Case Note & Summary
The dispute concerned the inter se seniority of three professors in the Physics Department of Allahabad University. The appellant, Dr Bal Krishna Agarwal, was a direct recruit to a permanent post of Professor, while Respondents 4 and 5, Dr Murli Manohar Joshi and Dr P.K. Sharma, were promoted to the grade of Professor under the Personal Promotion Scheme. The Executive Council of the University had altered the seniority fixed by the Seniority Committee, placing the respondents above the appellant. The appellant challenged this by way of a writ petition, which the Allahabad High Court dismissed on the ground of availability of an alternative remedy under Section 68 of the Uttar Pradesh State Universities Act, 1973. The Supreme Court allowed the appeal. In October 1983, an advertisement was published for direct recruitment to one permanent post of Professor in Physics. The appellant and respondents 4 and 5 applied. The Selection Committee, in its report dated 22-7-1984, recommended a panel with the appellant's name at the top, and also recommended all three for personal promotion. On 8-11-1984, the Executive Council passed Resolution No. 197 appointing the appellant substantively as Professor, and Resolution No. 198 promoting the appellant and respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme. The appellant joined on 9-11-1984 and was confirmed on 9-11-1985. The Seniority Committee of the Faculty of Science, in meetings on 22-12-1986 and 4-1-1987, concluded that direct recruits and personal promotees constituted different categories and could not be intermingled for seniority; it placed the appellant above respondents 4 and 5. Aggrieved, respondents 4 and 5 made representations, and the Executive Council, on 16-7-1988, reversed the Seniority Committee's decision. The appellant then filed Writ Petition No. 15566 of 1988. The High Court dismissed the writ petition on 6-1-1994, holding that alternative remedy under Section 68 was available and that factual disputes required investigation. The appellant challenged this before the Supreme Court. The appellant argued that the High Court erred because the writ petition had been pending for over five years and no factual dispute existed; his appointment was direct recruitment, not personal promotion, and all three joined on the same date. The respondents contended that there were disputed questions of fact and the alternative remedy was appropriate. The Supreme Court held that the High Court was not right in non-suiting the appellant on the ground of alternative remedy, as the petition had been pending for five years and the issue involved a pure question of law. Even if referred to the Chancellor, the matter would inevitably return to court. The Court then examined the merits and, relying on Statute 18.05 of the Allahabad University First Statute and Section 31-A of the Uttar Pradesh State Universities Act, 1973, held that direct recruits to cadre posts and personal promotees were distinct categories; direct recruits were senior irrespective of the date of appointment. Accordingly, the Supreme Court set aside the High Court judgment and held the appellant senior to respondents 4 and 5.
Headnote
A) Writ Jurisdiction - Alternative Remedy - Section 68 Uttar Pradesh State Universities Act, 1973 - High Court erred in dismissing writ petition on ground of alternative remedy when petition had been pending for over five years and issue involved pure question of law - Held that availability of alternative remedy is not an absolute bar, especially when the matter would inevitably return to court after the Chancellor's order (Paras 9-10). B) Service Law - Seniority - Inter se Seniority of Direct Recruits and Personal Promotees - Statute 18.05 of Allahabad University First Statute; Section 31, Section 31-A Uttar Pradesh State Universities Act, 1973 - Direct recruits to cadre posts and personal promotees constitute distinct categories and cannot be intermingled for seniority; direct recruits are senior irrespective of date of appointment - Held that the appellant, appointed substantively as Professor after direct recruitment, was senior to Respondents 4 and 5 who were promoted under the Personal Promotion Scheme (Paras 6-7, 11). C) Service Law - Personal Promotion Scheme - Section 31-A Uttar Pradesh State Universities Act, 1973; Government Orders dated 12-12-1983 and 25-2-1984; Statute 11.12-B - Personal promotion is a separate avenue distinct from substantive appointment under Section 31; direct recruitment required advertisement and selection, while personal promotion granted to eligible teachers - Held that personal promotion did not confer cadre post seniority and could not affect direct recruits (Paras 4-6).
Issue of Consideration
Whether the High Court erred in dismissing the writ petition on the ground of availability of alternative remedy under Section 68 of the Uttar Pradesh State Universities Act, 1973 when the petition had been pending for five years; Whether the appellant, a direct recruit to a cadre post of Professor, was senior to Respondents 4 and 5 who were personal promotees.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court judgment, and held that the High Court erred in dismissing the writ petition on the ground of alternative remedy. After examining the merits, the Court held that the appellant, being a direct recruit to the cadre post of Professor, was senior to Respondents 4 and 5, who were personal promotees.
Law Points
- Availability of alternative remedy under Section 68 of Uttar Pradesh State Universities Act
- 1973 is not an absolute bar to writ jurisdiction when petition has been pending for five years and issue involves pure question of law
- Direct recruits to cadre posts and personal promotees constitute distinct categories and cannot be intermingled for seniority
- Direct recruits are senior to personal promotees irrespective of date of appointment
- Personal promotion under Section 31-A does not confer cadre post seniority
