IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 25116 of 2006 Between: Dr.M.N.V.Prasad, s/o M.V.krishna Rao, Department of Plant Sciences, School of Life Sciences, University of Hyderabad r/o H.No.1-10-127/17A & B, Flat # 503, SSS Enclave, Ashoknagar, Hyderabad-500 020. ..... PETITIONER AND 1 the University of Hyderabad represented by its Vice Chancellor and the Chairman, executive Council, PO Central University Campus, Hyderabad-500 046. 2 The Registrar, University of Hyderabad, PO Central University Campus, Hyderabad. 3 Prof.M.Ramanadham, School of Life Sciences, Department of Bio-Chemistry, University of Hyderabad, Hyderabad. 4 Prof.Aparna Dutta Gupta, Department of Animal Sciences, University of Hyderabad, Hyderabad. 5 Prof.K.V.A.Ramaiah, School of Life Sciences, Department of Bio-Chemistry, University of Hyderabad, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ order or direction particularly one in the nature of writ of mandamus declaring that the resolution passed by the Executive Council in its 134th Meeting held on 27-6-2006 to give seniority in the cadre of Professor to the persons promoted under Career Advancement Scheme over Direct Recruits, departing the Two Member Sub Committee Report and the Resolutions passed by the Executive Council in its 132nd and 133rd meetings held on 26-11-2005 and 23-02-2006 respectively is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and pass suchother order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for the Respondent No.: GP FOR HIGHER EDUCATION The Court made the following : THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 25116 OF 2006 ORDER: 1. The petitioner was appointed as lecturer in University of Hyderabad-1st respondent in the year 1985. He became lecturer (Senior Scale) in 1986 and thereafter Reader in 1990. The 1st respondent University called for applications for the post of Professor in Plant Sciences. The petitioner as well as respondents 4 and 5 competed for the post of Professor. The Selection Committee met on 30-4-2008 and interviewed the candidates and selected the petitioner for the post of “Open Professor”. The Executive Council of the University approved the selection of the petitioner as Professor. Appointment order came to be issued to the petitioner on 15-7-1998 and the petitioner joined as Professor on 1-8-1998. The University Grants Commission introduced Career Advancement Scheme and implemented in the year 2000. Respondents 3 to 5 were selected and appointed as Professor in ex- cadre posts of Professors under career Advancement Scheme on 26-6- 2000. But their appointments as professor were given effect from the date of completion of eight years in the cadre of Reader. The University published provisional seniority list of Professors on 4-11-2003. The petitioner objected to the same and submitted representation dated 23-1- 2004. The University appointed Sub- Committee comprising Syed Shahid Mahdi and Rev. Fr. Dr. S. Ignacimuthu to examine the grievance of the petitioner. The said committee presented its report to the executive council stating that the petitioner is entitled to seniority over and above respondents 3 to 5. The report was accepted by the Executive Council in its 132nd meeting held on 26-11-2005. 3rd Respondent protested the resolution and the same was again brought before 133rd meeting held on 23-2-2006. The Executive Council confirmed the same giving seniority to the petitioner over and above respondents 3 to 5. While so, the Executive Committee counsel in 134th meeting held on 27-6-2006 considered the report of two members Sub-Committee and proceeded to give seniority to the respondents 3 to 5 over and above the petitioner. Hence, the petitioner approached this Court invoking jurisdiction under Article 226 of the Constitution of India with a prayer to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring that the resolution passed by the Executive Council in its 134th Meeting held on 27-6-2006 giving seniority in the cadre of Professor to the persons promoted under Career Advancement Scheme over Direct Recruits, departing the Two Member Sub-Committee Report and the Resolutions passed by the Executive Council in its 132nd and 133rd meetings held on 26-11-2005 and 23-2-2006 respectively, as illegal , arbitrary and violative of Articles 14 and 16 of the Constitution of India. 2. Rule nisi came to be issued on 4-12-2006. Respondents 1 and 2 filed common counter affidavit. Whereas Respondent 3 to 5 filed separate counter affidavits. 3. The sums and substance of the counter affidavit of the respondents 1 and 2 is that the date of promotion under Career Advancement Scheme has been given effect from 27-7-1998 to the respondents 3 to 5 as per UGC letter dated 27-6-2000. For better appreciation of the plea of the respondents 1 and 2, I deem it appropriate to refer paras 4 and 6 of the counter affidavit which read as hereunder. “4. In reply to paras 6 to 10 it is respectfully submitted that the U.G.C. introduced Career Advancement Scheme in all the Universities where by Readers who have completed 8 years of service become eligible for promotion as Professors. The candidate got promotion under the said scheme gets designated as Professor and the said promotion is not against a vacant post. It is only a change in the designation so as to avoid the stagnation. The candidate so promoted also gets the benefit of seniority and pay fixation. The said scheme was introduced in the respondent University i.e. the year 2000. Respondents 3,4 and 5 having completed 8 years service as readers being eligible for promotion under the said scheme appeared for interview before the selection committee concerned on 26-6-2000 and were duly recommended by the selection committee to the post of professor. It is pertinent to submit here that as per UGC letter dated 27-6-2000, the effective date for promotion under CAS is 27-7-1998 or date of eligibility which ever is later. Since the respondents 3,4 and 5 completed their 8 years of service in the post of Reader as on 27-6-2000, their respective promotions to the post of professor have been effected retrospectively from 27-7-1998 as per the directions of the UGC and they were rightly placed above the petitioner in the seniority list vide notification dated 4-11-2003. The allegation that the 3rd respondent being the President of University Teachers Association, exerted influence and was as such appointed as professor under the CAS scheme and further was placed above the petitioner in the seniority list is totally baseless and is stoutly denied. 6. It is submitted that since the recommendations of the committee were against the directions of UGC and spirit of Statute 26(1) of University Statute, the Executive Council of the University in its meeting held on 23-2-2006 requested the subcommittee to reconsider the case afresh. The subcommittee after examining the issue afresh submitted its report on 7- 6-2006 duly recommending that the effective date of joining of direct recruitees could be changed to 27- 7-1998 for all categories instead of 14-7-1998, as mentioned earlier. The recommendations of committee were placed before the Executive Council, which met on 27-6-2006. The Executive Council after due deliberations resolved that the seniority of direct recruits be fixed from the date of joining in the University service ( in the petitioners case it is 01-08-1998) and the seniority of those promoted under CAS be fixed from the date of their eligibility for promotion ( in the unofficial respondents case 27-7-1998 which ever is later, Accordingly the same was implemented”. 4. Respondent NO.3 stated in the counter affidavit that he had not applied for the post of Professor of Plant Sciences since the position advertised was in the Department of Plant Sciences. He denied of having exerted any pressure on the Executive Council. He further stated in the counter affidavit that the issue relating to the seniority of Teachers was discussed in the Teachers association and the views of the Association were forwarded to the Executive Council of the University in the form a representation dated 20-7-2005 which was signed by him as President of the Association, but not in his individual capacity. It is further stated that on coming to know of the report of sub-committee, he submitted a representation dated 3-12-2005 to the Executive Council duly signed by him as President of the Association but not in his individual capacity. 5. The counter affidavit filed by the 4th respondent in brief is that he has been appointed as Professor of Animal Sciences with effect from 27- 7-1998 under the Career Advancement Scheme since he completed 8 years service as Reader as on that date on being subjected to a process of selection as per the statutes of the University. The career Advancement scheme was announced by the ministry of Human Resource Development, Government of India and communicated by the University Grants Commission to all the Universities. The same was directed to be given effect after following the selection process. 6. The counter affidavit of 5th respondent is that he joined the University of Hyderabad as Lecturer in 1987 in the school of Life Sciences. In the school of Life Sciences, three departments, namely Biochemistry, Plant Sciences and Animal Sciences were created in 1993 and since then he was a Reader in the Department of Biochemistry and thereafter as a Professor with effect from 27-7-1998 under the Career Advancement Scheme, since he completed 8 years of service as Reader and on being subjected to selection process. 7. Heard learned counsel appearing for the parties. 8. Learned counsel appearing for the petitioner submits that the petitioner applied for the post of Professor pursuant to the Notification and the selection committee met on 30-4-1998 and selected the petitioner as Professor and his appointment came to be approved on 14-7-1998 by the Executive Council and the petitioner joined as Professor on 1-8-1998. A further submission has been made that by the date the petitioner joined as professor, the respondents 3 to 5 were Readers and their position came to be upgraded as Professors under Career Advancement Scheme, which came to be implemented in the year 2000 and therefore by any stretch of imagination respondents 3 to 5 could never be the seniors to the petitioner in the cadre of Professor. Learned counsel placed reliance on the decisions of the Supreme Court in Dr. Rashmi Srivastava Vs. Vikram University[1], K.Sanjay Vs. State of Bihar[2] in support of his contention. In the first cited decision the Supreme Court observed in para 39 of the judgment as follows: “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 concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. 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 vacancies 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 do 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. (ii) The directly recruited Readers and Professors are recruited pursuant 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 as such are created. Those selected under the scheme are given personal posts which cease with their employment. In fact, 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 at least 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- 1986 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 sto be noted that as per the letter of Under Secretary, Department of Education, dated 1-1-1989 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 Government 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 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 concerned. (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 workload of directly recruited Reader and Professor is different form the workload of promotee Reader or Professor for whom the workload 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 promotion of the merit promotees. Although for the latter the infrastructure of Selection Committee under Section 49 may be made availab,e the criteria for their promotion are entirely distinct and different as envisaged by the guidelines governing the merit promotion scheme. (vii) There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in the posts concerned as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits”. 9. Learned counsel appearing for the Respondents 1 and 2 submits that the University implemented the scheme introduced by the UGC and unless UGC is made a party respondent to the proceedings, no effective adjudication could be made. The learned counsel placed on record a letter emanating from UGC, which reads as hereunder. “With reference to your letter dated 3-5-2000 regarding Career Advancement Scheme, I am to inform that promotions be made effective w.e.f. 27-7- 1998 or the date of eligibility which is later as laid down in the regulations framed for the purpose”. 10. Learned counsel appearing for the respondents 3 to 5 submits that under the Career Advancement Scheme respondents 3 to 5 are to be promoted to the next higher post on completing the eight years or 27-7- 1998 whichever is earlier and as they completed 8 years of service much prior to 27-7-1998, the University rightly upgraded them as Professors with effect from 27-7-1998. 11. The issue that calls for adjudication in this writ petition is whether the petitioner who is a direct recruit as Professor can be placed below the respondents 3 to 5 who have been upgraded as Professor under Career Advancement Scheme. 12. It is a matter of record that the petitioner and the respondent 4 applied for the post of Professor and the Selection committee found that the petitioner more suitable and therefore recommended for the post of Professor and the executive committee approved recommendations of the selection committee. Consequent on approval of the Executive Council, appointment order came to be issued to the petitioner, who joined as professor on 1-8-1998. The Career Advancement Scheme came to be issued in the year 2000. From the year 1998 to 2000, the petitioner was Professor and where respondents 3 to 5 were Readers. The position of respondents 3 to 5 came to be upgraded as Professors under the career Advancement Scheme, which came to be implemented by the University in the year 2000. 13. Indisputably the respondents 3 to 5 completed eight years of service as Readers prior to 27-7-1998. One important factor which needs to be taken note of is that petitioner and 4th respondent applied for the post of Professor in the year 1998 and the petitioner was found to be more suitable to the said post and thereupon the appointment order was issued to him. Petitioner has been functioning as Professor since 1-8-1998. Because of the introduction of the Career Advancement Scheme, the position of the Respondents 3 to 5 came to be upgraded to the post of Professor with retrospective date. Retrospective promotion to the respondents 3 to 5 shall not effect the seniority of the petitioner as Professor. This issue is squarely covered by the judgment of the Supreme Court in first cited case where in it has been held the direct recruit is to be placed above the promotee under the Career Advancement Scheme. Therefore, the resolution passed by the Executive Council in its 134th Meeting held on 27-6-2006 giving seniority to Respondents 3 to 5 over and above the petitioner is to be declared as illegal and arbitrary. 14. Accordingly, the writ petition is allowed. No order as to costs. ______________________________ Justice B. Seshasayana Reddy 26th March, 2009. KM THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 25116 OF 2006 26th March, 2009. [1] (1995) 3 Supreme Court Cases 653 [2] 2004(10) SCC 734