IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL NO. 1500 OF 2009 (WA(SR) No. 113248 OF 2009) (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 26.03.2009 in WP No. 25116 of 2006 on the file of the High Court.) Between: University of Hyderabad, Rep. by its Registrar, Gachibowli, Hyderabad & Another ..... APPELLANTS AND Dr. M.N.V. Prasad and others .....RESPONDENTS The Court made the following : ORAL JUDGMENT: (per the Hon’ble Sri Justice Sanjay Kumar) This appeal is filed by the University of Hyderabad, Hyderabad, aggrieved by the order dated 26.03.2009 passed by the learned Single Judge allowing Writ Petition No. 25116 of 2006. In the said writ petition, the issue for consideration was the inter se seniority between the writ petitioner and respondents 3 to 5 in the writ petition in the cadre of Professors. The writ petitioner, who is respondent No.1 in this appeal, was regularly appointed as a Professor in the University on 15.07.1998 and joined as such on 01.08.1998. While so, the University Grants Commission introduced a Career Advancement Scheme in the year 2000, whereunder respondents 3 to 5 in the writ petition, who are respondents 2 to 4 in this appeal, were selected and appointed as Professors in ex-cadre posts. Their appointment was admittedly made on 26.06.2000 i.e. nearly two years after the appointment of respondent No.1 herein. When the issue of seniority arose between respondent No.1 on the one hand and respondents 2 to 4 on the other, the matter was examined by a Sub-Committee constituted by the University, which held in favour of respondent No.1. While so, the University, allegedly acting upon the instructions of the University Grants Commission that the promotions made under the Career Advancement Scheme should be given effect from 27.07.1998 or the date of eligibility, whichever is later, treated respondents 2 to 4 herein as senior to the respondent No.1. Hence, the writ petition. By the order impugned in this appeal, the learned Single Judge held that respondent No.1, having been appointed earlier in point of time, was entitled to be treated as senior and that the retrospective promotion of respondents 2 to 4 herein could not have any effect on his seniority. The learned Single Judge relied on Dr.Rashmi Srivastava Vs. Vikram University([1]) in this regard. The observations of the Supreme Court therein are apposite: “…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…” The promotions effected under the Career Advancement Scheme, being similar to the merit promotion scheme considered by the Supreme Court, would be to ex-cadre posts and the persons promoted to such posts cannot seek parity with those regularly recruited to the cadre posts. In such circumstances, respondents 2 to 4 herein cannot claim seniority over respondent No.1, having been appointed to ex-cadre posts. In this regard, reference may also be made to the judgment of the Supreme Court in Sanjay K.Sinha – II Vs. State of Bihar([2]) wherein the issue was as to the inter se seniority between direct recruits and promotees. On facts, the Court found that the promotions made were against non-existent posts. The observations of the Supreme Court in this context are illuminating: “…The posts to which substantive appointments were to be made were not available, therefore, there could be no appointment to the service. When there is no appointment to the service, the promotees could not be given seniority with effect from the purported date of their promotion..” It is admitted by the appellant University that a candidate who gets promotion under the Career Advancement Scheme only gets designated as a Professor and that the said promotion is not against a vacant post. Thus, these posts are ex-cadre posts and cannot be equated with the regular cadre posts. The promotions given to respondents 2 to 4 were purely personal to them and do not have the effect of placing them on par with respondent No.1 much less, above him. The action of the appellant University in granting them seniority over respondent No.1 is, therefore, clearly unsustainable in law. We therefore see no reason to interfere with the order passed by the learned Single Judge. Further it is to be noticed that respondents 2 to 4, who are the actually affected parties, did not choose to challenge the order and it is only the University that appears to be fighting their cause. The Writ Appeal is devoid of merit on counts more than one. Consequently, the Writ Appeal fails and is accordingly dismissed, but in the circumstances, with no order as to costs. ____________________ Justice T.Meena Kumari __________________ Justice Sanjay Kumar December 17, 2009 MAS. [1] (1995) Supreme Court Cases 653 [2] (2004) 10 SCC 734