Dr.Shorya Kumar Yadav vs Vice Chancellor Devi Ahilya ...
2021 Latest Caselaw 1072 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
      (SINGLE BENCH: HON'BLE MR JUSTICE VIVEK RUSIA)
                  Writ Petition No.5697 of 2010
        (Dr. Shorya Kumar Yadav V/s. Vice-Chancellor DAVV and others)


        Shri Aviral Vikas Khare, learned counsel for the petitioner.
        Shri Vivek Sharan, learned counsel for respondent no.1.
        Shri A.K. Sethi, learned senior counsel with Shri Tejas Vyas
        learned counsel for respondent no.3.
                                 ORDER

(Passed on 25.03.2021) The petitioner has filed the present writ petition being aggrieved by the order dated: 28/04/2009 passed by Respondent no.2. (Annexure- P/7) , order dated: 16/12/2009 passed by Respondent no.2. (Annexure- P/13) and order dated: 31/12/2009 passed by Respondent no.2. (Annexure-P/14) whereby respondent no.3 has been made senior to him in the seniority list of professor published for the period w.e.f. 01.01.2010 to 31.10.2010.

2. Facts of the case in short are as under:-

(i) Vide order dated 10.04.1990 the petitioner and respondent no.3 were selected for the post of Lecturer and both joined the duties on 19.04.1990 in the respondent/university Devi Ahilya Vishwavidyalaya (hereinafter referred as DAVV). From 19.04.1990 till 18.04.1999 they worked as Lecturer thereafter, they were promoted to the post of Reader on 19.04.1999. Vide order dated 30.10.2009 they were further promoted to the post of Professor w.e.f. 19.04.2007. According to the petitioner right from the initial appointment till promotion to the post

of Professor he was placed above to respondent no.3 in the seniority list by virtue of his age and as per Section 35 of the M.P. Vishwavidyalaya Adhiniyam, 1973 read with Rule 6 of statute no.16. The date of birth of the petitioner is 12.04.1961 and the date of birth of respondent no.3 is 08.05.1965 therefore, the petitioner is senior in age than respondent no.3 and according to Rule 6 of statute no.16 he rightly treated as senior to respondent no.3 at every stage of appointment and promotion.

(ii) During these 19 years of services respondent, no.3 made various attempts to take march over the seniority above the petitioner but relying on Rule 6 of statute no.16 the DAVV has been rejecting the claim. Respondent no.3 did not leave hope and again submitted an application on 28.04.2008 claiming seniority over and above the petitioner. The petitioner was called upon to file a reply which he submitted on 27.11.2008 but no action was taken by the DAVV. Thereafter, respondent no.3 again submitted an application on 19.02.2009 and without seeking any response from the petitioner vide impugned order dated 24.04.2009 the order of merit has been disturbed and respondent no.3 has been placed senior to the petitioner based on the order of merit at the time of selection.

(iii) The petitioner submitted an objection vide letter dated 06.05.2009 seeking restoration of his seniority. The DAVV published a provisional seniority list and invited objections. In the said list the respondent no.3 is placed at Sl. No.42 and the petitioner is placed at Sl. No.43. The petitioner again submitted an objection as per Rule 5 (A) of the statute 19. Vide impugned order dated 16.12.2009 the DAVV has rejected the representation and published final seniority list for the

period starting from 01.01.2010 to 31.12.2010. The petitioner submitted an objection/ appeal before the Chancellor of the DAVV vide letter dated 05.01.2010 and 07.02.2010 but till today no response has been received hence he filed the petition before this Court.

3. During the pendency of this petition the DAVV has again published a provisional list for the period 01.01.2011 to 31.12.2011 and invited the objections. The name of the petitioner is again shown junior to respondent no.3 hence he once again submitted objections but without deciding the objections the DAVV has published the final seniority list. The petitioner has brought this subsequent development in the petition by way of amendment.

4. After notice the respondent no.1 and 2 have the filed reply by submitting that the petitioner and respondent no.3 were selected by the selection committee for the post of lecturer in the school of physical education. In the order of merit, respondent no.3 was senior to the petitioner. Earlier the petitioner was assigned the seniority above respondent no.3 in the gradation list issued time to time but respondent no.3 submitted a representation claiming the seniority above the petitioner on the ground that he was above in the order of merit. A show-cause notice was issued to the petitioner and his response was sought. After going through the reply impugned order dated 28.04.2009 was passed. A copy of the appointment order is filed along with the written in which four candidates were selected on the post of lecturer in which the name of respondent no.3 at Sl. No.2 and the name of the petitioner is at Sl. No.4.

5. Respondent no.3 has also filed the reply by stating that the writ petition is not maintainable as there is a remedy to approach the

Chancellor under provisions of Section 59(2) of the M.P. Vishwavidyalaya Adhiniyam, 1973 and in fact, the petitioner before approaching this Court had approached the Chancellor vide communication dated 05.01.2010 but without waiting for the decision has approached this Court, therefore, the petition is not maintainable for want of alternate and efficacious remedy. It is further submitted that the petitioner has suppressed the material fact before this Court that in the seniority list which was in enforced from 01.01.1997 to 31.12.1997 the petitioner was at Sl. No.33 whereas the answering respondent no3 was at Sl. No.32. Similarly, in the seniority list published for the period 01.01.1998 to 31.12.1998, answering respondent was shown at Sl. No.30 and the petitioner was shown at Sl. No.31. It is further submitted that the provisions of Statute 16 do not apply to the present facts and circumstances of the case because it runs contrary to the various judgments passed by the Apex Court. The Apex Court has held that where the appointment is based upon the selection process than in such circumstances the order of merit should be considered to determine the seniority on the particular post and where the merit list has been prepared the age of the concerned employee would be irrelevant. It is further submitted that the petitioner and respondent no.3 were appointed as per the provision of Section 49 of M.P. Vishwavidyalaya Adhiniyam, 1973 and as per sub-clause 5 of Section 49 of M.P. Vishwavidyalaya Adhiniyam, 1973 their names were recommended by the committee and thereafter, executive council has issued the appointment order in order of merit in the selection which has been restored by the impugned order hence, no interference is called.

6. The petitioner has filed the rejoinder to the written filed by the

respondents.

7. I have heard learned counsel for the parties and perused the record.

8. Vide order dated 10.04.1990, the executive council of the DAVV considered the recommendations of the selection committee and approved the appointment of the petitioner and respondent no.3 in order of merit for the post of Lecturer in the school of physical education in the UGC revised scale of pay Rs.2200-75-2800-100-4000. In the order of merit, respondent no.3 was placed at Sl. No.2 and the petitioner was placed at Sl. No.4 thereafter, two seniority lists were issued vide letter dated 04.08.2006 for and vide letter dated 13.12.2007 in which Respondent no.3 was placed senior to the present petitioner. Respondent no.3 and the petitioner were promoted to the post of Reader on 19.04.1990 and thereafter, promoted to the post of professor on 30.10.2010 w.e.f. 19.04.2007 except the aforesaid two seniority list till the passing of the impugned order in all the seniority lists the petitioner was placed senior and above to respondent no.3.

9. The core issue which is under consideration in this writ petition is that, when the two employees are appointed on the same date by a common appointment order thereafter they are promoted together then what would be the inter-se-seniority list between them. Section 35 of the M.P. Vishwavidyalaya Adhiniyam, 1973 mandates that there shall be a Statute in each University to deal with the matter provided in sub- clause (a) to sub-clause (r). sub-clause (l) provides the qualification for the Professor, Reader and Lecturer and other teachers in affiliated colleges and recognized institutions and sub-rule (o) deals with the mode of determining seniority for the purpose of this Act. Section

35(O) of Statute 16 has been framed in order to decide the seniority of teachers of the university. As per Sub-rule 2 of Statute 16, the seniority of the professor, college professor, reader, reader in college, lecturer shall be determined in accordance with the length of continuous service or such person in the cadre. Sub-rule 6 provides that if the length of two or more teachers in the cadre is equal, their inter-se- seniority shall be determined in accordance with the length of continuous services in the cadre immediately below. As per Rule-6 if after applying the outgoing provision to the extent possible the seniority of two or more teachers is equal their inter-se-seniority shall be determined in accordance with the seniority in age. Rule 2 of statute No.16 is reproduced as below:-

2. The seniority of a Professor, College Professor, Reader, Reader in College, Lecturer shall be determined in accordance with the length of continuous service of such person in the cadre concerned taken together with the length of continuous service in a cadre which is equivalent to or superior to the cadre concerned.

Provided that where a Principal is included in the cadre of college Professor in accordance with the provision of sub- section (4) of section 63 of the Adhiniyam, his seniority as college Professor shall be determined in accordance with:

(a) the length of continuous service such as Principal it he was not a college Professor prior to his appointment as Such Principal.

(b) the length of total service as a college Professor and as such Principal thereafter if the Principal was a College Professor prior to his appointment as Such Principal.

Note:- For the purpose of seniority:

(i) the post of Professor in college shall be deemed to be lower than the post of University Professor.

(ii) the post of Reader in the University Teaching Department/Schools of studies shall be deemed to be equivalent to the post of Reader in a College,

(iii) the post of Lecturer in a college and lecturer in the University Teaching Department/Schools of studies shall be deemed to be equivalent posts.

3. If the length of service of two or more teachers in any cadre calculated in accordance with paragraphs (2) above is equal, their seniority inter-se shall be determined in accordance with the length of continuous service in the cadre immediately below, if any.

4. If after calculation in accordance with paragraph (3) above, the seniority inter-se of two or more teachers in any cadre is equal, their seniority inter-se shall be determined by in accordance with the length of continuous service in the cadre, if any, immediately below the cadre considered under paragraph (3) above.

5. If after calculation in accordance with the foregoing provisions to the extent possible, the seniority inter-se of two or more teachers in any cadre is equal, their inter-se shall be determined by the total period of continuous service as a teacher in any cadre.

6. If after applying the foregoing provisions to the extent possible, the seniority of two or more teachers is equal, their seniority inter-se shall be determined in accordance with seniority in age.

10. Therefore, to decide seniority between the petitioner and respondent no.3 their length of service from their feeder cadre then

promotional cadre i.e. 1st promotion, 2nd promotion and 3rd promotion

are liable to be taken into consideration and in all the three cadres the length of the service of the petitioner and respondent no.3 are equal, therefore, special rule-6 comes into the play which says that if the seniority of two or more teachers is equal, their seniority shall be determined in accordance with seniority in age. Admittedly the petitioner is more aged than respondent no.3 therefore, as per the rule prevailing in the university, the petitioner should march over respondent no.3 in the seniority list. Statue 16 nowhere provides that the seniority is to be decided in order of merit in the initial selection list. The length of the service is the only criteria for determining the seniority between teachers and if the length of the services is the same then the only criteria is their age therefore, in view of Section 35 of the M.P. Vishwavidyalaya Adhiniyam, 1973 read with Rule 16 of sub- section 2 the petitioner is senior to respondent no.3 irrespective of the order of merit in the appointment order.

11. Apart from the aforesaid provision, Section 64 of the M.P. Vishwavidyalaya Adhiniyam, 1973 also provides that till the statute are made the seniority in the particular cadre shall be determined by length of continuous service in such cadre and when the length of continuous services of two or more persons in the same cadre are same then the seniority shall be determined by the seniority in age. Rule 64 is reproduced below:-

64. Term of office of member of authority of University:- (1) Whenever in accordance with this Act, any person is to hold an office or to be a member of any authority by rotation according to seniority such seniority in the absence of any provision to the contrary in the Act, shall be determined in accordance with the Statutes.

Provided that till the Statutes are made the seniority in a particular cadre shall be determined by the length of continuous service in such a cadre and where the length of continuous service of two or more persons in the same cadre in the same, then "Seniority" shall be determined by seniority of age.

Therefore, not only statute 16 but also provisions of Section 64 M.P. Vishwavidyalaya Adhiniyam, 1973 also provides that in case of equal length of service between two employees their seniority in age shall be criteria to decide their inter say seniority.

12. The Apex Court in case of B.P. Das v/s Union of India reported in (2011) 8 SCC 115 has held that the law is clear that the seniority is an incident of service and where the service rules prescribed the method of its computation is squarely governed by such rule . Only in the absence of rules or executive instructions, the Court may have to evolve a fair and just principle of seniority, which could be applied in the facts and circumstances of the case and in such premises the seniority of the officers who were recommended on the same date must be decided by their respective age.

13. This petition is an admitted petition pending since 2010 i.e. last 11 years therefore, it would not be proper to dispose of the petition for want of alternate and efficacious remedy even otherwise there is no stay in this petition and during this pendency of 11 years, the Chancellor/Kuladhipati has not decided the dispute between the petitioner and the respondent no.3 therefore, an objection taken by Shri Sethi is hereby turned down.

14. Resultantly the writ petition is allowed. All the impugned orders dated: 28/04/2009 passed by Respondent no.2. (Annexure-P/7), dated: 16/12/2009 passed by Respondent no.2. (Annexure-P/13) and dated:

31/12/2009 passed by Respondent no.2. (Annexure-P/14) are hereby quashed.

15. Shri Khare learned counsel submits that by virtue of the seniority given to respondent No. 3 vide impugned orders he has become the Dean in DAVV in place of the petitioner, hence the respondents be directed to appoint the petitioner to the post of Dean by virtue of the seniority. In view of the above discussion and findings, by way of consequential relief the petitioner being senior to respondent No 3, is entitled to become Dean of the faculty in place of respondent No3.

16. The writ petition is allowed with the cost of Rs. 25,000/- payable to the petitioner by the DAVV.

(VIVEK RUSIA) JUDGE Ajit

Digitally signed by Ajit Kamalasanan Date: 2021.03.26 16:56:52 +05'30'