# DR. RASHMI SRIVASTAVA AND DR. B.D. SRIVASTAVA AND ORS v. VIKRAM UNIVERSITY AND ORS

- **Citation:** [1995] 3 S.C.R. 572
- **Court:** Supreme Court of India
- **Decided:** 1995-04-30
- **Bench:** P.B. Sawant, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-rashmi-srivastava-and-dr-b-d-srivastava-and-ors-v-vikram-university-and-ors-13179
- **Pages:** 50

## Headnote

Service Law :
Constitution of India, 1950-Articles 14 and 16 (1) Seniority-Merit
C promoted Readers and professors-Ex cadre employees-form a distinct class
as compared to direct recruits-Cannot be treated equally with direct
recruits-Competition can only be amongst direct recruits-Fixation of inter
se seniority between them on the yardstick of continuous officiation was
illegal
D
Madhya Pradesh Vishwavitzyalaya Adhiniyam, 1973 :
Sections 6(30), 49 and Statute 16(2)-Merit promotion scheme--
Readers and Professors-Not contemplated by the Act-No power to create
additional posts for being reserved for merit promotees-flowever, the same
E can be created by suitable amendment of the Act.
Section 19-Merit promoted Readers and Professors-Cannot claim
any inter se seniority and promotion with direct recruits-However, their pay,
work and status would remain at par with direct recruits.
F
The appellants were promoted professors and Readers under a merit
promotion scheme formulated by the University Grants Commission. The
respondents were appointed to the posts or professors and Readers on
subsequent dates as direct recruits. The University published a seniority
list in which the appellants were shown as senior to the respondents. The
G respondents flied a writ petition before the High Court challenging the said
placement in the seniority list which was allowed. Aggrieved by the judg·
ment or the High Court the appellants preferred the present appeals.
On behalf or the appellants it was contended that Section 49 or the
Madhya Pradesh Visbwavidyalaya Adhiniyam, 1973 took in its sweep even
H departmental candidates; that some universities had issued Ordinances
572
RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY
573
creating new source of recruitment by departmental promotion of univer- A
~ity teachers; that merit promotion scheme was formulated to avoid stag·
nation and heart burning; that the merit promotion scheme was a
temporary extension of the cadre of Professor or Reader; that as per
statute 16(2) of the Act the seniority of merit promotee Professor or
Reader should be determined on the basis of length of continuous service B
in the concerned cadre; that the merit promotees, having been selected by
the same selection committee for direct recruits, could not be dis·
criminated against in the matter of fixation of inter se seniority; that under
Section 6 read with Section 34 of the Act the university had power to create
posts of Readers and Professors through promotion; that the University
Grants Commission had left the question of fixation of inter se seniority or C
merit promotees and direct recruits to the University; that on doctrine of
promissory estoppel merit promotees should be treated at par with direct
recruits; and that once the concerned incumbents were promoted as
Readers or Professors they were entitled to work as snch and draw the
same pay as directly recruited Readers and Professors.
D
On behalf of the respondents it was contended that Section 49 of the
act did not contemplate any promotion; that the merit promotion scheme
which was formulated later on could not be encompassed by Section 49 or
the Act; that there could not be a combined seniority list or merit
promotees and direct recruits as the former stood outside the cadre; that E
merit promotees formed a separate distinct class as compared to direct
recruits; that there was a difference in the pay scales of merit promotees
and direct recruits; that the merit promotion was a personal promotion to
the promotee which ceased with his employment; that the merit promotees
were ex-cadre employees and could not be treated equally with direct
recruits for seniority; that unless the Act is amended there would be no
question of merit promotees entering tJte cadre of direct recruits; that
compensation be awarded to the respondent fo~ harassment by the University; and that the pay scales of merit promotees be reduced ..
F
Dismissing the appeal, this Court
G
HELD : 1. The promotee Reader

## Text

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A
B
DR. RASHMI SRIVASTAVA AND
DR. B.D. SRIVASTAVA AND ORS.
v.
VIKRAM UNIVERSITY AND ORS.
APRIL 30, 1995
(P.B. SAWANT AND S.B. MAJMUDAR, JJ.]
Service Law :
Constitution of India, 1950-Articles 14 and 16 (1) Seniority-Merit
C promoted Readers and professors-Ex cadre employees-form a distinct class
as compared to direct recruits-Cannot be treated equally with direct
recruits-Competition can only be amongst direct recruits-Fixation of inter
se seniority between them on the yardstick of continuous officiation was
illegal
D
Madhya Pradesh Vishwavitzyalaya Adhiniyam, 1973 :
Sections 6(30), 49 and Statute 16(2)-Merit promotion scheme--
Readers and Professors-Not contemplated by the Act-No power to create
additional posts for being reserved for merit promotees-flowever, the same
E can be created by suitable amendment of the Act.
Section 19-Merit promoted Readers and Professors-Cannot claim
any inter se seniority and promotion with direct recruits-However, their pay,
work and status would remain at par with direct recruits.
F
The appellants were promoted professors and Readers under a merit
promotion scheme formulated by the University Grants Commission. The
respondents were appointed to the posts or professors and Readers on
subsequent dates as direct recruits. The University published a seniority
list in which the appellants were shown as senior to the respondents. The
G respondents flied a writ petition before the High Court challenging the said
placement in the seniority list which was allowed. Aggrieved by the judg·
ment or the High Court the appellants preferred the present appeals.
On behalf or the appellants it was contended that Section 49 or the
Madhya Pradesh Visbwavidyalaya Adhiniyam, 1973 took in its sweep even
H departmental candidates; that some universities had issued Ordinances
572
RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY
573
creating new source of recruitment by departmental promotion of univer- A
~ity teachers; that merit promotion scheme was formulated to avoid stag·
nation and heart burning; that the merit promotion scheme was a
temporary extension of the cadre of Professor or Reader; that as per
statute 16(2) of the Act the seniority of merit promotee Professor or
Reader should be determined on the basis of length of continuous service B
in the concerned cadre; that the merit promotees, having been selected by
the same selection committee for direct recruits, could not be dis·
criminated against in the matter of fixation of inter se seniority; that under
Section 6 read with Section 34 of the Act the university had power to create
posts of Readers and Professors through promotion; that the University
Grants Commission had left the question of fixation of inter se seniority or C
merit promotees and direct recruits to the University; that on doctrine of
promissory estoppel merit promotees should be treated at par with direct
recruits; and that once the concerned incumbents were promoted as
Readers or Professors they were entitled to work as snch and draw the
same pay as directly recruited Readers and Professors.
D
On behalf of the respondents it was contended that Section 49 of the
act did not contemplate any promotion; that the merit promotion scheme
which was formulated later on could not be encompassed by Section 49 or
the Act; that there could not be a combined seniority list or merit
promotees and direct recruits as the former stood outside the cadre; that E
merit promotees formed a separate distinct class as compared to direct
recruits; that there was a difference in the pay scales of merit promotees
and direct recruits; that the merit promotion was a personal promotion to
the promotee which ceased with his employment; that the merit promotees
were ex-cadre employees and could not be treated equally with direct
recruits for seniority; that unless the Act is amended there would be no
question of merit promotees entering tJte cadre of direct recruits; that
compensation be awarded to the respondent fo~ harassment by the University; and that the pay scales of merit promotees be reduced ..
F
Dismissing the appeal, this Court
G
HELD : 1. The promotee Readers and Professors do not fall in "the
same class as directly recruited Readers and Professors. The following
distinct characteristics _between merit promotees and direct recruits
Readers and Professors become at once visible :
H
574
SUPREME COURT REPORTS
(1995] 3 S.C.R.
A
(i) The directly recruited Readers and Professors fill up the vacanB
cies in the cadres of Readers and Professors for which direct recruitment
is resorted to. While the promotees under the merit promotion scheme
stand outside the cadre and fill no posts as such, since no posts are
created. The promotions given to them are ·purely personal and the posts
to which they are upgraded du not survive their service career. The posts
vanish with the incumbent person like the shadow vanishing with the
substance. Such a promotee fills up no vacancy in the promotional avenue
since no post is available by promotion. [613-B, C]
(ii) The directly recruited Readers and Professors recruited purC suant to the only source of appointment contemplated by Section 49, that
is by way of direct recruitment. The promotee Readers and Professors are
appointed not in the cadre posts but under an entirely different scheme,
namely merit promotion scheme. Even under this scheme, no posts a~ such
are created. Those selected under the scheme are given perscnal posts
which cease with their employment. In fact, the posts from which they are
D promoted do not become vacant and none can be appointed· to the said
posts while they hold the higher posts. [613-D, E]
(iii) Pay scales of promotee Professors and Readers are different
from the pay scales of directly recuitrd Readers and Professors at least
E after coming into operation of the career advancement scheme. This difference in the pay scales itself is a distinct feature so far as promotees under
the merit promotion scheme on the one hand and the directly recruited
Readers and Professors on the other hand are concerned. [613-F, 614-A]
(iv) The promotee Readers and Professors are not holding any
F officiating of even temporary post of Reader or Professor nor is there any
temporary addition to the cadre strength of Readers and Professors.
[614-B]
(v) The work load of directly recruited Reader and Professor is
different from the work load of promotee Reader or Professor for whom
G the work load of a Reader or Lecturer as the case may be would still have
to be shared as no vacancies are created for being filled in the cadres from
which snch promotions are effected. [615-C]
(vi) There is a qualitative difference in the process of selection of
direct recruits under the scheme of Section 49, as compared to the
H promotion of the merit promotees. Although for the latter the infrastruc-
RASHMISRIVASTAVAv. VIKRAM UNIVERSITY
575
ture of Selection Committee under Section 49 may be made available, the A
criteria for their promotion are entirely _distinct and different as envisaged
by the guidelines governing the merit promotion scheme. [614-D)
(vii) There is no question of promotee Reader or Professor being put
on probation. There is further no question of confirming them in the
concerned posts as they do not occupy any post as such in the promotional
avenue. This is unlike the direct recruits. [614-EJ
B
2.1. The relevant provisions of the merit promotion scheme and the
relevant provisions of the Madhya Pradesh Vishwavidyalaya Adhiniyam,
1973 clearly show that when the Act was enacted in 1973 the State LegisC
lature had not contemplated any promotion of a Lecturer as Reader or
Readers as Professor as the case may be. All the relevant ordinances and
statutes will therefore have to be read in that light. Section 49 of the Act
as enacted cannot take in its sweep even departmental promotees. A mere
look at Section 49 of the Act shows that the Members of the Committee of D
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 recrnitment and
candidates selected will have to be pointed 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 recrnit. 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
E
F
Act that only one source of recruitment of un_iversity 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 G
promotion scheme as recommended by the Commission which was
adopted by the respondent university, any departmental candidate is to be
promoted, he would be so promoted de hors Section 49 of the Act and would
obviously be an ex cadre Reader or Professor as the case may be. Once
that ltappens it would be obvious that there would be no occasion to ftx ·
the inter se seniority of directly recruited Readers and Professors who are H
576
SUPREME COURT REPORTS
(1995) 3 S.C.R.
A holding cadre posts and ex cadre merit promoted Readers and Proressors
who would stand stand outside the cadre. [607-F to H, 608-A to DJ
2.2. The respondent tried to ruse the inter se seniority or both these
classes or employees. And that itself amounted to treating unequals as
equals. It clearly offended the provisions or Articles 14 and 16(1) or the
B Constitution or India. Unless Section 49 or the Act is suitably amended
and a separate source of recruitment by way or internal promotion is
contemplated by the Act there would remain no occasion or undertaking
any exercise or fixing inter se seniority between ex cadre employees and
cadre employees. The Act nor any ordinances or statutes or respondent
C university even remotely whisper about creation of a separate recognised
source of recruitment of Professors and Readers by way of departmental
promotions. It is true that in some or the universities even ordinances
have been issued accepting such new source or promotion scheme. But
even if it is so that would make difference as it is the parent Act, namely,
University Act concerned which should contemplate creation or new
D source or recruitment by way or departmental promotions or university
teachers. Unless that is done mere issuance or ordinances or statutes to
that effect which to that extent would conOict with the parent Act would
be or no avail and would be an exercise in fntility. They would also be ultra
vires the Act. [608-E to H, 609-A]
E
. F
2.3. It is true that for avoiding stagnation and heart burning promotional avenues should be made available in any service. It is to be seen
whether the University Act has made such a Provision. Ir a provision is
made then there would be no difficulty but in the absence or such a
provision mere availability or merit promotion scheme cannot elevate the
merit promoted Reader or Professor to the cadre or 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 concerned cadre. (609-E to Fl
Dr. Ms. 0. Z. Hussain v. Union of India, (1990] Supp. SCC 688,
G referred tu.
2.4. It is not correct that under the merit promotion scheme though
the promotions were personal, to that extent there was a temporary
extension or the cadre or Reader or Professor as the case may be or that
they were special promotions. The very guidelines or the scheme suggest
H that a merit promoted Reader or Professor will he treated to have a
RASHMI SRIVASTAVA v. VIK.RAM UNIVERSITY
577
personal promotion. It will not create any addition to the cadre not it will A
create any vacancy in the lower cadre from which he or she was promoted.
. -
The work load has to be so distributed as not to require any additional
staff. 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 B
there was any temporary addition to the cadre strength of Reader or
Professor as the case may be. (609-F to H, 610-A)
S.B. Patwardhan and Anr. v. Siate of Maharashtra & Ors. and KV.
Ramkrishna and Ors. v. State of Gujarat and Ors. and M.G. Raichur and
Anr. v. State of Gujarat and Ors., (1977] 3 SCC 399, held inapplicable.
C
2.5. Staute 16 of the Act is also of no avail for the simple reason that
statute 16 deals with seniority of teachers of the university. The statute is
promulgated under Section 35(o) of the Act. Section 35(o) of the Act deals
with the mode of determining seniority for the purpose of the Act. Conse- D
quently it will have to be read with Section 49 of the Act 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 ender Section 35(0). As per clause (2) of Statute 16 the
seniority of Professors, College Professors, Readers, Associate professors
or Lecturers shall be determined in accordance with the length of conE
tinuous 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. The word cadre as employed by Statute 16(2) is not used in a
loose sense. 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 F
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 concerned cadres. As merit
promotee Reader or Professor is outside the cadre there is no question of
statute 16(2) operating in bis case. It is also pertinent to- note that merit
promotee Professors or Readers form a separate distinct class as com- G
pared to directly recruited Prof~ssors or Readers. (610-C to G]
2.6. It is true that the same Selection Committee which directly
recruits Professors and Readers under Section 49(2) of the Act deals with
the question of granting merit promotions to the concerned Lecturers as H
578
SUPREME COURT REPORTS
[1995] 3 S.C.R.
A Readers and Readers as Professors. Bnt 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
B suitably amended. That has not been done till now. Till appropriate amend·
ments are effected in the concerned University 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 fnrther question of fixation of inter se
seniority of such an ex cadre promotees and the directly recruited Rraders
C as Professors who form the cadre concerned. (610-G, H, 611-A, 612-F, G]
Dr. Bal Krishna Aganval v. State Uttar Pradesh and Ors., JT (1995) 1
SC 471, referred to.
3.1. The aforesaid distinguishing features clearly indicate that merit
D promotee Professors and Readers form a distinct class of ex cadre or
supernumerary appointees as compared to cadre employee, namely,
directly recruited Readers and Professors. They cannot be treated equally
for all purposes and particularly for seniority and promotion if any. The
competition for seniority can only be amongst those who are in the cadre
E posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated.
(614-F, G]
F
G
The Direct Recrnit Class II Engineering Officers' Association and
·Others v. State of Maharashtra and Others, JT (1990) 2 SC 264, followed,
M.P, No. 2064/89 M.P. High Court and C.W.P. No. 2558/88 Rajasthan
High Court, held inapplicable.
3.2. It must be held that the action of the respondent university in
fixing inter se seniority of directly recruited Professors and Readers and
merit promoted Readers and Professors on the yardstick of continuous
officiation was illegal and unconstitutional. [ 615-C]
4.1. Section 6 (30) of the Act lays down that university bas power to
create administrative, ministerial and other necessary posts to make
appointments thereto. Similarly Section 34 lays down that the Coordina·
tion Committee has power amongst others to consider matters of common
interest to all or some of the. universities. However, these provisions do
H not confer the power to create additional posts of Readers and Professors
RASHMISRNASTAVAv. VIKRAMUNNERSITY
579
for being reserved for promotee Readers and Professors nor is the power A
exercised by the university in the present case to create such posts.
[615-E, Fl
4.2. No promise was held out either by the University Grants Commission or by respondent university to these merit promotees that their
inter se seniority with direct recruits in the upper cadres will be reckoned B
on the principle of continuous officiation nor is tliere anything to suggest
that but such a promise a merit promotee would not have accepted his
promotion or that he had changed his position in any manner relying on
such an alleged promise. Such a promise if any also would have been
unconstitutional being violative of Articles 14(1) and 16 of the Constitu- C
tion. It is impossible to discern any promise about fixation of inter se
seniority from the fact that the University Grants Commission had left the
question of inter se seniority of promotees and direct recruits to be decided
by the concerned universities. [617-H, 618-A, Bl
Paradise Printers and Others v. Union Territory of Chandigarh and• D
Others, [1988] 1 SCC 440, referred to.
4.3. lt must be clarified that even though the merit promotees may not
be included in the seniority list of cadre employees, namely, Professors or
Readers it cannot be held that their merit promotions were of no legal effect
at all. With a view to avoiding stagnation amongst university teachers .the E
Commission recommended a scheme of merit promotion. Once a Lecturer
is promoted on merit as Reader or a Reader as Professor even though the
promotion may be personal to him he can certainly continue to work as
promotee Reader or Professor till he retires or otherwise ceases to be an
employee of the university or till he is reverted for some valid reasons. There F
is no question of such a merit promotee being reverted otherwise to the
lower cadre from which he came. He has to work as a Reader or Professor
as the case may .he and share the work load with the cadre employees. In fact
as there is no vacancy created in the lower cadre from which he came on
ace cunt of his promotion, he has also to share the burden of work load of
the lower post. Consequently it cannot be said that such a merit promotee G
is not the Reader or Professor so far as his work as Reader or Professor is
concerned. He cannot claim to be fitted in the inter se seniority list and may
remain outside the cadre of Reader or Professor as the case may be.
However, for all other purposes like pay, work and status he is a Reader or
Professor as the case may be. [ 619-A to E]
H
580
SUPREME COURT REPORTS
(1995] 3 S.C.R.
A
4.4. Amongst person forming the same class to which he belongs,
namely, merit promotee Readers or Professors their inter se seniority has
to be fixed on the basis of continuous officiation as such merit has to be
fixed on the basis of continuous officiation as such merit promotees. Such
a separate seniority list of merit promotee Readers and Professors has to
B be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the cadre. It is not as if they
are still to be treated as only Lecturers or Readers as the case may be from
which posts they got merit promotion. In short there have to be two
seniority lists, one of the cadre Readers and Professors who are direct
recruits and the other of merit promotee Readers and Professors. The
C names of the appellants in the combined seniority list will have to be
deleted. [619-G, H, 620-A, BJ
S. The respondent had not claimed in this writ petition before the
High Court any compensation nor had he filed any cross petition in this
D • Court claiming such relist. Hence no further relief can be given to him.
That apart, there is no factual basis by way of any material on record for
awarding any compensation to him for the alleged harassment suffered by
him. [620-D, E)
6. The State Government had clearly directed that those merit
E promotee Readers and Professors who got promoted under merit promotion scheme bad to be given pay protection and would be entitled to draw
revised salary of Reader and Professor at par with directly recruited Reader
and Professor. The respondent bad not filed any cross petition in this Court
claiming that the pay scales of merit promoted Professors should be
F reduced. There is no justification for finding any fault with the directions
contained in the State Government Order which tried to protect the pay
scales or merit promotees who had already taken advantage or and who bad
got benelitted by the merit promotion scheme much prior lo the coming into
operation of the career advancement scheme. To say the least, it was a
discretionary order which was justified on the facts of the present case. The
G pay scales of merit promoted Professors shall not be reduced. [621-B to El
D.P. Sing/a and Anr. v. Union of India and Ors. and Sadhu Ram and
Others v. Union of India and Others, [1984) 4 SCC 450, V.nay Kumar Venna
and Ors. v. State of Bihar and Ors., [1990) 2 SCC 647, University of Delhi v.
H Raj Singh and Ors., [1994) Sopp. 3 SCC 516, Col. A.S. Iyer and Ors. Etc. v.
RASHMISRNASTAVAv. VIKRAMUNNERSITY(MAJMUDAR,J.] 581
V. Balasubramanyam and Ors., [1980) SCR 1036, Bhey Ram Shanna and A
Ors. v. Haryana State Electricity Board and Ors., and Balbir Singh and Ors.
v. Haryana State Electricity Board and Ors., and Sohan Lal Venna and Anr.
v. Haryana State Electricity Board and Ors., [1994) Supp. 1 SCC 276, cited.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6001 of
the 1994 Etc.
From the Judgment and Order dated 23.2.94 of the Madhya Pradesh
High Court in M.P. No. 208 of 1989.
B
V.A. Bobde, Jitendra Sharma, Mr. D.A. Dave, K. J. John, H.M. C
Singh, G. Dara, P. Gaur, S.K. Gambhir, Vivek Gambhir, Gaurab Banarjee,
Naveen Prakash and Surendra Narayana Gupta for the appearing parties.
The Judgment of the Court was delivered by
MAJMUDAR, J. These two civil appeals arise out of a common D
judgment rendered by the High Court of Madhya Pradesh, Indore Bench.
on 23rd February, 1994. The High Court allowed two writ petitions against
Vikram University and other contesting respondents. The contesting
respondents after obtaining special leave to appeal from this court have
challenged the said common judgment of the High Court in these civil E
appeals.
A common question is involved in these appeals, namely, whether
the University teachers who have been given merit promotion as Readers
or Professors, as the case may be, can claim seniority over directly recruited
Readers and Professors on the ground of continuous offidation in service
as Readers or Professors. The High Court has taken the view that the are
not entitled to claim such seniority and has accordingly allowed the writ
petitions moved by the directly appointed Readers and Professors. The
appellants before us are the promotee Readers and Professors under the
merit promotion scheme.
Factual backdrop :
In order to appreciate the grievance voiced by the appellants, it is
necessary to have a look at the relevant introductory facts leading to these
F
G
proceedings.
If
582
SUPREME COURT REPORTS
[1995] 3 S.C.R.
A
1. Civil Appeal No. 6001/94:
This appeal is moved by the appellant who was earlier working as
Lecturer in the Department of Political Science in Vikram University,
Ujjain. The said university, its Registrar and the Kulpati are respondents
1 to 3 in the appeal. A n.erit promotion scheme was formulated by the
B University Grants Commission (hereinafter referred to as 'Commission')
which has been joined as respondent no. 5 in this appeal pursuant to notice
issued by this court. The said scheme was promulgated in the year 1982.
We will refer to the details of the said scheme in the latter part of this
judgment. It is sufficient to say at this stage that the scheme was to provide
opportunities for professional advancement of teachers working in the
C . U Diversity and who merit academic recognition. Such teachers were to be
given promotion on merit or and not on the basis of seniority.
Under the said scheme the appellant was promoted to the'post of
Reader on 29th June, 1985. Respondent no.4 in this appeal who was the
D writ petitioner before the High Court in M.P. No. 208/89 was appointed as
Reader in the Department of Political Science as direct recriiit. He was so
appointed on 13th March, 1986. He was confirmed after a period of two
years' probation. The respondent No.l university published seniority lists
in the year November, 1986; November, 1987 and the latest list in November, 1988 whereunder the appellant was shown as senior to respondent no.
E 4. The appellant was placed at serial no.14 while respondent no. 4 was
placed at serial no.33. That was presumably because the appellant worked
as a promotee reader from 29.6.1985 while respondent no. 4 became
reader by direct recruitment later on 13th M"!'ch, 1986. Respondent No. 4
being aggrieved by the said placement in the seniority list filed the
F
aforesaid writ petition in the High Court of Madhya Pradesh at Indore on
17th January, 1989. The respondent no. 4 prayed that the name of the
appellant be deleted from the seniority list of Readers and also from the
Board of Studies in Political Science and respondent no. 1 be directed to
determine the seniority of Readers in accordance with Statute No. 16 and
to give due seniority to the 4th respondent in the cadre of Readers. This
G petition was contested by the university as well as the appellant. As noted
earlier the High Court accepted the case of respondent no. 4 writ petitioner
and allowed the writ petition.
II Facts leading to Civil Appeal No. 6002/94 :
H
The respondent no.4 in this appeal was the original writ petitioner
-~
RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY [MAIMVDAR, J.] 583
before the High Court. He was appointed as Professor in Physics DepartA
ment as direct recruit by respondent no. 1 Vikram University, Ujjain. His
appointment was confirmed after a period of 2 years' probation on 28th
March, 1988. The present appellants who were respondents no. 4, 5, 8 &
9 in the said writ petition before the High Court and also original respondents 6 & 7 before the High Court who are respondents 5 & 6 in this B
appeal were all promoted under the merit promotion scheme formulated
by the Commission as Professors in the School of Studies, Vikram University in various subjects. They were promoted on 12th March, 1986. As they
were promoted a day earlier than the date on which respondent no. 4
original writ petitioner respondent no. 4 was appointed as direct recruit
Professor in physics Department, the appellants and respondents 5 & 6 C
were shown as senior to original writ petitioner. The seniority lists published by respondent no. 1 university in the years 1987 & 1988 reflected this
position. Even in the later seniority list of 1989 the appellants were shown
at serial no. 16, 18 & 20 in the seniority list while the original writ petitioner
was shown at serial no. 22.
.,
That brought respondent no. 4 to the High Court by way of writ
petition no. 1180/89. He challenged the seniority list on diverse grounds
and prayed for the reliefs as under : -
D
1.
That the names of the present appellants and respondents 5 & E
6 be deleted from the seniority list of Professors and also appointment of appellant no. 1 be quashed.
2.
That the respondent no. 1 be directed to determine the seniority
of Professors in accordance with the Statute no. 16 and to give
due seniority to respondent no. 4 (original writ petitioner) in the
F
cadre of Professors.
This petition was opposed by respondent no. 1 university and the
contesting respondents. Respondent nos. 2 and 3, the Commission and the
State of Madhya Pradesh were also joined in the writ petition. They also G
contested these proceedings.
As noted earlier the aforesaid writ petitions raised a common question. They were heard together by the Division Bench of Madhya Pradesh
High Court. By its common judgment this writ petition was also allowed
and that is how the appellants who were promotee Professors under the H
584
SUPREME COURT REPORTS
(1995] 3 S.C.R.
A merit promotion scheme have filed this appeal. As both these appeals
raised common questions of law and facts, they were heard together and
are being disposed of by this common judgment. In civil appeal no. 6001/94
Professors working in various departments of University of Delhi have been
joined as respondents 6 to 44 and 53 to 61 in the light of an interlocutory
B application which was granted Similarly the Professors working in the
different departments in the University College of Medical Science, Delhi
have also been joined as respondents 45 to 52 at their request. While
respondent nos. 62 to 90 are also permitted to be joined at their request
in this appeal. They are professors working in different schools of studies
and sciences in this city.
c
In civil appeal no. 6002/94 are joined additional respondents 1 to 19
out of whom additional respondents 1 to 3 are professors working in Devi
Ahilaya University, Indore while additional respondents 4 to 19 are working as Readers in Dr. H.S. Gaur University, Sagar and one additional
respondent Dr. S. Sivararnan is a Professor in Dr. H.S. Gaur University,
D Sagar. All these additional respondents are pe!111itted to be joined as
respondents at their request pursuant to interlocutory application number
2, 3 & 4 moved by them and granted by the order dated 9.9.94. In addition
to that there is I.A. no. 5/95 in civil appeal no. 6002/94 by which ten
applicants, working as Professors in various departments of J amia Millia
E lslimia University, new Delhi have also sought to be joined as respondents.
The said application is treated to have been allowed and they will also be
treated as additional respondents in this appeal.
Ill. Statutory Provisions :
F
Before we deal with the main question posed for our consideration,
G
it will be profitable to have a look at the relevant statutory provisions
governing the proceedings and the impact of the merit promotion scheme
promulgated by the Commission which has brought the appellants in the
arena of contest.
Respondent no. 1 university is governed by the Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973. English translation thereof was furnished by learned counsel for the appellants. It is not in dispute that the
various universities functioning in the State of Madhya Pradesh are
governed by the said Adhiniyam. Respondent no.1 university is functioning
H at Ujjain, while Shivaji University is located at Gwalior. Sagar university to
RASHMI SRN ASTAVAv. VIKRAM UNIVERSITY [MAJMUDAR, J.] 585
which some of the newly added respondents belong is situated at Sagar A
town of Madhya Pradesh.
We may at this stage usefully refer to the relevant provisions of the
Adhiniyam which have a bearing on the controversy before us. Clause (iv)
of Section 4 defines an employee to mean any person appointed by the B
university and includes teachers and other staff of the university. Clause
(v) defines Executive Council to mean Executive Council of the university.
Clause (ix)· deals with statutes, ordinances and regulations of the university,
as the caBe may be, enforced for the time being. Clause (xviii) defines
University Grants Commission to mean the Commission established under
the University Grants Commission Act, 1956. Clause (xx) defines teachers C
of the university to mean professors, Readers, Lecturers and such other
persons as have been appointed for imparting education and conducting
research with the approval of the Academic Council in the University or
any College or any institution maintained by the University. Section 6 deals
with powers of the university. Clause (15) of Section 6 empowers the D
university to institute Professorships, Readerships; Lecturersbips and_ any
other academic or teaching posts required by the University and to appoint
persons to such posts in accordance with the provisions of the Act. Clause
(31) of Section 6 deals with the power of the university to exercise control
over the salaried officers, teachers and other employees of the University
in accordance with the Statutes and the Ordinances. Section 19 deals with E
the authorities of the University which include amongst others Executive
Council. Board of Studies. Academic Planning and Evaluation Board.
Section 23 deals with the Executive Council. Its powers and duties are
prescribed by Section 24. Clause (xx) of Section 24 deals with the power
of the Executive Council to institute such Professorships,. Readerships, F
Lecturerships or other teaching posts as may be proposed by the Academic
Planning and Evaluation Board. It is subject to the proviso that no teaching
post shall be instituted without the prior approval of the Madhya Pradesh
Uchcha Shiksha Anudan Ayog. Clause (xxxii) of Section 24 deals with the
power of the Executive Council, save as otherwise provided ·by this Act, or G
the Statutes, to appoint the officers other than the Kulapati, teachers and
other employees of the University, to define their duties and the conditions
of their service, and to provide for the filling of temporary vacancies in
their posts. Clause (xiii), (xliii) and (xliv) of Section 24 refer to the powers
of the Executive Council to entertain, adjudicate upon and if deemed fit
to redress grievances of the employees and the students, to exercise such H
586
. SUPREMECOURTREPORTS
(1995] 3 S.C.R .
A
other powers and perform such other duties as may be conferred or
imposed on it by or under this Act and to exercise all powers of the
University not otherwise provided for in this Act or the Statutes and all
other powers which are requisite to give effect to the provisions of this Act
or the Statutes. Section 27 deals with various faculties of the University in
which teaching can be imparted to the students. Section 28 deals with
B Board of Studies. Section 34 deals with Coordination Committee. Sub-section (iv) of Section 34 deals with powers and discharging of the functions
by the Coordination Committee. Amongst others is found clause (v) which
deals with C011$ideration of matters of common interest to all or some of
the Universities. Section 35 deals with Statutes. Clause (1) provides for
C framing statutes regarding q•ialifications of Professors, Readers, Lecturers
and other teachers in affiliated colleges and recognised institutions. Clause
( o) deals with the mode of determining seniority for th.e purpose of the
Act. Section 37 deals with Ordinances and states that subject to the
provisions of the Act the Ordinances may provide for all or any of the
D
matters listed in the section. At item 15 is found the topic of the duties,
qualifications and conditions of appointment including pay scales of the
teachers paid by the university.
Chapter IX of the Act deals with appointment of teaching post in
the university. Section 49 is relevant for our present purpose. It is useful
E to extract it in extensio.
F
G
H
"CHAPTER IX - APPOINTMENT TO TEACHING POSTS IN
THE UNIVERSITY
49. (1) No person shall be appointed :
(i) as a Professor, Reader, Lecturer; or
(ii) to any other teaching post of the University paid by the
University except on the recommendation of a committee of selection constituted in accordance with sub-section (2):
Provided that if appointment to any of :he teaching posts
aforesaid is not expected to continue for more than six months and
cannot be delayed without detriment to the interest of the department or institution maintained by the University, the Executive
Council may make such appointment without obtaining the recom-
RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY [MAJMUDAR, J.] 587
mendation of the committee of selection constituted ll!lder sub- A
section (2) but the person so appointed, shall not be retained on
the same post for a period exceeding six months or appointed to
another post in the service of the University except on the recommendation of the said committee of selection.
Provided further that any such appointment purported to have
B
been made under the preceding proviso prior to the 13th day of
February 1974 and continuing or such date shall continue till the
30th day of June, 1974 or the filling up 'of the post in accordanee
with sub-section (5), whichever is earlier.
(2) The members of the committee of selection shall be :
(i) the Kulapati - Chairman.
(ia) omitted.
(ii) omitted.
(iii) one expert in the subject, not connected with the University
in any manner whatsoever to be nominated by the Academic
Council.
(iv) Three experts, not connected with the University in any
manner whatsoever nominated by the Kuladhipati.
(v) the Chairman of the Ayog or a member of the Ayog
nominated by him"
(3) Omitted.
c
D
E
F
(4) The Committee shall investigate the merits of the various
candidates, and shall recommend to the Executive Council the
names, if any, of persons whom it considers suitable for the posts, G
arranged in order of merit :
Provided that no recommendation shall be made unless atleast
three out of the experts nominated under clause (iii) and (iv) of
sub-section (2) are present in the meeting in which such recommendation is to be decided upon.
H
588
SUPREME COURT REPORTS
[1995) 3 S.C.R.
A
( 5) Out of the names so recommended under sub- section ( 4)
the Executive Council shall appoint persons in order of merit".
Section 63 deals with classification of teachers. Sub-section (i) of
Section 63 provides for Professors and Readers who are said to be teachers
appointed by the Executive Council on the scales of pay not lower than
B
that approved for Professors and Readers by the Commission and accepted
by the State Government and when the scale of pay approved by the
Commission is higher than that approved by the State Government in this
behaH then on the scale of pay as approved by the State Government.
Section 64 deals with terms of office of members of authority of the
C university. Sub-section (1) of Section 64 lays down that wherever 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 provisions to the contrary in the Act, shall be determined in
accordance with the Statutes :
D
Provided that till the Statutes are made the seniority in a particular
E
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 is the same, then 'Seniority' shall be determined by
seniority in age.
Apart from the aforesaid relevant act-provisions, Statute 16 and
Ordinance no.4 have a direct bearing on the questions posed for our
consideration.