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

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promotion under the Personal Promotion Scheme could not be • made prior to February 21, 1985. The Executive Council in its Resolution No. 198 dated November 8, 1984 had accepted the recommendations of the Selection Committee for promotion of respondents Nos. 4 and 5 on the basis of Government Orders dated December 12, 1983 and February 25, 1984. At that time Section B 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. c This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10th October, 1984. But Section 31(A) could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated February 21, 1985. The promotion of respondents Nos. 4 and 5 to D the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to February 21, 1985. The inter se seniority of the appellant and respondents Nos. 4 and 5 has to be determined on that basis.'

E In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31(A) which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. It is therefore to be held that till appropriate amendments are effected in the concerned universities Act F on the same lines as Section 31(A) of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre or Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such an ex cadre promotees and the directly G recruited Readers or Professors who from the cadre concerned.

At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as ' recommended by the Commission and adopted by the university con- H cerned, in the absence of any statutory creation of a distinct and fresh

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source of recruitment by way of promotion, can be said to fall in the same A class as directly recruited Readers or Professor. The answer becomes obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible.

(i) The directly recruited Readers and Professors fill up the vacan- B 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 '10 posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their 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.

(ii) The directly recruited Readers and Professors are recruited pursuant to the only source of appointment contemplated by Section 49, f 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 as such are created. Those selected under the scheme are given personal posts which cease with their employment. Infact the posts from which they are promoted do not become vacant and none. can be appointed to the said posts while they hold the higher posts.

(iii) Pay scales of promotee Professors and Readers are different from the pay scales of directly· recruited Readers and Professors atleast after coming into operation of the career advancement scheme as seen earlier. To recapitulate for direct recruit Readers .revised pay scale with effect from 1.1.86 is Rs. 3700 - 5300 while the pay scale· for promoted Reader is Rs. 3000 - 5000. Pay scale of a direct recruit Professor is Rs. 4500 - 7300. while the pay scale of a promotee Professor is Rs. 4500 - 5700 .. It is also to be noted that as per the letter of Under Secretary, Department G of Education dated 1st January, 1989 the aforesaid difference in pay scales of merit promoted teachers is clearly -brought out. It is. of course true that as per the order of the Madhya Pradesh Govt. the pay scales of promotee Readers and Professors who were promoted prior to the enforcement of career advancement.scheme were protected. But for such protection they H

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A would not have been entitled to pay scales of directly recruited Professors and Readers as revised under the 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 concerne'1.

B (iv) The promotee Readers and Professors are not holding any officiating or even temporary post of Reader or Professor nor is there any temporary addition to the cadre strength of Readers and Professors. ' (v) The work load of directly recruited Reader and Professor is different from the work load of promotee Reader or Professor for whom 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 such promotions are effected.

(vi) There is a qualitative difference in the process of selection of direct recruits under the scheme of Section 49, as compared to the promo- tion of the merit promotees. Although for the latter the infra5tructure of Selection Committee under Section 49 may be made available, the criteria for their promotion are entirely distinct and different as envisaged by the guidelines governing the merit promotion scheme.

E (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.

p The aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, direct- ly recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work·they do is irrelevant. The competition for seniority can only be amongst those \ who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Reader~ and Professors and directly

RASHMI SRNASTAVAv. VIKRAM UNNERSITY [MAfMUDAR, J.] 615

recruited Readers and Professors by treating them as forming one class. A Any decision rendered by the university concerned not to discriminate ~--' between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a district source of recruitment by promotion by way of amending the present Act. As the first respondent is governed by the Act which does not contemplate any statutory source of B recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the university for not distinguish- ing between directly recruited Professors. and Readers on the one hand ~ and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy. On the contrary, treating them at par for seniority and promotion is violative of Articles 14 and 16( 1) as we have c seen above. It must therefore be held that the High Court was justified in taking the view that the action of the first respondent university in fJXing inter se seniority of directly recruited Professors and Readers and merit promoted Readers and Professors on the yardstick of continuous officia- lion was illegal and unconstitutional. D Before parting with discussion on this point we may refer to certain additional submissions placed for our consideration by Mr. Bobde and Mr. Dave learned counsel for appellants. Placing reliance on Section 6 of the Adhiniyam read with Section 34 it was submitted by Mr. Bobde that university had full powers to create posts. When we turn to Section 6 we find that sub-section 30 thereof lays down that university has power to create administrative, ministerial and other necessary posts to make ap- pointments thereto. There cannot be any dispute on this aspect. Similarly when we turn to Section 34 we find that the Coordination Committee has / power amongst others to consider matters of common interest to all or some of the universities. However, we do not read in these provisions the power to create additional posts of Readers and Professors for being reserved for promotee Readers and Professors nor is the power exercised by the university in the present case to create such posts as indeed it could not in the absence of any statutory provision in the Act permitting it to do so. A conjoint reading of Section 49 and sub- section 30 of Section 6 would only indicate that the university can create additional posts of Readers or ......,. Professors for filling them up by the only statutorily permitted source of recruitment, namely, by direct recruitment under Section 49. As already discussed earlier in the absence of similar provision like Section 31(A) of Uttar Pradesh Act which was considered by this court in the case of Dr. H

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A Bal Krishna Agrawal v. State of Uttar Pradesh & Ors. (supra) no posts could have been created for promotees by way of extension of cadre of Readers or Professors as the case may be. As there is no such statutory provision in the Act governing first respondent university, Section 6 by itself cannot be of any assistance to learned counsel for appellants. Mr. Dave invited our attention to Section 50 which deals with payment of salaries to teachers B of university. The said provisions is not relevant for deciding the question whether the merit promotees were ex cadre employees or not. Similarly Section 64(1) to which our attention was invited by the learned counsel is also of no avail to the appellants as all that section provides is that wherever ' in accordance with the Act, any person is to hold an office or to be a c 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. Until the statutes are made the seniority in a particular cadre shall be determined by the length of continuous service in such cadre. As we have already discussed earlier the said statutes would govern seniority of cadre employees only and cannot D be projected to take in their sweep inter se sr,niority of cadre employee on the one hand and ex cadre employees like the promottee Readers and Professors on the other hand. The University cannot make statutes contrary to or inconsistent with the provisions of the Act.

E Reliance was then placed by the learned counsel for appellants on a decision of the very same High Court from which the present appeal arise. The said decision was rendered by the Jabalpur Bench in M.P. No. 2064/89. The Bench by its order dated 19.7.94 has taken the view that inter se seniority of directly recruited Readers in Hindi Department of Rani Dur- F gawati Vishwa Vidyalaya and a promotee Reader under the merit promo- tion scheme shall be decided on the basis of continuous officiation. It is difficult to appreciate the reasoning of the Court, in view of the fact that a directly recruited Reader was a cadre employee while merit promotee Reader was only an ex cadre employee. This vital aspect of the matter has been totally missed by the Court in that decision. Hence, it has to be held that the said decision does not lay down correct legal position. Our attention was also invited to a decision of Rajasthan High Court, Jaipur \ Bench in D.B Civil Writ petition No. 2558/88 decided by S.N. Bhargava \. and P.C. Jain, JJ on 9.12.88. In that case the Division Bench had taken the view that merit promoted Professors must be given the same time scale as directly recruited Professors under the Rajasthan University Teachers and

RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY (MAJMUDAR, J.] 617

Officers Special Condition of Service Act, 1974. That has been directed on the basis of equal pay for equal work. We are informed that special leave petition against the said decision was dismissed by this court on 9.12.88 by a non speaking order. The said. decision is of no avail to the appellants as we are concerned with the relevant provisions of the Vikram University Act. The aforesaid decision was rendered in the light of an entirely different scheme of statutory provisions governing the controversy between the parties in that case. But that apart, the Rajasthan High Court was not concerned with the question with which we are concerned, namely, whether there cait be inter se seniority of ex cadre employees and cadre employees even if they are drawing the same salary. We may note at this stage that so far as the present appeals are concerned it is not in dispute between the parties that the promotee Professors and Readers who have actually got promoted under the 1982 merit promotion scheme are being paid the same revised time scale even after the implementation of the career advancement scheme, in view of the decision of Madhya Pradesh Government dated 21st March, 1989 wherein it has been clearly directed that those teachers who have been given promotion under the merit promotion scheme prior to 19.6.87 will be entitled to draw from 1.1.86 or from the date of their actual promotion (that is between 1.1.86 and 17.6.87) the reversed time scale for Reader i.e. Rs. 3000- 5700 and for the Professor Rs. 4700 - 7300. In the present proceeding, we are not concerned with the pay scales of any merit promotees who might have opted out for being governed by the merit promotion scheme even after the implementation of career advancement scheme and who might have been promoted 0nly after 17.6.87. As we have seen earlier, for them the pay scales would be lower than the revised pay scale available to a directly recruited Reader or Professor as the case may be. It must therefore be held that there would be no jnstification for the respondent authorities to treat directly recruited Professors and Readers at par with merit promotee Readers and Professors for deciding their inter se seniority which as we have already discussed earlier cannot be coun- tenanced at all.

It was next submitted that on doctrine of promissory estoppel the respondent authorities must treat promotee Readers and Professors at par with directly recruited Readers and Professors. This contention has to be stated to be rejected. No promise was held out either by the Commission or by respondent no. 1 university to these merit promotees that their inter se seniority with direct recruits in the upper cadres will be reckoned on the H

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A principle of continuous officiation nor is there anything to suggest that but for such a promise a merit promotee would not have accepted his promo- tion 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 unconstitu- tional being violative of Articles 14(1) and 16 of the Constitution. Dr. Dhavan submitted that such a promise is culled out from a letter of B Commission issued in 1984. In that letter the Commission informed all concerned that the question of inter se seniority of promotees and direct recruits will be left to be decided by the concerned universities. It is \ impossible to discern any promise about fixation of inter se seniority from this letter. For all these reasons, the first point under consideration is answered in the negative.

Point No. 2

So far as point is concerned we may note that the High Court by the impugned judgment has taken the view in the last para of the judgment that the respondent university shall delete the names of respondents nos. 4 to 9 in M.P. 1180/89 and respondent no. 4 in M.P. 208/89, from seniority list. A grave exception was taken by learned counsel for appellants to the aforesaid direction. It was submitted that once the merit promotion scheme recommended by the Commission was adopted by the respondent univer- E sity and once the concerned incumbents were promoted on merit as Reader or Professor as the case may be they were entitled to work as Readers or Professors even assuming that they were ex cadre employees. ·Hence it cannot be said that they should not be treated as Readers or Professors at all and their seniority should be shown only in the lower cadre of Reader or Lecturer as the case may be frnm which they were promoted on merit as Readers or Professors. In this connection they invited our attention to para 12 of the judgment to the effect that it is clear from the scheme annexure P/4 that by virtue of promotion under the said scheme, it is only the designation of the incumbent which is changed but in reality he remains in the same lower cadre of either Reader or Lecturer as the case may be. Consequently respondents 4 to 9 cannot be held to have been . appointed by the University on clear vacant posts of professors and their name cannot be included .in the seniority list or professors nor can they be \,

considered senior to the petitioners. According to us no exception can be taken to the last part of para no. 12, where it is observed that respondents H 4 to 9 cannot be held to have been appointed on clear vacant posts of

RASHMI SRIVASTAVA v. VIKRAM UNIVERSITY [MAJMUDAR, J.] 619

Professors nor can they be included in the seniority list of Professor nor A _,,_ can be considered senior to the petitioner. But it must be clarified at this stage that even though they may not be included in the seniority list of cadre employees, namely, Professors or Readers it also cannot be held as assumed by the High Court that their merit promotions were of no legal effect at all. In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed that with a view to B avoid stagnation amongst university teachers the Commission recom- ., mended a scheme. of merit promotion. The very preamble of the scheme shows that it is necessary to give reasonable opportunity for career advan- cement and recognition of merits and it is on the basis of competitive test for recognising outstanding work and merit that such merit promotions c were given. 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 is no question of such a merit promotee D being reverted otherwise to the lower cadre from which he came. He has _. to work as a Reader or Professor as the case may be 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 account 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 is not the Reader or Professor E 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. F The question then remains as to how his seniority has to be reckoned as a merit promotee even though be is an ex cadre Reader or Professor. The answer is obvious. 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 promotees. Such a separate seniority list of merit promotee Readers and G professors has to 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 of Readers as the case may be from which posts they got merit promotion, as wrongly assumed by the High Court. In short there have to be two seniority lists, H

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A one of the cadre Readers and Professors who are direct recruits and the other of merit promotee Readers and Professors. The directions issued by the High· Court in the impugned judgment in paragraph 16 read with the observations in paragraph 12 will have to stand modified as aforesaid. It is however, clarified that the direction of the High Court that names of respondents 4 to 9 in M.P. 1180/89 and respondent no. 4 in M.P. 209/89 in B the combined seniority list will have to be deleted has to be sustained. The other directions contained in the later part of paragraphs 16 also have to be sustained. Point no. 2 is answered in the negative but as indicated herein above.

C Point No. 3

So far as this point is concerned, it must be noted that even though the respondent no. 4 in his writ petition before the High Court had prayed for several reliefs in the prayer clause 53, no such relief was claimed against respondent no. 1 university. Not only that, even in the judgment under appeal no such claim has been considered and no such relief is given to him. He has also not filed any cross petition in this court claiming such relief. Hence, no further relief cannot be given to him in the present appeal moved by the appellants. 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. Point No. 3 is therefore, answered in the negative.

Point No. 4.

So far as this point is concerned, respondent no. 4 who filed the writ petition before the High Court had prayed as per prayer (e) of clause 53 that the order Annexure P/25 revising pay scales of the teachers being discriminatory, be quashed in the light of the clarification given by the Commission. But such an argument does not seem to have been pressed into service by him before the High Court while arguing the writ petition. At least no discussion is found in the judgment under appeal on this aspect. G However, respondent no. 4 drew our attention to paragraph 16 of the judgment which contains a direction that any other ancillary relief such as appointment as Dean or Head of Department, and their respective pay scales, are matters of details which the university is directed to work out and give effect to. It was submitted that this direction world necessarily H mean that the pay scales available to the appellants should be reduced. It

RASHMI SRIVASTAVAv. VIKRAM UNIVERSITY [MAIMUDAR, J.] 621

is not possible to agree with the contention. The said direction is only a A consequential direction which flows from the reshuffling of the seniority list which was found fault with by the High Court and it was a logical corollary of the deletion of the names of respondents 4 to 9 from the combined seniority list. This ancillary relief has nothing to do with the setting aside of exhibit P/25. It has to be kept in view that the State of B Madhya Pradesh by claiificatory order dated 21.3.81 had clearly directed that those merit promotee Readers and Professors who got promoted under merit promotion scheme prior to 17.6.87 had 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. That order of the State of Madhya Pradesh does not appear to have been challenged by the party in person before the High Court as there is no discussion on this aspect in the judgment. Not only that but there is no decision rendered by the High Court in this connection. The respondent no. 4 had not filed any cross petition claiming this additional relief from this court. Conse- quently it is not open to respondent no. 4 to contend in the appeal filed by the appellants that a more adverse order be passed against the appel- lants by depriving them of the enhanced revised time scale made available to them by the State of Madhya Pradesh. Even otherwise, we do not find any justification for finding any fault with the directions contained in the State Govt. Order which tried to protect the pay scales of merit promotees who had already taken advantage of and who had got benefitted by the merit promotion scheme much prior to 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 fourth point is accordingly answered in the negative. F Point No. 5

In view of the aforesaid discussion and our decision on the concerned points for determination, the result is that these appeals fail and are dismissed subject to the modification of the impugned order of the High Court as indicated while answering point no. 2. In the facts and circurnstan- G ces of the case there will be no order as to costs.

v.s.s. Appeals dismissed.