1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5231 OF 2008 Dr Subhash A. Chavan ...Petitioner v/s Maharashtra Council of Agricultural Education and Research, Pune and ors. ...Respondents Mr V.M. Thorat for Petitioner. Mr S.P. Saxena for Respondent No.1. Mr P.P. Chavan i/b Mr S.K. Sawant for Respondent No. 2. Mr R.D. Soni i/b M/s Ram and Co. for Respondent No. 3. CORAM : D.K. DESHMUKH AND K.K. TATED JJ. DATE : 24TH NOVEMBER 2009. 2 P.C. :- 1] By this petition, the petitioner challenges the promotion of respondent No.3 to the post of Head of Department of Agronomy of respondent No.2  University. It is common ground that the respondent No.2  University promoted the respondent No.3 to the post of Head of Department of Agronomy on the basis of selection by the respondent No.1. The case of the petitioner is that the criteria for promotion to the post of Head of Department is merit cum seniority. According to the petitioner, in the next below cadre of Professor he is senior to respondent No.3. According to the petitioner, the respondent No.1, after finding that the respondent No.3 was more meritorious because of his larger experience in the post of Professor, has not at all applied its mind to the fact that in the seniority list, the petitioner is placed above the respondent No.3. According to the petitioner, the respondent No.1 has held that respondent No.3 is to be selected because he has six years four months experience in the 3 post of Professor whereas the petitioner has experience of two years two months in the post of Professor. According to the petitioner, however, the respondent No.1 has failed to see that in the respondent No.2  University, the respondent No.3 was not appointed in the teaching post but was working in a non-teaching post and that the post of Head of Department is teaching post and therefore, preference has to be given to a person who is working as Professor in the teaching post. The learned counsel appearing for petitioner therefore submitted that the selection of the respondent No.3 was not in accordance with law. 2] We have heard the learned counsel appearing for respondents. So far as the aspect of seniority of the petitioner is concerned, it was submitted by the respondents that once the petitioner and the respondent No.3 both are in the zone of consideration, their inter se seniority does not matter and therefore, selection of respondent No.3 cannot be faulted. So far as the aspect of 4 experience of respondent No.3 being in the non- teaching post is concerned, the learned counsel pointed out to us the order dated 8th December 2005 by which the respondent No.3 was appointed to the post of Chief Scientist and contended that though he was appointed as Chief Scientist, the appointment order itself mentions that the post of Chief Scientist is in the Professor cadre. It was therefore submitted that the decision of the respondent No.1 cannot be faulted. 3] So far as the qualifications that are necessary for the post of Head of Department of Agronomy are concerned, they are given in the Statute 41, Appendix I of the Maharashtra Agricultural Universities Statutes 1990 and they have been quoted in the minutes of the Selection Committee of respondent No.1. They read as under :- 5 Sr No Designa tion Qualification 4 Head of Departm ent (1) Ph.D. In the concerned subject, plus ten years experience in the field of teaching, research or extension education of which at least three years should be in the cadre of Professor OR five years of Associate Professor OR Reader or its equivalent OR Master s degree in the concerned subject plus fifteen years experience in the field of teaching, research or extension education of teaching, research or extension education of which three years should be in the cadre of Professor OR five years of Associate Professor OR Reader or its equivalent, and (2) Ability of initiate, organise and coordinate teaching, research and extension education; and (3) Evidence of published papers in recognised Journals. 6 Sub-rule (5) of Statute 41 shows that so far as the promotion to the post of Head of Department of Agronomy is concerned, it is to be made on the basis of merit cum seniority. Sub-rule (5) of Statute 41 reads as under :- 5] The post of Director (other than Director of Students Welfare), Dean of Faculties and other equivalent posts shall be filled in the nomination or transfer by the Pro-Chancellor. The posts of Associate Deans, Head of Departments, Professors and other equivalent post shall be filled in by promotion and nomination in the ratio of 50 : 50 percent of the vacant post as the Vice Chancellor may, from time to time determine. Provided that, such posts shall be filled in by promotion through the recommendation of the Selection Committee on the basis of 7 merits and seniority in the discipline or group of disciplines, departments or sector and minimum academic qualifications and experiences, as prescribed by the statutes. Perusal of above quoted provisions of Statute 41 shows that promotion to the post of Head of Department is to be made on the basis of merit and seniority. It is an admitted position before us that for the purpose of promotion to the post of Head of Department, seniority in the next below post i.e. the post of Professor will have to be taken into consideration. It is an admitted position that the seniority list of the post of Professor has been maintained and in that list, the name of the petitioner is at serial No.1 and that of the respondent No.3 is at serial No.2. Perusal of Statute 41 shows that for being eligible for consideration to the post of Professor, apart from the educational qualifications, the candidate must have experience of at least three years in the 8 cadre of Professor. Statute 41 does not allow the experience in a post which may be equivalent to the post of Professor being taken into consideration. If this is compared with the post of Reader, experience in the post of Reader or its equivalent post can be taken into consideration, but experience in the post equivalent to the post of Professor cannot be taken into consideration. Therefore, obviously the respondent No.1 while considering comparative merits of the candidate assuming that both the petitioner and respondent No.3 were eligible to compete for the post of Head of Department of Agronomy straightway considered experience of the respondent No.3 in the post of Chief Scientist, Water Management Scheme as experience in the post of Professor. Even if they desired to consider experience of the respondent No.3 of working in the post of Chief Scientist, Water Management Scheme, they should have applied their mind to the fact that the respondent No.3 was not actually working in the post of Professor, a teaching post but was working in the non-teaching 9 post of Chief Scientist, Water Management Scheme and then decided whether his experience in that post is to be treated as experience in the post of Professor. In our opinion, this was relevant because perusal of the minutes of the Selection Committee shows that on the basis of the record of service, both the petitioner and respondent No.3 were found to be equal, the scale tilted in favour of the respondent No.3 only because he had more experience in the post of Professor than the petitioner, but while recording that respondent No. 3 has more experience in the post of Professor than the petitioner, the Selection Committee also took into consideration his experience in the post of Chief Scientist, Water Management Scheme without applying their mind that the pot of Chief Scientist, Water Management Scheme was a non- teaching post and Statute 41 requires them to consider experience in the cadre of Professor only and not in the post which may be equivalent to the post of Professor. 10 4] Further it is to be seen that after having found that on the basis of service record, both the petitioner and the respondent No.3 are equal and that the respondent No.3 is more meritorious because he had more experience in the post of Professor, the second aspect which requires consideration in view of the provision of sub-rule (5) of Statute 41 was the aspect of seniority. In the seniority list, the petitioner was at serial No.1 whereas the respondent No.3 was at serial No. 2. Perusal of the minutes of the Selection Committee shows that the Selection Committee has not at all allowed this consideration to enter in their mind. In our opinion, the submission of the learned counsel that seniority is not relevant when the criteria for promotion is merit cum seniority for carving out zone of consideration is not well founded especially because in the present case so far as the aspect of merit is concerned, on the basis of service record, both the candidates are found to be equal and the respondent No.3 has been found more meritorious only because his experience 11 in the post of Professor, therefore the next consideration that should have entered in the mind of the Selection Committee was their placement in the seniority list. We do not want to suggest that the Selection Committee could not have selected the respondent No.3 because he was junior to the petitioner. The Selection Committee should have applied its mind to that aspect of the matter and given reasons why though the petitioner is senior according to them, selection of respondent No.3 is necessary. We thus find that in selecting the respondent No.3 for the post of Head of Department of Agronomy, the Selection Committee has ignored or has not taken into consideration relevant aspects which are required to be considered in accordance with law and therefore, in our opinion, the selection and consequent appointment of the respondent No.3 as Head of Department of Agronomy will have to be set aside. In our opinion, following order would meet the ends of justice. 5] The selection and consequent appointment of 12 respondent No.3 as Head of Department of Agronomy is set aside and the respondent No.1 is directed to hold a meeting for consideration of candidates for selection to the post of Head of Department of Agronomy as expeditiously as possible and in any case, within a period of ten weeks from today. During the interim period, the respondent No.2  University may continue the respondent No.3, who is presently working as Head of Department of Agronomy as Head of Department of Agronomy but on an express understanding that on the basis of his continuance in the post of Head of Department of Agronomy after today, the respondent No.3 shall not claim any equity. Rule is made absolute accordingly with no order as to costs. All the contentions in relation to which we are really doubtful are kept open for consideration. Parties to act on the copy of this order duly authenticated by Sheristedar / Private Secretary of this Court. 13 Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE K.K. TATED )