Holding

Promotions under the Personal Promotion Scheme could not be effective before the statutory criteria were prescribed on 21 February 1985; therefore the appellant’s seniority from 9 November 1984 outranks the respondents, and the High Court’s dismissal of the writ petition was erroneous.

Summary

Dr. Bal Krishna Agarwal, appointed as Professor by direct recruitment on 9 November 1984, challenged the Executive Council of Allahabad University’s decision that placed him junior to two colleagues promoted under the Personal Promotion Scheme. The High Court dismissed his writ on the ground that an alternative remedy under Section 68 of the Uttar Pradesh State Universities Act, 1973 was available, despite the petition having been pending for over five years. The Supreme Court held that the High Court erred in dismissing the petition and that the promotion of the respondents could not take effect before the university statutes prescribed the required length of service and qualifications on 21 February 1985. Consequently, the respondents’ seniority as Professors is counted from that date, whereas the appellant’s seniority is from 9 November 1984, making him senior. The appeal was allowed, setting aside the High Court judgment and directing that the appellant be treated as senior to the respondents.

Issues considered

The High Court’s dismissal of the writ petition on the ground of an alternative remedy under Section 68 of the Uttar Pradesh State Universities Act, 1973.
Whether promotion under the Personal Promotion Scheme could be given legal effect before the statutory provisions prescribing length of service and qualifications were incorporated into the university statutes on 21 February 1985.
How inter se seniority should be determined between a cadre appointment by direct recruitment and a promotion under the Personal Promotion Scheme under Statute 18.05 as amended.

Legislation cited

U.P. Act No. 9 of 1985
Uttar Pradesh State Universities Act, 1973s. 2(1), s. 2(14), s. 31, s. 31-A, s. 68

Subjects

inter se senioritypersonal promotion schemeUttar Pradesh State Universities Actalternative remedywrit petitionseniority determinationstatutory amendmentcadre appointment

Judgment

A DR. BAL KRISHNA AGARWAL
v.
STATE OF UITAR PRADESH AND ORS. ~

JANUARY 10, 1995

B (S.C. AGRAWAL AND FAIZAN UDDIN, JJ.)

SeTVice law-Uttar Pradesh State Universities Act, 1973-Section 31-
A-Personal Promotion Scheme-Length of service and qualifications )r
presaibed by Notification dated 21-2-85-Promotion to grade of Professor
c could only be validly effected from 21-2-1985-'-Clause 18.05-lnter se seniority
of teachers appointed by personal promotion and by direct recruitment-
Professor in Physics-Detennination of seniority according to length of con-
tinuous selVice in a substantive capacity in such cadre-Service of those
promoted under Personal Promotion Scheme-To be counted from 21-02-85.

D Constitution of India, 195(}-Article 226-Writ-Availability of altema-
tive remedfParty non-suited by High Court five years after admitting the writ ,,.(.
petition-field, not justified.

The appellant and respondents Nos. 4 and 5 were employed as
Readers in the Physics Department of the Allahabad University. In 1983
E
applications were invited for direct recruitment to one permanent post of
Professor. The appellant was appointed to the post substantively by an
order dated November 9, 1984. On November 9, 1984, respondents Nos. 4
and 5 were promoted in the grade of Professor under the Personal Promo·
tion Scheme which was framed. on December 12, 1983 and came into force
F by amendment to the Act on October 10, 1984. i1r·
The appellant after probation for one year was confirmed on the post
of professor w.e.f. November 9, 19851 The Seniorty Committee of the
Faculty of Science considering the inter se seniority of the appellant and
respondents Nos. 4 and 5 came to the conclusion that the appointments
G on cadre posts and personal promotions cases constituted two different
categories so as not to be intermingled and should be maintained separate·
ly and the teachers appointed on cadre P?Sts by direct recruitment should ~

H
be treated senior to those teachers appointed under Personal Promotion
Scheme irrespective of their date of appointment. The Seniority Committee
placed the appellant, who held the cadre post of Professor above respon-
148
-
DR.B.K.AGRAWALv. STATE 149

dents 4 and 5 who were promoted to the grade of Professor under the A
Personal Promotion Scheme.

Respondents 4 and 5 submitted representations before the Executive
Council against the said decision of the Seniority Committee. The Execu-
tive Council altered the seniorty and placed respondents 4 and 5 above the
appellant. Writ Petition filed by the appellant against the decision of the B
Executive Council was dismissed by the High Court on the ground that
alternative remedy of reference to the Chancellor u/s 68 of the Uttar
Pradesh State Universities Act, 1973 was available to the appellant.

The High Court observed that there was controversy with regard to C
nature of appointments since the appellant claimed that he .had been
appointed against a regular vacancy while the respondents asserted that
all three had been granted personal promotion and that there was also a
dispute regarding the date on which the appellant joined the post of
Professor.
D
The appellant contended that the High Court was in error in dis-
missing the Writ Petition on the ground of availability of an alternative
remedy having regard to the fact that the Writ Petition had been filed in
1988 and it had been admitted and was pending in the High Court for the
past more than five years. Further, there was no dispute regarding the E
appellant's selection by the Selection Committee for appointment to the
permanent post of Professor, which recommendation had been accepted
by the Executive Council. Also, the appellant's inclusion in the list of
personal promotees did not mean that his appointment was by way of
personal permotion and not on the basis of selection for the cadre post F
which was advertised.

It was submitted that since the appeUant was appointed on the post
of Professor on November 9, 1984, the seniority should be regulated by the
provisions contained in the Statutes of the University as they existed on
the said date and that the amendments which were made in the Statutes G
by notification dated February 21, 1985 would have no application in the
matter of determination of the appellant's seniority. Under clause (b) of
• Statute 18.05, as it stood on November 9, 1984, when the appellant joined
as Professor, he, holding the selection post of Professor in Physics Faculty,
was senior to respondents Nos. 4 and 5 who were promotees under the H
"" i

.\ . .·\ .'
·.;

- ·150 "\
• _SUPREME COURT REPORTS :---11995] lS.C.R.
·'-.· .
\'> - '. ' ' . ,- ' ·-- - '
A Personal Promotion Scheme. It was urged that although Section 31-A,
which\ pro,·ided for personal promoti~n wa~ introduced in the Act ·w.e.r.
October 10,1984, .it could be given effect to only after the_ length of service
as well as the qualifications were prescribed in the Statutes and this was
done only by the amendments introduced by notification dated February
B 21, 1985. Therefore, it was contended that personal promotion of respon-
dents Nos: 4 and 5 could have legal effect only from the date of such
amendment in the Statu~es and they should be. treated to have been
promoted w.e.r. February 21,-1985. It was argued that since the appellant
joined as Professor on November 9, 1984, he should be treat~d as senior
. to respondents N~s. 4 and 5. . . ..
c
The respondents urged that since the validity or appointment or
respondents Nos. 4 and 5 w.e.r. November 9, 1984 had not been assailed
by the appellant, he should not be permitted to raise this q~esiion at this
stage: Also, since the seniority of the appellant and respondents Nos. 4 and
'o 5amended
was determined by the Executive Council after the Statutes had been
by notification dated February 21, 1985 the criterion for fixing
the seniority would be that laid domi In the Statutes on the date when such
determination was made and that the seniority was properly determined
in accordance with the provisions of the Statutes 18.05 as amended by
Notification dated February 21, 1985. It was further contended that since
E the appellant and respondents 4 and 5 joined as professors on the same
se
date, their ;;,,;,,; seniority should be determined by the length or their
· service a~ Riaders and on that' basis the respondents would rank senior
as they had longer leni;th of service as Readers than the appellant.

F Allowing the appeal, this Court

IIELD : 1. The High Court was not right in dismissing the Writ
Petition on the ground of availability of an alternative remedy u/s 68 of the
Uttar Pradesh State Universities Act, 1973, especially when the Writ.
G Petition thafwas filed in 1988 had already been admitted and was pending
in the High Court for the past more than five years. Since the question
that was raised involved a pure question of Jaw .and even if the matter was
referred to the Chancellor u/s 68 of the Act it was bound to be agitated in
th.e court by the party aggriend by the order ofthe Chancellor, this was
not case where the High Court should have non-suited the appellant on
H the ground of availability of an alternative remedy. (156-G-H, 157·A]
DR. B.KAGRAWALv. STATE 151

2.1. In view of the provisions contained in Sections 31-A and 2(1) of A
the Act there is no escape from the conclusion that respondents Nos. 4 and
5 could not be given promotion under the Personal Promotion Scheme till
the necessary provisions prescribing the length of service and qualifica-
tions for such promotion were made in the Statutes of the University and
since this was done by Notification dated February 21, 1985, promotion
under the Personal Promotion Scheme could not be made prior to February B
21, 1985. (160-H, 161-AJ

2.2. The Executive Council in its Resolution No. 198 dated November
8, 1984 had accepted th'e recommendations of the Selection Committee for
promotion of respondents Nos. 4 and 5 on the basis of Government Orders C
dated December 12, 1983 and February 25, 1984. At that time Section 31 of
the Act provided for appointment of teachers by direct recruitment and did
not envisage promotion from a lower teaching post to a higher teaching
post. The orders of the Government aforementioned could not be given
effect till necessary amendment was maile in the Act making provision for D
personal promotion. This was done by introducing Section 31-A by U.P. Act
No. 9of1985 with effect from October 10, 1984. But Section 31-A could be
given effect only after the necessary provision was made in the Statutes
prescribing the length of service and the qualifications for personal promo-
tion. This was done by the notification dated February 21, 1985. The promo-
tion of respondents Nos. 4 and 5 to the grade of Professor under the E
Personal Promotion Scheme could, therefore, not be made prior to
February 21, 1985 and it had to be treated to have been made with effect
from February 21, 1985. The inter se seniority of the appellant and respon-
dents Nos. 4 and 5 had to be determined on that basis. (161-B-D]
F
2.3. Under the Statutes as amended by notification dated February
21, 1985, it is laid down in clause (b) of Statute 18.05 that in the same cadre,
inter se seniority of teachers, appointed by personal promotion or by direct
recruitment, sha?I be determined according to length of continuous service
in a substantive capacity in such cadre. Since the promotion of respondents G
Nos. 4 and 5 can he treated to be valid only with effect from February 21,
1985 their service in the cadre of Professor had to be counted from
February 21, 1985 while the service of the appellant had to be counted from
November 9, 1984. The appellant was, therefore, entitled to be placed above
respondents Nos. 4 and 5 in so far as seniority in the cadre of Professor
was concerned. (161-G-H, 162-A] H
152 SUPREME COURT REPORTS (1995] 1 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 607 of
1995.

From the Judgment and Order dated 6.1.94 of the Allahab~d High
Court in C.M.P.W.P. No. 15566 of 1988.

B M.L. Bhat, Arun Jaitley, S.B. Sanyal, Ms. Purnima Bhat, Sunil Gupta,
Sunil Kr. Singh, U.N. Singh, R.K. Sharma, Ms. Vijaya Lakshmi Menon,
Maninder Singh and K.L. Taneja for the appearing parties.

The Judgment of the Court was delivered by

C S.C. AGRAWAL, J. Leave granted.

We have heard learned counsel for the parties.

This appeal involves the question regarding inter se seniority of the
appellant-Dr. Bal Krishna Agarwal and respondents Nos. 4 and 5, Dr.
D Murli Manohar Joshi, and Dr. P.K. Sharma as Professors in Physics in the
Allahabad University (hereinafter referred to as 'the University'). The
Executive Council of the University by resolution dated July 16, 1978,
declared respondents Nos. 4 and 5 as senior to the appellant. Writ Petition
No. 15566 of 1988 filed by the appellant against the said resolution of the
E Executive Council was dismissed by the Allahabad High Court by judgment
dated January 6, 1994 on the ground that alternative remedy of reference
to the Chancellor under Section 68 of the Uttar Pradesh State Universities
Act, 1973 (hereinafter referred to as 'the Act') was available to the appel-
lant.

F Section 31 of the Act provides for appointment of teachers. In
sub-section (10) of Section 31 it is prescribed that no selection for any
appointment shall be made except after advertisement of the vacancy in at
least three issues of two newspapers having adequate circulation in Uttar
· Pradesh. In view of the said provision appointment of teachers in the
University could only be made by direct recruitment by inviting applica- J
G tions and promotion from a lower teaching post to a higher teaching post
was not envisaged. This led to stagnation and consequent frustration among
the teachers in the various Universities governed by the Act. In order to
remove this grievence the Government of Uttar Pradesh, by order dated
December 12, 1983, framed a Personal Promotion Scheme whereunder
H personal promotion was to be given to a teacher on the basis of continuolJ$
-
DR. B.K.AGRAWALv. STATE[AGRAWAL,J.] 153

service rendered in the department for a certain period. By order dated A
Freburary 25, 1984 the said order dated December 12, 1983 was modified
and it was decided to grant personal prombtion to the post of Reader to
all those full time and regularly appointed lecturers on the Government
approved posts of Universities governed and administered by the Act who
possess Ph.D degrees and have completed 13 years approved, full time
regular and continuous service and those who are not Ph.D after 16 years
B
approved, full time and regular and continuous service. It was also decided
r to grant personal promotion to the post of Professor to Readers after 10
years continuous and regular service as Reader from the date of taking
over charge after issue of the said order. In the said order it was stated
that the personal promotion would be granted to teachers subject to the c
restrictions set but in sub-paragraphs (1) to (12) of paragraph 1 in the said
order. In sub-paragraph (12) it was stated tat the seniority of the Teachers
would be regulated as per Regulations of t e concerned University. By the
said letter the Vice-Chancellors of all the State Universities were directed
to send the draft regulation for carrying out necessary amendment in the
,.. D
Regulations of the concerned University to the Education Department for
approval. In order to give effect to the policy contained in the aforesaid
orders of the Government of Uttar Pradesh, Section 31-A was inserted in
the Act by U.P. Act No. 9 of 1985 which came into force on October 10,
1984. Section 31-A provides as under :-
E
"31-A. Personal promotion to teachers of University.

(1) Notwithstanding anything to the contrary contained in any
other provision of this Act, a Lecturer or Reader in the University
substantively appointed under Section 31, who has put in such
length of service and possesses such qualifications, as may be F
prescribed, may be given personal promotion, respectively to the
post of Reader or Professor.

(2) Such personal promotion shall be given on the recommendation
of the Selection Committee, constituted under clause (a) of sub-
G
section (4) of Section 31, in such manner and subject to such
).., conditions as may be prescribed.
,. (3) Nothing contained in this section shall affect the posts of the
teachers of the University to be filled by direct appointment in
accordance with the provisions of Section 31." H
154 SUPREME COURT REPORTS [1995] 1 S.C.R.

A ' - In view of sub-section (1) of Section 31"A personal promotion as 4'

envisaged, by Section 31-A could be given only after the length of service
and the qualifications were prescribed. The word 'prescribed' is defined in
Section 2(14) of the Act to mean prescribed by the Statutes. T~e necessary
amendment- to give effect to the scheme of personal promotion as en- .
visaged by Section 31-A of the Act was made in the Statutes of the
B University by notification dated February 21, 1985 whereby Statute 11.12-B
was·introduced and the categories of teachers of the University who would
be eligible for the personal promotion to the post of Readers and Profes-
sors and the mode of_ such promotion were prescribed.

c The appellant and respondents Nos. 4 and 5 were_ employed as '
Readers in· the Physics Department of the University. In October 1983 an
advertisement was published inviting applications for direct recruitment on
one-permanent post of Professor in the Physics Department of the Univer-
sity. In response to the said advertisement applications were submitted by.
D the appellant and respondents Nos . .4 and 5 alongwith other aeplicants.
The said applications were considered by the Selection Committee under .......
the Faculty of Science and the Selection Committee, in its report dated
July 22, 1984, reconimended .a panel containing the names of the appellant
and respondents Nos. 4 and 5 for appointment on the post of Professor in
Physics. The name of the appellant was placed at the top in the said panel.
E . The Selection Committee also considered the appellant and respondents
Nos. 4 and 5 for promotion to the grade of Professor under the Personal
Promotion Scheme and in its report dated July 22, 1984 the Selection
Committee ·recommended all three of them for such promotion. The said
re,c6mmendations of the Selection Conimittee were eonsider~d by the
F Executive Council of the University at the meetmg held on November 8,
1984. By Resolution 'No. 19?° the Executive Council accepted the recom-
mehdations of the Selection Committee and·recorded that the appellant be
appointed as Professor in Physics substantively. By Resolution No. 198 the
Executive Council accepted the recommendations of the Selection Com-
ntlttee under_ the Personal Promotion Sche~e and recorded that the ap-
G, pell~t ~d ~espon~ents No~. 4 and. 5 ,be pro~~ted to the grade of
Professor in terms of Government Orders dated December 12, 1983 and ......,
\

February 25, 1984. In the said Resolution the name~ of the -appellant and
the respondents Nos. 4 and 5 were shown in the following order:-
. . I . ·- , ~

H 1. Dr. Bal J<rishana Agrawal (appellant)
DR. B.K AGRAWAL v. STATE [AGRAWAL, J.] 155

2. Dr. M.M. Joshi (respondent No. 4) A

3. Dr. P.K. Sharma (respondent No. 5)

On the basis of the said resolutions, by order dated November 9,
1984, the appellant was appointed on the post of Professor in Physics. B
Respondents Nos. 4 and 5 were promoted in the grade of Professor under
the Personal Promotion Scheme on November 9, 1984. The appointment
of the appellant on the post of Professor was on probation for one year
and he was confirmed on the said post of Professor with effect from
November 9, 1985. The matter of inter se seniority of the appellant and
respondents Nos. 4 and 5 was considered by the Seniority Committee of C
the Faculty of Science in its meeting held on December 22, 1986 and
January 4, 1987. The Committee came to the conclusion that the appoint-
ments on cadre posts and personal promotion cases constitute two dif-
ferent categories and could not be intermingled for the purpose of
determination of seniority and that the seniority of teachers in the cadre D
posts should be maintained separately from that of the personal promotees
and that the teachers appointed on cadre posts by direct recruitment
should be treated senior to those teachers appointed under Personal
Promotion Scheme irrespective of their date of appointment. The Seniority
Committee decided to place the appellant, who was holding the cadre post
of Professor, above respondents Nos. 4 and 5 who were promoted to the E
grade of Professor under the Personal Promotion Scheme. Feeling ag-
grieved by the said decision of the Seniority Committee respondents Nos.
4 and 5 submitted representations which were considered by the Executive
Council in its meeting held on July 16, 1988. The Executive Council altered
the seniority as fixed by the Seniority Committee and placed respondents F
Nos. 4 and 5 above the appellant. The said decision of the Executive
Council was assailed by the appellant by filing the Writ Petition giving rise
to this appeal.

The High Court has observed that there was controversy in regard
to every question of fact in as much as there was dispute with regard to G
nature of appointments since the appellant claimed that he had been
appointed against a regular vacancy which was assailed by the respondents
who asserted that all three had been granted personal promotion and that
there was also a dispute regarding the date on which the appellant joined
the post of Professor. The High Court was of the view that the question as H
156 SUPREME COURT REPORTS (1995] 1 S.C.R.

A to whether the impugned order had been passed without affording an
oppertunity of hearing to the appellant was a question which can be
appropriately decided only after investigation in the disputed questions of
fact and that this was not a fit case in which the appellant should be allowed
to by-pass the alternative remedy of reference to the Chancellor provided
under Section 68 of the Act. The High Court, therefore, dismissed the Writ
B
Petition on the ground of availability of the alternative remedy and directed
that if the representation of the appellant under Section 68 of the Act was
filed within a period of two weeks, the bar of limitation would not be +- I

applied against the same and it should be decided on merits.

c The learned counsel for the appellant has urged that the High Court
was in error in dismissing the Writ Petition of the appellant on the ground
of availability of an alternative remedy having regard to the fact that the
Writ Petition had been filed in 1988 and it had been admitted and was
pending in the High Court for the past more than five years. The learned ,.
counsel has also urged that the High Court was not right in saying that
D ,....__
there was dispute on questions of fact. According to the learned counsel
there is no dispute that the appellant had been selected by the Selection
Committee for appointment on th«? permanent post of Professor which was
advertised and the said recommendation of the Selection Committee was
accepted by the Executive Council in its Resolution No. 197 dated Novem-
E ber 8, 1984. The fact that the name of the appellant was also included in
the list of Readers for personal promotion to the grade of Professor in
Resolution No. 198 of the Executive Council would not mean that the
appointment of the appellant to the post of Professor was by way of
personal promotion and not on the basis of selection for the cadre post of ~
Professor which was advertised. The learned counsel also submitted that it
F
is not the case of the appellant that he joined the post of Professor in
Physics oti November 8, 1984 and that his case is that the appellant as well
as respondents Nos. 4 and 5 all joined 'as Professors in Physics on Novem-
her 9, 1984.

G Having regard to the aforesaid facts and circumstances, we are of
the view that the High Court was not right in dismissing the Writ Petition ~
of the appellant on the ground of availability of an alternative· remedy
under Section 68 of the Act especially when the Writ Petition that was filed
in 1988 had already been admitted and was pending in the High Court for
H the past more than five years. Since the question that is raised involves a
DR.B.K.AGRAWALv.STATE[AGRAWAL,J.] 157

pure question of law and even if the matter is referred to the Chancellor A
under Section 68 of th.e Act it is bound to be agitated in the court by the
party aggrieved by the order of the Chancellor, we are of the view that this
was not a case where the High Court should have non-suited the appellant
on the ground of availability of an alternative remedy. We, therefore,
propose to go into the merits of the question regarding inter se seniority of B
the appellant and respondents Nos. 4 and 5. We may, in this context,
mention that the respondent No. 4 has already retired in January, 1994.

Provisions with regard to seniority of teachers of. University are
contained in Chapter 18 of the First Statutes of the University. Prior to the
amendments made by Notification dated February 21, 1985 the Statutes C
. having bearing on the seniority of teachers of the University were as
under:-

"18.05. The following rules shall be .followed in determining the
seniority of teachers of the University :-
D
(a) A Professor shall be deemed senior to every Reader, and
a Reader shall be deemed senior to every Lecturer.

(b) In the same cadre, seniority of a teacher shall be determined
according to the length of his continuous service in a substantive
capacity in such cadre : E
Provided that where more than one a1.11mintment to posts in a
cadre have been made at the san;1.e tilne, and an order of preference
or merit was . indicated by the Selection Committee or by the
Executi~e Council, as the case may be, the seniority of the persons
so appointed shall be governed by the order so indicated. F
( c) When any teacher holding substantive post in any University
(other than the University of Allahabad) or in any constituent
college or in any Institute whether in the State of Uttar Pradesh
or outside Uttar Pradesh is appointed whether before or after G
August 1, 1981, to a post of corresponding rank or grade in the·
University, the period of service rendered by such teacher in that
grade or rank in such ·University shall be added to his length of
service.

(d) When any teacher holding substantive post in any .college H
158 SUPREME COURT REPORTS [1995) 1 S.C.R.

A affiliated to or associated with any University is appointed whether
before or after the commencement of these Statutes as a Lecturer
in the University, then one half of the period of substantive service
rendered by such teacher in such college shall be added to his
length of service.
B ( e) Service against an administrative appointment in any
University or institution shall not count for the purposes of
seniority.

Explanation :- In this Chapter, the expression "administrative ap-
pointment" means an appointment made under sub-section (6) of
c Section 13. ·

(f) Continuous service in a temporary post to which a teacher
is appointed after reference to a Selection Committee, if followed
by his appointment in a substantive capacity to that post under
D Section 31(3)(b) shall count towards seniority.

18.06. Where more than one teacher are entitled to count the same
length of continuous service in the cadre to which they belong, the
relative seniority of such teachers shall be determined as below:-

E (i) in the case of Professors, the length of substantive service
as Reader shall be taken into consideration;

(ii) in the case of Readers, the length of substantive service as
Lecturer shall be taken into consideration;

F (iii) in the case of Professors, whose length of service as
Readers is also identical, the length of service as lecturer shall be
taken into consideration.

18.07. Where more than one teacher are entitled to count the same
length of continuous service and their relative seniority cannot be
G
determined in accordance with any of the foregoing provisions,
then the seniority of such teachers shall be determined on the basis
of seniority in age.

18.08. (1) Notwithstanding anything contained in any other Statute,
H if the Executive Council -
DR. B.K.AGRAWALv. STATE [AGRAWAL,J.] 159

(a) agrees with the recommendation of the Selection Commit- A
tet;, and approves two or more persons for appointment as teachers
in the same Department; it shall, while recording such approval,
determine the order of merit of such teachers;

(b) does not agree with the recommendations of the Selection
Committee and refers the matter to the Chancellor under Section B
31(8)(a), the Chancellor shall, in cases where appointment of two
or more teachers in the same Department is involved, determine
-f the order of merit of such teachers at the time of deciding such
reference;

(2) The order of merit in which two or more teachers are placed
c
under clause (1), shall be communicated to the teachers concerned
before their appointment.

By virture of the amendments that have been introduced in the Statutes by
Notification dated February 21, 1985, clause (b) of Statute 18.05 was D
substituted as under :-

"(b) In the same cadre, inter se seniority of teachers, appointed
by personal promotion or by direct recruitment, shall be deter-
mined according to length of continuous service in a substantive
capacity in such cadre : E
Provided that where more than one appointment have been
made by direct recruitment at the same time and an order of
preference or merit was indicated by the Selection Committee or
by the Executive Council, as the case may be the inter se seniority
of persons so appointed shall be governed by the order so indi- F
cated:

Provided further that where more than one appointments have
been made by promotion at the same time, the inter se seniority of
the teachers so appointed shall be the same as it was in the post G
held by them at the time of promotion."

The learned counsel for the appella~t has submitted that since the
appellant was appointed on the post of Professor in Physics on November
9, 1984, the seniority should be regulated by the provisions contained in
the Statutes as they existed on the said date and that the amendments H
160 SUPREME COURT REPORTS . (1995) 1 S.C.R.

A which were made in the Statµtes by notification dated February 21, 1985
would have no application in the matter of determination of his seniority.
Under clause (b) of Statute 18.05, as it stood on.November 9, 1984, when
the appellant joined as Professor in Physics, appellant, who was holding
the selection post of Professor in Physics Faculty, was senior to respon-
dents Nos. 4 and 5 who were promotees under the Personal Promotion
B Scheme. In this connection, the learned counsel has urged that although
Section 31-A, which provides for personal promotion, was introduced in
the Act with effect from October 10, 1984 but the said provision could be
given effect to only after the length of service as well as the qualifications
were prescribed in the Statutes and that this was done only by the amend-
c ments that were introduced in the Statutes by notification dated February
21, 1985 and, therefore, personal promotion of respondents Nos. 4 and 5
could have legal effect only from the date of such amendment in the
Statutes and that respondents Nos. 4 and 5 should be treated to have been
promoted under Personal Promotion Scheme on the grade of Professor in
D Physics with effect from February 21, 1985. Since the appellant joined as
Professor in Physics on November 9, 1984, he should be treated as senior
to respondents Nos. 4 and 5. +

Shri Sanyal, the learned senior counsel appearing for respondent No.
5, however, urged that since the validity of appointment of respondents
E Nos. 4 and 5'with effect from November 9, 1984 has not been assailed by
the appellant, he should not be permitted to raise this question at this stage.
It is no doubt true that the validity of the promotion of respondents Nos.
4 and 5 has not been assailed by the appellant but all that he is pointing
out is that in view of the provisions contained in Section 31-A of the Act
F the promotion of respondents Nos. 4 and 5 under the Personal Promotion
Scheme could be made only after the length of service and qualifications
were prescribed by the Statutes and provisions in this regard were made
in the Statutes only on February 21, 1985. In other words, what the
appellant is saying is that the promotion of respondents Nos. 4 and 5 to
the grade of Professor can be regarded to have been made legally only with
G effect from February 21, 1985. This does not involve a challenge to the
validity of their promotion but only raises the question about the date from
which it can be given effect to in law. We are of the opinion that in view
of the provisions contained in Section 31-A and Section 2(14) of the Act
there is no escape from the conclusion that respondents Nos. 4 and 5 could
H not be given promotion under the Personal Promotion Scheme till th~
DR.B.K.AGRAWALv. STATE[AGRAWAL,J.] 161

necessary provisions prescribing the length of service and the qualifications A
for such promotion were made in the Statutes and since this was done by
Notification dated February 21, 1985, promotion under the Personal
Promotion Scheme could not be made prior to February 21, 1985. The
Executive Council in its Resolution No. 198 dated November 8, 1984 had
accepted the recommendations of the Selection Committee for promotion
of respondents Nos. 4 and 5 on the basis of Government Orders dated
B
December 12, 1983 and February 25, 1984. At that time Section 31 of the
Act provided for appointment of teachers by direct recruitment and did
not envisage promotion from a lower teaching post to a higher teaching
post. The orders of the Government aforementioned could not be given
effect till necessary amendment was made in the Act making provision for c
personal promotion. This was done by introducing Section 31-A by U.P.
Act No. 9 of 1985 with effect from October 10, 1984. But Section 31-A
could be given effect only after the necessary provision was made in the
Statutes prescribing the length of service and the qualifications for personal
promotion. This was done by the notification dated February 21, 1985. The D
promotion of respondents Nos. 4 and 5 to the grade of Professor under
the Personal Promotion Scheme could, therefore, not be made prior to
February 21, 1985 and it has to be treated to have been made with effect
from February 21, 1985. The inter se seniority of the appellant and respon-
dents Nos. 4 and 5 has to be determined on that basis.
E
Shri Sanyal has also contended that since the seniority of the appel-
lant and respondents Nos. 4 and 5 was determined by the Executive
Council after the Statutes had been amended by notification dated
February 21, 1985 the criterion for fixing the seniority would be that laid
down in the Statutes on the date when such determination was made and p
that the seniority was properly determined in accordance with the
provisions of the Statutes 18.05 as amended by Notification dated February
21, 1985. We are unable to agree. Even under the Statutes as amended by
notification dated February 21, 1985 it is laid down in clause (b) of Statute
18.05 that in the same cadre, inter se seniority of teachers, appointed by
personal promotion or by direct recruitment, shall be determined accord- G
ing to length of continuous service in a substantive capacity in such cadre.
Since the promotion of respondents Nos. 4 and 5 can be treated to be valid
only with effect from February 21, 1985 their service in the cadre of
Professor has to be counted from February 21, 1985 while the service of
the appellant has to be counted from November 9, 1984. The appellant is, H
162 SUPREME COURT REPORTS [1995] 1 S.C.R.

A therefore, entitled to be placed above respondents Nos. 4 and 5 in so far
as seniority in the cadre of Professor is concerned.

Shri Arun Jaitley, the learned counsel appearing for respondent No.
4, has invited our attention to Statute 18.06 and has submitted that since
the appellant and respondents Nos. 4 and 5 joined· as Professurs on the
B same date and have the same length of continuous service in the cadre of
Professor, their inter se seniority should be determined by virtue of the
length of their servicCas Readers and on that basis respondents Nos. 4 and
5 would rank senior to the appellant since they had longer length of service
as Readers than the appellant. This contention also proceeds on the basis
c that the respondents Nos. 4 and 5 were validly promoted fo the grade of
Professor on November 9, 1984 and the said contention would have no
validity if it is held that promotion of respondents Nos. 4 and 5 to the grade
of Professor under the Personal Promotion Scheme could only be legally
effected from February 21, 1985.

D For the reasons aforementioned, it must be held that the appellant
should have been treated as senior to respondents Nos. 4 and 5 in the cadre
of Professor in Physics and the Executive Council was not justified in
placing him junior to the said respondents. The appeal is, therefore,
allowed; the judgment of the High Court dated January 6, 1994 is set aside
and the Writ Petition filed by the appellant is allowed and it is directed
E
that the appellant should be treated as senior to respondents Nos. 4 and 5
as Professor in the Physics Department of the University. There is no order
as to costs.

A.G. Appeal allowed.