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Krishna C. Mathur Vs. the University of Jodhpur and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 160 of 1978
Judge
Reported in1980WLN22
AppellantKrishna C. Mathur
RespondentThe University of Jodhpur and ors.
DispositionPetition dismissed
Cases ReferredMoti Ram v. Municipal Corporation of Delhi
Excerpt:
constitution of india - article 226 writ of quo warranto--issue of quo warranto not prayed in writ--held, writ of quo warranto can be issued.;the mere fact that the petitioner, in his writ petition, has not prayed for the issue of a writ of quo warranto cannot stand in the way of the said relief being granted to him if in the tracts and circumstances of the case, it is established that a writ of quo warranto can be issued for quashing the appointments of respondents no. 5 to 32.;(b) constitution of india - article 226--writ of quo warranto--two essential conditions for its issue--writ can be issued to oust illegal appointments.;it must be held that the two conditions which are essential for the issue of quo warranto are that (i) the appointment under challenge must be to a public office.....s.c. agrawal, j.1. dr. krishna c. mathur, the petitioner, in this writ petition filed under article 226 of the constitution, is employed as lecturer in the department of chemistry in the university of jodhpur (hereinafter referred to as the 'university'). he was appointed on the said post in)july, 1963. respondents no. 5 to 32 in this writ petition, are employed as professors and readers in the various departments of the university. the university has been established under the provisions of the jodhpur university act. 1962 (hereinafter called the 'act'. the act has constituted various authorities, namely, syndicate, academic council etc for the discharge of the various functions entrusted to them under the act. under, section 16 of the act, the syndicate is the executive body of the......
Judgment:

S.C. Agrawal, J.

1. Dr. Krishna C. Mathur, the petitioner, in this writ petition filed under Article 226 of the Constitution, is employed as lecturer in the Department of Chemistry in the University of Jodhpur (hereinafter referred to as the 'University'). He was appointed on the said post in)July, 1963. Respondents No. 5 to 32 in this writ petition, are employed as Professors and Readers in the various departments of the University. The University has been established under the provisions of the jodhpur University Act. 1962 (hereinafter called the 'Act'. The Act has constituted various authorities, namely, Syndicate, Academic Council etc for the discharge of the various functions entrusted to them under the Act. Under, Section 16 of the Act, the Syndicate is the executive body of the. University whereas under Section 15 of the Act, the Senate is the supreme authority of the University vested with the power to review the acts of Syndicate and the Academic Council and also to exercise all the powers of the University not otherwise provided for by the Act or the Statutes. When the University was constituted in 1962, a number of colleges were absorbed in the University and the teachers working in those colleges were appointed as the teachers of the University. Under the Act and the Statutes framed thereunder, there exists no provision for promotion of a teacher from one post to another and all appointments on the post of Professors, Readers and Lecturers in the University are required to be made by selection on the basis of merit. The result is that a number of teachers of the University have continued to remain on the posts on which they were initially appointed Those teachers, if they had remained with the colleges, would have been promoted as Heads of Departments or Principals in the mean time. Proposals for relieving the hardship caused to such teachers by giving promotions had been under consideration of the authorities of the University for some time past. One such proposal was to add Clause (6) in Statute 18 so as to make provision for promotion of teachers who had been teachers in the University for 12 years after assessment by a Screening Committee. The aforesaid proposal was considered by the Senate at its meeting held on May 6 & 7, 1978 wherein it was resolved that the proposed amendment may be referred to the Syndicate for consideration, After the aforesaid meeting of the Senate, the Academic Council of the University, by its resolution dated May 14, 1978 appointed a sub-committee. The said sub-committee framed certain rules for personal promotion of the teachers. Subsequently, the Academic Council, at its meeting held on 3rd November, 1978, approved the scheme for Ex Cadre Personal Promotion for permanent Demonstrators/Lecturers/Readers working in the University and recommended the same for adoption by the Syndicate. The meeting of the Syndicate was held on 9th November, 1978 and at the said meeting, the Syndicate after considering the recommendations of the Academic Council passed resolution No. 168 adopting the following scheme for Ex. Cadre Personal Promotion for permanent Demonstrators/Lecturers/Readers working in the University (hereinafter referred to as the 'Ex Cadre Personal Promotion Scheme'):

(a) The Scheme for ex-cadre personal promotion for permanent Demonstrators, Instructors, Lecturers and Readers working in the University, as recommended by the Academic council, be adopted in the following modified form:

(1) A permanent Demonstrator/[nstructor/Lecturer/Reader in a Department shall be eligible for promotion to a higher post on an ex-cadre basis on fulfilling the following conditions:

(i) He/She has but in at least 15 years service in this University.

(ii) He/She had not had any promotion or selection on substantive basis to the higher post in this University in the aforesaid period.

(iii) A Reader should have attained the age of 50 years for being eligible for promotion and a Lecturer/Demonstrator Instructor should have attained the age of 45 years for being eligible for such a promotion under this scheme.

(iv) For ex-cadre promotion to the post of a Professor, a Reader must possess a deree of Ph. D.

(v) An ex-cadre promotion shall be given only once during the entire period of service.

(2)(i) The number of Lecturers promoted to Readership on an.

ex-cadre basis shall be one upto a sanctioned strength of 14 lecturers in a department and 2 for a department which has a sanctioned strength of 15 or more lecturers.

(ii) The number of Readers to be promoted to the next higher cadre shall be limited to one in a department.

(iii) One Instructor or Demonstrator in each department be given a Selection Scale as to be determined by the Syndicate.

(3) Ex-Cadre promotions shall be made by seniority provided that if the senior most in a department is not found suitable for promotion by the Syndicate, the next person in seniority shall be considered for such a promortion.

(4) Suitability for ex cadre promotions shall be decided by the Syndicate on the recommendation by the Vice Chancellor, who before making such a recommendation shall consult the Head of the Department and the Dean of the Faculty concerned.

(5) The promotion thus given shall be personal to the incumbent in lieu of his post which shall be kept in abeyance.

(6) The pessons being appointed by ex-cadre promotion shall be junior to those appointed by open selection if in the same session (i.e. from the day of reopening to the day of next reopening of University)

By its resolution aforesaid, the Syndicate further resolved that in pursuance of the provisions of the Ex-Cadre Personal Promotion Scheme, respondent No. 5 to 8 shall be promoted as Professors in their respective departments and respondents No. 9 to 32 shall be promoted as Readers in their respective departments Being aggrieved by the aforesaid resolution No. 168 passed by the Syndicate at its meeting held on November 9, 1978 adopting the Ex-Cadre Personal Promotion Scheme and promoting respondents No. 5 to 32 to the post of Professors and Readers, the petitioner 61ed this writ petition on 23th November, 1978.

2. In the writ petition, the petitioner has prayed for the issue of a writ of certiorari or any other writ or direction quashing the resolution No. 168 dated November 9, 1978 passed by the Syndicate adopting the Ex-Cadre Personal Promotion Scheme as well as the appointments of respondents No. 5 to 32 to the post of Professors and Readers made in pursuance thereof In the writ petition, the petitioner has also prayed for the issue of a writ of prohibition or other writ, order or direction restraining the Syndicate from confirming the impugned resolution No. 168 and for the issue of an appropriate writ, order or direction restraining the respondents No. 5 to 8 from functioning as Professors and respondents No. 9 to 32 as Readers in pursuance of the impugned resolution No. 168.

3. During the pendency of this writ petition, the Syndicate at its meeting held on 30th November, 1978 approved the impugned resolution No. 168 passed by it on November 9, 1978 with the modification that the word personal be added after the word eligible for' and before the word 'promotion' in para(i) of the scheme In view of the aforesaid resolution passed by the Syndicate on November 30, 1978 confirming the 'resolution No. 168 prayer (iii) in the writ petition with regard to the issue of a writ of prohibition or any other writ, order or direction restraining the Syndicate of the University from confirming the resolution No. 168 cannot be granted and the relief, as claimed by the petitioner in the writ petition, is confined to the quashing of resolution No. 168 passed by the Syndicate on November 9, 1978.

4. In the writ petition, the petitioner has challenged the validity of the Ex Cadre Personal Promotion Scheme on the ground that it is violative of the provisions of Articles 14 and 16 of the Constitution of India and that it contravenes the provisions of Sections 3(1) and Section 5(3) of the Rajasthan Universities Teachers and Officers (Special Conditions of Service) Act, 1974 and that it contravenes the previsions of Statute No. 5(2) of the Statutes and Ordinance No. 317 of the Ordinances of the University.

5. The writ petition has been contested by the University as well as some of the other respondents. In the reply that was filed on behalf of University in response to the notice issued by this Court to show came why this petition should not be admitted, certain preliminary objections with regard to maintainability of the writ petition have been rained. After the writ petition had been admitted, a reply was filed by the University to the averments contained in the writ petition. In the said reply it has been submitted that the Ex-Cadre Personal Promotion Scheme has been framed in order to mete out justice to those unfortunate teachers, who having been selected on the basis of merit, could not be promoted to the higher rank for a period of more than 15 years and who had completed the age of 45 years but were still Lecturers or who had completed the age of 50 years but were still Readers. In the said reply, it has been submitted that most of the teachers who were working in the Governments Colleges were absorbed in the University when the University was established in the year 1962 and the said teachers, if they had remained in their respective colleges, would have been promoted to higher posts of Heads of Departments or Principals and that the Syndicate had framed the Scheme so that those teachers who are meritorious and who have rendered good service to the University for a number of years may also receive promotion to the higher posts. In the said reply, it is stated that similar Schemes are in contemplation of the University Grants Commission also and that the Scheme has been passed by the Syndicate in accordance with the Rules. In the said reply, it is further submitted that the petitioner has not been adversely affected by the introduction of the Scheme and than on the other hand, the benefits of the Scheme would be available to the petitioner.

6. Before dealing with the merits of the contentions urged with regard to the validity of Ex-Cadre Personal Promotion Scheme, I may dispose of the various preliminary objections that have been raised by the learned Counsel for the respondents to the maintainability of the writ petition

7. The first objection raised by Shri H.M. Parekh, the learned Counsel for the University, as to the maintainability of the writ petition is that the petitioner cannot be regarded as a person aggrieved by the Ex-Cadre Personal Promotion Scheme and, therefore, he has no locus standi to challenge the said Scheme, In this regard, the submission of Shri Parekh is that the petitioner can no way be said to have been aggrieved by appointments on the posts of Readers or Professors made in department other than department of Chemistry in which the petitioner is working and, therefore, it is not open to the petitioner to challenge the appointment of respondent No. 5 to 19 and 22 to 32, who have been appointed as Professors or Readers in department other that the department of Chemistry. Even as regards the appointment of respondent No. 20 and 21, who have been appointed as Readers in Chemistry, the submission of Shri Parekh is that the said appointment does not in any way prejudice the right of the petitioner in as much as the said respondents have been appointed on ex-cadre pasts of Readers and the right of the petitioner to appointment to the posts of Readers on the regular cadre in the Department of Chemistry is in no way jeopardise by the appointment of Respondents No. 20 and 21 and that on the other hand the appointment of Respondent No. 20 and 21 would result in the lower competition for the petitioner being selected for appointment to these posts and that the petitioner would thus be benefited by the aforesaid appointment of Respondent No. 20 and 21 as Readers. Shri M. Mridul, the learned Counsel for the petitioner, has, however, submitted that the right of the petitioner have been seriously prejudiced as a result of the Scheme and that he, being a person aggrieved by the Scheme, is entitled to challenge it. In so far as the appointment of Respondents No. 20 and 21 on the post of Readers in Chemistry is concerned, the submission of Shri Mridul is that even though the appointment of the said respondents has been made on ex-carde posts of Readers but in view of para 6 of the Scheme, the said respondents would rank senior to the petitioner unless the petitioner is promoted as reader in Chemistry in the same session in which the said respondents were promoted as Readers under the impugned scheme and that by virtue of the aforesaid seniority on the post of Reader in the Department of Chemistry, the said respondents would acquire certain rights under the provisions of the Act and the Statutes and the petitioner would be denied the said rights. As regards the appointment of respondents No. 5 to 19 & 22 to 32 as Professors and Readers in other departments, the submission of Shri Mridul is that even though there is no specific prayer in the writ petition for the issue of a writ of quo warranto, the said relief can be granted to the petitioner on this basis of the averments contained in the writ petition and that the petitioner has sufficient interest in seeking a writ of quo warranto to quash the appointments of the said respondents.

8. In State of Haryana v. The Haryana Co-operative Transport Ltd. and Ors. : [1977]2SCR306 , the Supreme Court has laid down that the mere circumstances that the petitioner, in the writ petition, has not, in so many words, asked for the issue of a writ of quo warranto, would not mean that he could not be granted such a relief and that if on considering the averments in the writ petition, the relief of certiorari which has been asked is found to be inappropriate, other suitable writ, order or direction, a writ of quo warranto could be issued by the Court. In the said case, the petitioner in the writ petition had challenged the award of the Labour court on the ground of ineligibility of Shri Hans Raj Gupta, who had given the award as the presiding officer of the Labour Court, to occupy the post of a Judge of the Lobour Court, and had prayed for the issue of a writ of certiorari to quash the award or other suitable writ, order or direction as the Court deemed fit and proper in the circumstances of the case. The Supreme Court found that the relief of certiorari asked for in the writ petition was inappropriate but held that the High Court was entitled to declare the appointment as invalid by issuing a writ a quo warranto. In the present case, the petitioner in Clause (ii) has prayed for 'issuing a writ of certiorari or any other appropriate writ, order or direction' and in Clause (v) the petitioner has prayed for 'grant of such other relief or reliefs as may do complete justice to the petitioner in the circumstance of the case.' In view of the aforesaid decision of the Supreme Court, the mere fact that the petitioner, has not prayed for the issue of a writ of quo warranto cannot stand in the way of the said relief being granted to him if in the facts and circumstances of the case, it is established that a writ of quo warranto can be issued for quashing the appointment of respondents No. 5 to 32.

9. The question which arises for consideration is whether the conditions essential for issuing a writ of quo warranto exist in the present case. In University of Mysore v. G. Dr. Govinda Rao, the Supreme Court has laid down:

before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.

10. In view of the aforesaid observations of the Supreme Court, it must be held that the two conditions which are essential for the issue of a writ of quo warranto are that (i) the appointment under challenge must be to a public office; and that (ii) the said appointment should have been made without the authority of law or in other words contrary to the relevant statutory provisions. The second condition involves an examination of the merit of the challenge to the appointment of respondents No. 5 to 32 & will require consideration, if the writ petition is held to be maintainable. But for the purpose of maintainability of the writ petition, it is necessary to consider whether the first condition, viz that the offices to which respondents No. 5 to 32 have been appointed are public offices, is satisfied in the present case

11. In Mrs. Priti Prabha v. Dr. C.P. Singh ILR 1968 Raj. 712, a Division Bench of this Court has dealt with this question & has laid down that the office of the Professor of Hindi Department in the University is a high public office created by the Statutes and that a writ of quo warranto can be issued tor ousting a person from holding the said office, if his appointment has been made in breach of the Rules and Regulation of the University. In view of the aforesaid decision, it cannot be disputed that a writ of quo warranto can be issued to oust respondents No. 5 to 32o from the office of Professors and Readers to which they have been appointed under the impugned Scheme, if the said Scheme is found to be illegal and void.

12. The question of locus-standi of the petitioner to maintain this writ petition has, therefore, to be considered in the light of the interest that is required for a petitioner to seek a writ of quo warranto and to determine whether the petitioner has sufficient interest to seek a writ of quo warranto to challenge the appointments of respondents No. 5 to 32. The law appears to be well settled writs of habeas corpus and quo warranto stand on a different footing from other writs, viz. writs of mandamus, certiorari and prohibition. In so far as writs of mandamus certiorari and prohibition are concerned, it is necessary that the right sought to be enforced should ordinarily be the personal or individual right of the individual petitioner himself. The aforesaid Rule has been relaxed or modified in case of writs of habeas corpus & quo warranto AIR 1962 SC 1044; AIR 1976 SC 578 in so far as the writ of quo warranto is concerned, the Courts have taken the view that any member of public could sue if he had no private interest to serve and that it was the public advantage that a matter concerning public Government should be judicially affirmed when there was no other remedy.

13. In Honumon Bux v. The Collector, Nagour 1966 RLW 83, a learned Judge of this Court (Kansigh, J ) has laid down that in so far as the writs of quo warranto are concerned, 'even a person who is not claiming any legal light in himself will be entitled to file a petition for the relief in the nature of quo warranto'. In the said case, reliance has been placed on the following observations of Lord Reading C.J. in R v. Spoyer 1916 (1) KBD 595.

An information in the nature of quo-warranto will lie at the instance of a private elector against a member of the Privy Council whose appointment is alleged to be invalid.

It cannot be doubted that the application concerns public Government and there is no ground for impugning the motives of the relator. A stranger to the suit can obtain prohibition (See Board v. Perkins (1890) 21, Q BD 533 and I see no reason why he should not, in a proper case, obtain an information of quo warranto.

In the case of Hannman Bux v. The Collector, Nagaur 1966 RLW 83, an elector of the village Panchayat had prayed for the issue of a writ in the nature of quo warranto to quash the co-option of certain members of the Panchayat Samiti and the election of the Pradhan and the Up-Pradhan Panchayat Samiti and it was held that he was entitled to maintain the writ petition.

14. In Dr. D.R. Shah v. State of Rajasthan 1968 RLW 437, it has been reiterrated that a private person may apply for quo warranto in the matter of public office without having personal interest in appointments.

15. Shri. H.M. Parekh, the learned Counsel for the University, has placed reliance on the statement of law contained in para 180 at page 168 of Halsbury's Laws of England, 4th Edition, Vol, 1, wherein with reference to the proceedings in lieu of informations in the nature of quo warranto, it is stated that 'a private relator had to have some interest in the election which he impeached.'' In the aforesaid, paragraph, there is no indication with regard to the nature of the interest which a private relator must possess. A reference to the cases referred to in the foot note to the aforesaid paragraph viz; Rule v. Hodge 1819 (2) B & Ald 344 n, R v. Parry 1837 (sic) Ad & El 810 and Rule v. Quayla 1840 (6) Ad & E1 508 shows that in those cases, an inhabitant of the borough was held to be an eligible relator to exhibit an information in the nature of qur warranto against a person claiming to be the Chief Burgesse or the Councillor of the borough. The observations of Lord Reading C.J. in R v. Spayer 1916 (1) KBD 595, referred to above, holding that a stranger can, in a proper case, obtain an information of quo warranto, indicate a further liberalisation in the requirement of interest necessary to sustain an application for quo-warranto. But even if the test laid down in the earlier cases referred to in para 180 of Vol. I Halsbury's Laws of England, are applied to the facts of the present case, I find that the petitioner, who is a lecturer in the University cannot be regarded as a complete stranger who having no interest in the matter of appointments on the post of Professors and Readers in the University. In this context, it may be observed that under Statute 2(1)(xv), all the heads of University Departments of the status of a Professor or a Reader are ex-officio members of the Senate and under Statute 6(1)(iii) all the Professors in the University departments and Readers holding charge of Head of the University Departments and Principals of Colleges and Institutions admitted to the privileges of the University are members of the Academic Council. Thus it cannot be said that the petitioner is a mere stranger having no interest in the appointments on the posts of Readers and Professors in the University. I am, therefore of the opinion that the preliminary objection raised by Shri H.M. Parekh, the learned Counsel for the University that the petitioner has no locus standi to maintain this writ petition cannot be accepted.

16. The second objection raised by Shri Parekh the learned Counsel for the University, is that the petition suffers from misjoinder of parties in as much as in one composite writ petition, the petitioner has challenged the orders of appointments of respondents No. 5 to 32 on the various posts of Professors and Readers. In support of his aforesaid submission, Shri Parekh has placed reliance on the decision of this Court in Surdar Indersingh v. The State of Rajasthan (11). In the said case, one writ petition had been filed challenging the orders passed by the Anti-Ejectment Officer in 23 different cases under Section 7 of the Rajasthan (Protection of Tenants) Ordinance, 1943 and this Court laid down that it was not proper for the petitioner to file a single petition in respect of all the 23 cases in as much as there were 23 separate applications pending before the Anti Ejectment Officer, Bayana, in which, there were different applicants and 23 separate applications for revision had been filed before the Board of Revenue. The principle laid down in the said case has to application to the persent case because the petitioner in this writ petition is challenging the Resolution No. 168 passed by the Syndicate whereby respondents No. 5 to 32 were appointed as Professors and Readers in the University of Jodhpur In my opinion, a single writ petition would lie to challenge the validity of the aforesaid resolution passed by the Syndicate and merely because a number of persons have been appointed on various posts under the said resolution does not mean that a separate writ petition should be filed challenging the validiy of the resolution with regard to the appointment of each person so appointed. The aforesaid objection raised by Shri Parekh is without any substance and is, therefore, rejected.

17. The third objection raised by Shri Parekh with regard to the maintainability of the writ petition is that it is in the discretion of the Court to issue or not, to issue the writ of quo warranto according to the facts and circumstances of the case and that the writ is not issued in cases where there was an alternative remedy and that in the present case, an alternative remedy was available to the petitioner. In this regard the submission of Shri Parekh is that under Section 35 3) of the Act, any dispute arising out of a contract between the University and any officer or teacher of the University shall, on the request of such officer or teacher, be referred to a tribunal of arbitration consisting of one member appointed by the Syndicate, one member nominated by the officer or teacher concerned and considered acceptable by the Vice-Chancellor and an umpire appointed by the Chancellor and that the dispute with regard to the validity of the Ex. Cadre Personal Promotion Scheme and the appointments of respondents No. 5 to 32 raised by the petitioner in this writ petition being a dispute arising cut of the contract of employment entered into between the University and the petitioner must be determined by reference to the tribunal of a bitration under Section 35(3) of the Act I find my-self unable to accept the aforesaid contention urged by Shri Parekh. The contract of employment entered into between the University and the petitioner has not been placed on the record and the terms and conditions laid down in the said contrect are thus not known. In these circumstances it is not possible to say that the dispute with regard to the validity of the Ex-Cadre Personal Promotion Scheme and the appointment of respondents No. 5 to 32 is a dispute anting cut of the contract of employment entered into between the petitioner and the University. More over, the grounds on which the petitioner has challenged the validity of Ex Cadre Personal Promotion Scheme and the appointment of respondents No. 5 to 32 in pursuance of the said Scheme involve questions relating to the interpretation of the provisions of the Act and the statutes of the University The said questions have no reference to the contract of employment between the University and the petitioner and they cannot be regarded as a dispute arising out of the said contract.

18. Another submission urged by Shri Parekh in support of his objection with regard to the existence of an alternative remedy is that under Section 5(2)(ix) of the Statutes of the University, the Syndicate has the power to entertain and redress any grievances of the officer of the University, the teaching staff and the University's servants, who may, for reason feel aggrieved, otherwise than by act of the Senate. In my opinion, the remedy of making a representation to the Syndicate under Statute 5(2)(ix) of the Statutes cannot be regarded as an effective remedy in as much as the petitioner is seeking to challenge the powers of the Syndicate to pass the resolution No. 168 adopting the Ex-Cadre Personal Promotion Scheme and it is unlikely that the petitioner would have got appropriate relief by way of representation to the Syndicate.

19. Shri parekh has made a further submission that under the recolution passed by the Syndicate of the University on November 30, 1978, a committee has been constituted for the purpose of looking into representations received by the University in connection with the implementation of the Ex-Cadre Personal Promotion Scheme and it is submitted that it was open to the petitioner to have submitted a representation which could have been considered by the said Committee A perusal of the resolution passed by the Syndicate at its meeting held on November 30, 1978 with regard to the constitution of the committee, referred to above, shows that the said committee has been constituted only for the purpose of looking into representations received with regard to the implementation of the Ex-Cadre Personal Promotion Scheme. The said committee is not entitled to examine the validity of the Scheme itself. Therefore, it cannot be held that an equally efficacious alternative remedy was available to the petitioner to seek the relief which is claimed in this writ petition and the preliminary objection raised by the learned Counsel for the University on the ground of existence of alternative remedy cannot, therefore, be accepted.

20. The further preliminary objection by Shri Parekh, the learned Counsel for the University, is that in the writ petition, the petitioner has made a delibrate mis-statement of fact by alleging that he is the senior most lecturer in the Department of Chemistry in the University even though, according to the seniority list issued by the University, the petitioner is junior to respondents No. 20 and 21. A perusal of the relevant averments contained in paragraph 10 of the writ petition shows that in the said paragraph of the writ petition, the petitioner is claiming to be the senior most lecturer in the Department of Chemistry and he is not accepting the seniority list prepared by the University Thus the averment contained in the writ petition that the petitioner is the senior most lecturer in the Department of Chemistry has to be read in the light of the claim of the petitioner that the seniority list issued by the University is not correct. The averment in the writ petition that the petitioner is the senier most lecturer in the Department of Chemistry cannot, therefore, be regarded as a mis statement of fact so as to disentitle the petitioner from claiming relief under Article 226 of the Constitution, if he is otherwise found to be so entitled.

21. None of the preliminary objections raised by Shri Parekh, the learned Counsel for the University, can, therefore, be accepted. Now I proceed to deal with the merits of the case.

22. The first contention urged by Shri Mridul, the learned Counsel for the petitioner, is that the Ex-Cadre Personal Promotion Scheme violates the right of equality guaranteed under Articles 14 & 16 of the Constitution In this regard, the submission of Shri Mridul is that the impugned Scheme arbitrarily classifies the lecturers and Readers working in the University into two classes and provides for the promotion of the senior most teachers on the higher post of Reader or Professor merely on the basis of age without having regard to merit and experience Shri Mridul has submitted that under the impugned Scheme, a person who has lesser qualifications and lesser experience can steal march over a person with higher qualifications and greater experience, and has pointed out that a person working as Lecturer, even though he has longer period of service to his 'credit' will be ignored if he has not attained the age of 45 years and a person junior to him and with lesser experience would be eligible to be appointed to the higher post of Reader in the Scheme and that similar is the case with regard to the appointment of Readers to the post of Professor under the Scheme. Shri Mridul has further pointed out that person working as Lecturer, even though he has attained 45 years of age, would be excluded from consideration if he does not have 15 years service with the University and has service as Lecturer in other University or Institution prior to his joining the University would be ignored and as a result thereof Lecturers having longer experience are liable to be excluded from consideration for promotion to the past of Reader under the Scheme and similarly Readers having longer experience are liable to be excluded for promotion to the post of Professors under the Scheme. The submission of Shri Mridul in that the fixation of age of 45 years for promotion of a Lecturer to the post of Reader and the age of 50 years for promotion of a Reader to the post of Professor under the Scheme has been done arbitrarily. Similarly with regard to the fixation of 15 years, service in the University as a condition for eligibility for promotion under the impugned Scheme, the submission of Shri Mridul is that it is arbitrary and unreasonable in as much as it does not take into account equivalent service in other institutions & it takes into account the service irrespective of the post and does not restrict it to service on the post of Lecturer or equivalent post. In order to emphasise the unreasonableness of the conditions of eligibility laid down in the impugned Scheme, Shri Mridul has pointed out that a person who is very intelligent and after completing his education, has joined the University at a young age will be superseded by a person who less is intelligent and takes more, time in completing his education and joins the University at a higher age because the person with lesser intelligence, even though junior to the mere intelligent person, on account of his higher age would be eligible for promotion under the impugned Scheme earlier than the more intelligent and more experienced person who, on account of being younger in age, would not be eligible for consideration. Shri Mridul has lastly submitted that all the lecturers employed in a particular department of the University for one class and that the impugned Scheme by providing for promotion of the senior most person arbitiarily discriminates between persons similarly situate and that giving promotion on the basis of seniority only has no rational connection with the object and purpose of the promotion, viz. the maintenance of high standard of education In support of his aforesaid submission, Shri Mridul has placed reliance on the decisions of the Supreme Court in Sant Ram v. State of Rajasthan (12) and State of Mysore as Krishna Murtty (13) Shri Mridul has also stressed that under Ordinance 317, the minimum qualifications that have been prescribed for appointment to the post of Reader in the University include 'a research degree of a doctorate standard or some published work' and that in the impugned Scheme, the aforesaid minimum qualifications has been dispensed with and under Clause (iv) of paragraph (1) of the said Scheme, a degree of Ph. D is necessary only for ex-cadre promotion to the post of Professor The submission of Shri Mridul is that the impugned Scheme by enabling lecturers, who do not possess the minimum qualifications prescribed for the post of Reader to be appointed on the post of Reader discriminates in favour of lesser qualified lecturers and the said preferential treatment runs contrary to the object of maintenance of high standard of education at the University.

23. In reply to the aforesaid submission of Shri Mridul, the learned Counsel for the petitioner, the learned Counsel for the respondents have urged that the challenge to the validity of the Ex-Cadre Personal Promotion Scheme on the ground of violation of Article. 14 and 16 has to be examined with reference to right of the petitioner only. In this regard, the submission of the learned Counsel for the respondents is that the impugned Scheme does not in any way prejudicially effect the right of the petitioner because the impugned Scheme relates to promotion on ex-cadre post of Readers which have come into existence by virtue of the impugned Scheme and that the creation of that additional ex-cadre post does not reduce the posts of Readers already existing in the cadre and, therefore, the right of the petitioner to be appointed to the post of Reader in Chemistry which forms part of the cadre is in way adversely affected In this context, the learned Counsel for the respondents have pointed out that there are 8 sanctianed posts of Readers in the Department of Chemistry, out of which 3 posts are King vacant and that selection for appointment on those posts was held in December, 1978 and that even though the petitioner had appeared before the Selection Committee constituted for making selections for appointment on those posts, he was not selected The learned Counsel for the respondent have further submitted that the various points urged by Shri Mridul to challenge the impugned Scheme on the ground if violation of Articles 14 & 16 of the Constitution cannot be agitated by the petitioner because the petitioner is not a person who falls in the category of persons referred to by Shri Mridul, during the course of his arguments, viz. persons who, even though sen or in service as Lecturers/Reader, have not attained the age of 45/50 years & persons, who, though having more 15 than years teaching experience as Lecturers/Readers, have not put in 15 years 'service in the University and who are, therefore, ineligible for promotion under the imgpugned Scheme According to the learned Counsel for the respondents, the petitioner is a person, who has attained the age of 45 years and has also put in 15 years' service in the University and who was eligible for promotion under the impugned Scheme but as he is junior to Respondents No. 20 & 21, he was not selected and Respondents No. 20 and 21 were promoted as Readers in Chemistry. The learned Counsel for the respondents have also submitted that the impugned Scheme is a reasonable and equitable Scheme designed to improve the lot of teachers, who are meritorious and who have put in long term of service but who have not received any promotion to the higher rank for a period of more than 14 years and that the Scheme does not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution.

24. The first contention urged by the learned Counsel for the respondents that the petitioners cannot challenge the validity of the Scheme on the ground of violation of Articles 14 & 16 as his rights have not been prejudicially affected by the Scheme, cannot be accepted It is true that the Scheme provides for promotion on ex-cadre post of Readers/Professors only & it does not in any way affect appointments on the Post of Readers/Professors which form part of the regular cadre But a perusal of the provisions of the impugned Scheme show that in paragraph 6, it is laid down that the person being appointed by ex-cadre promotion shall be junior to those appointed by open selection in the same session, i.e. from the day of reopening to the day of next reopening of University This shows that Lecturers/Readers who are appointed on the posts of Readers/Professors by ex-cadre promotion in the session will be senior to Lecturers/Readers who would be appointed on the post of Readers/Professors by open selection in the next session. Thus the promotion to ex-cadre post of Readers/Professors under the impugned Scheme is bound to affect prejudicially the right of seniority of the petitioner in cadre of Readers/ Professors and it cannot be said that the impugned Scheme does not prejudicially affect the right of the petitioner.

25. The learned Counsel for the respondents are, how ever, right in their submission that the challenge to the validity of the Ex-Cadre Personal Promotion on the ground of violation of Articles 14 & 16 of the Constitution can be examined with reference to the right of the petitioner only and the petitioner can challenge the said Scheme on the ground that it discriminates against certain Lecturers/Readers working in the University if he himself falls in that class of Lecturers/Readers. It is well settled that only a person who has been discriminated against the validity of law on the ground of violation of his right to equality guaranteed under Articles 14 & 16 of the Constitution. In Hans Muller v. Superintendent Presidency Jail, Calcutta : 1955CriLJ876 , the validity of the provisions of Section 3(1)(b) of the Prevention of Detention Act,1950 was challenged on the ground that it discriminated between one class of the British subjects and Anr. The Supreme Court held that the petitioner, who was a German subject and not a British subject, could not claim to be aggrieved by the discrimination and he could not attack the validity of the provisions on the ground of violation of Article 14, Similarly, in Matajog Dobbey v. H.C. Bhari (15), the constitutional validity of the provisions of Section 197 Cr. P.C. was challenged on the ground that it vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion The Supreme Court negatived the said challenge on the view that the appellants, who were complainants could not be heard to say so far there was no discrimination as against any complainant and that in cases where the Government gave sanction against one public servant but declined to do so against another, then the Government servant against whom sanction was given could possibly complain of discrimination. In the present case also, we, find that the petitioner who is above 45 years of age and has put in 15 years' service in the University cannot be regarded as a person who has been discriminated against as a result of the impugned scheme. The petition does not fall within the class of persons referred to by Shri Mridul, during the course of his submissions, i.e. persons who though senior in service have not attained the age of 45 years, and persons, who though have attained the age of 45 years and have longer experience but who have not put in 15 years' service in the University. The validity of the impugned Scheme on the ground that it discriminates against the aforesaid person, cannot, therefore, be examined in this writ petition filed by the petitioner. Nor it is open to the petitioner to challenge the validity of the impugned Scheme on the ground that the fixation of 15 years' service irrespective of the post on which the said service was rendered, is arbitrary and unreasonable.

26. The only contention that can be raised by the petitioner to challenge the validity of the impugned Scheme under Articles 14 & 16 of the Constitution is that by providing for promotion of the senior most Lecturer/ Reader, the impugned Scheme arbitrarily discriminates between Lecturers/ Readers similarly situate & that giving of promotion on the basis of seniority has no rational connection with the object and purpose of the prosecution, viz., the maintenance of high standard of education and that the impugned Scheme, in so far as it enables Lecturers who do not possess the minimum qualifications prescribed in Ordinance 317 for appointment to the post of Reader, to be promoted as Readers, discriminates in favour of lesser qualified Lecturers A perusal of the impugned Scheme shows that Shri Mridul is not right in saying that the Scheme provides for giving of promotion on the basis of seniority. In paragraph(3) of the impugned Scheme, it is provided that ex-cadre promotion shall be made by seniority, provided that if the senior most in a department is not found suitable for promotion by the Syndicate, the next person in seniority shall be considered for such a promotion. This shows that the criterion prescribed for promotion under the Scheme is seniority cum-merit and not seniority alone. It is well settled that Articles 14 & 16 of the Constitution do not prohibit the State from making a provision to the effect that certain percentage of post in the cadre would be filled up by promotion on the basis of seniority-cum-merit and certain percentage of the posts would be filled up by open selection on the basis of merit. We find that practically in all the services, appointments to the posts are made by direct recruitment on the basis of merit and-by promotion on the basis of seniority cum-merit in accordance with the prescribed ratio. In Govind Dettatay v. Chief Controller of Imports and Exports : (1967)ILLJ691SC , the Supreme Court while upholding the validity of a provision fixing the ratio of 75% for direct recruitment and 25% for promotion) has laid down:

When the recruitment to certain posts is from different sources, what ratio would be adequate and equitable would depend upon the circumstances of each case and the requirement and needs of a particular post. Unless the ratio, is so unreasonable as to amount to discrimination it is not possible for this Court to strike it down or suggest a different ratio. Nothing has been placed before us to show that the ratio of 3:1 is so flagrant and unreasonable as to compel us to interfere with the order of the Government.

This show that it is open to the University to earmark certain percentage of posts in the Garde of Readers/Professors to be filled by promotion from amongst Lecturers/Readers in the University. If it was permissible for the University to reserve certain percentage of posts of Readers/Professors in regular cadre for being field up by the promotion on the basis of seniority-cum-merit from amongst Lecturers/Readers working in the University, there s. no reason why the University could not provide that the ex cadre posts which are sought to be created under the impugned scheme should be filled up by promotion from amongst Lecturers/Readers on the basis of seniority-cum merit. I am, therefore, unable to accept the contention urged by the learned Counsel for the petitioner that the impugned scheme violates the provisions of Articles 14 & 16 of the Constitution, in so far as it permits promotion of Lecturers/Rearders on the ex-cadre posts of Readers/Professors on the basis of seniority-cum-merit. Nor do I find any merit in the contention urged by the learned Counsel for the petitioner that the age of 45 years and 50 years fixed for promotion to the posts of Readers and Professors respectively is arbitrary, Normally a person joins as lecturers after obtaining the necessary qualifications at the age of 24-25 years & by the time he attains the age of 45 years to become eligible for promotion to the post of Reader he would have but in 20 years service as lecturer similarly by the time he attains the age of 50 years to become eligible for promotion to the post of professor, he would have put in 25 years service as lecturer and Reader. The petitioner has not placed any material on record to show that the aforesaid ages for promotion to the posts of Reader and Professor fixed under the impugned scheme are unreasonable and arbitrary. The submission of the learned Counsel for the petitioner that the impugned scheme is violative of the provisions of Articles 14 & 16 of the Constitution cannot, therefore, be accepted.

27. Nor do I find any merit in the contention urged by the learned Counsel for the petitioner that in making provision for giving ex-cadre promotion to the senior most Lecturer/Reader and in relaxing the minimum qualifications prescribed for appointment to the post of Reader the Syndicate has arbitrarily discriminated between lecturers similarly situate and that the classification of senior most lecturers, irrespective of their possessing the minimum qualifications prescribed for the post of Reader, has no rational connection with the object and purpose of the promotion, namely, the maintenance of high standard of education in the University. A perusal of Ordinance 317 framed by the University shows that the minimum qualifications that are prescribed for appointment on the posts of Readers in the various faculties postulate (i)a first or high second class Master's Degree or equivalent qualifications in the subject concerned; (ii) a research degree of a Doctorate standard or some published work; and (iii) experience of teaching post-graduate classes for at least 5 years. The minimum qualifications prescribed for appointment on the post of lecturer in the various faculties postulate a first class Master's degree in the subject or second class Master's degree with three years' experience of teaching degree classes or a second class Master's degree with Ph D. Under the impugned scheme, a lecturer, who has but in at least 15 years service in the University is eligible for ex-cadre promotion to the post of Reader and it is not necessary that he should possess a degree of Ph. D. This out of these qualifications, which have been prescribed under Ordinance 317 for appointment to the post of Reader, the qualification with regard to research degree of a doctorate standard or some published work has been dispensed with under the impugned Scheme in respect of Lecturers who have more than 15 years' experience. It cannot said that in equating a research degree of a Doctorate standard with additional teaching experience of 10 years, the Syndicate has acted arbitrarily. In this' context, it may be observed that in the minimum qualifications, that have been prescribed by the University in Ordinance 317 for appointment to the post of Lecturers is included a second class Master's degree with three years experience of teaching degree classes or a second class Master's Degree with Ph D which shows that the University has itself equated a Ph D. Degree with three years' experience of teaching degree classes. It cannot, therefore, be said that the ex-cadre promotion of the Senior most Lecturers, who do not hold a research degree of a doctorate standard would be prejudicial to the maintenance of high standards of education in the University. On the other hand, it can be reasonably said that continuance on the post of Lecturers for a period of more than 15 years without any promotion is likely to result in frustration amongst. The teaching staff and that may be more detrimental to the interest of maintaining high standard of education. The Syndicate, in framing the impugned Scheme, cannot be held, to have acted in violation of the provisions of Articles 14 & 16 of the Constitution.

28. The next submission of Shri Mridul the learned Counsel for the petitioner is that the impugned Scheme contravenes the provisions of the Rajasthan Universities Teachers and Officers (Special Conditions of Service) Act, 1974 (hereinafter referred to as the '1974 Act'), which prescribes the mode of appointment on the post of Readers and Professors in all the Universities established in Rajasthan by an Act of the State Legislature. In support of his aforesaid submission, Shri Mridul has referred to the various provisions of the aforesaid Act. In the preamble of the 1974 Act, it is stated that the Ac has been enacted 'to provide for special conditions of service of teachers and officers of the Universities in Rajasthan and for matters connection there with' Section 2(viii) of the 1974 Act defines Teacher' to mean 'a Professor, Reader or a Lecturer of any faculty of a University and such other person, by whatever name designatedy by or under the relavant law. imparting instruction or conducting and 'guiding research or extension programme in a University.' Section 2(ix) defines 'University to mean' a University established in Rajasthan by an Act of the State Legislature Section 3 of the 1974 Act, reads as under:

3. Restriction on appointments of teachers and officers:(1) Not with standing anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selections Committee constituted under Section 4.

(2) Save as otherwise provided in Sub-section (3), every appointment of a teacher or of an officer in any University made in contravention of Sub-section (1) shall be null and void.

(3) Nothing herein contained shall apply to the appointment of a teacher or an officer as a stop-gap arrangement for a period not exceeding six months or to the appointment of a part time teacher.

Section 4 provides for the constitution of the Selection Committees. Section 5 provides for procedure of the Selection Committees Section 9(1)lays down that the provisions of the Act 'shall have effect notwithstanding anything contained in the relevant law The expression 'relevant law' is defined in Section 2(v) to mean 'an enactment of the Rajasthan State Legislature establishing a University in Rajasthan, and it includes the Statutes, Ordinances, bye-laws, rules, notifications or orders made thereunder and as amended from, time to time.

29. A perusal of the aforesaid provisions of the 1974 Act that the said Act prohibits the appointment of a teacher, which expression includes Readers & Professors, in all the Universities which have been established in Rajasthan by an Act of the Rajasthan State Legislature, which would include the University of Jodhpur, except on the recommend of a Selection Committee constituted in accordance with the provisions of Section 4 of the 1974 Act and that the provisions of the 1974 Act override the provisions contained in the enactment of the State Legislature establishing the University concerned as well as the Statutes, Ordinances, bye-Laws, rules, notifications or orders made thereunder. Section 4 of the 1974 Act lays down that the Selection Committee for selecting a person for appointment as a teacher of the University shall consist of the Vice-Chancellor of the University concerned, an eminent educationalist to be nominated by the Chancellor, in eminent educationalist to be noninated by the State Government, a member of the Syndicate to be nominated by the State Government and such other persons as members as specified in column 2 of the Schedule for the selection of teachers mentioned in column 1 of the said schedule of the Act. In column 2 of the schedule to the 1974 Act, it is provided that for the posts of Professors and Readers, the Dean of the Faculty concerned, the Head of the Department concerned and three experts not connected 'with the University' concerned having special knowledge in which the Professor or Reader is to be appointed, nominated by the Vice-Chancellor of the University concerned cut of a panel of names recommended by the Academic Council of such University shall be the members of the Selection Committee. In paragraph 4 of the impugned Scheme, it is however, provided that the promotion is to be made by the Syndicate on the recommendation of the Vice-Chancellor, who, before making such recommendation is required to consult the Head of Deparment and the Dean of the Faculty concerned. The aforesaid recommendation of the Vice-chancellor cannot be a substitute for the recommendations of the impugned Scheme would thus be violative of the provisions of Section 3 of the 1974 Act, if the ex cadre promotions contemplated under the impugned scheme can be regarded as appointments under Section 3 of the 1974 Act.

30. Shri M.B.L. Bhargava, the learned Counsel for some of the contesting respondents, has submitted that there is a distinction between 'appointment' and 'promotion' and that the provisions of the 1974 Act are applicable only to an initial appointment on the post of a teacher in the University and the promotion of a person holding the post of a teacher in the University from a lower post to the higher post cannot be regarded as 'appointment' under the 1974 Act and that, therefore, the impugned Scheme which provides for the promotion of Lecturers/Readers to the higher posts of Readers/Professors does not contravene the provisions of the 1974 Act. In support of his aforesaid submission, Shri Bhargava has placed reliance on the meaning of the words 'appointment' and 'promotion' contained in the Shorter Oxford Dictionary and Webstors' New International Dictionary In my opinion, the word 'appointment' is a word of wide import so as to comprehend all mades, where by a person is designated or nominated to hold an office or, is placed in an office Promotion is only one of the modes in which a person may be designated or nominated to hold an office higher, to that held by him. Apart from promotion, there may be other modes, of selecting a person for being cesignated or nominated to hold an office In Service Jurisprudence the word, 'appointment' has been construed to mean, appointment both by promotion and by direct recruitment. (See Dr. Harkishan Singh v. State of Punjab 1971 (2) SLR 373. There may however, be cases where the word 'appointment' has been used in the restricted sense to exclude 'promotion'. IN this context, reference may be made to Article 233(1) of the Constitution relating to the appointment of District judge. In the, said provision both the words ''appointment' and 'promotion'' have been used which means that in the context of the said Article the word 'appointment' docs not include 'promotion'. The question which arises for consideration is whether there is any thing in the subject matter of the 1974 Act or in the context in which the word 'appointment has been used in the 1974 Act to construe it in a restricted sense so as to exclude promotion'. I do not find anything in the subject matter of the 1974 Act and the context in which the word 'appointment' has been used in the 1974 Act, which may justify the said word being construed in a restricted sense so as to exclude promotion. In my opinion, such a construction of the word 'appointment' would not subserve the object sought to be achieved by the 1974 Act, which has been enacted to eradicate the evil of favouritism and nepotism in the matter of appointment on the posts of teachers in the University in the State of Rajasthan. To construe the word 'appointment' in a way to confine it to initial appointment only and to exclude promotions from its ambit would enable the provisions of the 1974 Act being circumvented and the object sought to be achieved by the Act being completely defected. At this stage it would be relevant to note that in the resolution passed by the Senate at its meeting held on May 6/7 1978 with regard to proposed amendment of Statute 18 so as to provide for promotion of a teacher to the next Higher cadre it is stated that 'the selection procedures for appointment provided in the Raj Universities Teachers & Officers (Special Conditions of Service) Act relating to the University should be examined and necessary 'amendments 'suggested to the Government. This Resolution shows that the Senate was also proceeding on the basis that 'promotion' is covered by the 1974 Act and that no Scheme for giving promotion to the teachers of the University to the next higher cadre could be brought into force without making Suitable amendment in, the 1974 Act. I, am, therefore, of the opinion that! the, argument of Shri Bhargava that the word 'appointment' does not inclde 'promotion' and that the provisions of the 1974 Act do not apply to promotion of a teacher to the next higher cadre of teachers, cannot be accepted

31. Shri H.M. Parekh, the learned Counsel, for the University has contended, that even if 'appointment' is construed to include 'promotion' the said word cannot include the upgradation of a post in the sower Cadre to a post, in the higher cadre because such an upgradation of the post does not, involve any change in the person who holds the said, post. The submission, of Shri Parekh is that 'appointment' postulates that existence of a post in dependent of the person who has been appointed to the said post where as in the case of upgradation of the post, no appointment takes place and the person who holds the post which it was in the lower cadre continuous to hold it after it is upgraded in the higher cadre. According to Shri Parekh, even though in the impuged scheme it is stated that Lecturers/Readers would be given ex-cadre promotion to the post of Reader/Professors, the said Scheme only means that the post of Lecturer/Reader held by a person sought to be promoted as Reader/Professor would be upgraded in the higher cadre of Reader/ Professor. In support of his aforesaid submission, Shri Parekh as placed reliance on para 5 of the impugred Scheme which provides that 'the promotion thus given shall be personel to the incumbent in lieu of his post which shall be kept in abeyance'. I find myself in agreement with the aforesaid contention urged by Shri Parekh. In my view, a distinct on has to be drawn between appointment or promotion to a post and the upgradation of a post. The appointment to a post postulates the existence of apost independent of the person who is appointed on it and the designation or nomination of a person to hold the said post. In a rase where a post in the lower cadre is upgraded as a post in the higher cadre and the person who holds the post in the lower cadre continuous to hold the place. All that happens is a redesignation of the post in the lower cadre as a post in the higher cadre. Such a resignation or upgradation of the post does not constitute appointment or promotion taking within the ambit of the provisions of the 1974 Act The distinction between appointment or promotion to a post and the upgradation of a post has been brought out in the following observations of the full Bench of the Kerala High Court in N.G. Prabhu v. The Chief Justice of the High Court of Kerala(18):

Promotion is, of course, appointment to a different post carrying a higher scale of pay in the service. If, to better the conditions of service of the incumbents in posts in the same category the scale of pay of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But in such a case, it may not be proper to characterise the event as promotion to higher posts though a benefit of a higher scale of pay is obtained by all concerred. In ether words, if the upgradation relates to all the posts in a category naturally, there is no sense is calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post of another. Parties continue to held same posts but get a higher scale of pay.

In the present case, a perusal of paragraph 5 of the impugned Scheme shows that as a result of the ex-cadre promotion to be given' to Lecturers/Readers, an ex-cadre post of Reader/Professor comes into existence and the substantive post of Lecturer/Reader goes into abeyance and that the said ex-cadre post of Reader/Professor is to remain in existence only till the person holding the said post remains on the said post and the movement of the said incumbent ceases to hold the ex cadre post, the said post of Reader/Professor ceases to exist and the substantive post of Lecturer/Reader is revived. Thus the ex-cadre post of Reader/Professor, to which the ex-cadre promotion is sought to be made under the impugned Scheme does not exist independent of the person holding the said post and that even though the impugned Scheme speaks of giving ex cadre promotion to the post of Reader/Professor, the Scheme, in substance, namely involves the upgradation and redesignation of the post of Lecturer/Reader held by an incumbent to the post of Reader/Professor for limited duration only, i.e. so long as that incumbent holds the upgraded and redesignated post. If the impugned Scheme is thus read, it does not provide for appointment on the past of Reader/Professor and the contention urged by the learned Counsel for the petitioner that the Scheme contravenes the provisions of Section 3 of the 1974 Act, cannot be accepted.

32. The next contention urged by the learned Counsel for the petitioner is that the impugned Scheme contravenes the provisions of Statute 5(2)(ii) and Statute 18(5) read with Statute 19(1) of the Statutes of the University. Statute 5(2)(1) provides as under:

5(2) Subject to the provisions of the Act, the Statutes and the Ordinances, the Syndicate shall in addition to all other powers vested in it have the following powers, namely;

(i) to appoint from time to time the Registrar, Librarian, Principals, of Colleges and Heads of Institutions established by the University, and such Professors, Readers, Lecturers and other members of the teaching staff as may be necessary on the recommendations of the Selection Committee constituted for the purpose:

Provided that no action shall be taken by the Syndicate in respect of the number, and the emoluments of teachers otherwise than after consideration of the recommendations of the Academic Council:'

Statute 11(5) provides as under:

18(2). No person shall be appointed or recognised as teacher of the University except on the recommendation of a Selection Comittee constituted for the purpose.

33. The expression 'Teachers' has been defined in Section 2(f) of the Act to include Professors, Readers, Lecturers and other persons imparting instructions and guiding and conducting research in the University or in any college or institution.

34. Section 19(1) provides that the Selection Committee for appointment on the post of Professors or Readers shall consist of the Vice Chancellor, the Dean of Faculty, the Head of the Department concerned and three experts in the subject in the case of Professors and two experts in the subject in the case of Readers 'not being under the employment of the University not being members of the Senate, Syndicate and the Academic Council nominated by the Vice Chancellor.

35. The ground on which the Scheme is challenged is that appointment on the post of Professor or Reader can be made by the Syndicate only after consideration on the basis of the recommendation of the Selection Committee constituted for the purpose and that the impugned Scheme, which provides for promotion on the pan of Reader/ Professor on the basis of recommendation of the Vice-Chancellor only contravenes the aforesaid provisions contained in the Statutes of the University The aforesaid submission is same as that was made by the learned Counsel for the petitioner on the basis of the provisions contained in the 1974 Act and for the reasons given earlier that the impugned Scheme does not provide for appointment but only provides for upgradation and redesignation of the post of Lecturer/Reader in to the post of Reader/Professor, the aforesaid contention urged by the learned Counsel for the petitioner that the impugned Scheme violates the provisions of the Statute 5(2)(i) and Statute 18(5) read with Statute 19(1) of the Statutes of the University must be rejected.

36. The last contention urged by the learned Counsel for the petitioner is that the impugned Scheme violates the provisions of Ordinance 317 which prescribes the minimum qualification for for appointment of University Teachers. The submission of the petitioner that under the aforesaid Ordinance, a research degree of a doctorate standerd has been prescribed as one of the minimum qualifications for appointment to the post of Reader in the faculty of Arts, Social Science, Science, Commerce and Education but the Scheme permits the promotion on the post of Reader, of a, Lecturer, who does not possess a research degree of doctorate standard The learned Counsel for the petitioner, in this regard has referred to sub-para (iv) of paragraph 1 of the Scheme, which lays down that for ex-cadre promotion to the post of a Professor, a Reader must possess a degree of Ph D. and submits that no such qualification having been laid down with regard to promotion to the post of Readers, which shows that a Lecturer is eligible for ex-cadre promotion to the post of Reader even though he does not possess a degree of Ph D. The provision with regard to minimum qualification prescribed in Ordinance 317 vis-a-vis sub-para (iv) of paragraph 1 of the impugned Scheme have been considered by me earlier while dealing with the contentions urged by the learned Counsel for the petitioner that the impugned Scheme is violative of the provisions of Articles 14 & 16 of the Constitution. In that context, I have pointed out that under ordinance 317, the requisite experience which has been prescribed as a minimum qualification is experience of teaching post graduate classes for at least 5 years and that in the impugned Scheme, the Syndicate, while dispensing with the qualification with regard to research degree of a doctorate standard or some published work, has prescribed a longer teaching experience of 15 years and that in equating a research degree of a doctorate standard with additional teaching experience of 10 years, the Syndicate cannot be said to have acted arbitrarily. In this context, it may also be observed that Ordinance 317, which prescribes the minimum qualifications, also contains the following proviso:

Provided that relaxation of any of the qualifications mentioned above (sub-clauses 1, 2, 3, &4) may be made in exceptional cases by the Syndicate on the recommendation of the Selection Committee.

In view of aforesaid proviso, it was open to the Syndicate to relax any of the minimum qualifications prescribed in the said Ordinance. It is reasonable to presume that while adopting the impugned Scheme and giving ex-cadre promotion to the Lecturers, who did not possess the Ph 'D. degree, the Syndicate was conscious of the power conferred on it under the proviso to Ordinance 317 and it can, therefore be said that while passing the Resolution No. 168, the Syndicate has exercised the power conferrted to it under the said proviso Even if it be held that it was necessary for the Syndicate to have expressly exercised the power conferred on it under the proviso to Ordinarce 317, it would not be a ground for the issue of a writ of quo warranto because it world be open to the Syndicate to reappoint the said Lecturers as Readers, It is a well recognised principle that the Court will not grant a quo warranto in a case where a mere irregularity can be cured by reappointment. (See Hart Shanker v. Sukhdeo Prasad : AIR1954All227 , Moti Ram v. Municipal Corporation of Delhi 1971 (1) SLR 733.

37. Having considered all the submissions urged by the learned Counsel for the petitioner, I find that no ground is made cut for the issue of a writ to quash the Ex-cadre Personal Promotion Scheme and the appointment of Respondents No. 5 to 32 made on the basis of aforesaid scheme under Resolution No. 168, passed by the Syndicate on November 9, 1978.

38. Before parting with the case, I wish to observe that one of the grievances of the petitioner is that the Ex-cadre Personal Promotion Scheme had been rushed through in great haste and that the Academic Council and the Syndicate did not bestow sufficient time and attention to consider the pros and cons of the various provisions of the impugned scheme. The narration of the facts and the circumstances in which Resolution No. 163 adopting the Ex cadre Personal Promotion Scheme was passed does leave an impression that the aforesaid grievance of the petitioner is not without substance. It cannot be disputed that some provision must be made for giving promotion to teachers who have been serving the University for a long number of years so as to avoid a sense of frustration growing amongst them. But at the same time, while providing for giving promotions to such teachers care must be taken to ensure that a just and' equitable treatment is meted out to all the teachers of the University, In view of the various anamolles pointed out by Shri Mridul, the learned Counsel for the petitioner, during the course of his arguments it appears that the impugned Ex-Cadre Personal Promotion Scheme has given rise to discontentment and dissatisfaction amongst the teachers of the University. Shri H.M. Parekh the learned Counsel for the petitioner had stated during the pendency of the writ petition that the Scheme is being reconsidered by the Syndicate. It is hoped that the Syndicate, while reconsidering the Scheme; will bear in mind the various anamolies which have been pointed out by Shri Mridul, the learned Counsel for the petitioner, during the course of his arguments in this writ petition and will try to remove the same.

39. In the result, the writ petition is dismissed, but in the facts and circumstances of the case, there will be no order as to costs.


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