IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 114 of 2010 Dr. Adarsh Kumar Nigam ……… Petitioner. Versus Vice Chancellor, H.N.B. Garhwal University, Srinagar and others .……. Respondents. Mr. B.D. Upadhyaya, Advocate for the petitioner. Mr. J.P. Joshi, Advocate for respondent No. 1. Mr. S.S. Chauhan, Advocate for respondent No. 4. Date of Judgment: 01.09.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C.J. (ORAL) The writ petition challenges the decision dated 18th April 2010, holding out that the private respondent is senior to the petitioner. 2. It is not being disputed by the petitioner that he was appointed after the private respondent was appointed as lecturer and, accordingly, while the petitioner and the private respondent were holding the posts of lecturers, private respondent was senior to him. According to the petitioner, while the private respondent continued to remain a lecturer, w.e.f. 30th January 1991 the petitioner was promoted to the post of reader, which is a higher post, and accordingly, petitioner should be deemed to be senior to the private respondent. We have not been able to understand the contention of the petitioner. If the petitioner is in a higher post than that of the private respondent, then there is no comparison in between the petitioner and the private respondent, and there is no question of making any effort to ascertain who is senior to whom. 3. The fact, however, remains that in accordance with Section 31 of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the ‘Act’), which is applicable to the State of Uttarakhand, all teaching posts in the affiliated colleges are direct recruitment posts. Teachers can 2 only be appointed on being selected. There is no provision in the said Section for appointing any person in any teaching post of an affiliated college by promotion. Therefore, while a person may be appointed on being selected as a lecturer, he can be appointed as a reader, if he is selected for appointment as reader, and would be appointed thus; but he would not be promoted, if he is a lecturer, as reader. This was taken note of by the Legislature and, accordingly, in the year 1984 Section 31-A was inserted in the Act. By reason thereof, it became possible for a teacher to be promoted, but such promotion in terms of the provisions contained in the said Section, is to be treated as personal promotion to the person concerned. In order to obtain such personal promotion, a recommendation of the selection committee, constituted under Clause (a) of sub-Section (4) of Section 31 of the Act, is required. In view of Section 31 of the Act, all teaching posts in affiliated colleges are direct recruitment posts. If one of such direct recruitees obtains a personal promotion to a higher post in terms of Section 31-A of the Act, he carries with him the post held by him before his promotion to his promoted post and, accordingly, when he leaves the services, the post originally held by him becomes vacant, and the promotional post ceases to exist. 4. Further taking into consideration the constraints that the teaching members of such colleges face, the Government came up with a career advancement policy. In terms thereof, if a teaching member has spent the time mentioned therein in a teaching post and has in the meantime acquired the prescribed qualifications, those being looked at by a selection committee, the teaching member is entitled to the next available higher pay scale. While laying down the same, the Government, being conscious of the fact that personal promotions are also available as the same have been recognized by Section 31-A of the Act, prescribed that personal promotions may also be given through selection. At one stage, the Government declared that if a teaching member working as a lecturer, having other prerequisites, has acquired a Ph.D, he may be designated as a reader. While doing so, the Government specified that such designation would not affect his seniority in the cadre of lecturer. We are told that 3 this part of the said Government order has been interfered with by the Hon’ble High Court at Allahabad and, accordingly, that part of the Government order is not in existence. 5. There is no dispute that the pay scale available to a lecturer in terms of the said career advancement scheme, upon he being declared by the selection committee to have fulfilled the requirements of obtaining selection grade, is equal to the pay scale of readers. There is also no dispute that while the petitioner has been designated as a reader, the private respondent has been placed in the selection grade and, accordingly, both of them are in the same scale of pay. That appears to be the reason for the present writ petition, in as much as it appears that the petitioner was designated as reader before the private respondent was placed in the selection grade. The petitioner, therefore, himself, in this writ petition, is accepting the situation that a designated reader and the lecturer placed in the selection grade are equal and, accordingly, the petitioner should be treated to be senior to the private respondent, in as much as he was designated as reader before the private respondent was placed in the selection grade. If that is the contention of the petitioner, because of such contention of the petitioner, he must lose. The said contention proceeds on the basis of that the petitioner, as well as the private respondent, have same status in their work place and, admittedly, the private respondent by joining the post of lecturer obtained such status before the petitioner. When a lecturer is placed in the selection grade, he neither gains nor loses his seniority in the cadre of lecturer. When seniority of lecturers is to be fixed, lecturers, as well as those lecturers who have been placed in the selection grade, are to be considered. It is true that in the event the petitioner had obtained personal promotion to the post of reader from the post of lecturer in terms of Section 31-A of the Act, then he would have taken with him the post of lecturer held by him to the post of reader and he would have had been treated to be a reader, holding a superior post than that of a lecturer. However, that has not been done. The petitioner has merely been designated as a reader. That being 4 the situation, we find no reason to interfere with the order impugned in the writ petition. 6. The writ petition is dismissed. (V.K. Bist, J.) (Barin Ghosh, C.J.) 01.09.2010 01.09.2010 Amit