Dr. Ganesh Prasad vs Chancellor, Purvanchal University and Others

R.A. Sharma, J.—In 1973 both, the Petitioner and the Respondent No. 4, were appointed as lecturers on regular basis in Shri Durgaji Post Graduate Mahavidyalaya. Chandesar, district Azamgarh (hereinafter referred to as the College) on the recommendation of the Selection Committee. Both of them thereafter continued to work in the College. The Vice-Chancellor of the Gorakhpur University to which the College was affiliated earlier, prepared in 1981 a seniority list of the teachers of the College. Petitioner filed a representation on 3.1.1982 against the said seniority list before the Vice-Chancellor. The representation was, however, not disposed of by the Vice-Chancellor and remained pending. In 1987 the Purvanchal University, Jaunpur, was established and the College was affiliated to it. The Petitioner thereafter filed a representation in connection with his seniority before the Principal of the College, who upheld the claim of the Petitioner by holding him senior to the Respondent No. 4. The Respondent No. 4 filed an appeal against the above order before the Vice-Chancellor who, vide order dated 11.3 1991 allowed the appeal holding that the seniority list prepared by the Vice-Chancellor in 1981 showing the Respondent No. 4 as senior to the Petitioner cannot be interfered with by the Principal of the College. Against the above order of the Vice-Chancellor, the Petitioner filed a representation u/s 68 of the State Universities Act, 1973 (hereinafter referred to as the Act) before the Chancellor, who dismissed it vide order dated 23.11.1991 on the ground that the seniority list prepared by the Vice-Chancellor in 1981 cannot be disturbed by the Principal, because it has become final, as it was neither challenged before the Principal under Statute 18.14 nor was a representation filed against it before the Chancellor. Being aggrieved by the aforesaid orders of the Vice-Chancellor and the Chancellor, the Petitioner filed this writ petition.

The contention of the learned Counsel for the Petitioner is that the Vice-Chancellor who prepared the seniority list in 1981 has no jurisdiction to prepare such a list, as the statute gives such a power to the Principal of the College. In this connection, learned Counsel has pointed out that the Vice-Chancellor is the appellate authority against the order of the Principal of the College, who is empowered to decide the dispute of seniority of the teachers of the affiliated college. It is, therefore, contended that the order of the Vice-Chancellor is without jurisdiction and is nullity. Learned Counsel for the Respondents has supported the aforesaid order of the Vice-Chancellor.

Earlier the College was affiliated to the Gorakhpur University. In 1987, it has been affiliated to the Purvanchal University, Jaunpur. The learned Counsel for both the parties have stated that the Purvanchal University has not yet framed Statutes for the affiliated Colleges and the Statutes of the Gorakhpur University are still applicable to the College and the dispute of seniority between the parties in the instant case has to be decided on their basis.

Statutes 18.10 to 18.16 have laid down the rules for determining the seniority of the teachers of the affiliated Colleges. Statute 18.14, which provides the forum for settlement of the dispute regarding the seniority of the teachers of the affiliated Colleges, is as under:

18.14. All disputes regarding seniority of teachers (other than the Principal), shall be decided by the Principal of the College who shall give reasons for the decision. Any teacher aggrieved with the decision of the Principal may prefer an appeal to the Vice-Chancellor within 60 days from the date of communication of such decision to the teacher concerned. If the Vice-Chancellor disagrees from the Principal, he shall give reasons for such disagreement. (Section 49 (o)).

(Emphasis supplied)

By the above Statute, all the disputes regarding the seniority of the teachers of the affiliated Colleges are to be decided by the Principal of the College and against the order of the Principal, an appeal has been provided for before the Vice-Chancellor of the University to which the College is affiliated.

In view of the provisions contained in Statute 18.14, the dispute regarding the seniority between the Petitioner and the Respondent No. 4, can be decided by the Principal of the College and not by the Vice-Chancellor of the University. The Vice-Chancellor, being the appellate authority against the decision of the Principal, could not have exercised the original jurisdiction which is vested in the Principal. Supreme Court in Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, , has laid down that the appellate authority cannot exercise the original jurisdiction, because in such a case the concerned employee is deprived of the right of appeal which is a substantive right given to him by the Rules. In this connection, the Supreme Court has laid down as under:

It is true that when an authority higher than the discipllnary authority itself imposes the punishment, the order of punishment sutlers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right.

Therefore, the Vice-Chancellor does not have the jurisdiction to determine the seniority of the teachers of the affiliated College.

Learned Counsel for the Respondents have, in this connection, submitted that the Vice-Chancellor has power to fix the seniority of the teachers of the affiliated Colleges under Statute 18.02 in view of the provisions contained in Statute 18.16 whereby provisions of Statutes 18.01, 18.02, 18.05 and 18.08 have been made applicable mutatis mutandis to the teachers and the Principals of the affiliated Colleges. Statute 18.16 is reproduced below:

18.16. The provisions of Statutes 18.01, 18.02, 18.05 and 18.08 shall mutatis mutandis apply to the teachers and Principals of affiliated Colleges as they apply to the teachers of the University. (Section 49 (o).

Statutes 18.01, 18.02, 18.05 and 18.08, which have been referred to in Statute 18.16 are also reproduced below:

18.01. The Statutes contained in this Chapter shall not affect the inter se seniority of teachers employed in the University from before the commencement of these Statutes. (Sections 16 (d) and 49 (d)).

18.02. It shall be the duty of the Registrar to prepare and maintain, in respect of each category of teachers of the University, a complete and upto date seniority list in accordance with the provisions hereinafter appearing. (Sections 16 (4) and 49 (d)).

18.05. The following rules shall be followed in determining the seniority of teachers of the University:

(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, inter se seniority of teachers, appointed by personal promotion or by direct recruitment, shall be determined according to length of continuous service in a substantive capacity in such cadre:

Provided that where more than one appointments 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 indicated:

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 held by them at the time of promotion.

(c) When any teacher holding substantive post in any University (other than the University of Gorakhpur) 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 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 affiliated to or associated with any University is appointed 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.

(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 appointment" means an appointment made under Sub-section (6) of Section 13.

(J) 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 u/s 31 (3)(b) shall count towards seniority.

18.08. (1) Notwithstanding anything contained in any other Statute, if the Executive Council (Section 49 (d)):

(a) agrees with the recommendation of the Selection Committee, 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 u/s 31 (8)(a), the Chancellor shall, in cases where appointment of two or more teachers in the same Department is involved, determine 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 under Clause (1), shall be communicated to the teachers concerned before their appointment.

Statutes 18.01 to 18.09 deal with the seniority of the teachers of the University, whereas Statutes 18.10 to 18.16 deal with the seniority of the teachers and Principals of the affiliated Colleges. Although Statute 18.16 has laid down that Statutes 18.01, 18.02, 18.05 and 18.08 shall mutatis mutandis apply to the teachers and Principals of the affiliated Colleges, but they cannot override the express provisions contained in Statutes 18.10 to 18.15. Supreme Court in Ashok Service center and Others Vs. State of Orissa, , has considered the effect of making certain provisions mutatis mutandis applicable to the persons or things dealt with separately by separate provisions. In this connection, it was laid down as under:

Earl Jowitt''s The Dictionary of English Law (1959)'', defines ''mutatis mutandis'' as with the necessary changes in points of detail." Black''s Law Dictionary (Revised 4th Edn. 1968) defines ''mutatis mutandis'' as ''with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like, Housman v. Waterhouse 1991 App Div 850 : 182 NYS 249." In Bouvier''s Law Dictionary (3rd Revision, Vol. II), the expression ''mutatis mutandis'' is defined as The necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like''. Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed subject of course to express provisions made In the later Act.

Therefore, if it is necessary for the purpose, Statutes 18.01, 18.02, 18.05 and 18.08 can be applied to the Principals and teachers of the affiliated Colleges with necessary changes "without altering essential nature of the things changed." Even if the aforesaid four Statutes are applied with or without changes to the Principal and the teachers of the affiliated Colleges, they do not confer any power on the Vice-Chancellor either to fix or alter their seniority or to decide their dispute about it. That apart, no other Statutes confer any such power on the Vice-Chancellor. Statute 18.02, on which reliance has been placed by the learned Counsel for the Respondents, also does not give any such power to the Vice-Chancellor. Statute 18.02 gives the power to the Registrar of the University to prepare and maintain the seniority list of the teachers of the University. The Vice-Chancellor and the Registrar are two different officers of the University as mentioned in Section 9 of the Act. The Vice-Chancellor and the Registrar exercise different powers given to them by or under the Act. Section 13 of the Act enumerates various powers of the Vice-Chancellor. Powers of the Registrar have been dealt with in Section 16 of the Act. Both of them are different statutory functionaries of the University. That apart, even the Registrar cannot decide the dispute about seniority of the teachers of the affiliated. Colleges. That power belongs to the Principal of the College. The Vice-Chancellor, therefore, does not come in picture in these matters. In the case of teachers of the affiliated College, the Vice-Chancellor is the appellate authority and in the case of the teachers of the University, he is the Chairman of the Committee constituted under Statute 18.09 for deciding their dispute of seniority. The Vice-Chancellor thus has no power at all to draw the seniority list and determine the disputes about seniority of the teachers of the affiliated Colleges. If he passes any such order, it is without jurisdiction and is nullity, liable to be ignored.

Learned Counsel for the Respondents have also submitted that the Vice-Chancellor has passed the order determining the seniority in 1981 and it was not open to the Petitioner to raise the grievance about it in 1987 before the Principal of the College. Reliance, in this connection, has been placed on a Full Bench decision of this Court in Asha Saxena v. S.K. Chaudhary (1991) 2 UPLBEC 1202, wherein it has been laid down that the seniority list cannot be challenged after a lapse of 15 years. There cannot be any dispute about the proposition of law laid down by the Full Bench in the aforesaid case. But it will not apply to the instant case for two reasons; namely, firstly, the Petitioner in 1982 has filed representation against the said order of the Vice-Chancellor before the Vice-Chancellor himself, but it has remained pending and has not been disposed of. As the representation filed by the Petitioner remained undisposed of, no fault can be attributed to the Petitioner and it cannot be said that the Petitioner has slept over the matter for considerable long time; and secondly, as the Vice-Chancellor has no power at all to draw seniority list and to determine the disputes regarding seniority of the teachers of the affiliated Colleges, any such order passed by him is without jurisdiction and is liable to be ignored.

Both the Vice-Chancellor and the Chancellor have passed the impugned orders on the ground that the order passed in 1981 by the Vice-Chancellor fixing seniority has become final. As we have held that the aforesaid order of the Vice-Chancellor passed in 1981 is without jurisdiction and is nullity, the impugned orders have got to be set aside.

For the reasons given above, this writ petition is allowed with costs. The orders dated 11.3.1991 and 23.11.1991 passed by the Vice-Chancellor and the Chancellor respectively are quashed. The matter is sent back to the Vice-Chancellor to decide the appeal filed by the Respondent No. 4 afresh in accordance with law, after giving a reasonable opportunity of being heard to both the parties, within a period of three months from the date of presentation of certified copy of this order before him. Both the parties are directed to cooperate with the Vice-Chancellor so as to enable him to decide the appeal within the time specified above.