Holding

The Executive Council’s regulations validly treat all Professors, regardless of appointment method, as belonging to the same cadre, and seniority is determined by length of continuous service, making the appellant senior to the respondent.

Issues considered

Whether Professors appointed under the Merit Promotion Scheme form part of the same cadre as those appointed under the general scheme for purposes of seniority.
Whether the Executive Council, under the Aligarh Muslim University Act, 1920 and the university statutes, has the power to prescribe inter‑se seniority rules.
Whether the High Court’s direction to prepare separate seniority lists for MPS appointees was ultra vires.

Legislation cited

Aligarh Muslim University Act, 1920s. 24, s. 25, s. 27, s. 2(k), s. 5(7)

Subjects

seniorityMerit Promotion Schemeuniversity statutesAligarh Muslim University Actinter se seniorityfaculty promotionhigher education law

Judgment

,,...\

A PROF. S.A. SIDDIQUI
v.
PROF. M. WAJID KHAN AND ORS.

JANUARY 11, 1999

B [MRS. SUJATA V. MANOHAR AND G.B. PATTANAIK, JJ.]

Universities :

Aligarh Muslim University Act, 1920 : Sections 2(k), 5(7), 24, 25 and
c 27.
Seniority--Professor appointed under Merit Promotion Scheme (MPS)
and Professor appointed under general scheme-lnter-se seniority be-
tween-Held : Persons appointed under both the schemes are treated as
belonging to the same cadre-Length of continuous service in a grade is the
D triterion for seniority-Hence, a person who is promoted as Professor earlier
under MPS is senior to a person who is appointed later under general
scheme-Statutes of Aligarh Muslim University, Statutes 17(2), 27(7),
29(2)(a) and 30(1)-Service Law.

The University Grants Commission formulated a scheme .of Merit
E Promotion. The Academic Council of the University recommended that the
Merit Promotion Scheme be accepted with the modifications suggested by
the Vice- Chancellor. The Executive Council accepted the recommenda-
tions of the Academic Council and under Statute 30 of the Statutes of the
Afigarh Muslim University framed regulations for determining the inter-se
F seniority amongst persons holding regular posts and those holding the
same posts under the Merit Promotion Scheme.

The appellant, who was appointed as Professor under the Merit
Promotion Scheme. Respondent No. 1 was appointed as Professor under
the General Scheme much later than the appellant. In the seniority list of
G Professors the appellant was shown as senior to respondent No. 1. Respon·
dent No. 1 filed a writ petition before the High Court contending that since
the appellant was promoted as Professor under the Merit Promotion
Scheme he could not be considered for seniority or other promotions and,
therefore, the appellant could not be shown as senior to respondent No. 1,
H the High Court allowed the petition. Hence this appeal.
26
S.A. SIDDIQUI v. M. WAJID KHAN 27
_..._
Allowing the appeal, this Court A

HELD : 1.1. The Executive Council has treated all posts of Readers
and all posts of Professors - whichever be the method of appointment, as
belonging to the same cadre and has prescribed rules for inter se seniority
between persons appointed under the Merit Promotion Scheme and per-
B
sons appointed to general posts treating them as belonging to the same
' cadre. In fact, the question of inter se seniority would arise only if all these
persons belonged to the same cadre. [32-E-G]

1.2. The Aligarh Muslim University Act, 1920 and the Statues framed
thereunder do contain provision for the posts of Readers/Professors under c
the Merit Promotion Scheme and hence persons holding such posts on
Merit Promotion Scheme cannot be considered as outside the cadre.
Section 2(k) of the Act, which defines "Teachers", does not make any
difference on the basis of method of appointment. Under Section 5 (7) of
the said Act the University has the power to institute Professorships,
,..,.. D
. Readerships, Lecturerships and other teaching or academic posts required
by the University and to appoint persons to such Professorships, Reader-
ships, Lecturerships and other posts and determine their conditions of
service in accordance with the Statutes. The Statutes framed under Section
27 inter alia, provide for the manner of appointment of teachers and other
academic staff and their emoluments and the principles governing E
seniority of service of employees. [33-A-C]

2.1. Statute 30(1) provides that seniority "shall be determined ac-
cording to the length of continuou~ service of such person in his grade,
)<
and, in accordance with such other principles as the Executive Council F
may from time to time prescribe." Under the Act, there is no specific
provision laying down that appointments to the posts of Professors can
only be made in a specific manner or by following a specific procedure.
Statute 27 (7) gives an express power to the Executive Council to appoint
a person to the post of Professor in the University on such terms and
conditions as it deems fit if the person possesses high academic distinction G
~
).
and professional attainment. The Executive Council also has the power to
appoint Professors, Readers, Lecturers and other members of the teaching
and academic staff on the recommendation of the Selection Committee
constituted for the purpose. It has to act on the recommendation of the
, Academic Council in laying down the number, qualifications, emoluments H
28 SUPREME COURT REPORTS [1999] 1 S.C.R.
A and other conditions of service of such teachers. The Executive Council >-
has accordingly in exercise of its powers under Statutes 17 and 27 framed
regulations for appointments to the posts of Professors and Readers under
the Merit Promotion Scheme. It has also in exercise of its powers under
Statute 30 laid down rules providing for inter se seniority between Profes-
B sors appointed under the Merit Promotion Scheme and Professors ap-
pointed under the general scheme. In doing so, the Executive Council has -~
acted within its statutory powers. The University has, therefore, rightly
prepared seniority list of Professors in accordance with the regulations
framed by the Executive Council in which the appellant is shown as senior
to respondent No. 1. [34-G-H; 35-A-B]
c Dr. Rashmi Srivastava v. Vikram University, [1995] 3 SCC 553, held
inapplicable.

Dr. Suman Agarwal v. Vice-Chancellor, [1996] 1 SCC 632 and Dr. Bal
Krishna Agarwul v. State of U.P., [1995] 1 SCC 614, relied on.
D
2.2. Looking to the Act and the relevant Statutes it has to be held
that the appellant is a part of the cadre of Professors in the University and
is entitled to seniority above respondent No.1 in the light of the regulations .
for determining inter se seniority framed by the Executive Council. He is
E entitled to all consequential benefits. [36-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7769 of
1997.

From the Judgment and Order dated 4.4.97 of the Allahabad High
Court in C.M.W. No. 5821 of 1996.
F ·"
Rakesh Dwivedi and Rajesh for the Appellant.

Ambrish Kumar for Respondent No. 1.

G B.D. Agarwala, Ashish Dayal and Vinay Garg for the Respondent
Nos. 2-4.

G.K. Banerjee, (S. Bhatnagar,) for Mrs. Nandani Gore for the
Respondent No. 5 (UGC).

H The Judgment of the Court was delivered by
S.ASIDDIQUiv. M. WAJIDKHAN[SUJATAV.MANOHAR,J.] 29

MRS. SUJATA V. MANOHAR, J. The appellant, Prof. S.A. Siddiqui, A
and the first respondent, Prof. M. Wajid Khan, are both Professors in the
Botany Department of the Aligarh Muslim University. The dispute pertains
to seniority as between the appellant and the first respondent. The appel-
lant was appointed as Lecturer in the Aligarh Muslim University on 30th
of April, 1965. He became a Reader in the open post of Reader on 30th
B
March, 1979 upon his selection by the selection committee. He was sub-
sequently selected under the Merit Promotion Scheme for promotion to
the post of Professor. On 14th of March, 1987, he was promoted as
Professor under the Merit Promotion Scheme. The first respondent was
appointed as Lecturer much later on 2nd of April, 1973. He was also
promoted as Reader much later under the Merit Promotion Scheme on c
1.1.1983. Thereafter he has been appointed to the open post of Professor
on 10.3.1992 on his selection by the selection committee. Although the first
respondent has been appointed as Professor much later than the appellant,
he contends that he alone is to be considered for the purpose of seniority
and promotion since he holds the post of a Professor on regular selection. D
He contends that since the appellant was promoted as Professor under the
Merit Promotion Scheme, he cannot be considered for seniority or further
promotions. It is the contention of the Aligarh Muslim University as well
as the appellant that both the appellant as well as the first respondent hold
the post of professors and they have been throughout considered as Profes-
E
sors and have been shown in the common seniority list of all professors.
From the year 1992 onwards, that is to say after the appointment of first
respondent as Professor, in the seniority list of Professors the appellant was
sho·,m as senior to respodnent no.1. For the first time in 1995, the first
respondent challenged the placement in the seniority list of the name of
the appellant. On 12.6.1995 he made a representation to the Vice-Chan- F
cellor of the university for determination of inter se seniority between him
and the appellant for the purpose of appointment as Chairman of the
department. The Vice-Chancellor on 21.6.1995 appointed a sub- committee
for the determination of the issue of seniority of the first respondent. On
22.2.1996 the first respodnent filed a writ petition in the Allahabad High G
Court which was allowed by the High Court. The High Court directed that
separate seniority lists be prepared and the parties appointed under Merit
Promotion Scheme be not appointed or continued as Chairman/Dean of
any Department or Faculty of the Aligarh Muslim University. Aggrieved
by this judgment and order, the appellant has filed the present appeal.
H
30 SUPREME COURT REPORTS [1999] 1 S.C.R.

A In 1983 the University Grants Commissiorr formulated a scheme of
Merit Promotion wit~ a view "to give recognition to the outstanding work
done by the University teachers and to provide for reasonable oppor-
tunities to them for professional advancement". It was so stated by the
Chairman of the University Grants Commission in letters addressed to the
Vice-Chancellors of various Universities. The University Grants Commis-
B sion felt that the Merit Promotion Scheme would improve the overall
morale of the University teachers and would also minimise to some extent,
demands for increasing the number of senior positions during the sixth plan
period in the Universities. The following objectives, inter alia, were stated
by the University Grants Commission as forming the basis of the Merit
C Promotion Scheme :

1. The basic objectives of the scheme should be (1) to recognise
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 subjects/areas concerned and (3) to provide for
D
reasonable opportunities for professional advancement to such
teachers, who merit academic recognition, on a competitive basis.
The scheme should, therefore, be appropriately named as "Merit
Promotion Scheme for University Teachers". This would be in the
nature of a "flexible complementing scheme", no additional posts
E would be created and the existing persons on the basis of critical
assessment were to be promoted to the next higher level and the
position would be held by such incumbents as personal to them,
no resulting vacancy was required to be filled and no ne~ posts
were required to be created.
F
Detailed guidelines were laid down by the University Grants Commission
for the implementation of the scheme. There was a ceiling on the number
of positions whic;h could be held in a department on such merit promotion.

The Academic Council of the Aligarh Muslim University at its
G meeting held on 15th of June, 1983 recommended that the University
Grants Commission's Merit Promotion Scheme be accepted with incor-
poration of the modifications suggested by the Vice- Chancellor of the said
university in his letter of 31.5.1983, namely, (1) the process of screening by
experts preceding the Selection Committee be dispensed with in the inter-
H est of expedition, (2) there should be no condition of unanimity at the
S.A. SIDDIQUI v. M. WAJID KHAN (SUJATA V. MANO HAR, J.] 31

Selection Committee or among the experts serving on it, and (3) the A
" university Grants Commission be approached to raise the ceiling of 33.3%
whenever this should become necessary. Pursuant to this recommendation
of the Academic Council, the Executive Council at its meeting held on
18-20th of February, 1984 approved the above recommendation of the
Academic Council. The Executive Council also decided that if the Univer-
sity Grants Commission accepts or announces any concessions in its
B
scheme to other Central Universities, including Delhi University, these will
be applicable to the Aligarh Muslim Uaiversity also.

At the said meeting of 18-20th of February, 1984 the Executive
Council after approving the Merit Promotion Scheme of 1983 for the c
Aligarh Muslim University also resolved in the exercise of its powers under
Statute 30(1), that the inter se seniority among (a) those who were selected
to general posts and (b) those promoted under Merit Promotion Scheme
would be determined subsequently. Thereafter the Executive Council in
::0- the exercise of its powers under Statute 30 framed regulations to determine
the inter se seniority amongst persons holding a regular post and those
D
~

holding the same post under the M~rit Promotion Scheme. This was done
under its resolution dated June 18/19, 1988 as modified at its meeting of
December 10/11, 1988. The selection of those appointed to the general post
as also those appointed under Merit Promotion Scheme was to be made
by the Selection Committee constituted under Statute 27. The rules for E
determining inter se seniority so framed and modified are to the following
effect :-

(a) The seniority of a Professor/Reader appointed under the Merit
Promotion scheme should be counted from the date of issue of F
order relating to such appointment notwithstanding the fact that
he has been given retrospective appointment from an earlier date.
Such retrospective appointment should be deemed to be for the
purpose of payment of salary and retirement benefits etc. and not
for the purpose of seniority.
G
)<
(b) The seniority of Professors/Readers appointed against the
general posts should continue to be determined in accordance with
the principles laid down by the Executive Council vide it~ resolu-
tion under item No. 4 of its meeting held on 18/19/20 February
1984. H
32 SUPREME COURT REPORTS (1999] 1 S.C.R.

A (c) In case the date of issue of appointment order of a Profes-
sor/Reader promoted under merit promotion scheme is the same
as the date of commencement of continuous approved service for
a Professor/Reader ~.ppoinkd against the general post, then the
following principles should be used to determine the seniority.

B (i) The teacher who has longer continuous temporary service
in the same grade, after selection by the Selection Committee
constituted under Statute 27, shall be ranked senior.

(ii) If the length of service mentioned in (i) above is equal
the teacher who has rendered longer continuous approved
c service in the next lower grade/grades shall be ranked senior.

(iii) If the length of service mentioned in (i) and (ii) above is
equal the one older in age shall be ranked senior.".

D Thereafter on the basis of the recommendations of the Academic
Council made vide its Resolution No. 44 dated 28/29.11.1988 the Executive
Council prescribed certain regulations at its meeting held on 10/11.12.1988
to govern implementation of the Merit Promotion Scheme subsequent to
the adoption of revised pay-scales of teachers in the Aligarh Muslim
University, Aligarh. Under the regulations so framed also it was specifically
E provided that the principles governing inter se seniority of Readers/Profes-
sors appointed under this Scheme vis-a-vis Readers/Professor appointed
against a general post as laid down by the Executive Council, shall apply.
Clearly, therefore, seniority between Readers/Professors appointed under
the Merit Promotion Scheme vis-a-vis Readers/Professors appointed to
F general posts is governed by the regulation laid down by the Executive
Council. The Executive Council has treated all posts· of Readers and all
posts of Professors - whichever be the method of appointment, as belonging
to the same cadre and has prescribed rules for inter se seniority between
persons appointed under the Merit Promotion Scheme and persons ap-
pointed to general posts treating them as belonging to the same cadre. In
G fact, the question of inter se seniority would arise orily if all these persons
belonged to the same cadre. .,. -
The first respondent has, however, contended that under the Aligarh
Muslim University Act 40 of 1920 as also under the Statutes framed for the
H Aligarh Muslim University there is no provision for the posts of
S.A SIDDIQUI v. M. WA.HD KHAN [SUJATA V. MANOHAR, J.] 33
.( Reader/Professors under the Merit Promotion Scheme and hence persons A
holding such posts on Merit Promotion Scheme have to be considered as
outside the cadre. This contention does not appear to have any basis if one
examines the Aligarh Muslim University Act of 1920 and the relevant
statutes. Under Section 2(k) of the Aligarh Muslim University Act,
"Teachers" are defined to mean Professors, Readers, Lecturers and such
B
'> other persons as may be appointed fo• imparting instruction in the Univer-
sity or a Hall and are designated as teachers by the Ordinances. No
difference based on the method of appointment to these posts has been
spelt out in the definitibn. Under Section5(7) of the said Act the University
has the power to institute Professorships, Readerships, Lecturerships, and
other teaching or academic posts required by the University and to appoint c
persons to such Professorships, Readerships, Lecturerships and other posts
and determine their conditions of service in accordance with the statutes.
Under Section 24 of the said Act the Executive Council shall be the
principal executive body of the University. Its constitution and the terms
~
of office of its members and its powers and duties shall be prescribed by D
the Statutes. Under Section 25 the Academic Council shall be the principal
academic body of the University and it shall, subject to the provisions of
this Act, the Statutes and the Ordinances co-ordinate and exercise general
supervision over the academic policies of the University. Section 27 deals
with the power to make Statutes. Under the said section the Statutes may, E
inter alia, provide for the manner of appointment of teachers and other
academic staff and their emoluments and the principles governing seniority
of service of employees. Section 31 gives to the authorities of the University
including the Executive Council power to make regnlations consistent with
the Act, the Statutes and the Ordinances providing, inter alia, for all
F
matters which by this Act, the Statutes or the Ordinances are to be
prescribed by regulations.

Under Statute 17(2) of the Aligarh Muslim University dealing with
powers and functions of the Executive Council it is provide as follows :-
G
,, "17(2)(i) : to appoint the Registrar, Finance Officer, Librarian,
Principals of Colleges and Institutions established by the University
and such professors, Readers, Lecturers and other members of
the teaching and academic staff as may be necessary, on the
recommendation of the Selection Committee constituted for the H
34 SUPREME COURT REPORTS [1999] 1 S.C.R.

A purpose:

Provided that no action shall be taken by the Executive Council in
respect of the number, qualifications, emoluments, and other con-
ditions or service of teachers, without consideration of the recom-
mendation of the Academic Council."
B
The Statute 27 deals with the constitution of the Selection Committee
for appointments to various posts including the post of Professor and the
post of Reader. The composition of the Selection Committee is set out
against each post. Under Statute 27(7) it is provided as follows :-
c "27(7) : Notwithstanding anything contained in the foregoing
clauses of this Statute or Statute 29, the Executive Council may
invite a person of high academic distinction and professional
attainment to accept a post of Professor in the University, on such
terms and conditions as it deems fit, and on the person agreeing
D to do so, appoint him to the post."

Under Statute 29(2)(a) all appointments to permanent posts of teachers in
the University shall be made by the Executive Council on the recommen-
dation of a Selection Committee in the manner set out there. Under Statute
E 30(1) it is provided as follows :-

"30(1) : Whenever, in accordance with these Statutes, any person
is to hold an office or be a member of an authority of the University
by rotation according to seniority, such seniority shall be deter-
mined according to the length of continuous service of such person
F in his grade, and, in accordance with such other principles as the
Executive Council may from time to time prescribe.

Thus, under the Aligarh Muslim University Act of 1920, there is no specific
provision laying down that appointments to the posts of Professors can only
be made in a specific manner or by following a specific procedure. Statute
G 27(2) gives an express power to the Executive Council to appoint a person
to the post of Professor in the University on such terms and conditions as ..
_

it deems fit if the person possesses high academic distinction and profes-
sional attainment. The executive Council also has the power to appoint
Professors, Readers, Lecturers and other members of the teaching and the
H academic staff on the recommendation of the Selection Committee con-
/'"

S.A. SIDDIQUI v. M. WAIID KHAN [SUJATA V. MANO HAR, J.] 35
-( stituted for .the purpose. It has to act on the recommendation of the A
' Academic Council in laying down the number, qualifications, emoluments
and other conditions of service of such teachers. The Executive Council
has accordingly in exercise of its powers under Statutes 17 and 27 framed
regu!utions for appointments to the posts of Professors and Readers under
the Merit Promotion Scheme. It has also in exercise of its powers under
Statute 30 laid down rules providing for inter se seniority between Profes- B
')'
sors appointed under the Merit Promotion Scheme and Professors ap-
pointed under 'the general scheme. In doing so, the Executive Council has
acted within its statutory powers. The Aligarh Muslim University has,
therefore, rightly prepared seniority list of Professors in accordance with
the regulations framed by the Executive Council in which the appellant is
shown as senior to respondent no. 1.
c
The first respondent has relied upon a decision of this Court in Dr.
Ras/uni Srivastava v. Vikram University and Ors. Etc. Etc., [1995) 3 SCC 653.
In that case this Court considered the position of university teachers
promoted under the Merit Promotion Scheme vis-a-vis University teachers D
;,.-
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 cadre. The merit promotees
would, therefore, fall outside the cadre under the Madhya Pradesh Ad-
hiniyam unless the Act was amended introducing Merit Promotion as an E
additional source of recruitment. Ordinances and Statutes issued by the
University providing for promotion as a new source of recruitment and
_,, determination ofinter 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 p~escribe that direct recruitment is the only source of recruit- ·
.... ment to the regular cadre of teachers in the Aligarh Muslim University. F
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
1 give to the Executive ·Council the power of appointment even otherwise
then by direct recruitment. The Merit Promotion Scheme has been adopted
by the Aligarh Muslim University, on the basis of the recommendations
G
made by the Academic Council which have been accepted by the Executive
~ Council as provided under Statute 17. The ratio, therefore, of Rashmi
"' Srivastava's case (supra) will not apply.

In the case of Dr. Suman Agarwal v. Vice-Chancellor and Ors., [1996]
1 SCC 632, this Court considered the same question of a person directly H
.... \

36 SUPREME COURT REPORTS [1999] 1 S.C.R.

A recruited as a Reader and a person promoted as a Reader under the Merit
Promotion Scheme. The Court rejected the contention that a Reader
appointed by personal promotion was not a member of the cadre of
Readers, on the basis of the provisions of the U.P. State Universities Act,
1973. Distinguishing the case of Rashmi Srivastava (Supra) this Court said
that under the Scheme of Section 31A(l) of the U.P. State Universities
B Act, 1973 read with Statute 17.05-B and Statute 11.12-B Clause 6, a
personal promotee gets a berth through statutory force under Section
31A(l) and the post held by the promotee becomes a temporary addition
to the sanctioned cadre occupied by direct recruits. In the case of a
personal promotion, so long· as the candidate holds the post, the post
remains in the cadre. It ceases with the cessation of the service of the
c holder of the post. Nevertheless, the post of a promotee is a temporary
addition to the cadre strength. Rules for Inter se seniority have also been
provided as between direct recruits and merit promotees. The Court said
that the candidates from two streams fused into the relevant cadre of
Professor or Reader. The same is the position here looking to the
D provisions of the Aligarh Muslim University Act and the Statutes.
In the case of Dr. Bal Krishna Agarwal v. State of U.P. and Ors., [1995]
1 SCC 614 also this Court specifically stated that under the U.P. State
University Act 1973 read with the relevant Statutes, as between direct
appointees and persons promoted under the Merit Promotion Scheme,
E inter se seniority was to be determined according to the length of service
in such cadre. The Court, therefore, relied on a specific provision in the
Statute which regulated the inter se seniority between direct recruits and
merit promotees. This judgnient has also been cited in the case of Dr.
Suman Agarwal v. Vice-Chancellor and Ors., (supra) while distinguishing
F Dr. Rashmi Srivastava's case (supra).

Looking to the Aligarh Muslim University Act and the relevant Statutes
the appellant is, therefore, a part of the cadre of Professors in the Aligarh
Muslim University and is entitled to seniority above the first respondent in the
light of the regulations for determining inter se seniority framed by the
G Executive Council. He is entitled to all consequential benefits.

The appeal is accordingly allowed and the impugned judgment and
order of the Allaltabad Higlt Court is set aside. There will, however, be no
order as to costs.

v.s.s. Appeal allowed.