
(3) In cases where all parameters regarding the seniority of teacher being the same, the teacher who is senior in age shall be considered to be senior than the others.
(4) The teaching experience earned by the teacher in his earlier assignments before joining this University shall not be counted towards determination of his seniority in the University."
On a careful consideration of the provisions extracted hereinabove, it is gathered that the date of appointment on a post is the relevant criteria for determination of inter-se seniority and where the appointment comes to be made on one and the same day, the age in that event becomes relevant by virtue of Statute 11.10 (3), the date of joining in the respective grade is also one of the relevant consideration.
In the present case, however, neither the date of joining as Professor nor the age of the petitioner or opposite party no.5 for that matter are posing any difficulty with respect to the determination of inter-se seniority. In the present case what is relevant is the date of appointment as Professor and this aspect of the matter has been lost sight of in the impugned decision arrived at by the Executive Council pursuant to which the Registrar of the University has issued a consequential order on 15.06.2020. Both these orders do not proceed on the correct interpretation of statutory provisions and are thus liable to be set aside alongwith the recommendation of Seniority Committee forwarded on 18.04.2020.
The Court would have granted opportunity to opposite parties for filing counter affidavit but the facts narrated above are undisputed and the question involved in the writ petition is a pure question of law, therefore, the Court proceeded to hear the parties, who were duly represented. The parties were heard on the question of law i.e. inter-se seniority between the petitioner and opposite party no.5.
The writ petition for the reasons recorded above deserves to be allowed and the impugned orders as contained in Annexure nos. 1 and 2 to the writ petition alongwith the recommendation of the Committee, therefore, are set aside.
Parties shall bear their own cost.
Order Date :- 29.8.2022
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