# Dr. (Mrs.) Madhu Rani v. Aligarh Muslim University & Ors

- **Citation:** (2016) 4 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-07
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-mrs-madhu-rani-v-aligarh-muslim-university-ors-43692
- **Pages:** 29

## Text

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834 INDIAN LAW REPORTS ALLAHABAD SERIES
then he would be absorbed in the institute. Petitioner's reliance on paragraph-9 of General Conditions for the
Formulation, Processing, Scrutiny, Sanction, Implementation and Evaluation of Research Schemes to be
financed by Indian Council of Agricultural Research from its Agricultural Produce Cess Fund is unfounded
as same is in reference of schemes sponsored by the Institute/Universities other than ICAR institutes,
provided host institution gives an undertaking that the staff of scheme would be absorbed by the institutions
after the termination of scheme. Here scheme has never been sponsored by Institute. Project has been
sponsored by ICAR and one of the centres has been located at Institute, in this backdrop no right of
absorption is there, once project itself has come to an end and as such, no relief can be accorded in favour of
the petitioner on such agreement. Even otherwise, the relief, which has been sought by means of present writ
petition, cannot be accorded by this Court as the University is a Christian minority educational institution,
having special rights guaranteed under Article 30 of the Constitution of India.

34. As per law laid down by Hon'ble Apex Court, once the project is completed and closed due to
non-availability of funds, the employees have to go along with the closed project and in such cases, no
directives can be issued to the respondents to regularize their services or to continue them in their place and
no vested right is created in favour of the incumbent and as such, no direction can be given to the respondents
to regularize their services in absence of any existing vacancies nor can directions be issued to create posts by
the State or to the authority to non-existent establishment. Here it is also accepted position that the project in
question is no longer subsisting and as such, no direction can be issued for absorption or regularization of the
petitioner. A categorical stand has been taken that Institute cannot bear financial burden of retaining of
petitioner. Any directives by this Court for further retention of petitioner, after project has come to an end
would tantamount to interfering with the right to administer to minorities under Article 30 (1) of Constitution.

35. In the present case the petitioner was appointed on contract basis and was aware that his
employment with the project was only for a fixed term. The petitioner has no vested right to claim absorption
on regular side after the closure of the project in question. Thus, we do not incline to interfere in the matter
under Article 226 of the Constitution of India.

36. For the reasons stated above, the writ petition is dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ A No.- 66484 Of 2015

Dr. (Mrs.) Madhu Rani ...Petitioner
Versus
Aligarh Muslim University & Ors. ...Respondents
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

835
Counsel for Petitioner:
Divakar Rai Sharma

Counsel for Respondents:
Ikram Ahmad, Sheik Obaidullah, Vinod Kumar Shukla

Petitioner, appointed as Lecturer in 1993 - promoted as Reader in 2002 under CAS in Aligarh Muslim
University (AMU) - challenged promotion of respondent no. 4 as Professor - Respondent no. 4 earlier served
as Lecturer - later as Reader in Sahu Ram Swarup Girls PG College, Bareilly (an affiliated Degree College
under U.P. State Universities Act) - Upon joining AMU as Reader on 1-8-2006 - sought counting of her
previous service - AMU counted her earlier service as qualifying for Professor under CAS - resulting in her
being treated senior to the petitioner and appointed as Department Chair - Petitioner contended
manipulation of records, violation of UGC Regulations 2010, and illegality in treating ex-cadre Reader service
as equivalent to cadre post experience in AMU.

Service Law - University Teachers - Career Advancement Scheme (CAS) - Seniority - Counting of past
service - Ex-cadre posts - UGC Regulations, 2010 - Aligarh Muslim University Statutes - Validity of
promotion-Service Law - Seniority - Ex-cadre promotions - Reader in Degree Colleges - Effect on cadre
seniority under AMU.

Held: Service rendered as Reader in an affiliated Degree College is ex-cadre - not part of a sanctioned cadre
post under the U.P. State Universities Act, 1973- Such service cannot be counted for determining seniority or
eligibility under CAS in AMU - Past service could be counted only for pensionary benefits, not for career
progression or seniority within AMU. (Paras 13, 25-26)
AMU Statutes - Statute 61(6)(iv) - Counting of previous service - Scope limited to retirement/pensionary
benefits- Statute does not authorize counting ex-cadre previous service for CAS promotions or seniority-
AMU's use of CAS mechanism to treat service as qualifying experience was improper and ultra vires. (Paras
20-24, 32)
UGC Regulations, 2010 - Mandatory compliance for CAS promotions - CAS promotions in AMU must follow
UGC Regulations 2010 - API scores, screening process, expert evaluation - Non-compliance vitiates
promotion.
Service Law - None of the mandatory requirements were followed in case of respondent no.4 - Promotion
directly from Reader (on an ex-cadre basis) to Professor - was held to be arbitrary and contrary to UGC
regulations, rendering the CAS recommendation unsustainable. (Paras 14, 33-35)
Doctrine of Estoppel - Acquiescence - Effect of not challenging earlier order of redesignation-respondent
no.4 not challenged office memo redisgnating her as Associate Professor-Principle of Estoppel appliescannot later claim seniority backdated to 2006.(Paras 12, 26-31)
Writ petition allowed - Promotion of respondent no. 4 quashed - Petitioner entitled to relief.

List of Cases cited:
1. Bal Krishna Agarwal v. State of U.P. 1995 All LJ 454
2. Dr. Suman Agarwal v. State of U.P. 1996 All LJ 429
3. Dr. Rashmi Srivastava v. Vikram University AIR 1995 SC 1694
4. Anirudh Pradhan v. State of U.P. 2001 All LJ 1505
5. Anirudh Pradhan v. Chancellor, Purvanchal University, Jaunpur 2001 All LJ 1505
6. Dr. Krishnan Niwas v. State of Haryana AIR 1997 SC 2349
7. Power Control Appliances v. Sumeet Machines Pvt. Ltd. (1994) 2 SCC 448
8. Pannalal Binjraj v. Union of India AIR 1957 SC 397
9. Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425
10. Amrit Prasad v. State of U.P. Writ-A No. 62753 of 2015 (decided 16.11.2015)
836 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble M.C. Tripathi, J.)

1. Pleadings have been exchanged and with the consent of learned counsel for the parties,
the matter was heard finally.

2. Dr. (Mrs.) Madhu Rani has prayed for following reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the decision
in minutes of meeting of Executive Council held on 7.11.2015 to the extent of item no.10 of
agenda. (Annexure no.22 to the writ petition).

(ii) Issue a writ, order or direction in the nature of certiorari quashing the Office
Memo dated 10.9.2015 promoting the respondent no.4 (Dr. (Ms.) Zeba Hasan) as Professor under
Career Advancement Scheme (old) in Department of Fine Arts, Aligarh Muslim University,
Aligarh with effect from 4.8.2006 on the recommendation of Selection Committee held on
28.7.2015 of Aligarh Muslim University, Aligarh (contained in Annexure No.15 to the writ
petition).

(iii) Issue a writ, order or direction in the nature of certiorari quashing the Office
Memo dated 19.9.2015 (contained in Annexure No.14 to the writ petition).

(iv) Issue a writ, order or direction in the nature of mandamus commanding and
directing the respondents (Aligarh Muslim University, Aligarh) to modify the Office Memo dated
4.9.2015 with regard to promoting petitioner as Professor so as to effect her such promotion as
Professor since July, 2012 instead of 1.10.2012 (contained in Annexure No.14 to the writ petition).

(v) issue any suitable order or direction, which this Hon'ble Court may deem fit
and proper under the facts and circumstances of this case.

(v) Allow the writ petition with cost in favour of petitioner."

3. Brief background of the case, as is reflected from the record, is that the petitioner was
initially appointed as Lecturer in Fine Arts Section in Women's College, Aligarh Muslim
University, Aligarh on substantive post on 25.11.1993 on probation for one year and she was
subsequently confirmed on the said post in question on 18.12.1995. On the recommendation of the
General Selection Committee, and on behalf of the Executive Council, the Vice Chancellor of
Aligarh Muslim University (hereinafter referred to, as AMU) had approved the promotion of the
petitioner as Reader under Career Advancement Scheme (in short, CAS) w.e.f. 26.11.2002 vide
Office Memo dated 24.5.2003, and the petitioner was accorded two advance increments at the time
of promotion as Reader with effect from 26.11.2002 taking into consideration her Ph.D. Degree.
Subsequently, by Office Memo dated 10.3.2011, she was re-designated as Associate Professor
w.e.f. 1.1.2006.
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

837
4. Dr.(Ms.) Zeba Hasan-respondent no.4 proceeded to apply for appointment on the post of
Reader in Department of Fine Arts of the AMU and submitted her original form on 30.8.2004. In
column-13 of the said application in question she had categorically mentioned that since 27.1.1981
to 25.5.1981 she worked as Honorary Lecturer in Agra College on temporary basis and thereafter
from 27.1.1983 till submission of her application form, she worked as Reader in Sahu Ram Swarup
Girls P.G. College, Bareilly. Serious allegation had been levelled against the respondent no.4 that
in collusion with the official of the AMU, she had got tempered her original application and
thereafter the respondent no.4 claimed that she was designated as Reader on 4.8.1998 and was
working on the said post till date. She was appointed as a Lecturer on 27.1.1983 to 3.8.1998. These
allegations have been made keeping in mind that the respondent no.4 had submitted her original
application form with certain experience and the comparative statement was made before the
Selection Committee duly signed by her wherein she claimed that she was working as Reader from
27.1.1983 till date and thereafter by means of tempering in collusion with the officials of the AMU,
she was permitted to rectify as Reader since 4.8.1998 and only on the basis of her alleged claim,
she had succeeded in procuring the placement in the AMU.

5. This much is also reflected from the record in question that since joining the AMU the
respondent no.4 had made continuous effort to get her past services to be added to her present
service as Reader in the AMU. The appointment letter dated 11.7.2006 had been issued by the
AMU in favour of respondent no.4. Just to appreciate the present controversy, the same is
reproduced hereinafter:-

"OFFICE OF THE REGISTRAR

 (ADMINISTRATION SECTION)

 ALIGARH MUSLIM UNIVERSITY

 ALIGARH
No.Admin/ED/810/T

July 11, 2006

Dr.Zeba Hassan
Fine Arts Department
Sahu Ram Swaroop Girls P.G. College,
Bareilly - 243 004

Madam,

I am directed to inform you that on the recommendation of the General
Selection Committee and on behalf of Executive Council, the Vice- Chancellor in exercise of the
powers vested in him under section 19 (3) of the AMU Act, 1920, has approved your appointment
as Reader in Fine Arts on the post vacated Prof. Ashfaq M. Rizvi (MPS, Retired), in the
Department of Fine Arts, on the salary to be fixed according to University rules in the pay scale of
Rs. 12000- 18300 plus allowances as admissible under the rules on probation for a period of one
year, with effect from the date you join your duties.
838 INDIAN LAW REPORTS ALLAHABAD SERIES
You will be governed by the news Defined Contribution Pension Scheme as
adopted and implemented by the University vide O.M.No. LD No. (c) /148 dated 8.2.2005.

Under the University rules, you are also required to produce a physical fitness
certificate from a registered Medical Graduate not below the status of Chief Medical officer or
from the Chief medical officer, University Health Service, AMU.

Under the general directive of the Executive Council, you are further required to
join your duties within four months from the date of issue of this Office memo, failing which the
offer of appointment will be cancelled.

If you are interested for counting you past services for the purpose of retirement
benefits, kindly apply on the prescribed application form obtainable from Deputy Registrar ( SB &
PS) within one year from the date of joining in this University. Your request will be considered as
per University rules.

Kindly intimate when you are joining your duties.

Yours faithfully

Sd/

( Abdul Majid Khan)

 Assistant Registrar ( Admin.)"

6. In pursuance of the aforesaid appointment letter, the respondent no.4 joined her duties as
Reader in the Department of Fine Arts on 1.8.2006. By Office Memo dated 25.8.2007 the AMU
had intimated to the respondent no.4 that the Vice Chancellor had confirmed her as Reader in Fine
Arts, Department of Fine Arts with effect from 1.8.2007 on usual terms and conditions.
Subsequently the respondent no.4 had proceeded to submit the technical resignation to the
Secretary, Management Committee, Sahu Ramswarup Girls Degree College, Bareilly (previous
employer) w.e.f. 1.8.2007 as she had been confirmed on the post of Reader w.e.f. 1.8.2007 in the
AMU. The Deputy Registrar (SB&PS) of the AMU had proceeded to write a letter on 6.10.2007 to
the Principal, Sahu Ram Swaroop Mahavidyalaya, Bareilly (previous employer of the contesting
respondent) for submitting relevant papers regarding counting of her past services rendered by her
from 28.1.1983 to 31.7.2006 in the said college for pensionary benefits at the AMU. The details,
which have been asked, are reproduced hereinafter:-

"Madam,

Dr. Zeba Hasan, Reader in the Department of Fine Arts of this University has
made a request for counting of her past services rendered by her from 28.1.1983 to 31.7.2006 at
your college for pensionary benefits at this University.
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

839
In this connection, I am directed to request you kindly to let us have the following
information at your earliest so as to examine the request of the above name employee in the light of
rules prescribed by the Government of India in this behalf.

i. A verified copy of service book of Dr. Zeba Hasan.

ii. Pay scale and the emoluments drawn by her during the period of her working in
your College.

iii. Details of leave without Pay/Extra Ordinary Leave availed by her, if any.

iv. It may also be confirmed whether the institution served by the employee
concerned is aided by Central/State Government and received more than 50% aid while the
employee was in service.

v. Name of the scheme CPF/GPF opted by her during her previous service.

On receipt of the above information the case of Dr. Zeba Hasan for counting of
past services at this University will be looked into and in case her request is found fit we shall
claim from you the amount of proportionate Pro-rata Pension Liabilities for the above period of the
service of Dr. Hasan.".

7. Thereafter the Deputy Registrar vide letter dated 28.1.2008 again asked the Principal,
Sahu Ram Swaroop Degree College, Bareilly for remittance of amount of pro-rata retirement
benefits for counting of past service of respondent no.4. As per record this much is reflected that
Section Officer (Accounts), (SB&PS), Registrars office of the AMU had calculated lump-sum
amount of proportionate pension liabilities i.e. capitalized value of pension & DCR Gratuity for
past services rendered by the respondent no.4 as Reader at Sahu Ram Swaroop P.G. College,
Bareilly. The calculations have been made on the basis of averments mentioned in para-4 of the
calculation sheet i.e. service rendered in Sahu Ram Swaroop Degree College, Bareilly - 23 years 6
months 4 days (subject to maximum 20 years for pension) say 23.5 years i.e. 47 half years for DCR
Gratuity. The District Inspector of Schools, Bareilly had also transmitted a sum of Rs.6,76,779/-
deposited in GPF Account No.4-39 of contesting respondent no.4 to the Finance Officer of the
University on 3.10.2008 and finally the State Government on 28.12.2012 had accorded sanction of
the capitalized value of pension in lieu of services rendered by respondent no.4 as Reader in Sahu
Ram Swaroop Girls P.G. College, Bareilly. On 24.5.2011 the respondent no.4 had requested to the
Finance Officer of the AMU for fixing her salary in VIth Pay Band in the Grade Pay of Rs.9000/-
w.e.f. 1st August, 2006. The letter dated 24.5.2011 reads as under:-

"Finance Officer,
Aligarh Muslim University,
Aligarh

24.5.2011
840 INDIAN LAW REPORTS ALLAHABAD SERIES
Madam,

I was appointed in the Department of Fine Arts in the Pay Scale of Rs.12000-42018300 (Pre-revised). I have joined my duty in this University on 1st August 2006 (Copy enclosed01). At the time of joining my Basic Pay was Rs.14940/- which means I have already earned 07
increments by virtue of working as Reader. I was promoted as Reader on 4th August, 1998 (Copy
enclosed-02).

The Pay Revision Cell of Finance & Accounts Department has protected my pay
vide R. No.520/DFA/21-11-06 (Copy enclosed-03). But it seems that Pay Revision Cell forgotten
to consider my salary benefit of three years as Reader under VIth Pay Commission. It is noticeable
from the above letter that on the date of joining my Basic Pay was Rs.14940/-, hence, my pay
should be considered and protected in the Revised Pay Scale accordingly.

I, therefore, request you to kindly fix my salary in VIth Pay Band in the Grade Pay
of Rs.9000/- w.e.f. 1st August, 2006 as I have already completed seven years as Reader on the date
of joining, which is also proved from my Pay Protection Sheet (enclosed-03).
Thanking you,

Sincerely yours,
Sd/-
(Dr. Zeba Hasan)
Reader."

8. Thereafter again on 12.8.2011 the respondent no.4 had requested to the Deputy Registrar
(Teaching) of the AMU for pay fixation in VIth Pay Band in the Grade of Rs.9000/- for the period
which she had rendered her services in Sahu Ram Swaroop Girls P.G. College, Bareilly i.e. from
1.1.2006 to 31.7.2006. The said request was also accorded by the AMU on 30.9.2011. The details
on proforma for fixation of pay are reproduced hereinafter:-

1
Name of the incumbent
Dr. Zeba Hasan
2
I.D. No.
17070
3
Name of the Department
FINE ARTS
4
Designation (Old)
Associate Professor
5
Appointed/promoted as
Pay Protection
6
Existing Pay Band Existing Grade pay
Rs.37400-67000 Rs.9000
7
Pay in the existing Pay Band as on the
effective date of promotion/ appointment,
i.e. 01.8.2006
Rs.48,960.00
8
Date of next increment in the existing Pay
Band
01/07/07
9
Date of option for fixation of pay
01/08/06
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

841
10
Pay Band in which promoted/appointed
Rs.37400-67000 (9000)
11
Pay proposed to be fixed as under (a)Pay
in the existing pay Band (7)
 as on 01.08.2006
(b) Add One Additional Increment (3% of
(a)
(c) Total (a) + (b)
(d)Less Grade pay of old Post
(e)Add Grade Pay of new Post
(f) New Basic Pay as on 01.8.2006

Date of Next Increment

Rs.48960

Rs.

Rs.48960
Rs.
Rs.
Rs.48960
(39960/-+9000)
01.07.2007
12
Ref. No. & Date
Admin/LD/1206/T,
dated 11.7.2006
2/6PC-58/1211-12/
2011-12
dated 11.8.2011

9. This much is reflected from the Office Memo dated 10.3.2011 that the petitioner was redesignated as Associate Professor since 1.1.2006 and the respondent no.4 was re-designated as
Associate Professor since 1.8.2009 on the implementation of VIth Pay Commission
recommendation and the name of petitioner is placed at serial no.23 and the name of respondent
no.4 is placed at serial no.378. In the aforesaid Office Memo dated 10.3.2011 it was observed that
consequent upon adoption/implementation of the VIth Pay Commission recommendations, as
circulated vide O.M.D. No. (C) 1839 dated 6.12.2010, the Vice Chancellor had ordered that the
following Readers/Lecturers (Selection Grade) be re-designated as Associate Professors and placed
them in the Pay Band IV (Rs.37400-67000) with AGP of Rs.9000 from the date as noted against
each, pending consequential amendments in the relevant Statutes and the Ordinances of the AMU.
The Chairman, Department of Studies and Head of the Institution were requested that in case of
discrepancy, if any, pointed out by the teacher concerned and the left out case, if any, the same may
please be intimated to this office for correcting/addition. The remaining Readers/Lecturers
(Selection Grade) shall continue to hold the existing designation of Readers/Lecturers (Selection
Grade) till such time they fulfill the eligibility conditions as per UGC Regulation 2010 duly
adopted by the AMU. It has also been categorically averred in the writ petition that neither the
contesting respondent no.4 had proceeded to file any objections or ratification in the said office
memo nor challenged the same before the Executive Council or before any Court of law.

10. This much is also reflected from the record in question that the AMU had proceeded to
initiate the process for holding a Selection Committee for the post of Professor under CAS on
24.9.2012. The petitioner had filed Writ A No.51343 of 2014 (Dr. (Mrs.) Madhu Rani vs. Aligarh
Muslim University and 2 ors) with a prayer to direct the Vice Chancellor of the AMU to decide her
representation/objections before finalising the length of services of contesting respondent no.4 for
the purpose of her promotion under CAS in the Department of Fine Arts of the AMU. The
842 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid writ petition was disposed of on 23.9.2014 with direction to the Selection Committee to
examine the representation of the petitioner before proceeding to grant any benefit to the
respondent no.4 under the CAS, after affording an opportunity of hearing to the respondent no.4
but the said objection had never been dealt with. On 4.9.2015 the Deputy Registrar
(Administration-T) of the AMU informed that the Vice Chancellor of the AMU, in exercise of
authorization given by the Executive Council at its meeting held on 7.9.2006 under item No.14, and
on the recommendation of the Selection Committee held on 28.7.2015, had approved the promotion
of the petitioner as Professor under CAS (New) in the Fine Arts Section, Women's College on the
salary to be fixed according to rules in the pay band of Rs.37,400-67000 with AGP of Rs.10,000/-
plus allowances as admissible under the rules with effect from the date of her eligibility i.e.
1.10.2012. The Deputy Registrar (Administration-T) vide Office Memo dated 10.9.2015 also
informed that on the recommendation of the Selection Committee held on 28.7.2015, the Vice
Chancellor approved the promotion of respondent no.4 as Professor under CAS (Old) in the
Department of Fine Arts on the salary to be fixed according to rules in the pay scale of Rs.1640022400 plus allowance (pre-revised) as admissible under the rules with effect from 04.8.2006, the
date of eligibility. The Selection Committee under CAS had proceeded to accord professorship to
the petitioner on 1.10.2012, whereas taking into consideration the past services rendered by
respondent no.4, the Selection Committee had awarded the professorship to the respondent no.4
w.e.f. 4.8.2006.

11. By Office Memo dated 19.9.2015, the respondent no.4 had been appointed as
Chairman, Department of Fine Arts for a period of three years with immediate effect. Aggrieved
with the aforesaid, the petitioner filed Writ A No.54897 of 2015 (Dr. (Mrs.) Madhu Rani vs.
Aligarh Muslim University & 3ors) and a Division Bench of this Court disposed of the said writ
petition on 24.9.2015 with liberty to the petitioner to file an appeal before the appellate authority
within two weeks and on such appeal being filed, the appellate authority shall consider and decide
the same by means of a reasoned speaking order, after affording opportunity of hearing to
respondent no.4, preferably within eight weeks thereafter. Immediately thereafter the petitioner
preferred the appeal before the Executive Council of the AMU under Section 36-B of Aligarh
Muslim University Act (in short, the AMU Act) on 6.10.2015 and the Executive Council rejected
the appeal on 7.11.2015, which was served on the petitioner on 30.11.2015.

12. Shri Ashok Khare, Senior Advocate assisted by Shri Divakar Rai Sharma, learned
counsel for the petitioner vehemently submitted that the decision so taken by the Selection
Committee under CAS dated 28.7.2015 cannot sustain in the aforementioned facts and
circumstances. Admittedly, the petitioner was appointed as Lecturer against substantive post in the
year 1993 and thereafter, promoted as Reader under CAS in the year 2002, whereas in pursuance of
the appointment letter dated 11.7.2006, the respondent no.4 joined the AMU on 1.8.2006 against
the cadre post as Reader. He has also drawn attention of the Court on Office Memo dated
10.3.2011, wherein the University had adopted/implemented the VIth Pay Commission
recommendation and the same was duly accorded approval by the Vice Chancellor of the AMU.
The Vice Chancellor re-designated the petitioner as well as contesting respondent no.4 as Associate
Professor in the Pay Band of Rs.37400-67000 with AGP of Rs.9000/-. The said benefit had been
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

843
extended in favour of petitioner w.e.f. 1.1.2006 and she was placed at serial no.23, whereas
contesting respondent was given the said benefit w.e.f. 1.8.2009 and she had been placed at serial
no.378. The said Office Memo proceed to mention that in case incumbents find any discrepancy in
fixation/re-designation, the objection could be filed, but at no point of time the contesting
respondent had proceeded to file any objection and as such, the same had attained finality. In this
backdrop it has been urged that the acquiescence being the principle of equity must be made
applicable in the case, where the order had been complied with without raising any objection,
consequently estoppel will follow acquiescence. He has placed reliance on the judgements of
Hon'ble Apex Court in Pannalal Binjraj vs. Union of India AIR 1957 SC 397 and Manak Lal v.
Dr. Prem Chand Singhvi AIR 1957 SC 425.

13. Learned counsel for the petitioner further made submission that while giving an
opportunity of hearing to the contesting respondent, the AMU had categorically informed to her
that her past services would only be counted towards length of service for according pensionary
benefit. Once the petitioner was promoted under CAS as Reader in the year 2002 and the contesting
respondent had joined the AMU on a cadre post as Reader on 1.8.2006, as such by no stretch of
imagination the contesting respondent could be conferred seniority over the petitioner under the
CAS at the time of giving professorship in the year 2015. It has also been urged that the post of
Reader/Professor under the U.P. State Universities Act, 1973 is an ex-cadre post and once there is
no corresponding amendment in the State Universities Act, 1973 providing for appointment of
Lecturer by way of promotion under CAS on the post of Reader in affiliated Colleges and as such,
there is no cadre of Reader/Professor is available in the Degree College and as such, her past
services, which she rendered in Degree College as Reader, which is Ex-Cadre post and governed
under U.P. State Universities Act, 1973 and such conferment by the AMU is in teeth of judgements
rendered by this Court in Kedar Nath Singh vs. State of UP and ors 2008 (6) ADJ 372 (DB) and
Writ A No.62753 of 2015 (Amrit Prasad vs. State of UP & 5 ors) decided on 16.11.2015. He
submitted that in Kedar Nath Singh vs. State of UP and ors (supra) the Division Bench of this
Court had considered the post of Reader/Professor under the U.P. State Universities Act, 1973 and
held that the post of Reader is an ex-cadre post and there is no corresponding amendment in the
State Universities Act providing for appointment of Lecturers by way of promotion under CAS on
the post of Reader in affiliated Degree College and there is, in fact, no cadre of Reader in the
Degree Colleges. The Division Bench had proceeded to observe in paras 38 to 45 as follows:-

"38. In view of the aforesaid settled legal position, as explained by the Hon'ble
Supreme Court and there being no corresponding amendment in the State Universities Act
providing for appointment of Lecturers by way of promotion under career advancement scheme on
the post of Reader in affiliated Degree College and there in fact being no cadre of Reader in the
Degree Colleges, we have no hesitation to hold that the designation of Reader under the career
advancement scheme as per the Government Orders dated 10.9.1987 and dated 7.1.1989 is only an
ex-cadre promotion and on the basis of such ex-cadre promotions no right accrues in favour of the
persons so promoted to claim to be a member of the cadre of Reader/Professor contemplated by the
Act and the Statutes/Ordinances of the University. The provisions of Statutes 18.10 and 18.16 and
18.05 have to be interpreted in like manner.
844 INDIAN LAW REPORTS ALLAHABAD SERIES

39. Section 31-A as added to the U.P. State Universities Act provides for personal
promotion to the post of Reader and Professor in the case of University teachers only and reads as
follows:-

"31-A Personal promotion to Teachers of University-(1) Notwithstanding anything
to the contrary contained in any other provision of the Act, a Lecturer in the University appointed
under Section 31, or a Reader in the University appointed under Section 31 or promoted under this
Section, who has put in such length of service and possesses such qualifications, as may be
prescribed, may be given personal promotion, respectively to the post of Reader or Professor.

(2) Such personal promotion shall be given on the recommendation of the
Selection Committee, constituted under clause (a) of sub-section (4) of Section 31, in such manner
and subject to such conditions as may be prescribed.

(3) Nothing contained in this section shall affect the posts of the teachers of the
University to be filled by direct appointment in accordance with the provisions of Section 31."

40. The section was added by U.P. Act No. 9 of 1985 and further amendments in
the said Section 31-A were made by Parliament Act No. 4 of 1996. The scheme for personal
promotion of Lecturers working in Degree Colleges had already been enforced, yet the legislature
has not made any corresponding amendment conferring similar benefit, for promotion by career
advancement in favour of Lecturers of affiliated Degree Colleges, under the U.P. State Universities
Act. In absence of any statutory provision in the parent Act providing for such promotion by way
of career advancement and further there being no amendments in the First Statutes and Ordinances
of the University providing for qualification/experience for the post of Readers in Degree College,
the judgment in the case of Rashmi Srivastava would apply with full force to the Lecturers, who
have been granted personal promotion as Reader in terms of the Government Orders only. The
legal principles, as explained in the case of Bal Krishna Agarwal and Suman Agarwal (supra) have
also to be applied accordingly.

41. We hold that the provisions of Statute 18.16, when it makes the provisions of
Statute 18.05 mutatis mutandis applicable to the teachers of recognized Degree Colleges, it only
means that the seniority has to be determined with reference to the appointments made
against cadre post only as has been explained by the Hon'ble Supreme Court.

42. We may further clarify that in none of the judgment of this Court referred to by
the counsel for the petitioner i.e. Anirudh Pradhan v. State of U.P. as well as Anirudh Pradhan v.
Chancellor, Purvanchal University, Jaunpur, (2001 All LJ 1505), the judgments of the Hon'ble
Supreme Court in the cases of Dr. Rashmi Srivastava, ((1995) 3 SCC 653 : AIR 1995 SC 1694)
(supra), Dr. Bal Krishna Agarwal, (1995 All LJ 454) (supra) and Dr. Suman Agarwal, (1996 All LJ
429) (supra), which had already seen the light of the day, had been taken note of and therefore in
absence of legal position settled by the Hon'ble Supreme Court, having been considered the same,
4 All. Dr. (Mrs.) Madhu Rani Vs Aligarh Muslim University & Ors.

845
need not be followed. Moreover, the law laid down by the Hon'ble Supreme Court has to prevail in
view of the Article 141 of the Constitution of India.

43. In view of the aforesaid, there is no illegality in the Government Order dated
11th September, 2006, inasmuch as it only explains the legal position, as has been settled by the
Hon'ble Supreme Court of India.

44. We hold that the order of the Vice-Chancellor, in so far as he declares
respondent No. 5 as senior to the petitioner only because of his having been promoted as Reader
under the career advance scheme provided for under the Government Order, is legally not
sustainable and is hereby quashed, The Vice-Chancellor is directed to re-determine the seniority of
the teachers of the affiliated Degree Colleges strictly in accordance with their length of service put
in as Lecturer on substantive basis against cadre post irrespective of designation of Reader having
been granted under the Government Orders dated 10-9-1987 and dated 7-1-1989 as amended from
time to time. The aforesaid exercise shall be completed within a period of six weeks from the date a
certified copy of this order is filed before the Vice-Chancellor.

45. With the aforesaid observations/directions the present writ petition is allowed."

14. Learned counsel for the petitioner also highlighted certain maneuvering and
discrepancies in original record of Ref. No.4 regarding her past experience and placed reliance at
page 66 of the paper book where it was disclosed that she worked as Reader in Sahu Ram Swaroop
Girls P.G. Colleges, Bareilly since 27.1.1983 till date whereas at page 81 of the paper book in
column Designation & period, subsequently the rectification had been made through arrow against
Reader from 4.8.98 to till date in place of 27.1.83 to till date and against Lecturer from 27.1.83 to
3.8.98 in place of 4.8.98 to 3.8.98. He submitted that the decision so taken by the Selection
Committee under CAS is unsustainable in the light of UGC Regulations 2010 and the amended
Regulation 2013. The alleged promotion of contesting respondent as Professor under the CAS on
10.9.2015 with effect from 4.8.2006 is in teeth of UGC Regulations 2010, wherein extensive
methodology has been provided by the UGC wherein exhaustive procedures and API score are
essential requirement for promotion under the CAS and as such, it was incumbent on the Selection
Committee under CAS to proceed in consonance of Regulation 2010. Reliance has been placed on
Paras 6.2.0, 6.3.0 and 6.3.1 of UGC Regulations 2010. In the present matter no such exercise was
undertaken by the AMU at the time of CAS promotion and as such AMU had deliberately given a
go-bye to these provisions while conferring CAS promotion to the contesting respondent. As such
CAS recommendations cannot be sustained, consequently the conferment of professorship in
favour of respondent no.4 with effect from 4.8.2006 is in teeth of the said provisions, and as entire
selection proceeding qua the contesting respondent is unsustainable and liable to be quashed.

15. Shri Ikram Ahmad, learned counsel appearing for the AMU has submitted that the
respondent no.4 joined as Reader in Department of Fine Arts of the AMU on 1.8.2006 and
thereafter applied for promotion to the post of Professor under CAS. As per letter dated 5.3.2004
her past services as Reader at Sahu Ram Swarup Girls P.G. College, Bareilly were taken into
846 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration for determining her eligibility for Professor under CAS and as such, her eligibility as
Professor has been fixed w.e.f. 4.8.2006. Many times the petitioner questioned the eligibility of the
respondent no.4 and the issues raised by her were thoroughly examined by the AMU. After
considering and verifying complete record, the then Registrar/Vice Chancellor only approved the
said recommendation, as such there is no need for any further enquiry and consequently matter
must be treated as closed.

16. He further made submission that the Selection Committee under CAS after affording an
opportunity to the petitioner only thereafter made recommendation of Professorship in favour of
respondent No.4 w.e.f. 4.8.2006 taking into account her past services and as such she is senior to
the petitioner and accordingly, she was given charge of Chairman, Department of Fine Arts for a
period of three years vide Office Memo dated 19.9.2015. He further made submission that the
Executive Council of AMU had also considered the appeal of the petitioner and rejected as such it
has been urged that the action of AMU is fully justified and liable to be upheld.

17. Shri R.K. Ojha, Senior Advocate assisted by Shri Sheikh Obaidullah, learned counsel
appearing for the respondent no.4 has vehemently opposed the writ petition and submitted that the
respondent no.4 was initially appointed as Lecturer in Sahu Ram Swaroop Girls P.G. College,
Bareilly on 27.1.1983 and thereafter she was given the designation of Reader and accordingly paid
on ex-cadre post as per provisions of UGC since 4.8.1998. Thereafter, she had applied for the post
of Reader at AMU and finally got an appointment on the post of Reader in the AMU on 1.8.2006.
Immediately, thereafter she moved an application for counting her previous services strictly as per
the provisions contained in the AMU Act and consequently the previous employer had also
transmitted the GPF and other contributions to the AMU. As such, there was no infirmity or
illegality in according promotion under CAS as Professor after completion of 8 years as Reader. At
no point of time the respondent no.4 had furnished any incorrect information or concealed any
material fact and being as senior-most Professor in the department, the AMU had rightly proceeded
to hand over charge to her as Chairman of the Fine Arts Department. In the catena of decisions
Hon'ble Apex Court and this Court have taken decision that previous services are liable to be added
and accordingly all the financial upgradation is liable to be accorded to her. Therefore, at this stage,
no indulgence is required and the writ petition is liable to be dismissed.

18. Heard rival submissions and perused the record.

19. As per letter of appointment dated 11.7.2006 this much is reflected that on the
recommendation of the General Selection Committee and on behalf of the Executive Council, the
Vice Chancellor in exercise of powers vested in him under Section 19 (3) of the AMU Act 1920,
had approved the appointment of respondent no.4 as Reader in Fine Arts in the pay scale of
Rs.12000-18300. As per appointment letter this much is reflected that in case she is interested for
counting her previous services for the purpose of retirement benefits, kindly apply on the
prescribed application form obtainable from Deputy Registrar (SB & PS) within one year from the
date of joining in this University and her request will be considered as per University rules.
4 All.