CW/3287/2008 of DR RAJENDRA KUMAR KUMBHAT Vs JAI NARAIN VYAS UNIVERSITY and ORS on 22 December 2008

O R D E R

Dr.Rajendra Kumar J.N.V.University, JodhpurKumbhat v. and others S.B.CIVIL WRIT PETITION NO.3287/2008under Article 226 of the Constitutionof India.

Date of Order

:: 22[nd] December, 2008

P R E S E N T

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. M.Mridul, Sr.Advocate with Mr. Ashok Kumar, forthe petitioner.Mr. A.K.Rajvanshy]Mr. P.R.Singh ] for the respondents.....

BY THE COURT:

Under an order dated 30.4.2008, the ViceChancellor, Jai Narain Vyas University, Jodhpur(hereinafter referred to as “the University”), whileexercising powers under statute 8(c)(1)(i) of the JaiNarain Vyas University Statutes, appointed Dr. GopiChand Tikkiwal, respondent No.3, as Head of theDepartment of Mathematics and Statistics w.e.f.

1.5.2008 for a period of three years. The orderaforesaid is questioned by the petitioner in thispetition for writ.

The factual matrix as available on record andnecessary for adjudication of this petition is thatthe Director, Technical Education, Government ofRajasthan by an order dated 21.7.1977 accorded anappointment to the petitioner as a Lecturer in thesubject of Mathematics at Government PolytechnicCollege, Bikaner on urgent temporary basis as per theprovisions of Rule 27 of the Rajasthan TechnicalEducation Service Rules, 1973 (hereinafter referred toas “the Rules of 1973”). The appointment aforesaid wasfor a term of four months or till the availability ofthe selected incumbents as per the provisions of theRules of 1973, whichever is earlier. The petitioner asa consequent to his regular selection came to beappointed as Assistant Professor in the subject ofMathematics with the respondent University under anorder dated 1.10.1984 and in pursuant thereto hejoined the post on 1.12.1984. On the recommendation ofthe selection committee constituted under Rule III ofthe Career Advancement Scheme the syndicate of theUniversity in its meeting held on 15.1.1992 promotedthe petitioner as Associate Professor in the grade ofRs.3700-5700 w.e.f. 23.7.1990. A promotion was givento the petitioner as Professor also under CareerAdvancement Scheme w.e.f. 19.5.2001 vide order dated 19.4.2007. By the same order the respondent No.3 wasalso promoted as Professor. In the order dated19.4.2007 name of the respondent No.3 and thepetitioner are shown at Serial No.8 and 9respectively. By a corrigendum dated 7.8.2007 thedates of promotion as Professor relating to thepetitioner and the respondent No.3 were changed as23.7.1998 and 19.12.1998 respectively. A document(Anx.4) is placed on record by the petitioner whereinhis name figures at Serial No.17 with 23.7.1990 shownunder the column relating to the “date of appointmentin the University on present post”. In the samedocument name of the respondent No.3 appears at SerialNo.18 by showing 19.12.1990 in the column referredabove. The document Anx.4 is not bearing any number,date, signature of the author or any process givingrise to the document aforesaid. The identity of thedocument is absolutely undisclosed. A part of theprovisional seniority list of the teachers as on30.11.2003 in the faculty of science of the respondentUniversity is also placed on record as Anx.5 whereinname of the respondent No.3 and the petitioner areplaced at Serial No.4 and 5 respectively in thecategory of Associate Professors (Mathematics andStatistics). According to the petitioner therespondent University determined his seniority in thecadre of Assistant Professor by taking intoconsideration the services rendered by him with theDirectorate of Technical Education and as such he was

throughout treated senior than the respondent No.3,but due to resolution No.84/05 undertaken by thesyndicate of the University relating to interseseniority of teachers either promoted or selected iseffecting his rights adversely. The relevant portionof the resolution No.84/2005 reads as follows:- “III.(a)A Professor shall be senior to aAssociate Professor (Reader) either selectedthrough CAS/PP Schemes or on direct post and (b)A Associate Professor shall be senior to aAssistantProfessor(Lecturer)eitherselected through CAS/PP Schemes or on directpost and

(c) The seniority of teachers in each categoryof posts shall be determined by the date ofappointment on a post in that category(Professor / Associate Professor / AssistantProfessor)

The seniority of those appointed on therecommendation of the same statutoryselection committee by the open selectionshall be in accordance with the merit listprepared by the selection committeeirrespective of the date of joining.

(d) In case the date of appointment ofProfessor / Associate Professor promoted isthe same as of a Professor / AssociateProfessor selected through open selectionthen the following shall be used to determinethe seniority:

(i) The teacher who has longer continuousservice in immediate lower position/post inthe University after selection by theselection committee shall be ranked senior.

(ii) If the length of service mentioned in (i)above is equal, the teacher who has renderedlonger continuous service in the next lowerpost/grade in the University shall be rankedsenior.

(iii) If the length of service mentioned in(i) and (ii) above is equal, the one older inage shall be ranked senior.

(iv) When two or more persons are appointed onthe basis of two different selections held onthe same day in the same cadre then theirseniority shall be determined on the basis ofcomparing the first in the first list withthe first in the second list and so on, thesenior in age being senior.

(v) The seniority shall be determineddepartment-wise (subject-wise)

(vi) The inter-se-seniority of teacherspromoted to the post of Professor fromAssociate Professor (Reader) under CareerAdvancement Scheme of UGC / AICTE/PP Schemesin one process of selection will remain thesame as that of Associate Professor (Reader).

However, if a person is not found suitable inone selection but is found suitable insubsequent selection he will be placed lowerthan the person promoted in the previousselection irrespective of his seniority at the level of Associate Professor (Reader).Similar principle will also be applicable incase of promotion from Assistant Professor toAssociate Professor. Previous service (otherthan Jai Narain Vyas University, Jodhpur)shall not be counted for the purpose ofdeciding inter-se-seniority. The same normswill be followed for inter-se seniority fromAssistant Professor to Associate Professor.

With regard to appointment of Heads ofdepartments/Deans of Faculties, the newlyprepared seniority list of Professors,Associate Professors and Assistant Professorsshould form the only basis.”

As per the petitioner, the respondentUniversity in view of the resolution No.84/2005 hasaltered its earlier decision to include the servicerendered by him with a Directorate of TechnicalEducation while reckoning his seniority and thatresulted into an upper hand to the respondent No.3 inseniority. It is asserted that the University by aresolution reckoned seniority of the petitioner bytaking into consideration the earlier servicesrendered as Lecturer at Government Polytechnic Collegeand, therefore, now by a subsequent resolution(resolution No.84/2005) a benefit already extendedcannot be undone specially looking to the fact thatthe same shall be having adverse effect upon theaccrued rights of the petitioner. According to thepetitioner the order dated 30.4.2008 giving

appointment to the respondent No.3 as Head of theDepartment (Mathematics and Statistics) is bad as theresolution No.84/2005 deserves to be quashed beingbased on a resolution (84/2005) which is unjust,arbitrary and, therefore, bad in eye of law.

A reply to the writ petition is filed by theUniversity as well as by the respondent No.3 Accordingto the respondents the petitioner's claim is having nomerit in view of the fact that the services renderedby him in Government Polytechnic College were takeninto consideration only for grant of selection gradeas per the Career Advancement Scheme and not for thepurpose of reckoning the seniority. The respondentNo.3 has alleged that the services rendered by thepetitioner with Government Polytechnic College couldhave not been taken into consideration even for thepurpose of determining the period for extending thebenefit of Career Advancement Scheme. It is statedthat the petitioner was employed as Lecturer in theDirectorate of Technical Education purely on urgenttemporary basis and that too with certain breaks andas such he was not entitled for getting the periodconcerned included in determination of the term forgrant of selection grades under the Career AdvancementScheme. It is pointed out by counsel for therespondent University that the petitioner has notplaced on record the complete document Anx.5intentionally just to mislead the Court regarding the applicable provisions for determination of theseniority. It is asserted that the document Anx.5 wascirculated under a notification dated 28.11.2003inviting objections, if any, by the teachers affected.The seniority rules for teachers of the Universitynotified on 7.1.1984 were also accompanied to thenotification dated 18.11.2003 but the petitioner didnot choose to place on record the notification dated28.11.2003 and the seniority rules just for the reasonthat no objections in pursuant to the notificationdated 28.11.2003 were submitted by the petitioner andthe rules for determination of seniority for teachersspecifically provide that the seniority of teachers ineach category of posts shall be determined by the dateof order of substantive appointment on a post in thatcategory. While supporting the stand of the Universityit is stated by counsel for the respondent No.3 thatrespondent Shri Gopi Chand Tikkiwal entered in theservices of the University in substantive capacity on19.12.1977 being appointed as Assistant Professor inthe subject of Mathematics and, therefore, frominception he is senior to the petitioner.

The petitioner has filed separate rejoindersto the reply submitted by the respondents mainlyreiterating whatever already stated in the writpetition.

Heard counsel for the parties.

The stand of the petitioner is that therespondent University reckoned his seniority in thecadre of Assistant Professor by taking intoconsideration the services rendered by him as Lecturerin the subject of Mathematics at GovernmentPolytechnic College and, therefore, he is required tobe treated senior than the respondent No.3. The standtaken is not at all supported by any resolution,statute or provision otherwise applicable in presentcontroversy. While extending benefit of CareerAdvancement Scheme the respondent University has takeninto consideration the previous services rendered bythe petitioner in view of an office order dated25.7.1991, relevant portion of which reads as follows:- “Accordingly, the Vice-Chancellor has beenpleased to incorporate the following rules/guidelines received from which has beenaccepted by the Government of Rajasthan underletter no. F.3/Edu-4/88/pt dated 18-1-1991for counting previous services for purpose ofplacement in senior/selection grade undersaid scheme.

1. Previous service without any break as aLecturer or equivalent in a University,college, national laboratory or otherscientific organizations (CSIR, ICAR, DRDO,UGC etc.) and as a UGC Research Scientistshould be counted for placement of lecturersin senior scale/selection grade providedthat:- a)The post was in an equivalent grade/scaleof pay as the post of a Lecturer; b)The qualifications for the post were notlower than the qualifications prescribed byUGC for the post of Lecturer;

c)The Lecturers concerned possessed theminimum qualification prescribed by UGC forappointment as Lecturer; d)The post was filed in accordance with theprescribed selection procedure as laid downby the University/State Government.

e)The appointment was not adhoc or on a leavevacancy of less than one year duration.”

The inclusion of previous service fordetermination of the term for grant of selection gradeis having no relevance so far as the seniority isconcerned. The seniority of the petitioner and therespondent No.3 is required to be determined as pernotification dated 7.1.1984 which prescribes that “theseniority of the teachers in each category of postsshall be determined by the date of order ofsubstantive appointment on a post in that category”.

The respondent No.3 entered in the servicesof the University as Assistant Professor insubstantive capacity in the year 1977, whereas thepetitioner was employed on the post concern in the year 1984. The grant of selection grade by taking intoconsideration the previous service is not at allrelevant for determination of seniority, thus, theclaim made by the petitioner relating to his seniorityfor appointment as Head of the Department isabsolutely misconceived.

The petition for writ, therefore, isdismissed.

( GOVIND MATHUR ),J.

kkm/ps.