IN THE HIGH COURT OF UTTARANCHAL AT ANINITAL Chapter VIII, Rule 32(2) (b) Description of case Writ Petition No. 241 of 2002 (S/B) & Writ Petition No. 511 of 2003 (S/B) Date of decision: 27th September, 2004 For the approval of: Hon’ble Chief Justice V.S. Sirpurkar. Hon’ble Mr. Justice Irshad Hussain. - Whether the order/judgment should be sent to the reporters for reporting? ( yes ) - Whether the reporters be allowed to see the judgment? ( yes ) G IN THE HIGH COURT OF UTTARANHCHAL AT NAINITAL Writ Petition No. 241 of 2002 (S/B) Dr. Kavita Pandey, W/o Late Dr. Atul Kumar Pandey, Professor & Head, Department of Physics, D.S.B. Campus, Nainital, Kumaon University, Nainital. ....................... Petitioner Versus Chancellor, Kumaon University, Nainital & others. ........................ Respondents Mr. Manoj Tiwari, learned counsel on behalf of the petitioner. Mr. Sudhanshu Dhulia, learned Senior Advocate assisted by Ms. Puja Banga, Advocate on behalf of respondent No. 4. Mr. B.D. Upadhyaya, learned counsel on behalf of respondent No. 2. & Writ Petition No. 511 of 2003 (S/B) Dr. Chandra Shekhar Mathela, S/o Sri G.D. Mathela, Professor & Head of Department of Chemistry, D.S.B. Campus, Nainital & another. ............. Petitioners Versus State of Uttaranchal, Through its Secretary, Higher Education, Govt. of Uttaranchal, Dehradun & others. .............. Respondents Mr. L.P. Naithani, learned Senior Advocate assisted by Mr. Prabhakar Joshi, Advocate on behalf of the petitioners. Mr. B.D. Upadhyaya, learned counsel on behalf of respondent No. 2 & 3. Coram: Hon’ble V.S. Sirpurkar, C.J., Hon’ble Irshad Hussain, J. Dated 27th September, 2004 (Per Hon’ble the Chief Justice) 1. This judgment shall dispose of the writ petition No. 241 of 2002 (S/B) filed by Dr. Kavita Pandey as also the writ petition No. 511 of 2003 (S/B) filed by Dr. Chandra Shekhar Mathela & Dr. G.C. Joshi. The writ petition filed by Dr. Mathela & another is almost counterblast to the earlier writ petition filed by Dr. Kavita Pandey. The controversy involved in both the writ petitions is common and it is, therefore, that the two writ petitions are being disposed of by this common judgment. 2. We shall first take-up the first referred writ petition. The petition is initially filed was for the following prayers: i. Issue a writ, order or direction in the nature of certiorari quashing the Notification dated 28.2.2002 issued by the respondent No. 2 annexed as Annexure 10 to the writ petition. ii. Issue a writ, order or direction in the nature of certiorari quashing the resolution No. 11 of the Executive Council dated 20.1.1998 annexed as Annexure 9 to the writ petition. iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and fix the seniority on the basis of the resignations submitted and accepted in 1984. basic Pleadings of the Parties: 3. The writ petition was extensively amended later on. Initially, the writ petition was based on the following facts: i. That the petitioner started her career as a Lecturer in Physics on 3rd September, 1968 and appointed as a temporary lecturer in Raza Government P.G. College, Rampur. Later on, while serving as an ad- hoc lecturer, she was appointed through Uttar Pradesh Public Service commission as a Lecturer vide Notification dated 9.12.1970. She was then transferred to Devi Singh Bisht College (from hereinafter referred to as the “DSB College” for short), Nainital. She claims to have been regularised on 11th June, 1975 w.e.f. 3rd June, 1973. She then points out that the Kumaon University was constituted by Notification under Section 4 of the U.P. State University Act, 1973 w.e.f 01.11.1973 and after the constitution of the University, the said DSB College was attached to the University. The teachers, who were from the Government Degree College and the Government Post Graduate Colleges, were given an option to join the University and for that purpose, a screening committee was formed. The teachers, who were selected, alone, were given this option to be absorbed in the University. It is claimed that those teachers, who were selected after screening and had resigned from the Government service, were absorbed in the University service after screening and the others like the petitioner were treated as an external deputation in the service of University from their Government service. The petitioner then makes a reference to the Notification dated 29.09.1977 being Notification No. 5712/15(1) by which the teachers working in the Institution were required to give an undertaking that they would abide by the service conditions imposed by the State Government at the later stage. A reference is then made to the further condition that the teachers, who were working on the permanent basis and who were selected by the screening committee would have to opt either for the Government service or as a teacher of the Kumaon University. ii. A reference is then made to the Notification dated 16.2.1979, whereby it was notified that the teachers, who had already been working as Government teachers, would have to give their option for the purpose of being absorbed in the service of the University. It is, then, pointed out that as many as 21 teachers submitted their resignation from the Government service, which resignations were accepted by the respondent No. 3 State of Uttaranchal by Notification dated 21.09.1984. This is only to suggest that the respondent No. 4, who was the similar Government teacher and who was selected by the screening committee formulated by the University for selecting the teachers in the University, had not given such a resignation. The petitioner also asserted that this was a final chance for such teachers like respondent No. 4. The petitioner, then, asserts that therefore the respondent No. 4 remained a Government teacher leaving his lien as a Government teacher alike. At the same time, the petitioner asserts that the petitioner was similarly working as a Government teacher “was not screened by the screening committee since she was a regular appointee of the Public Service Commission. She resigned from the cadre of Government teacher w.e.f. the afternoon of 30.08.1979.” In short, the assertion on the part of the petitioner is that while she snapped her relationship with the Government and became a full fledged University teacher w.e.f. 30.08.1979, the respondent No. 4 continued to be the Government servant as he had not resigned from the Government service and therefore, had not become the University teacher and as such, the petitioner should be deemed to be senior to respondent No. 4, at least, in so far as the University service is concerned. iii. In order to buttress this plea of seniority the petitioner, then, asserted that the Government had issued a Notification dated 12.12.1983 for granting selection grade to the lecturers with a condition that those lecturers, who had put in 13 years of continuous service as lecturer satisfactorily and had worked for 5 years in the same University, would be entitled to get the selection grade. However, there was an embargo that the benefit would be extended to the teachers in accordance with their respective seniority and that the junior lecturers would not get the selection grade till the teachers senior to them complete the conditional period of service. A reference is also then made to Notification dated 25.02.1984, whereby the personal promotion scheme was floated providing that the scheme could be availed by a lecturer only if he had worked for a minimum period of 5 years on the permanent post in the University. These facts have been suggested for buttressing the contention that the respondent No. 4 was not entitled to get the benefits of either the selection grade or the personal promotion scheme as he had not opted in favour of the University by offering resignation from the post of the Government teacher because by continuing in the Government service (by not resigning from the same), he could not be said to have completed 5 years of continuous service in the University. A reference is then made to the Executive Council Meeting held on 13.05.1985 and to Resolution No. 36, whereby the resignation of respondent No. 4 is accepted with retrospective effect from 13.12.1983. A reference is also then made to the fact that the recommendation for the acceptance of the resignation of respondent No. 4 was also accepted by the Director, Higher Education vide Resolution No. 16 of the Executive Council Meeting dated 20.01.1986. An assertion is thereafter made that the respondent No. 4 could have joined as a lecturer only after 20.01.1986 and that he could not have been included in the personal promotion scheme at all. A reference is thereafter made to the Notification dated 07.09.1987 issued by the State of Uttar Pradesh providing for certain benefits to be extended to the teachers working in the University, who had resigned in pursuance of the Notification dated 16.02.1979. It is then suggested that clause (3) of this Notification dated 07.09.1979 provided that all the teachers, who had resigned in pursuance of the Notification of 1979 earlier and had been absorbed in the services of the University, could opt for GPF under Clause (3) of the Notification. It is then asserted that since the respondent No. 4 had not resigned in pursuance of the Notification dated 16.02.1979, he could not be covered by Clause (3) of the 1987 Notification and as such, was not entitled for any benefits thereunder. The petitioner then assails this Notification dated 07.09.1987 on the ground that it is silent regarding the acceptance of the resignation given by the teachers. It is also suggested that it is also silent about the teachers, who had not resigned in pursuance of the 1979 Notification. A reference is then made to the 42nd Meeting of the Executive Council dated 20.01.1988 and the Resolution No. 11 by which the University accepted the resignation of the teachers with retrospective effect. It is suggested that his resignation has been shown to be dated 15.08.1977 and that if the respondent No. 4 had already resigned in 1985 and that resignation was accepted by the Executive Council w.e.f. 30.12.1983, he could not be given a second chance to resign so as to bring his resignation w.e.f. 15.08.1987, which would grant him the seniority over and above the petitioner in so far as the University service is concerned. This Resolution No. 11 is, therefore, heavily assailed by the petitioner. It is then pointed out that the Resolution was subject to the approval by the Director of Higher Education and when the petition was filed, there was no approval till the date of filing of the writ petition. It was, therefore, suggested that the Resolution was nothing, but a colourable exercise of powers. A reference is then made to the Notification dated 28.02.2002, which suggests that the State Government had proceeded to grant approval to the amended option letters accepted by the Executive Council vide its Resolution No. 11 dated 20.01.1988. It is, therefore, expressed that if the Notification dated 28.02.2002 is brought into effect, it will result into entire chaos because by accepting the new date of resignation of the teachers like respondent No. 4, they would be rendered senior to the teachers, who had already resigned earlier and had completed the requisite span of service of the University for the purpose of personal promotion scheme. The Notification dated 28.02.2002 is, therefore, assailed on this count also. A further reference is made to a seniority list published on 22.11.2001, wherein the respondent No. 4 is shown at serial No. 7 and it is suggested that the respondent could not be shown in the said seniority list. It is pointed out that if the Notification dated 28.02.2002 is enforced and thereby the Resolution No. 11 dated 20.01.1988 by the Executive Council is confirmed, the respondent No. 4 would become senior to the petitioner merely because he was able to get his second resignation acted upon retrospectively w.e.f. 1977. It is on these grounds that initially the writ petition came to be filed. 4. The writ petition was initially ordered upon and the notice was sent to the respondents. An order ultimately came to be passed on 04.06.2002 that the Vice Chancellor of the Kumaon University had set up a Committee for finalization of the seniority list and that the list could be finalized and the matter was to be reported to the Court. In the meantime, however, and particularly after the counters were filed by the University as well as the respondent No. 4, a supplementary affidavit came to be filed by the writ petitioner. 5. In the counter affidavits filed to the initial writ petition, the contesting respondent i.e. the University and the respondent No. 4 opposed the writ petition and pointed out that even the respondent No. 4 was appointed on temporary post by order dated 09.12.1970 and vide order dated 11.6.1975 both of them were regularized. It was pointed out that in the regularization order, as also in the initial appointment order, the respondent No. 4 was shown above the petitioner and therefore, he was deemed to be senior to the petitioner in Government service. In its counter affidavit, the University further pointed out that after the DSB College, where the petitioner and the respondent were working, was transferred to the University as its constituent college, the University became a teaching University and before that it was only an examining body. A reference is then made to the passing of the U.P. State Universities Removal of Difficulties (Twelfth) Order, 1976 dated 20.09.1976. This order was felt necessary as there was dearth of regular teachers and the said teachers could be appointed only under Section 31 of the U.P. State Universities Act, for the selection of whom, there was no infrastructure available and therefore, it was provided that the posts of teachers of the aforesaid constituent colleges shall be filled up by selection through a screening committee. It was pointed out that clause (9) of the said Removal of Difficulties Order provided that the teachers appointed by the screening committee would be deemed to be the teachers of the University as if they were appointed under Section 31 of the U.P. State Universities Act, 1973 and would be on one year’s probation from the date of their appointment. A reference is also made to clause (10) of the said Removal of Difficulties Order, wherein, it was suggested that the inter se seniority of the teachers, so selected, would be the same as it stood at the time when they were in the Government service before such selection. It was then pointed out that the petitioner and the respondent, both, had appeared before the screening committee, however, the petitioner was not selected while the respondent No. 4 was actually selected and appointed. It was also asserted that the respondent No. 4, on the date of issuing the appointment order, was actually working as a lecturer in DSB College. It was on this basis that it was pointed out by the University that the petitioner was not selected and was later on selected in the year 1979 under the modality provided by Section 31 of the U.P. State Universities Act, 1973 and therefore, it could never be said that the respondent No. 4 was a junior to the petitioner in any way. In fact, the position was just the reverse. It was pointed out that the respondent No. 4 had accepted the offer of appointment dated 16.8.1977 and had also given an option on 11.3.1985. It is also pointed out in paragraph 14 of the counter affidavit filed by the University that the petitioner, after her initial rejection by the screening committee, was later on selected by the Public Service Commission under the modality provided by Section 31 of the U.P. State Universities Act and yet, she did not join and made a request through her letter dated 07.04.1981 that she should be allowed on deputation as per the terms and conditions of the Government Order dated 16.2.1979 as done in case of other teachers, who had come through the screening committee (like the respondent No. 4). This request was made on 7.4.1981 and 29.9.1981. In short, it was asserted by the University that the respondent No. 4 was always senior to the petitioner and was rightly conferred the benefits of the Government Orders. 6. A reference is made to the Government Orders by which the teachers, who were working on deputation to the University, were also brought under the scheme of the personal promotion at the request of the Vice Chancellor. It was also asserted that the Resolution dated 20.01.1986 as also the letter dated 29.8.1985 were not correctly reproduced by the petitioner and the said correct Government Resolution was placed on record by the University along with the copy of the letter dated 29.8.1985 by the Vice Chancellor to the Government requesting for extending the benefit of the personal promotion scheme to the persons like respondent No. 4. The University has also explained in its counter affidavit that the teachers, who were technically on deputation to the University, could not be given the benefit of the scheme and therefore, this aspect was brought to the notice of the Government and to overcome this difficulty, a further Notification dated 07.09.1987 was brought permitting the teachers of the University to resign from the Government service from the dated mentioned in the Notification so that they could get the benefit of personal promotion scheme on the basis of their 5 years continuous service in the University and it was, on this basis, that the number of teachers tendered their resignations. Even the petitioner has submitted an option on 5.12.1987 seeking her resignation from Government service w.e.f. 16.2.1980 and it is under these circumstances that the respondent No. 4 had also tendered his resignation w.e.f. 15.8.1977, which resignations were accepted by the University on 21.12.1987 in anticipation of the approval to be accorded by the Director of Higher Education, the Government and the Executive Council of the University. It is then pointed out that the Executive Council accepted the resignations in the meeting held on 22.01.1988 and ultimately, the Government also approved this. The University has also placed on record a copy of the option submitted by the petitioner, herself, dated 5.12.1987. 7. The counter affidavit of the University, further, makes a reference to the writ petition No. 41665 of 2000 filed by Dr. M.P. Joshi & others praying for the seniority on the basis of the date of eligibility and it was dismissed. It further makes a reference that after the State of Uttaranchal came into existence, on 5.1.2001, it passed an amendment in the statute 11.12 B of the University, by which the benefit of personal promotion was granted to the teachers of the University w.e.f. the date of their eligibility and the provisional seniority list of the teachers of the University was issued and the objections were invited and the Committee, in accordance with the order passed by the Chancellor dated 18.5.2001, was also constituted to go into the question of seniority. It further points out that the proceeding of the said committee was produced before the Executive Council on 31.8.2001, which earlier took the view that the seniority of the teachers, who were screened by the screening committee and were taken on deputation would be decided on the basis of their resignations in accordance with the Notification dated 07.09.1987. It also decided that teachers, who have taken the benefit of the pension etc. before absorption in the University, would have to refund to the Government. This Resolution was passed on 30.08.2001, which was sent by the Vice chancellor on 27.11.2001 to the Government pointing out that the seniority of such teachers was in dispute and therefore, the decision taken by the Executive Council in its meeting dated 22.01.1988 was required to be approved by the Government so that their seniority would be decided in accordance with the decision of the Executive Council. It is then pointed out that it is under these circumstances that the Government granted its approval to the proceedings and the Resolutions of the Executive Council on proceedings and the Resolutions of the Executive Council on 28.2.2002. The University, therefore, opposes the writ petition. This counter affidavit was dated 29th April, 2002. Respondent No. 4 has also filed a separate counter affidavit dated 24th April, 2002 in tune with the stand taken by the University. 8. Initially, the court had prohibited the University from making effective any promotion without its prior permission. However, as per the orders of the Court dated 4.6.2002, exercise of finalisation of the seniority list was permitted and the list was published on 14.06.2002 and a supplementary affidavit was filed by the University on 1.07.2002. The petitioner also filed a supplementary affidavit on 12.07.2002. There are number of unnecessary allegation made in this supplementary affidavit, which are not relevant from the purpose of the controversy involved herein. The basic purpose of this supplementary affidavit seems to be for challenging the seniority list, in which the petitioner was shown junior to the respondent No. 4 in contrast with the earlier list dated 15.2.2001, where the petitioner was shown to be at serial No. 4 and the respondent No. 4 at serial No. 11. This was obviously because till then the recommendation of the Executive Council of the University and the Vice Chancellor, regarding treating the teachers like the respondent No. 4 as the University teachers from the date they started their service after the screening, was not accepted or approved by the State Government, which was ultimately done on 28.02.2002. 9. Not satisfied with the first supplementary affidavit, a further supplementary affidavit came to be filed by the petitioner changing the whole tenor of her earlier writ petition and introducing fresh plea in support of her contention that she was senior. This second supplementary affidavit came to be filed only on 10th August, 2004, which is almost in the nature of a new petition. In this new supplementary affidavit, the petitioner, for the first time, accepted that the respondent No. 4 was selected by the screening committee though she avoided to state that she was rejected in comparison to the respondent No. 4 by the said screening committee for Kumaon University. The petitioner also asserted that she was selected by the screening committee constituted by the Garhwal University. The reference and the date of this selection are, however, not stated. There is a reference made in this affidavit to the further developments, to which, we have already referred earlier. 10. It is on the basis of these pleadings that the matters were argued before us. 11. It will be better at this stage to take stock of the other writ petition No. 511 of 2003 (S/B) filed by Dr. C.S. Mathela & another. Both the writ petitioners were working as lecturers in Government Degree College, Uttarkashi and P.G. College, Almora respectively. Both of them were absorbed in the Government service after their selection by the Public Service Commission in a permanent vacancy. Both of them were confirmed also. Both the Colleges, where these two petitioners were working, were transferred to Kumaon University and both of them were also selected by the screening committee in the month of August, 1977 and they claimed that as per clause (9) of the Removal of Difficulties (Twelfth) Order dated 20.09.1976, they were deemed to be the teachers of the University as if appointed under Section 31 of the U.P. State Universities Act. It is pointed out by them that the moment, they had been selected and had accepted the order of appointment as teachers in the University, that point of time should be the starting point of their seniority. They, further, pointed out that they were promoted as Readers in December, 1984 and May, 1985 respectively and were also made Professors in December, 1995 and this was, obviously, on the assumption that their appointment as the University teachers was on 16.08.1977 and