Supreme Court of India
DR. H.P. HAJELAversusN. S. VERMA & ORS.
- Citation
- 1986 INSC 106
- Decided
- 2 May 1986
- Disposal
- Appeal(s) allowed
- Bench
- A P SEN
Holding
The period of leave on deputation counts towards seniority under sub‑clause (4) of Old Statute 11.34, so the appellant is entitled to his seniority.
Summary
The appellant, a senior lecturer and Head of Department at D.A.V. College, Kanpur, was granted extraordinary leave without pay to serve on deputation at the University of Aden, with a guarantee that his lien and seniority would be preserved. Upon his return, the acting Head refused to hand over charge, claiming seniority over the appellant. The appellant appealed, arguing that his deputation did not break his service and that his seniority should be maintained under the university statutes. The High Court held that the period of service abroad could not be counted for seniority, but the Supreme Court reversed this, interpreting Old Statute 11.34(4) to allow tacking of leave periods spent in a similar position, and found no conflict with the First Statutes. Consequently, the appellant’s seniority was upheld and the appeal was allowed.
Issues considered
- Whether extraordinary leave on deputation constitutes a break in service for seniority purposes under Kanpur University statutes.
- Whether service rendered abroad during leave can be tacked onto the appellant's service for seniority under Old Statute 11.34(4).
- Whether the First Statutes override the Old Statutes in determining seniority in this case.
- Whether the principal had authority to grant lien and seniority protection to the appellant.
Subjects
senioritydeputationextraordinary leaveUniversity statutesbreak in servicetacking serviceaffiliated college
Judgment
967
A
lit. H. p • llAJEIA
v.
N. S. VERMA & CltS.
'l<\.Y 2, 19%
B
[<\.,P, S8r; <\I'll) S. '.i.\Tl\RAJ<\.N, JJ.]
University-Seniority of teacher8 - Kanrur University old
'1statutes/First Statutes, 11.34/18.10 and 18.16 - Affiliated
colleges - Whether deputation service effects a break of
service resulting in loss of seniority.
c
\ The appellant was granted extra-ordinary leave on the
Yrequest of the Government of India for being sent on a
)-teaching assignment to the University of Aden (South Yeman) on
the express condition that his lien on the post of Head of the
Department of Zoology in a college affiliated to the Kanpur
University will be maintained and his seniority will be D
protected. After having fulfilled the aforesaid teaching
assignment and on return to India, he sought to resume his
post in the college. The first respondent who was acting as
the Head of the Department of Zoology in the college ref used
to handover charge on the ground that he had attained
-"seniority over the appellant. The Principal also rejected the E
appellant's claim to seniority. Thereafter, the appellant
challenged the order of the Principal before the
Vice-chancellor of Kanpur University on the ground that he had
not suffered a break in service and his seniority over the
-\' first respondent remained intact all through his period of
service on deputation. The Vice-chancellor upheld the F
appellant's claim and held that he was entitled to his
~-frightful place of seniority. The Chancellor, in appeal by the
first respondent, affirmed the order of the Vice-chancellor.
The first respondent filed a writ petition in the High
Court. A learned single Judge of the High Court held that in G
terms of either the old Statutes or the First Statutes of the
Kanpur University, the appellant is not entitled to reckon the
~ period of service at the University of Aden for computing
l length of service in the DAV College and as S'Jch the
recognition of the seniority of the appellant over the first
H
968 SUPREME COURT REPORTS [I 9861 2 s.c.R.
A
respondent by the Vice-chancellor and the Chancellor in their
respective orders cannot be sustained. \.-
Allowing the appeal,
HELD: I.The High Court has not properly comprehended the
B Statutes. Because of the failure of the High Court to have
applied the appropriate provision in the Statutes, the period
of service of the appellant on deputation has been wrongly
held to be non-includible in the total length of service of ~
the appellant. The Principal, as the Head of the Institution,
was undoubtedly competent to grant leave on loss to pay to the
c appellant in order to enable him to take up a foreign assign-
ment on deputation basis. The period of leave granted to the ,
appellant was utilised in holding another position involving ~
similar work and therefore, the appellant is automatically
entitled to the benefit of sub-clause ( 4) of old Statute 'i
11.34. [976 D; 978 G]
D
2.(i) Sub-clause (!) of statute 11.34 of the Old
Statutes deals with the reckoning of seniority on the basis of
the length of service in one and the same college and in the
same cadre and grade; sub-clause (2) provides for the addilion
of service in another University or associated/affiliated
E college etc. provided the University is situate in Uttar "'-
Pradesh and the college is affiliated to or associated with
one of the Universities in the State; sub-clause (3) excludes
service in an officiating capacity and grants recognition of
temporary service only if it has continuity with a subsequent
permanent appointment; and lastly sub-clause ( 4) prescribes 1- ~
F for tacking on of leave period with the total length of
service provided ; (!) the period of leave has been spent in
holding another position involving similar work or (2) it was +--..
medical leave. C176 D-F]
2. (ii) The case of the appellant would not fall under
G sc1b-cb "'~ (2) ooc>1,he hts setvlce in the University of Aden
.. nt f\~t c<J<1'1:l':''''·e "1ch ldfld< of services as are envisaged in
the sub-clause. However, sub-clause ( 4) would undoubtedly
cover the case of the appellant because he had been granted
leave of absence on loss of pay for a period of three years
for rendering service in the Unlversity of Aden on deputatlon
H
basis. The word "unless d•irlng such leilve anoth<!c posltlofl
H.P. HAJEIA v. N.S. VERMA 969
_..involving similar work was held" would squarely apply to the A
period of leave of the appellant. It is significant to note
that the qualifying words "University.or College situated in
Uttar Pradesh and the Colleges affiliated to or associated
with one of the Universities in the State" occurring in
sub-clause (2) are conspicuously absent it1 sub-clause (4).
(976 F-G; 977 A-Bl B
-.( 2,(iii) As there is no conflict between sub-clause (4)
of Statute 11.34 of the Old Statutes and any provision in the
First Statutes, there is no room or scope for invoking the
"' overriding provision contained in Statute 1.02(1) for denying
the application of Old Statute ll. 34( 4) to the case of the
\...appellant. On the other hand, the appellant will be entitled c
r to claim the benefit of First Statute 18.16 which preserved
\_"inter seniority of teachers employed in the University from
lbefore the commencement of the Statute."(977 C-D]
3. Sub-clause (2) and (4) of Old Statute 11.34
contemplate different situations and act in different fields. D
While sub-clause ( 4) contemplates service rendered elsewhere
during the period of leave, sub-clause (2) does not
contemplate any such service but contemplates the service
_._ rendered elsewhere without taking leave from any institution.
A proper exposition of the fields of operation of sub-clauses
(2) and (4) of Old Statute 11.34 will at once bring to light E
the merit in the contentions of the appellant and the error
that has been conaitted by the High Court. Moreover, the
provision contained in sub-clause (4) of Old Statute 11.34 has
" -1 not been disturbed in any manner. by the First Statutes and
hence the appellant will be entitled to the benefit of this
) provison, especially in terms of statute 18.16 of the First F
--,~Statutes. (977 D-H; 978 A-Bl
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1477 of
1986.
From the Judgment and Order dated 20th May, 1985 of the G
Allahabad High Court in Writ Petition No. 3710 of 1985.
S.N. Kacker and R.B. Mehrotra for the Appellant.
S.C. Birla for the Respondents.
H
The Judgment of the Court was delivered by
970 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
NAIARA.JAN, J. This appeal by special leave is directed
against the order of a learned Single Judge of the Allahabad ~
High Court in Civil Misc. Writ Petition No. 3710 of 1985 filed
in the High Court by the first respondent herein. The appeal
lies within a narrow compass as the limited question for
consideration is whether the extraordinary leave granted to
B the appellant for the period 24.12.80 to 31.7.83 on the
request of the Government of India for his being posted on a
teaching assignment in the University of Aden (South Yemen)
effected a break in service so as to deprive the appellant his ~
seniority in the Department of Zoology in the D.A.V. College,
Kanpur.
c
The facts which are not in controversy, of the case, are'.-',
briefly as set out below.
On 1. 9.49 the appellant was appointed as Lecturer in i
Zoology in a substantive capacity in the D.A.V. College,
D Kanpur. About six weeks' later i.e. on 12.9.49 the first
respondent was also appointed as a Lecturer in Zoology in the
same college. In the year 1974 the appellant was appointed as
the Head of the Department of Zoology in the said College. On
24.12.80 the appellant was granted extraordinary leave on the
request of the Government of India for being sent on a
E teaching assignment to the University of Aden (South Yemen) on ~
the express condition that his lien on the post in the College
will be maintained and his seniority will be protected. On the
basis of such an arrangement the appellant fulfilled his -
teaching assignment at the University of Aden and on return to
India he sought to resume his post in the College. The first ~ ~
F respondent who was acting as the Head of the Department
refused to hand over charge on the ground he had attained
seniority over the appellant. It is relevant to mention here -t--
that the first respondent did not also continuously serve the ,
College but left its services and went to other teaching
institutions, and after stints of service therein, he rejoined
G the Department of Zoology in the D.A. V. College, Kanpur. It
would appear that the first respondent went over on 21.1.78 as
Principal of the D.A. V. College, Dehra Dun and thereafter he
went over as Principal of the D. B. S. College, Kanpur and ~
subsequently he came back to the D.A.V. College, Kanpur.
H
H.P. HAZELA v. N,S, VERMA [NATARAJAN, J,] 971
A
As the first respondent refused to hand over charge of .
-1 the Department, the appellant made a representation to the
Principal and sought his intervention. After considerable
delay the Principal refused to countenance the appellant's
claim to seniority and sustained the stand taken by the first
respondent. B
The appellant challenged the order of the Principal
before the Vice-chancellor of Kanpur University. While
..\contending that he had not suffered a break in service and hl.s
seniority over the first respondent has re.mained intact all
through his period of service on deputation, the appellant
further contended that the first respondent had in fact c
·'y~suffered break in service because of his spells of service at
, the D.A.V. College, Dehra Dun and the D.B.S. College, Kanpur
~and as such the first respondent's claim of continuous service
· was an untenable one. The Vice-chancellor upheld the
appellant's claim that he had not suffered any break in
service and by virtue of his lien he was entitled to his D
rightful place of seniority, Aggrieved by the order of the
Vice-chanceller, the first respondent preferred an appeal to
the Chanceller but the Chanceller affirmed the order of the
Vice-chanceller and dismissed the appeal.
Thereafter the first respondent filed Civil Misc. Writ E
-
Petition No. 3710 of 1985 under Article 226 of the
Constitution before the High Court of Allahabad. By the
impugned order a learned Single Judge of the High Court
allowed the writ petition holding that in terms of either the
~ Old Statutes or the First Statutes of the Kanpur University
the appellant herein is not entitled to reckon the period of F
service at the University of Aden for computing the length of
. +service in the D.A. V. College and as such the recognitl.on of
the seniority of the appellant over the first respondent by
the Vice-chanceller and the Char.cellar in their respective
orders cannot be sustained. Accordingly the learned Judge has
issued a rule in favour of the first respondent and it is G
against that order this appeal by specia1 leave has been
filed.
I 1. While presenting the case of the appellant before us
Shri S,N, Kacker, learned counsel did not press the
alternative contention of the appellant that the first H
972 SUPREME COURT REPORTS [1986] 2 s.c.R.
A respondent had suffered break in service in the D.A.V. ~
College, Kanpur and as such he has no locus to claim
seniority. Consequently, the only ground on which the order of
the High Court was assailed is that the High Court was in
error in holding that the deputation service of the appellant
has effected a break of service and as such ·he has lost his
original seniority in the Department of Zoology. As the High
B Court has held that neither under the Old Statutes nor under
the First Statutes of the Kanpur University the appellant is ,_
entitled to tack on his service in the University of Aden with
his service in the D.A.V. College, Kanpur it is necessary to
advert to the relevant provisions in the two Statutes.
However, before such advertence, it will be relevant to refer
c to the letter of consent issued to the appellant by the then
Principal viz. Shri s.c. Srivastava of the D.A. V. College,
Kanpur as a condition precedent for his accepting the teaching i
assignment abroad. The letter, addressed to the Ministry of
Home Affaris, is worded as under :-
D "From :
Principal
D.A.V. College,
Kanpur, U.P.
India.
-
E
To
Ministry of Home Affairs,
Department of Personnel and
Administrative Reforms,
F (Foreign Assignment Section)
New Delhi.
Assigment of Indian '&!:perts abroad
+
Certified that the appellant Dr. K.P. Hajela, Head of
G Zoology Department, D.A.V. College, Kanpur, will be relieved
for service abroad on foreign service terms in public interest
(i.e. retaining the applicant's lien and protecting his
seniority within thirty days of selection if need be. It is
H
H.P. HAZEI.A v. N.S. VERMA [NATARAJAN, J.] 973
A
further stated that the applicant, Dr. Hajela, can be released
-1 for service abroad for a total period of three years.
August 21,. 1978. Sd/- S.C. Srivastava"
It may be seen from this letter that the appellant had been B
granted leave for a period of three years and a specific
undertaking had been given on behalf of the College that the
appellant's lien in the College will be retained and his
~seniority also will be protected during his period of service
- abroad. It will also be relevant to mention in this context
itself that even now the present Principal, who has declined
to uphold the seniority of the appellant, has conceded in his
\_sirder dated September 1, 1983 that the appellant's lien has
r been maintained. The relevant portion in the order is
rcontained in para 6 and reads as under :
c
"Dr. Hajela's lien has been maintained on his post
here in so far as he was granted extraordinary o
leave without pay for the period of contract
service abroad and that no appointment was made in
his place. Other claims are not admissible."
No doubt the first respondent and the present Principal
A.of the College have taken the stand that the former Principal E
-
had no authority to guarantee the appellant his lien in the
Department and his rank of seniority. The merit of this stand
will be gone into later but for the moment we would only like
to point out that one part of the undertaking given by the
'\, .+former Principal namely, retention of lien has been conformed
to and what is disputed is only the guarantee regarding the F
protection of seniority.
-t Now comi115 to the Statutes the relevant one in the Old
Statutes is 11.34 and the one in the First Statutes is 18.10.
They are in the following terms:-
G
Old Statutes:
"Seniority of teachers in Affiliated Colleges :
11.34(1) Subject to the provisions of this Statute
the seniority of teachers in a particular college H
974 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
shall be determined by the length of service in
that College in the same cadre and in the same ,.
grade.
(2) The periods of service in another University
associated/affiliated college in the same or higher
B cadre and grade shall also count towards seniority
if the University of College is situated in Uttar
Pradesh and the College is affiliated to or
associated with one of the Universities in the )..
State.
c (3) Service in an officiating capacity shall not be
counted. Temporary service shall be counted only if .....,:
it is in continuation of a subsequent permanent
appointment.
( 4) The period of leave without pay shall not be
D counted in calculating the seniority unless during
such leave another position involving similiar work
was held or it ws medical leave."
First Statutes
E "Seniority of Principals and Teachers of affiliated colleges.
F
18.10 The following rules shall be followed in
determining the seniority of Principals and other
teachers of affiliated colleges :
(a) the Principal shall be deemed senior to other
-
,
teachers in the College ;
(b) the Principal of a post-graduate college shall
be deemed senior to the Principal of a Degree
College ;
G
(c) the seniority of Principals and teachers of the
affiliated colleges shall be determined by the
length of continuous service from the date of
appointment in substantive capacity ;
H
H.P. HAZELA v. N,S, VERMA [NATARAJAN, J,] 975
A
(d) service in each capacity {for example, as
Principal or as a teacher), shall be counted from
the date of tali.ing charge pursuant to substantive
appointment ;
(e) service in a substantive capacity in another B
University or another degree or post-graduate
college whether affiliated to or associated with
the University or another University established by
law shall be added to his length of service."
Another provision, which has not been adverted to by the High
Court, is also set out, as it has relevance : C
"18.16 : The statutes contained in this Chapter
shall not affect the inter seniority of teachers
employed in this University from before the
commencement of these statutes".
D
In order to give operative force to the First Statutes
over the Old Statutes in the event of any conflict in the
provisions of the two Statutes a specific provisions has been
made in Chapter I Sectlon 50(1 ) 1, 02 (1) and it is worded as
under :-
E
"All existing Statutes and all such Ordinances in
- force in the University, as are inconsistent with
these Statutes are to the extent of such
inconsistency, hereby rescinded and shall forthwith
cease to have effect except as respects things done
or omitted to be done before the commencement of F
these Statutes".
-t·· The High Court has taken the view that there is no
inconsistency between Statute 11.34 of the Old Statutes and
Statute 18.10 of the First Statutes and as such the seniority
of the appellant should be determined in accordance with G
Statute 11.34(2). As it is provided in sub-clause (2) of
Statute 11,34 that the periods of service in another Univer-
. sity or College would count for seniority only if the
1 University or College is situated in Uttar Pradesh and the
College is affiliated to or associated with one of the
Universities in the State, it has been held that the appellant H
t·
976 SUPREME COURT REPORTS [19861 2 s.c.R.
A
cannot tack the period of his service in the University of,._
Aden with his service in the D.A. V. College for purposes of
seniority. The High Court has further held that even if the
First Statutes are held applicable the appellant will fare no
better because under sub-clause (e) of Statute 18.10 it is
only the service rendered in a substantive capacity in another
B University or affiliated or associated College in the
University or another University established by law that would
count. As the University of Aden would not fall within the).-
definition of "University or another University established by
law" envisaged in the sub-clause the High Court has stated
that any service rendered in a foreign University has to be
c necessarily excluded while computing the length of continuous
service. -y1
On a careful consideration of the matter we find that th~
High Court has not properly comprehended the Statutes. Taking
up Statute 11. 34 of the Old Statutes it may be seen that
D sub-clause (1) deals with the reckoning of seniority on the
basis of the length of service in one and the same College and
in the same cadre and grade; sub-clause (2) provides for the
addition of service in another University or associated/
affiliated College etc. provided the University is situate in
Uttar Pradesh and the College is affiliated to or associated.._
E with one of the Universities in the State; sub-clause (3)
-
excludes service in an officiating capacity and grants
recognition of temporary service only if it has continuity
with a subsequent permanent appointment; and lastly sub-clause
(4) prescribes for tacking on of leave period with the total
length of service provided; (1) the period of leave has beenf
F spent in holding another position involving similar work or
(2) it was medical leave. Admittedly, the case of the+·
appellant would not fall under sub-clause (2) because his
service in the University of Aden will not constitute such·
kinds of services as are envisaged in the sub-clause. However,
sub-clause (4) would undoubtedly cover the case of the
G appellant because he had been granted leave of absence on loss
of pay for a period of three years for rendering service in
the University of Aden on deputation basis. The words "unless
during such leave another position involving similar work was)>-
held" would squarely apply to the period of leave of the·
appellant. It is significant to note that the qualifying words
H "University or College situated in Uttar Pradesh and the
H.P. HAZELA v. N.S. VERMA [NATARAJAN, J.] 977
A
Colleges affiliated to or associated with one of the
-"'+ Universities in the State" occurring in sub-clause (2) are
conspicuously absent in sub-clause (4). It is not the case of
the first respondent and for that matter there can be no such
contention also that the position held by the appellant in the
B
University of Aden did not involve the performance of work
similar to the one he was performing in the D.A. V. College,
Kanpur. Unfortunately, this sub-caluse which is the one
directly governing the case of the appellant has not been
~ noticed by the High Court. As there is no conflict between
sub-clause ( 4) of Statute 11. 34 of the Old Statutes and any
provision in the First Statutes there is no room or scope for
invoking the overriding provisions contained in Statute c
, 1.02(1) for denying the application of Old Statute 11.34(4) to
Y the case of the appellant. On the other hand the appellant
\will be entitled to claim the benefit of First Statute 18.16
· which preserves "inter seniority of teachers employed in the
University from before the commencement of the Statutes".
D
The High Court has failed to notice tha.t sub-caluses (2)
and (4) of Old Statute 11.34 contemplate diff~rent situations
and act in different fields. The service contemplated under
sub-clause (2) is a distinctly different service and has no
bearing with the service rendered in the particular
,. institution in which seniority is claimed. Even so, a link is E
provided between the services rendered elsewhere and the
l services rendered in the concerned University or College
because of the similarity of features in the two services and
the integral connection between the Universities situated in
.+the State and the affiliation oi: association of the Colleges
with one or the other of the Universities in the State. On the F
other hand the service contemplated under sub-clause (4) is
,-t the service rendered elsewhere during leave period even while
the teacher continues to be on the rolls of the institution in
which he has been rendering service. Thus while sub-clause (4)
contemplates service rendered elsewhere during the period of
leave, sub-clause (2) does not contemplate any such service G
but contemplates. the service rendered elsewhere without taking
leave from any institution. A proper exposition of the fields
_J of operation of sub-clauses (2) and (4) of Old Statute 11.34
~will at once bring to light the merit in the contentions of
the appellant and the error that has beel'l committed by the
High ·Court. As we have already stated the provision contained H
978 SUPREME COURT REPORTS [19861 2 s.c.R.
A
in sub-clause (4) of Old Statute 11.34 has not been dlsturbedi,..
in any manner by the First Statutes and hence the appellant
will be entitled to the benefit of this provision, especially
in terns of Statute 18.16 of the First Statutes. Because of
the failure of the High Court to have applied the appropriate
provision in the Statutes, the period of service of the
B appellant on deputation has been wrongly held to be non-
includlble in the total length of service of the appellant and
this has led to the denial of the appellant's rightful~
seniority.
As the appellant's case falls squarely within Old Statute >~
c 11.34(4) there is no need or necessity for resorting to the
provisions of the First Statutes for determining the-..(
appellant 's claim of seniority. It is not the case of the
appellant that he had rendered service in a substantive..-
capacity in another University or another affiliated or'
associated College established by law as contemplated by
D sub-clause (e) of First Statute 18.10. On the other hand his
claim ls that he had all along continued to be in the service
of the D.A. V. College, Kanpur notwithstanding his service on
deputation in a foreign University because he had been granted
extraordinary leave on loss of pay with guaranteed lien and
seniority of service.
E
It was hesitantly contended by the counsel for the first
respondent that the former Principal of the D.A.V. College had
no authority to guarantee the appellant the lien on his post
and his seniority rights and that such powers vested only with
the University. This contention does not require examination+
F because the Principal, as he Head of the Institution, was
undoubtedly competent to grant leave on loss of pay to the
appellant in order to enable him to take up a foreign~
assignment on deputation basis. Once it ls proved by the
appellant that the period of leave was utilized in holding
another position involving similar work the appellant is
G automatically entitled to the benefit of sub-clause (4) of Old
Statute 11.34. On account of this irrefutable position it is
needless for us to consider whether the Principal had acted
within his powers or had exceeded his powers in committing the,
College to confer rights of lien and seniority status to the ,.
appellant when he was granted leave.
H
H.P. HAZELA v. N.S. VERMA [NATARAJAN, J,] 979
~ In the ltght of our concluston the appeal has to succeed.
Accordtngly tt wtll stand allowed and the judgment of the
Court ts set astde. The parttes wtll, however, bear thetr
respective costs.
B
M.L.A. Appeal allowed.
l
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