Holding

Both direct recruits and teachers promoted by personal promotion belong to the cadre of Readers, but the promotee is a temporary addition to the sanctioned quota, and inter‑se seniority is determined by length of continuous service, rendering the respondent senior to the appellant.

Summary

The appellant, Dr. KM Suman Agarwal, was directly recruited as a Reader in July 1987, while the respondent, Dr. (Mrs.) Hiru Kumar, was promoted to Reader in February 1985 under the personal promotion scheme. When the Director of the Home Science Institute went on leave, the respondent claimed the right to act as Director on the basis of being the senior-most teacher. The High Court held her senior but left the question of inter‑se seniority between a direct recruit and a promotee unresolved. The Supreme Court examined Section 31A of the U.P. State Universities Act, 1973 and the relevant statutes, holding that both direct recruits and personal promotees form part of the cadre of Readers, but the promotee is only a temporary addition to the sanctioned quota. Inter‑se seniority is to be determined by the length of continuous service in the cadre, making the respondent senior to the appellant. Consequently, the Court directed the university to appoint the eligible candidate as Professor and regular Director, and disposed of the appeal.

Issues considered

Whether a Reader appointed by personal promotion under the U.P. State Universities Act forms part of the cadre of Readers.
Whether a personal promotion creates a permanent or temporary addition to the sanctioned cadre quota.
How inter‑se seniority between a directly recruited Reader and a promotee Reader should be determined.
Whether the senior‑most teacher is entitled to be appointed as Acting Director during a vacancy.

Legislation cited

Statutes of U.P. State Universitiess. 11.12B(6), s. 17.05(b)
U.P. State Universities Act, 1973s. 31(A)

Subjects

personal promotioncadreseniorityReaderUniversity appointmentsActing DirectorU.P. State Universities Acttemporary addition

Judgment

A DR. KM. SUMAN AGARWAL
v.
THE VICE CHANCELLOR AND ORS.

NOVEMBER 29, 1995

B [K. RAMASWAMY, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.]

U.P. State Universities Act 1973, S. 3l(A) r/w Statutes ll.12B(l), (6)
and (ll)(i)-Appointment of Respondent as Reader under personal promo-
tion schem&-Whether forms part of the cadre of Readers-Held, yes : but
C would be only temporary addition to the cadre.

U.P. State Unive;sities Act 1973, S.31(A) r/w Statutes 17.05 (b}-fnter
se seniority-Respondent appointed as Reader by personal promotion earlier
to appellant recruited directly-Held, Respondent is senior to appellant; rela- i .
tive seniority of candidates from two streams fused into the relevant cadre as
D Reader.

Appellant SA was in July 1987 appointed as Reader by Direct recruit-
ment in the Home Science Institute, Agra University. Respondent HK
appointed initially as lecturer in 1968 was in February 1985 appointed
E Reader under the personal promotion scheme. When the Director
proceeded on long leave, HK sought temporary appointment to the said
post und;rliause 4A (C) of the Ordinance which provided that the next
senior ny/st teacher shall discharge the functions of a Director. With the
University not acceding to her request and the Vice Chancellor appointing
a committee instead, HK filed a writ petition in the Allahabad High Court.
F SA sought and was allowed impleadment.

The High Court held that HK being the senior-most teacher was
entitled to be temporarily in-charge of the post of Director leaving open
the question of inter se seniority between HK and SA.
G Before this Court SA contended that by operation of S.31(A)(3) of
the U.P. State Universities Act, 1973 ('Act') and Clause 11.12B (6) of the
Statutes the benefit of personal promotion would be admissible only once
and such Reader did not form part of the cadre. This Court noted that
clause (ll)(i) of Statute 11.12 B stated that the post of reader to which
H personal promotion is made shall be a temporary addition to the cadre
802
S. AGARWAL v. VICE CHANCELLOR 803
t
and the post shall stand abolished on the incumbent ceasing to occupy it. A
Statute 17.05 (b) provided that in the same cadre inter se seniority of
teachers recruited directly or by personal promotion shall be determined
according to length of continuous service in such cadre.

Disposing of the Appeal, this Court
B
HELD : 1. Both direct recruits as well as the temporary promotees
on personal promotion would form part of the cadre as Reader or Profes-
sor. But the promotee would only be a temporary addition to the sanc-
tioned quota to which the direct recruit alone is eligible. (p.9) [807-E-F]

2. The Respondent HK was senior to the Appellant in the cadre of C
Reader. The relative seniority of the candidates from two streams fused into
the relevant cadre as professor or reader, as the case may be. [810-G;B]

Dr. Bal Krishna AgaTwal v. State U.P., [1995] 1 SCC 614, referred to.

Dr. Rashmi Srivastava v. Vikram University, [1995] 3 sec 653, ex- D
plained.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11618 of
1995.

From the Judgment and Order dated 24.5.95 of the Allahabad High E
Court in C.M.W.P. No. 10669 of 1995.

M.C. Dhingra for the Appellant.

S.K. Dhavan and Vijay K. Mehta for the Respondents.
F
The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides. The appellant was a
direct recruit as a Reader and was appointed with effect from July 1987 in G
the Home Science Institute, Agra University. The third respondent Dr.
(Mrs.) Hiru Kumar was appointed as a Lecturer with effect from July 6,
1968 and the she was confirmed on May 13, 1969. She was promoted as a
Reader on February 18, 1985 pursuant to the personal promotion scheme.
On appointment a~ Vice Chancellor of Bundelkhand University, Dr. Mrs. H
804 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A S.P. Ragquir proceeded on a long leaye. Consequently, the post of the
Director became vacant. The question then arose as to who is to be
nominated to hold that post temporarily till the Director is appointed. Dr.
(Mrs.) Him Kumar claimed the post, but the University did not accede to
that request. The Vice-Chancellor, to avoid controversy, had appointed a
B Committee headed by Dr. S.V. Pandey and the appellant and the third
respondent as the members, with effect from January 9, 1995. Dr. (Mrs.)
Him Kumar filed a writ petition in the High Court claiming that she had
- .
earlier officiated as Director in leave vacancies of the erstwhile Director
viz. Dr. (Mrs.) S.P. Ragquir. She is the senior-most teacher in the Institute
C and consequently, she is entitled to be appointed temporarily as Acting
Director. Initially, the appellant was not impleaded as party-respondent to
the writ petition. At her behest, she was impleaded as a respondent. The
Division Bench of the High Court held that since the Executive Council
had not approved of the appointment of the Committee by the Vice-Chan-
cellor, and Dr. (Mrs.) Him Kumar being the senior-most teacher is entitled
D to be temporarily kept in- charge of the post of Director. In addition, the
High Court also directed to finalise the appointment to the post of Profes-
sor within one month from the date of the order. This order came to be
issued on May 24, 1995 in writ Petition No. 10669/95. Thus this appeal by
special leave.
E
Shri Dhingra, learned counsel for the appellant, contended that the
appellant being a direct recruit, by operation of Sub-section (3) of s.31(A)
of the U.P. State Universities Act, 1973 (for short, 'the Act') which was
brought into force by way of an amendment, -the post of Reader is reserved
F for a direct recruit in accordance with the provision of Section 31. The
promotion given to Dr. (Mrs.) Him Kumar as a Reader is one time
promotion by operation of para ll.12-B(6) of the statutes. She is not a
member of the cadre of Reader. The appellant, having been appointed to
a substantive vacancy in the year 1987, is a member of the cadre while the
G third respondent was appointed as a reader to an ex-cadre post by Personal
Promotion Scheme, which is only personal to her. So she did not become ... -

part of the regular cadre. Therefore, she cannot claim seniority over the
appellant for appointment as Dir.ector. Thereby the appellant alone is
entitled to be considered as acting Director, pending appointment of the
Director. The contention has been resisted by Shri Dhawan, learned senior
H counsel for the third respondent.
S.AGARWALv. VIcECHANCELLOR 805

The question, therefore, is, whether the appellafit is senior to the A
respondent in the cadre as a Reader. The High Court has left open the
inter se seniority and directed the appropriate authority to cons1det the
question of seniority. The approach of the High Co'llrt is not correct.
Unless this is decided, the question of consideration of the parties as acting
Director cannot be solved. Clause (c) of Ordinance-4A reads as follows :
B
"The Institute sha1i be headed by a Directot who shall be appointed
from amongst the permanent Professors of t:lie Institute".

Clause 4A(b) of the Ordinance Provides that till the regular appoint-
ment of a Director, a Professor; and in the absence of a Professor, a C
Reader of the Institute; and in the absence of a Reader, a Lecturer of the
Institute, may be appointed as Acting Director. The appointment of a
Lectures as Acting Director will terminate within twd months of the
appointment of a permanent Reader and if a Reade.r as Acting Director
will terminate within two months of the appointment of the permanent
Professor. Clause (C) provides that in the event of casual vacancy caused D
by the Director or Acting Director, being on leave other than duty leave
or casual leave, the next senior-most teacher of the Institute shall discharge
the functions of the Director, unless otherwise decided by the authority
competent to sanction the leave, i.e., the Vice-Chancellor or the Executive
Council as the case may be. E
In view of the above provisions, the question emerges as to whether
the third respondent, Dr. (Mrs.) Hiru Kumar, is senior to the appellant as
a reader. She may be senior -most Lecturer. But that does not solve the
problem unless inter se seniority as Reader is determined since the appel-
lant is not claiming as a Lecturer. The inter se seniority would depend upon F
the reading of the appropriate provisions of the Ordinance and the Statutes
and the provisions of the Act.

It is seen that Section 31-A reads thus :

1. "Notwithstanding anything to the contrary contained in any other
G
provisions of this Act a Lecturer or Reader is the University
substantively appointed under Section 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. · H
806 SUPREME COURT REPORTS (1995) SUPP. 5 S.C.R. '\

A 2. Such personal promotion shall be given on the recommendation
of the Selection Committee, constituted under clause (a) of sub-
section (4) of Section 31 in such manner and subject to such
conditions as may be prescribed therein and subject to the condi-
tion as specified therein.
B 3. Nothing contained in this section shall affect the posts of the - •.
Teachers of the University to be filed by direct appointment in
accordance with the provisions of s.31."

Though the appointment by promotion to the post of Reader or
c Professor, as the case may be, has been given under Section 31A(l), their
promotion does not get entrenched into the cadre of the direct recruits
quota provided by sub-section (3) of Section 31A. Sub-section (3) of
Section 31A preserves to the direct recruits their quota of posts in each
cadre. i.e., Reader or Professor. However, that conclusion does not give
satisfactory solution to the problem of inter-se seniority unless we look into
D the statutes. Statute 11.12-B provides thus :

Notwithstanding anything to the contrary contained in Statute
11.02 or in any other Statute, the following categories of teachers
of the University shall be eligible for personnel promotion to the
E post of Readers or Professors, as the case may be."

Thus, conditions of eligibility have been provided for promotion to
the post of Reader and professor with which we are not concerned in this
case. Sub-clause (2) provides that the services referred to in clause (1) must
have been rendered on an approved post in a permanent capacity or ad
F hoc capacity in the University or any other universities enumerated in
clause (b). Clause (6) is relevant for the purpose of this case which reads
as follows :

"The benefit of personal promotion shall be admissible to Lee-
turers for promotion to the post of Reader only and Reader so
G
appointment by promotion shall not be entitled to personal promo-
tion on the post of Professor."
"'
In other words, a Lecturer appointed on personal promotion to the
post of Reader will be eligible only for one time promotion as a Reader
·H and· thereafter as Reader he/she has no right to claim promotion to the
S. AGARWAL v. VICE CHANCELLOR 807

post of Professor. However, by operation of Clause (b), as a result of A
personal promotion, there shall be no reduction in the work load of the
teacher of the University with which we are not concerned in this case. The
work load of the Lecturer and Reader are distinct and separate. On the
facts of the case, it is not necessary to elaborate the same.

Clause (11) is relevant in this case which reads as follows : B
....
"ll(i) : The post of Reader or professor to which personal promo-
tion is made, shall be temporary addition to the cadre of Professor
or Reader, as the case may be, and the post shall stand abolished
on the incumbent ceasing to occupy it." C

The personal promotion, though does not have any effect on the post
held by the direct recruit by operation of clause ll(i), the post held by the
promotees on personal promotion to the cadre of Reader or professor, as
the case may be, will be a temporary addition to the cadre of the Reader
or the Professor, as the case may be. In other words, the temporary D
promotions so long as the candidate continues to hold the post as Reader
or Professor will be in addition to the sanctioned strength of the Reader
or professor direct recruit. The post held by a promotee is coterminus with
the holder of the post ceasing to exist either on retirement or termination,
removal, dismissal etc. In other words, both the direct recruits as well as E
the temporary promotee on personal promotion would form part of the
cadre as Reader or the Professor, as the case may be. But the promotee
is ineligible to get a berth into the quota of direct recruits. He/she would
·'
only be a temporary addition to the sanctioned quota to which direct
recruit alone is eligible to hold the post as a reader or Professor, as the
~~k F
The question, then, is how would inter se seniority between direct
recruit and promotee is required to be determined. This has specifically
been provided in Statute 17.05. Clause (b) is relevant which reads as
follows:
G
"In the same Cadre, inter-seniority of teachers, appointed by
personal promotion or by direct recruitment, shall be determined
according to length of continuous service in such cadre."

(emphasis supplied) H
808 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A If a teacher is appointed as a Reader by personal promotion, his/her
continuous length of service jn the cadre of Reader should be determined
and the inter-se seniority should J:>~ decided accordingly. It is seen that
admittedly, Dr.(Mrs.) Hiru KUIP.i'ff was promoted on regular basis by
personal promotion as a Reader on February 18, 1985, while the appellant
was recruited as a direct recruit on July 19, 1987. Thereby Dr. (Mrs.) Hiru
B Kumar becomes senior to the appointment as a Reader.
••
Shri Dhingra, le(lrned counsel for the appellant, placed strong
reliance on the judgment of this Court in Dr. Ras/uni Slivastava v. Vikram
university and Ors., {1995) 3 SCC 653 to which one of us (Majmudar, J.)
C was a member. That case was to deal with an appeal arising from the
Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973, therein this Court has
pointed out that there was no statutory source for appointment by promo-
tion on personal promotion scheme. This Court pointed out the distin-
guishing features between the claims of the direct recruit and the claims
of the promotees, which are relevant in this case, and are as follows :
D
"The directly recruited Readers and Professors fill up the vacancies
in the cadre of Readers and Professors for which direct recruit-
ment is resorted to, while the promotees under the merit promo-
tion scheme stand outside the cadre and fill no posts as such, since
E no posts are created. The promotions given to them are purely
personal and the posts to which they are upgraded do not survive
their service career. Such a promotee fills up no vacancy in the
promotional avenue since no post in available by promotion.

The dir.ectly recruited Readers and Professors are recruited
F pursuant to the only source of appointment contemplated by
Section 49, that is by way of direct recruitment. The promotee
Readers and Professors. The promotee Readers and Professor 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
were given personal posts which cease with their employment. In
f~ct, the posts from which they are promoted do not become vacant
and non~ can be appointed to the said posts while they hold the
higher posts.
i

H Pay scales of promotee Professors and Readers are different
S.AGARWALv. VICE CHANCELLOR 809

from the pay scales of directly recruited Readers and professors A
and Readers at least after coming into operation of the career
advancement scheme in 1987.

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 B
... Professors .

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

. -
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 latter the D
infrastructure of Selection Committee under Section 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.

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

In that case, the promotees did not form part of the same cadre. On F
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 ceasation has been provided for, but
operation of s.31A(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 G
through statutory force under s.31A(l) and the post held by the promotee
becomes a temporary addition to the sanctioned cadre occupied by direct
recruits. Such a prdvision was absent in the Ras/uni Srivastava's case. On
the other hand, to avoid stagnation. The benefit has been provided for
promotion under s.31A(l) of the Act and it was termed as the" personal
promotion" so long as the candidate holds the post. The post remains with H
810 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A the candidate and the post ceases with the ceasation 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 from two streams fused into the
relevant cadre as Professor or the Reader, as the case may be. In the light
B of the statutory operation of the provisions referred to hereinbefore, the
conclusion rea'Ched by us is inevitable.

The view expressed by this Court in Dr. Bal KJishna Agarwal v. State
of U.P. & Ors., [1995] 1 SCC 614 is also the same, though no reference
C expressly was made to the above statutes. Therein this Court in para 14
had specifically stated that under the Statute, as amended by notification
dated 21.2.1985, it was laid down in clause (b) of Statute 18.05 that in the
same cadre inter se seniority of teachers appointed by personal promotion
or by direct recruit shall be determined according to length of service in
D such c~dre. In that case, Bal Krishna Agarwal was appointed substantively
on November 9, 1984, while respondents 4 and 5, though appointed earlier,
but as the statute came into effect from February 21, 1985, become mem-
bers of the service as Professors w.e.f. February 21, 1985. Therefore, this
Court held that though the respondents were promoted earlier to Bal
Krishna Agarwal, they became Junior to him in the cadre as Professors
E since Bal Krishna Agarwal was a direct recruit w.e.f. November 9, 1984. In
Dr. Rashmi's case, statutory source of recruitment was absent. In Dr.
Rashmi's case this Court observed that in the absence of similar provisions
like Section 31A of the U.P. Act, as was considered in Dr. Bal KJishna
Agarwal v. State of U.P., no post could have been created for promotion by
F way of extension of the cadre of the Readers or Professor, as the case may
be. In the absence of statutory provision in the Act, Section 6 by itself could
not be of any assistance to the appellant therein. Thus, this Court had
pointed out that there is a specific provision in the Act to regulate the inter
se seniority which was not available in Dr. Rashmi's case.

G Thus, we hold that in the cadre of Reader, Dr. (Mrs.) Hiru Kumar
is senior to the appellant, but whether she is entitled to regular promotion
as Professor or she is entitled to the post of Director on regular basis would
depend upon the filling up the post of a Professor. Since the High Court
has already directed to consider the case of the candidates for appointment
H as a Professor, we reiterate that the university should determine and
S.AGARWALv. VICE CHANCELLOR 811
. .> appoint the eligible candidate as a Professor or expeditiously possible A
within 6 weeks from the date of receiving this order. Consequential thereto,
appointment on regular basis to the post of Director should be made. We
are informed that Dr. (Mrs.) Hiru Kumar has already been made in-charge
Director. She would continue until a regular incumbent takes charge as a
Director.
B
The appeal is accordingly disposed of. No costs.

S.M. Appeal disposed of.