U.N. Agarwala vs Union of India (UOI) and Others

We have heard Shri R.C. Shukla and Shri Shailesh Kumar, learned Counsels for the Petitioner. Shri P.S. Baghel has entered appearance on behalf of the University of Allahabad.

Prof. U.N. Agarwala, a Professor of Organisational Behaviour, Department of Psychology, University of Allahabad has prayed for following reliefs:

"(a) to issue a writ, order or direction in the nature of mandamus commanding the Respondent university to hand over the charge of office of the Vice-Chancellor to the Petitioner, as per Statute 2 (6) of the Statutes of the University forthwith, who is the senior most Professor of the University.

(b) to issue a writ, order or direction in the nature of mandamus commanding the Respondent University to dissolve the seniority committee constituted by the University to decide the seniority dispute, already decided and settled between the Petitioner and Professor K.G. Srivastava, since retired, much before the commencement of Act of 2005.

(c) to issue a writ, order or direction in the nature of Qua-warrento declaring the office of Vice-Chancellor held by Professor N.R. Farooqui (Respondent No. 5) as vacant.

(d) to issue any such other and further order, writ or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case.

(e) to award the cost of the writ petition."

It is submitted by Shri R.C. Shukla appearing for the Petitioner, that the question of seniority between the Petitioner and Prof. K.G. Srivastava, had attained finality by the decision of the Executive Council in pursuance to the directions of this Court in Writ Petition No. 23331 of 2003 dated 23.5.2003, communicated to the Petitioner by the Registrar of the University on 20/22.11.2003. The Petitioner relies upon the judgments in A.K. Kalia v. Chancellor, Lucknow University 1995 (2) AWC 832 and S.L. Khanna and Ors. v. Vice Chancellor, Allahabad University and Ors., Civil Misc. Writ Petition No. 15021 of 1987, in which it was held that where the selection committee for personal promotion met within a year from the date of the teachers being eligible for promotion, the seniority will be counted from the date of joining, but where the selection committee has met beyond the period of one year within which it should ordinarily meet under Statute 11.12B (a), which mandates that selection committee should meet once every year, seniority will relate back to the date, when the teacher becomes eligible for such promotion.

It is submitted by Shri R.C. Shukla that the issue with regard to seniority between the Petitioner and Prof. K.G. Srivastava had become final much before the enforcement of the Allahabad University Act, 2005 by which the University was given the status of Central University on 14.7.2005, Shri K.G. Srivastava did not challenge the seniority position, when the Petitioner was nominated as member of the Executive Council.

After the retirement of Prof. R. Harshe, the Vice Chancellor of the University, completing 5 years term, in the University, Prof. K.G. Srivastava was appointed as Officiating Vice Chancellor. The Petitioner made a representation against his appointment to the Visitor on September 8th, 2010. Prof. K.G. Srivastava has since retired on 12.11.2010, after which Prof. N.R. Farooqui-Respondent No. 5, a Cadre Professor appointed on Medieval/ Modern History appointed on 13.4.1991 was appointed as Officiating Vice Chancellor as the seniormost teacher in the University.

Shri R.C. Shukla submits that longstanding seniority position should not be reopened on opportunate occasions. He has relied upon G.C. Gupta and Ors. v. N.K. Pandey and Ors. 1988 (7) SLR 706 and S.B. Dogra Vs. State of Himachal Pradesh and Others, in support of his submissions. Shri Shukla further submits that Ordinance 41 (11) (i) (j) also prohibits raising of seniority dispute, which was decided prior to the enforcement of the Allahabad University Act, 2005. A wrong information was sent by Dr. Arya, then Registrar of the University regarding seniority of the Professors of the University. The Petitioner''s name was deliberately omitted from the list, whereas the Executive Council had decided in the year 2003, that he was senior to Prof. K.G. Srivastava.

Shri P.S. Baghel, learned Counsel for the University submits that the decision of the Executive Council with regard to seniority between the Petitioner and Prof. K.G. Srivastava had not attained finality. The Executive Council was aware and had noted in its resolution that the matter with regard to correctness of the decision in A.K. Kalia v. Chancellor, Lucknow University 1995 (2) AWC 832 has been referred to Larger Bench in Dr. M.P. Joshi and Ors. v. University of Kumaon, Nainital and Ors. 2000 (4) ESC 2393.

It is submitted by Shri P.S. Baghel that representation made by the Petitioner to the Visitor dated 8.9.2010 received response of the Ministry of Human Resource Development, Government of India. The Desk Officer (U), of the Ministry informed the Petitioner on 21st October, 2010, that according to the University the matter has been put up under Sub-clause (i) of Clause 11 of Chapter XLI of the Ordinances of the University to the apex executive body of the University i.e. Executive Council, and that Executive Council vide its resolution No. 17/14 of ATR constituted a seniority committee in its meeting held on 17.4.2010. The University has further informed that Prof. Agrawal has been intimated with the formation of the committee.

Shri P.S. Baghel informs the Court that by notice dated 20.9.2010, the Deputy Registrar (Faculty) informed all the members of the seniority committee namely Prof. R.G. Harshe, the then Vice Chancellor, Chairman; Prof. Pradeep Bhargava, Director, GB PSSI and Prof. S.D. Dixit, Dean, Faculty of Science, to attend the meeting.

After the retirement of Prof. Harshe, the then Vice Chancellor, Prof. K.G. Srivastava became the Officiating Vice Chancellor and thus the committee was required to be reconstituted. Since Prof. K.G. Srivastava has retired, Shri N.R. Farooqui has been made Vice Chancellor of the University. The Petitioner is fully aware of legal position. He is unnecessary sending repeated e-mails to the Visitor and other authorities, harassing them and causing adverse effect on the reputation of the University.

In Dr. M.P. Joshi and Ors. v. University of Kumaon, Naital and Ors. 2000 (4) E.S.C. 2393(All.) a Division Bench of this Court found that the view expressed in Dr. Ashok Kumar v. Chancellor, Lucknow University and others 1995 (2) A.W.C. 832 is not a binding precedent inasmuch as the same appears to have been decided without considering the effect of Clause (7) of the Statute 11.12-B and para-6 of the Government Order dated 24.9.1994. The Division Bench was of the opinion that the decision appears to be per incuriam i.e. in ignorance of the law. Clauses (7), (9), (10) of Statute 11.12-B were not taken into consideration. The personal promotion u/s 31A of the UP State Universities Act, 1973, is not like automation to a teacher, who becomes eligible for personal promotion. It rather lays down that personal promotion shall have effect from the date taking over charge. The Selection Committee is required to assess the work and thereafter make a positive order granting personal promotion.

A Full Bench of this Court in Dr. Chandra Bhushan Dwivedi v. The Rajyapal, U.P. and Ors. 2004 (4)E.S.C. 2273 (All) decided on 14.10.2004 resolved the conflict of opinion between A.K. Kalia v. Chancellor, Lucknow University 1995 (2) AWC 832, and M.P. Joshi v. University of Kumaon Nainital 2000 (3) UPLBEC 2459, and held that Clause (4) of Statute 11.12-B providing for meeting of the Selection Committee to be held at least once every year, even if treated as mandatory, cannot whittle down the force of Clause (7), which is plain and simple and thus the seniority of teacher promoted on personal promotion shall be calculated from the date he takes over charge after the grant of such personal promotion.

The Full Bench considering the same issue, with regard to date from which seniority of the Professors promoted under personal promotion scheme is to be counted held as follows:

"1. This Full Bench has been constituted in pursuance of the reference made by a Division Bench dated 22.4.2002 since the Division Bench felt that there was a conflict of opinion between two earlier Division Benches in A.K. Kalia v. Chancellor, Lucknow University 1995(2) AWC 832 and M.P. Joshi v. University of Kumaon, Nainital (2000) 3 UPLBEC 2459.

We have heard learned Counsel for the Petitioner and Shri G.K. Singh, learned Counsel appearing for the Respondents.

The question in this case is about interpretation of the Clause (7) of Statute 11.12-B of the 1st Statute of Gorakhpur University. Clause (7) reads as follows:

"Personal promotion on the post of Reader or Professor as the case may be shall take effect from the date of taking over charge of the said post."

Sri P.S. Baghel, learned Counsel appearing for the Petitioner submitted that Clause (7) has to be read alongwith Clause (4) of the Statute 11.12-B which states:

"The Selection Committee, constituted under Clause (a) of Sub-section (4) of Section 31 of the Act, shall consider the Self Assessment Report, Service Record (including Character Roll) and such other relevant records as may be placed before, or as considered necessary, by it. The meeting of the Selection Committee for considering cases of personal promotion shall be held at least once every year."

Learned Counsel submitted that since Clause (4) states that the meeting of the Selection Committee for considering cases of personal promotion shall be held at least once every year, the seniority of teachers who get promotion on the basis of personal promotion should not be counted from the date when they took over charge but from the date when the candidate became eligible. We cannot accept this submission.

It is a well settled principle of interpretation that when the language of a statutory provision is clear the literal rule of interpretation must be applied and we cannot depart from the plain and grammatical meaning. In our opinion the language of Clause (7) is clear and plain.

In Prakash Nath Khanna and Another Vs. Commissioner of Income Tax and Another, the Supreme Court observed:

"It is well settled principle in law that the Court cannot read anything into statutory provision which is plain and unambiguous. A statute in an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said."

In our opinion, Clause (4) cannot be regarded as mandatory and has to be held as directory. There may be various reasons why a Selection Committee meeting could not be held every year e.g. there may be disturbances, law and order problem, etc.

At any event, Clause (4), even if treated as mandatory, cannot whittle down the force of Clause (7) which is plain and simple. We, therefore, hold that the seniority of a teacher promoted on personal promotion shall be calculated from the date he takes over charge after the grant of such personal promotion.

The matter shall now be listed before the appropriate Division Bench for deciding the case in the light of the observations made above."

With the aforesaid decision the legal issue was finally decided. The Seniority Committee in pursuance to the decision of the Chancellor dated 13.7.2003, made u/s 68 of the U.P. State Universities Act, 1973, applicable at that time, in compliance of the order of the High Court dated 23.5.2003 in Writ Petition No. 23331 of 2003 had decided the issue as per legal position upto 13.11.2002. After observing that Dr. M.P. Joshi''s case referred to Full Bench has not become final, gave to the Petitioner seniority w.e.f. 23.12.1987 (date of eligibility) as his selection could not be held within one year. The decision was subject to and was affected by the view expressed by Full Bench in Chandra Bhushan Dwivedi''s case. The Petitioner in view of Full Bench decision will get his seniority from the date of joining, which is admittedly, after the joining of Prof. K.G. Srivastava, and Prof. N.R. Farooqui. The rights of the Petitioner thus had not attained finality by the decision of Seniority Committee in 2003. The seniority Committee''s decision was subject to the decision of the Full Bench, which went against the Petitioner.

The argument that the Full Bench will operate prospectively can only be described as naive. The principle, that the judgment clarifying the law will operate prospectively, is confined only to the powers exercised by Hon''ble Supreme Court under Article 32 or 142 of Constitution of India. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling may grant relief in exercise of equity jurisdiction, which is not the case in the judgment in Chandra Bhushan Dwivedi''s case. In P.V. George and Others Vs. State of Kerala and Others, the Supreme Court held in paragraphs 14, 20, 21 and 22 as follows:

"14. For the views we propose to take, it is not necessary for us to consider all the decisions relied upon by Mr. Rajan. The legal position as regards the applicability of doctrine of prospective overruling is no longer res integra. This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in I.C. Golak Nath and Others Vs. State of Punjab and Another, the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.

As would be noticed by us hereafter in Dr. Suresh Chandra Verma and others Vs. The Chancellor, Nagpur University and others, this Court held:

"The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accordance with the law at that time in force" and since the law at that time in force, viz., on March 30, 1985 when the Appellants were appointed, was the law as laid down in Bhakre''s case which was decided on December 7, 1984, the termination of the Appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre''s case was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakre''s case were not according to law. Hence, the termination of the services of the Appellants were in compliance with the provisions of Section 57(5) of the Act."

The ratio laid down by this Court, as noticed hereinafter, categorically shows the effect of a decision which had not been directed to have a prospective operation. The legal position in clear and unequivocal term was stated by a Division Bench of this Court in M.A. Murthy Vs. State of Karnataka and Others, in the following terms:

"Learned Counsel for the Appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr. In Managing Director, ECIL, Hyderabad and Ors., v. B. Karunakar and Ors., the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob. It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma''s case No. II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set, aside.

The effect of declaration of law, the rue of stare decisis and the consequences flowing from a departure from an earlier decision has been considered in great details by the House of Lords in National Westminster Bank Plc v. Spectrum Plus Limited and Ors. [(2005) UKHL 41]: [2005 (3) WLR 58], opining:

"8. People generally conduct their affairs on the basis of what they understand the law to be. This ''retrospective'' effect of a change in the law of this nature can have disruptive and seemingly unfair consequences. ''Prospective overruling'', sometimes described as ''non-retroactive overruling'', is a judicial tool fashioned to mitigate these adverse consequences. It is a shorthand description for court rulings on points of law which, to greater or lesser extent, are designed not to have the normal retrospective effect of judicial decisions.

Prospective overruling takes several different forms. In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or ''pure'' type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling.

Other forms of prospective overruling are more limited and ''selective'' in their departure from the normal effect of Court decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the Courts. There are other variations on the same theme.

Recently Advocate General Jacobs suggested an even more radical form of prospective overruling. He suggested that the retrospective and prospective effect of a ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should not take effect until a future date, namely, when the State had a reasonable opportunity to introduce new legislation: Banco Popolare di Cremona v. Agenzia Entrate Uffficio Cremona (Case C-475/03, 17 March 2005), paras 72-88."

The writ petition is dismissed.