Chain Singh Panwar vs State of M. P. and others

A.K. Mathur, C.J.

The petitioner, by this petition, has challenged the validity of section 49A of the Madhya Pradesh Vishwa Vidyalaya (Sanshodhan) Adhiniyam, 1996 which was introduced by Amendment Act No. 6 of 1997 being ultra vires of the law declared by the Apex Court in the case of Dr. Rashmi Srivastava and Dr. B.D. Srivastava Vs. Vikram University and others, . He has also prayed that the combined seniority list (Annexure P4) prepared pursuant to the aforesaid amendment on 9th April 1997 may also be quashed.

In order to appreciate the controversy, it may be relevant to mention necessary facts and law bearing on the subject.

The petitioner is working as Professor in the School of Studies in Political Science in Vikram University, Ujjain. He was appointed as Professor pursuant to the process of direct recruitment through All India advertisement as per section 49 of the M.P. Vishwa Vidyalaya Adhiniyam, 1973 (hereinafter referred to as the ''Act of 1973'')- The petitioner was thereafter appointed as Head of the Department of Political Science. It is also pointed out that the University Grants Commission and Ministry of Human Resources Development introduced various schemes from time to time to obviate stagnation in Universities. These Schemes are loosely called the Merit Promotion Scheme/Career Advancement Scheme. These Schemes envisaged that Teachers who as per the norms qualified to be eligible for screening, were granted a career advancement to the next higher post on a prescribed scale with the nomenclature of the next post. The promotion so granted under these schemes was personal to the incumbent. As soon as the recipient of the promotion ceases to hold the said post, the post would revert back to its lower cadre.

The merit promotees and direct recruits were clubbed as member of the cadre/unit by the University. The petitioner challenged this clubbing together with the persons coming from two different channels in the cadre of Professors and Readers. It was challenged before the High Court of Madhya Pradesh, Indore Bench, Indore. Indore Bench allowed the petition and directed that the list of directly appointed Professors and Readers u/s 49 of the Act should not be clubbed with the Merit promotee Professors and Readers. The matter was taken up in SLP in the Apex Court in the case of Dr. Rashmi Srivastava and Dr. B.D. Srivastava Vs. Vikram University and others, and the Apex Court in the aforesaid judgment upheld the contention of the petitioner that the persons who are directly recruited and who are promotees cannot be clubbed together in the seniority list.

After the decisions given by the Apex Court in Rashmi Srivastava''s case (supra), the State of Madhya Pradesh amended Act of 1973 by bringing an Act called as ''M.P. Vishwa Vidyalaya (Sanshodhan) Adhiniyam, 1996 (Act No. 6 of 1997)''. This amendment received the assent of the Governor on 17-1-1997 and it was published in the Gazette (extraordinary) on 28th January, 1997. By this, section 49A was introduced with retrospective effect i.e. with effect from 13th March, 1984. Relevant provision section 49A of the Act reads as under;

"49A. (1) Notwithstanding anything to the contrary contained in any other provisions of this Act, a Lecturer or a Reader in the University substantively appointed u/s 49 and has put in such length of service and possesses such qualifications as prescribed in the promotion scheme formulated by the University Grants Commission, or the Ministry of Human Resources Development, Department of Education, Government of India and adopted by the State Government and the University, may be given promotion to the post of Reader or Professor, respectively.

(2) Such promotions shall be given on the recommendation of the Selection Committee constituted under Sub-section (2) of section 49 in such manner and subject to such conditions as prescribed in the promotion schemes or in the Ordinance made by the University.

(3) Nothing contained in this section shall affect the posts of the teachers of the University to be filled by direct recruitment in accordance with the provisions of section 49.

(4) For promotion the higher post shall be deemed to be automatically created by upgradation of the lower post and it shall be a cadre post.

Provided that the higher post shall automatically be converted into the lower post when the incumbent vacates the higher post."

In pursuance of the aforesaid amending Act the University issued communication dated 9th April, 1997 that as per provisions of section 49A of the Act of 1996, for promotion under Merit Promotion Scheme, the higher posts, on which the Professors and Readers have been promoted, have been deemed to be automatically created from the dates of their promotion, by upgradation of the lower posts previously held by them. These upgraded higher posts have been included in cadre posts. Consequently, the seniority lists of Professors and Readers was published for the year 1997. The combined seniority of all the Professors and Readers (directly recruited as well as promoted) has been reckoned according to the dates of occupying the present post as mentioned in these lists. It is this list which the petitioner has challenged along with the validity of section 49A of the Act.

It may be relevant to mention here that at the time of the decision in Rashmi Srivastava''s case (supra), as per the provisions of the Adhiniyam, 1973, there was no method of recruitment by way of Merit Promotion Scheme. Merit Promotion Scheme was introduced by the University Grants Commission and the promotions were being made in the Merit Promotion Scheme on the posts of Reader and Professor. In Rashmi Srivastava''s case (supra), challenge was made when the combined seniority was issued and promotions were sought to be made on that basis. This Court took the view that such combined seniority list cannot be issued and ultimately, it was affirmed by the Apex Court in the case of Rashmi Srivastava (supra). It was observed in the case of Rashmi Srivastava that since there is no statutory provision for recruitment against merit quota in the Adhiniyam of 1973, therefore, combined seniority of such persons cannot be made. It was held:

"41. At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the Merit Promotion Scheme as recommended by the Commission and adopted by the University concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer becomes obvious. They cannot be aid to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible:

(i) The directly recruited Readers and Professors fill up the vacancies in the cadres of Readers and Professors for which direct recruitment is resorted to. While the promotees under the Merit Promotion Scheme stand outside the cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not rive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no post is available by promotion.

(ii) 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.

(iii) Pay scales of promotee Professors and Readers are different from the pay scales of directly recruited Readers and Professors at least after coming into operation of the career advancement scheme as seen earlier. To recapitulate for direct recruit Readers revised pay scale with effect from 1-1-1986 is Rs. 3700-5300 while the pay scale of promoted Reader Rs. 3000-5000. Pay scale of a direct recruit Professor is Rs. 4500-7300 while the pay scale of a promotee Professor is Rs. 4500-5700. It is also to be noted that as per the letter of Under Secretary, Department of Education dated 1st January, 1989 the aforesaid difference in pay scales of merit promoted teachers is clearly brought out. It is of course true that as per the order of the Madhya Pradesh Government, the pay scales of promotee Readers and Professors who were promoted prior to the enforcement of career advancement scheme were protected. But for such protection they would not have been entitled to pay scales of directly recruited Professors and Readers as revised under the Scheme. This difference in the pay scales itself is a distinct feature so far as promotees under the merit promotion scheme on the one hand and the directly recruited Readers and Professors on the other hand are concerned.

(iv)The promotee Readers and Professors are not holding any officiating or even temporary post of Reader or Professor, nor is there any temporary addition to the cadre strength of Readers and Professors.

(v)The work load of directly recruited Readers and Professors is different from the work load of promotee Reader or Professor for whom the work load of a Reader or Lecturer as the case may be would still have to be shared as no vacancies are created for being filled in the cadres from which such promotions are effected.

(vi) There is a qualitative difference in the process of selection of direct recruits under the scheme of section 49, as compared to the promotion of the merit promotees. Although for the letter for infrastructure of selection committee u/s 49 may be made available, the criteria for their promotion are entirely distinct and different as envisaged by the guidelines governing the merit promotion scheme.

(vii) There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in the concerned posts as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits."

The lacuna which was pointed out by the Apex Court in the case of Rashmi Srivastava was that though the merit promotion scheme was formed and the promotions were made according to merit promotion scheme, but there was no such source of promotion provided in M.P. Vishwavidyalaya Adhiniyam, 1973. Therefore, the persons who were recruited on the post of Professor/Reader could not be combined with the Professor/Reader recruited under the Act by way of direct recruitment. Now this lacuna which was there in the Act of 1973 is being rectified by introduction of section 49A and in pursuance thereof the present seniority list has been issued. Therefore, section 49A has now been challenged by the petitioner by filing the present petition.

The petition has been contested by the State and by the University. Return has been filed by the University. It has been stated in the return that in view of the lacuna pointed out in the case of Rashmi Srivastava (supra), present amendment was introduced. Statement of Objects and Reasons for amending the Act has been reproduced by the University in its reply which reads as under:

"(1) Salient features of the Bill are us under:

(i) To expedite the appointment of Kulpati necessary provision has been proposed in section 13.

(ii) It is proposed that the Kulpati shall cease to hold office on attaining the age of 65 years but in special cases he may continue upto the age of 75 years. Section 14 is amended suitably.

(iii) To include the Kulpati of all the Universities constituted under any Act of the State Legislature in the Co-ordination Committee, necessary provision has been proposed in section 34.

(iv) With a view to give promotion to a Lecturer or a Reader to the post of a Reader or Professor who has put in such length of service and possesses such qualifications as prescribed in the promotion scheme formulated by the University Grants Commission or the Ministry of Human Resources Development Department of Education, Government of India and adopted by the State Government and the University, necessary provision has been proposed.

(v) It is proposed to empower the Kuladhipati to remove any member, nominated by him."

Stand of the State is that the scheme quoted by the University Grants Commission was not properly introduced by the Legislature incorporating a provision in the Act. Therefore, it had become necessary to introduce this scheme so as to enable the promotees to come at par with the direct recruitees.

Learned counsel for the petitioner has challenged the validity of this provision as being violative of Articles 14 and 16 of the Constitution and has submitted that giving this provision a retrospective effect is going to substantially affect the vested rights of the petitioner.

It will not be out of place to mention here that this scheme was introduced by the U.G.C. to obviate stagnation of Teachers for long time and, therefore, it became necessary in order to mitigate hardship of the teachers who were stagnating for long time that some promotion avenues were provided. Therefore, for this purpose the merit promotion scheme was introduced. The University Grants Commission gave following basic objectives for the introduction of the merit promotion scheme:

"1. The basic objectives of the scheme should be --

(1) to recognize outstanding work done by the University teachers in the areas of teaching and research;

(2) subject such work to objective evaluation by experts in the subject areas concerned and,

(3) to provide for reasonable opportunities for professional advancement to such teachers, who merit academic recognition on a competitive basis. The scheme therefore may be appropriately named as "Merit Promotion Scheme for University Teachers". This would be in the nature of a ''flexible complementing scheme'' wherein no additional posts are created and the existing persons on the basis of critical assessment are promoted to the next higher level and the position is held by such incumbents as personal to them, and no resultant vacancy is required to be filled. Such a scheme would considerably encourage the teaches to engage in advanced teaching and research and make distinct contributions which would merit recognition and promotion."

Keeping in view the basic objectives and reasons, the scheme was formulated and implemented. Subsequently, anomaly was noticed in combining of the seniority of Readers and Professors recruited by direct recruitment and under merit promotion scheme. That was highlighted in the judgment given in Rashmi Srivastava''s case and, therefore, in order to mitigate the situation, the State introduced amendment in the Act and incorporated section 49A so that all the Professors and Readers recruited by merit promotion scheme may form one cadre and their combine seniority list be prepared.

The provision which has been enacted by the State Legislature does not suffer from any infirmity and is not violative of Articles 14 and 16 of the Constitution. Introduction of section 49A was warranted because there was a hiatus in the Act and the Act was also silent as to how seniority of such persons is to be reckoned. Therefore, in order to bridge this gap, this provision was inserted in the Act. Once these persons have been recruited and appointed as Professors and readers and they discharge same functions and are paid same salary, then it will be unfair and unjust to deny them proper seniority in the cadre. In service jurisprudence, whenever there are two channels of recruitment i.e., by direct recruitment and promotion, then the combined seniority of such persons is prepared and issued. Normal rule is length of service for such combined cadre unless otherwise provided by the Rules. The same is the position in the present case. There are two methods of recruitment but there were no provisions for interlacing the seniority and that lacuna has now been remedied by introduction of section 49A in the Act. Therefore, we are of the opinion that section 49A does not suffer from the vice of arbitrariness nor is violative of Articles 14 or 16 of the Constitution of India.

Learned counsel next submitted that this Act has been given retrospective effect i.e. from 13th March 1984. Legislature is fully competent to introduce prospectively or retrospectively. In the present case, Legislature in its wisdom has thought it proper to introduce section 49A retrospectively in order to give proper justice to the persons coming from merit formula who are otherwise meritorious for being given their due place in the cadres of Professors and Readers. Under Article 309 of the Constitution of India, the Legislature is competent to enact an Act and in case the Legislature has not enacted the Act, then under the Proviso to Article 309, rule framing authority can frame the rules prospectively or retrospectively. In this connection, decision given in the case of B.S. Vadera Vs. Union of India (UOI) and Others, is relevant. Their Lordships of the Apex Court have held that under the Proviso to Article 309 of the Constitution, the rule framing authority can frame the rules prospectively or retrospectively. It was observed as under:

"The proviso to Article 309, clearly lays down that ''any rules so made shall have effect, subject to the provisions of any such Act''. Thus if the appropriate Legislature has passed an Act, under Article 309, the rules framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, the rules, made by the President, or by such person as he may direct are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309 regarding the ambit of the operation of such rules. In other words, the rules unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority."

Therefore, when the rule framing authority can frame the rules under the Proviso to Article 309 prospectively or retrospectively, it is the Legislature which has exercised power under Article 309 and enacted section 49A retrospectively and in that case, no exception can be taken to the Act of the Legislature in enacting section 49A retrospectively.

Our attention was also invited to a recent decision of Apex Court in the case of Dr. Suman Agarwal vs. Vice Chancellor and others (1996) 1 SCC 632. In this connection, their Lordships made a reference of earlier decision given in the case of Dr Bal Krishna Agarwal Vs. State of U.P. and Others, . There also, it was laid down that seniority shall be determined according to the length of service. In that case a similar provision was introduced in U.P. State Universities Act, 1973 that is section 31A which was challenged before the Apex Court and their Lordships found that section 31A does not suffer from any invalidity and their Lordships after considering the effect of the case of Rashmi Srivastava (supra) observed in paragraph 16 thus:

"16. In that case, the promotees did not form part of the same cadre. On the other hand, they entered into the service under a different scheme which was personal to the post which ceases with the retirement by the candidate. Though, in this case, the cessation has been provided for, but operation of section 31 A(l) read with Statute 17.05-B and Statute 11.12-B, Clause (6) makes all the difference in the case. The personal promotees get berth through statutory force u/s 31-A(1) and the post held by the promotee becomes a temporary addition to the sanctioned cadre occupied by direct recruits. Such a provision was absent in the Rashmi Srivastava case. On the other hand, to avoid stagnation, the benefit has been provided for promotion u/s 31-A(l) of the Act and it was termed as the ''personal promotion'' so long as the candidate holds the post. The post remains with the candidate and the post eeases with the cessation of the service with the retirement of the holder of the post etc. Nonetheless, the post of promotees was made as temporary addition to the cadre strength and the inter se seniority has been provided between the direct recruits and the promotees. The relative seniority of the candidates form two streams fused into the relevant cadre as Professor or the Reader, as the case may be. In the light of the statutory operation of the provisions referred to hereinbefore, the conclusion reached by us is inevitable."

Section 31-A introduced by the U.P. State Universities Act, 1973 is almost analogous. Section 31 -A reads as under:

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

(2) Such personal promotion shall be given on the recommendation of the Selection Committee constituted under Clause (a) of Sub-section of section 31, in such manner and subject to such conditions as may be prescribed therein and subject to the condition as specified therein.

(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."

Perusal of section 31-A of the U.P. State Universities Act, 1973 and section 49-A of the M.P. Vishwa Vidyalaya Adhiniyam 1973 would show that both are almost pari-materia. Therefore, the decision given by the Apex Court in the case of Dr. Suman Agarwal (supra) equally governs the present situation and the controversy is now no more res-integra.

Our attention was also invited to the recent judgment given by the Apex Court in the case of Prof. S.A. Siddiqui Vs. Prof. M. Wajid Khan and Others, . This case is from Aligarh Muslim University. In that case also the appellant who was a Reader was promoted as Professor under Merit Promotion Scheme. In that case, their Lordships dealt with provisions of Aligarh Muslim University Act, 1920 and the Statutes framed thereunder and came to the conclusion that the provisions of the Aligarh Muslim Act of 1920 do not prescribe the mode of recruitment. The Act only says that recruitment to the regular cadre of teachers shall be on the basis of recommendation of the Selection Committee under statute 17. The Statute 27 further gives power to Executive Council to appoint any person on such terms and conditions as they deem fit. The Statute or the Act does not provide any mode of selection and that is left to the discretion of the Executive Council. Therefore, their Lordships distinguished the case of Rashmi Srivastava (supra) and following the decision given in the case of Dr. Suman Agarwal (supra) observed thus:

"9. The first respondent has relied upon a decision of this Court in Rashmi Srivastava (Dr) vs. Vikram University. In that case, this Court considered the position of university teachers promoted under the Merit Promotion Scheme vis-a-vis university teachers who were directly recruited to their posts. After examining the provisions of the M.P. Vishwavidyalaya Adhiniyam, 1973, the Court said that under the said Act, the only source of appointment was by direct recruitment. Hence, direct recruits alone formed the regular adre. The merit promotees would, therefore, fall outside the cadre under the Madhya Pradesh Adhiniyam unless the Act was amended introducing merit promotion as an additional sources of recruitment. Ordinances and Statutes issued by the University providing for promotion as a new source of recruitment and determination of inter se seniority would be ultra vires the Act and of no effect. The provisions, however, of the Aligarh Muslim University Act of 1920 do not prescribe that direct recruitment is the only source of recruitment to the regular cadre of teachers in Aligarh Muslim University. The method of recruitment or appointment is not prescribed in the Act but is left to be formulated by the Statutes of the University. The Statutes give to the Executive Council the power of appointment even otherwise than by direct recruitment. The Merit Promotion Scheme has been adopted by Aligarh Muslim University, on basis of recommendations made by the Academic Council which have been accepted by the Executive Council as provided under Statute 17. The ratio, therefore, of Rashmi Srivastava case will not apply."

Now reverting to the facts of the present case, as we have found that the introduction of section 49-A by the State Legislature in the Act of 1973 does not suffer from the vice of invalidity, next question is that how the seniority of the candidates who are recruited by way of merit promotion scheme and by way of direct recruitment should be determined. The Statute 16 of the Vikram University lays down how seniority is to be determined. Therefore, seniority has to be determined as per the aforesaid statute. As per aforesaid Statute, seniority has to be determined and the same has been determined by order dated 9th April 1997 by the University. There is no challenge to the combined seniority list issued by the University on 9th April 1997 Annexure P3 prepared in pursuance of the Statute No. 16. The challenge was only with regard to validity of section 49-A and the consequential issuance of seniority list Annexure P3. Since we have found section 49-A of the Act to be valid, therefore, issue of seniority list as per the Statute of the University does not suffer from the vice of any illegality. There is no challenge to the factual position indicated in the seniority list and we have not examined that aspect, except the validity part of section 49-A.

Hence, we are of the opinion that there is no merit in this petition and the same is dismissed. There shall be no order as to cost.