Milap Chand Jain, J.
1. The petitioner by this writ petition seeks to quash the seniority rules for teachers of the University of Jodhpur resolved by the Syndicate and issued vide notification No. R/SR/1 dated 7-1-1984 (Annx. 9). He had also prayed for quashing the seniority list dated 31-10-1983 in so far as it relates to the respondents No. 2 to 15. He has further sought a declaration to the effect that the petitioner is senior to the respondents No. 2 to 15.
2. I may state come relevant facts. The petitioner was appointed as Lecturer in Chemistry pursuant to his selection by the Rajasthan Public Service Commission vide order dated July 13, 1957. His appointment was under the Rajasthan Educational Service (Collegiate Branch) Rules. He was confirmed on the said post w.e.f. July 20, 1958. While the petitioners were holding that post, the University of Jodhpur came to be established and all the Colleges located at Jodhpur were made constituent of that University and members of the Rajasthan Education Services were given opportunity to opt for the services of the University of Jodhpur. Those who opted, were screened by the Screening Committee appointed by the State Government. However, the petitioner was not selected although he opted for the University Service. Some of the selected members of the RES did not want to continue with the University and had sought reversion to the RES. Faced with that situation, some correspondence ensued between the Director of College Education and Officers-on-Special Duty, University of Jodhpur. The Director of College Education, by his D.O. letter dated 11-6-1963 (Annx. 23) informed the Education Secretary that the University would be agreeable to consider recommendations from the Government before making any open recruitment and that he has addressed letters to both the Universities. It was suggested by him that if the university agrees to the proposal, then suitable persons may be recommended to the Universities and the matter may also be disscused in the meeting of the Co-ordination Committee of the Universities. The Director of College Education further addressed the letter dated 11-6-1963 (Annx. 24) to the Special Officer, University of Jodhpur stating that about 20 Lecturers will be returning to Government service and a similar number will be reverting to the RES from the University of Rajasthan. The posts taken over from the Government Colleges were filled by recruitment. The reversion of more than 40 Lecturers from the two different Universities has created some difficulties for (he Government because in certain subjects no vacancies exist in the Government Colleges. To absorb such returning persons to Government Service, it was suggested that the University may consider whether it would be possible to recruit from the RES again the same number of Lecturers in the different subjects as are reverting to Government Service. It was stated that it is understood that the University may make due selection for its teaching posts but all that is desired is that the RES personnel may first be considered for filling those vacancies created by the reversion of other RES personnel now on deputation, it was further stated that if the proposal is accepted the names will be recommended to the University for different subjects and the University Selection Committee may duly examine the credentials of such persons and make a decision. Another letter dated 1-7-1963 (Annex. 25) was written to the Special Officer, University of Jodhpur, whereby, a list of Officers of the RES (opted for University Service) was enclosed there with for being appointed after interview by the Selection Committee. Their option forms were also enclosed. The petitioner's name appeared at S. No. 21 in the subject of Chemistry. The Special Officer with reference to the letter dated 11-6-1963 wrote back to the Director of College Education on 3/4th July, 1963 (Annx. 26) informing that the Selection Committee for Chemistry will meet on 11-7-1963 at 4 p.m. The Lecturers whose names were recommended may be asked to appeal before the Selection Committee. The Director of College Education by his letter dated 4-7-1963 (Annx. 1) sent the list of the persons showing their present posting to facilitate, to call them for interview and it was also informed that the candidates in the departments of Chemistry, Physics and Commerce may be informed to appear for interview on trunk. Simultaneously, he also intimated to their respective Principals by his letter dated 4-7-1963 (Annx. 16) to inform the candidates to appear for interview at Jodhpur on 11-7-1963 at 4 p.m. The petitioner's case is that he appeared before the Selection Committee on 11-7-1963 and was selected and appointment letter dated 16-7-1963 was issued. Pursuant thereto, the petitioners joined the University Service on 1-8-1963. The petitioner was appointed on the salary of Rs. 400/- per month in the scale of Rs. 4QO-30-640-EB-40-800. The petitioner made a representation (Annx. 3) on 21-10-1963, in which he enclosed true copy of L.P.C. which showed that he drew his last salary Rs. 410/- per month. It was stated by him that when he was sent by the Government for interview for the post, he was given an understanding that his posting in the University will be on deputation, so he thought that there would be no deduction in his salary and his case as regards the salary and service, would be considered at par with the other RES candidates and he requested to issue orders for his fixation of salary and service at par with the other candidates. The petitioner's salary was then revised by the University by raising his salary to bring it at par by taking into account the increments etc. earned by him prior to the appointment in the University as a member of RES. The petitioner, therefore, pleaded that his appointment was not made by direct recruitment but was an appointment being a member of the RES.
3. The petitioner's further case is that at one stage, one Dr. K.C. Grover, who was appointed on or before 14-12-1962 by the Vice Chanceller sought seniority over the RES officers but the RES officers submitted their representation in this regard. The officer on Special duty, Shri R.C. Kapur in order to allay the fears of the RES Officers placed item No. 7 of the Agenda referred to in Annx. 3A, which is as under:
RULES FOR SENIORITY:
Seniority of Teachers of the University is determined on the following basis-
(1) RES Cadre seniority can be retained.
(2) Non-RES Lecturers to be fitted into this list on the basis of number of years of continuous degree teaching done by them.
(3) The teachers of Rajasthan College, who have been deputed by the Government of Rajasthan should be treated as persons outside the RES Teachers and their Seniority should be determined on the basis of Clause 2 above.READERS: ... ... ... ... ...PROFESSORS: ... ... ... ... ...
4. According to the petitioner's information the Vice Chancellor approved the Rules for seniority referred to in Annex. 3A, and the provisional seniority list attached to Annex. 4 was prepared in accordance with those rules. The petitioner was assigned seniority at S. No. 13 in the department of Chemistry. The Syndicate vide its resolution No. 23 dated 26-2-1966 appoint-ted Shri Poonamchand Bishnoi Committee consisting of Shri R.C. Kapur and Shri N.M. Kothari for framing rules of seniority on which the Committee recommended the following relevant rules:
(1) The Committee was of the opinion that it would not be desirable after such a lapse of time to lay down any new set of principles for determining the seniority of lecturers, who joined the University before 1-3-1964. The Committee, therefore, recommends that the principles already approved by the University may be adhered to with certain modifications and clarifications as here in after explained for determining the seniority of Lecturers/Readers who were in the service of the University before 1-3-1963.
(i) RES Cadre seniority to be retained.
(ii) Non-RES Lecturers to be fitted into this on the basis of number of years of continuous degree teaching done by them immediately preceding the date of joining the University.
(iii) The teachers of the Rajasthan College, who have been deputed by the Government of Rajasthan should be treated as persons outside RES Cadre and their seniority should be determined on the basis of Clause (ii) above note;
(a) If a teacher was not in service in any University or recognised college immediately before he joined this University, he may be deemed as a fresh employee.
(b) 'Continuous degree teaching' includes continuous service followed by research or higher studies on study leave.
(2) Seniority may be determined subject-wise.
Note: The Seniority of a teacher in General Science will be determined from the date he is attached to a particular department to teach the subject to that Department.
5. The Syndicate by its resolution No. 4 dated 17/18-7-1968 approved the rules for determining the seniority of the teachers.
6. Further the Syndicate in its meeting held on 25-4-1970 considered whether the RES Teachers who joined the University by open competition be treated at par with non-RES teachers and whether any break in service upto the limit of 7 days be considered to enable a teacher appointed through open competition to join the University and his services be treated as continuous. After consideration of these questions it was resolved that:
(i) The inter se seniority of all categories of the RES teachers (including those who joined the University through open selection) should be retained upto 1-3-1964
(ii) That any break in service upto a limit of 7 days be condoned to enable a teacher appointed through open competition to join the University, so that his service is treated as continuous for the purpose of determining his seniority.
7. It may be stated that objections were invited against the provisional seniority list as on 1-3-1964 but the University continued to take all actions in the matter of appointment in the faculty, appointment in the committee of courses and appointment as examiners and even by promotion in the year 1978 on that basis and the provisional seniority list was acted upon. The rules of seniority and the provisional list, thus continued to be adhered to by the University. After promulgation of the Rajasthan University Teachers and Officers (Special Condition of Service) Amendment Ordinance No. 7 of 1983 on 3rd October, 1983, the University issued a provisional seniority list on 31-10-83 whereby the petitioner's seniority was altered. The petitioner submitted his representation against the same on 11-11-1983 (Annx. 8). The syndicate vide its resolution No. 162 proceeded to authorise the Vice-Chancellor to constitute a committee to examine all the angles of the issues detained in the resolution and recommend the draft rules of seniority. A committee was then constituted headed by Hon'ble Mr. Justice Kansingh retired Judge of the High Court. The recommendations of the Kansingh Committee was placed before the Syndicate on 7-1-1984 and the Syndicate laid down the rules for determination of the seniority. These seniority rules are as under:
Whereas the seniority of teachers of the University of Jodhpur has not been decided finally at any time so far due to some valid and justified objections, the Syndicate, in supersession of its earlier resolutions, decisions, orders or notifications in the matter, hereby to resolve make the following Seniority Rules for the Teachers of the University of Jodhpur.
I. These Rules may be cited as the Seniority Rules for Teachers of the University of Jodhpur,
II. They shall come into force with immediate effect
III. (a) A Professor shall be senior to a Reader
(b) A Reader shall be senior to a Lecturer,
(c) The seniority of teachers in each category of posts shall be determined by the date of order of substantive appointment on a post in that category:
Provided that the seniority of persons appointed as a result of one and same selection by open recruitment shall be in accordance with the merit determined by the Selection Committee irrespective of the date of joining:
Provided further that the seniority of teachers appointed from the 'Rajasthan Educational Service at the time of the initial establishment of the University either through the process of screening or by the orders of the competent authority, other than through open recruitment, shall be determined with reference to the service in the Government and their inter-se seniority in each category of posts shall remain as it was in the Rajasthan Educational Service before they joined the University service.
IV. When two or more persons are appointed on the basis of two different selections held on the same day in the same cadre then their seniority shall be determined on the basis of comparing the first in the first list with the first on the second list and so on, the senior in age being senior.
V. In the event of the seniority being not determinable on the basis of Rule III, the service rendered, if any, on the post in a cadre in temporary capacity as a result of regular selection immediately before the substantive appointment shall count for seniority:
Provided that in the absence of seniority determinable as above dates of birth of the concerning incumbents shall form the basis of seniority, the order being treated as senior to the younger one.VI. The seniority shall be determined subject-wise.
VII. For any matter not covered by the above Rules the Syndicate may pass such orders as may be just and proper.
8. Annexure 9A-II annexed to Annexure 10 is the list of the Lecturers, who completed 18 years of service or more on 1-1-1983. It was a list for promotion to the post of Readers. In the department of Chemistry the petitioner's name is shown at S. No. 17. The petitioner's case is that non-petitioners No, 2 to 15 have been wrongly shown as senior to the petitioner and the petitioner has challenged the seniority rules Annx. 9 and the seniority assigned to the non-petitioners No. 2 to 15 on several grounds, which 1 shall be dealing with, while dealing with the contention advanced by the learned counsel for the petitioner.
9. The University (respondent No. 1) Dr. R.D. Sharma and Dr. D.S. Jha (respondent No. 2 and 7), Dr. K.L. Manaria and Dr. G.D. Manghant (respondents No. 4 and 5) have filed their replies to the petition or replies to the show cause notice. The petitioner has filed rejoinder to the reply of the University and the University has further filed reply to the rejoinder, A supplementary rejoinder to the reply of the University and to the replies to the show cause notice of some respondents has also been filed by the petitioner. Dr. G.D. Srivastava (respondent No. 11) has also filed reply. The respondents have refuted the claim advanced by the petitioner, in their replies. They have joined issue on the petitioner's nature of appointment, as to whether it was through open competition or it was an appointment on deputation on the recommendation of the Government. They have also joined issue on the various contentions raised by the petitioner. Their case is that the Syndicate was competent to frame the seniority rules as notified vide Annexure 9 and the petitioner accordingly has been rightly assigned his Seniority in the department of Chemistry at No. 17. It has also been alleged by them that the petitioner is guilty of supression of material fact that he applied for appointment in response to the advertisement (Annx. R/5) dated May 3, 1963 issued by the University and the petitioner also did not categorically state that in the screening made by the Screening Committee of the State Government, he was not selected. The contesting respondents, therefore, prayed that the writ petition may be dismissed.
10. I have heard learned counsel for the parties.
11. On behalf of the respondents, it was vehemently urged that the writ petition may be dismissed solely on the ground that the petitioner had supressed the material fact regarding his nature of appointment. He ought to have mentioned the fact that he submitted his application in response to the advertisement issued by the University and that he was appointed by the Syndicate on the recommendation of the Selection Committee of the University. It is true that the petitioner did not state that an application was submitted by him to the University for appointment as Lecturer in Chemistry and this fact is a material fact. But, I am not inclined to dismiss the writ petition on account of supression of this fact. The petitioner in his representation dated 21-10-1963. (Annx. 3) has made a reference to the fact that in his application, he has mentioned Rs. 460/- as minimum salary acceptable to him. In the application (Ex. R/4) (also exhibited as Ex. R/6) in Column No. 13 relating to starting salary acceptable in the grade, the petitioner has mentioned the amount of Rs. 460/-, so this fact is mentioned in Annxure 3. No doubt the petitioner ought to have specifically averred in the petition that he submitted his application and after making such an averment, if his case is that he was not considered on the basis of the application but was considered on the basis of the recommendation made by the Government, then such a case should have been clearly pleaded by the petitioner but the petitioner failed to state his case in this manner, and the petitioner has tried to give an impression as if no application was submitted by him and he was selected by the University as a result of the recommendation made by the Government. However, in the circumstances of the case, I ignore the preliminary objection.
12. Now, I may first of all consider the nature of appointment of the petitioner. Mr. Mridul, learned counsel for the petitioner strenuously urged that the petitioner's appointment as Lecturer in the University, was in pursuance of the recommendation made by the State Government after selection by the Selection Committee and so, his appointment for all intents and purposes should be taken to be an appointment on deputation and not through open competition. The correspondence exchanged between the Director of College Education and Officer-on-Special Duty and other attendent circumstances make it abundantly clear that the petitioner's appointment was made on deputation. The petitioner submitted his representation for fixation of salary and that the petitioner was given TA and DA for appearing at the interview. The petitioner was sent by the Government for interview, and he was given to understand that his appointment would be on deputation and that his salary and services would be considered at par with the RES candidates. By that time, the petitioner had already put in 7 years service in the Government and for fixation of salary, that service shall be taken into account. Mr. Mridul, also invited my attention to Annx. 2 as well as to the proceedings of the Selection Committee Annx. R/2. In the first para of Annx. R/2, the words 'application dated the...' have been struck off. The reason being that the appointment was not being made pursuant to the petitioner's application, but the appointment was made pursuant to the interview held on 11-7-1963. As regards Ex. R/2, he submitted that the petitioner's name appeared at No. 10 and his status as RES, is stated against him name, which also shows that he has been selected being a member of RES. Mr. Mridul emphasized that in Annx. 23 dated 11-6-1963, the Director of College Education has clearly stated that the University is agreeable to consider the recommendations from the Government before making any open recruitment. Even in Annx. 24 it is stated that what is desired is that the RES may be first considered for filling up those vacancies created by the order RES personnel now on deputation. Mr. Mridul, therefore, submitted that in the circumstances the petitioner cannot be considered to have been appointed by open competition. The petitioner has been appointed by the University pursuant to the recommendation made by the State Government.
13. I have considered the submissions of Mr. Mridul on the aforesaid aspect of the case, but I am unable to agree with the submissions made by him. In what manner, the petitioners came to be appointed in the University would be abundantly clear from Annx. 2 and R/2. It may be stated that those, who were sent on deputation were screened by Screening Committee and the sanction of the Governor was conveyed for placing the services of those officers on deputation with the University of Jodhpur on certain terms and conditions as is evident from Ex. R/1 dated 7-7-1962. On behalf of the petitioner, no such order has been placed on record whereby the petitioner's services, were placed with the University on deputation. Before joining the University service, he should have insisted the Government of Rajasthan to issue an order to the effect that his services with the Unviersity would be on deputation. On the other hand, his case is that assurance was given that he would be so treated. Such a verbal assurance if any, in my opinion; is of no consequence. No document of the University has been placed on record establishing the fact that the petitioner's services have been taken cm duputation by the University. On the basis of the letter (Annx. 23) it cannot be taken that the University agreed to accept the petitioner's services on deputation, and that for all purposes, the petitioner's Government Service would be taken into consideration. On the contrary, what is clearly established from the record is that the petitioner appeared before the Selection Committee along with those who submitted their application for appointment in open competition and in order of merit, he was placed at No. 10 that too, in the waiting list and the recommendations of the Selection Committee were approved by the Syndicate in its meeting held on 13-7-1963 (Ex. R/3) and it was clearly recorded by the Syndicate after approving the recommendations that the appointment, be made out of recommended candidates in order of merit according to the-requirements. As a result thereof, the appointment letter (Annx. 2) was-issued to the petitioner which clearly brings out the fact that the petitioner came to be appointed on the recommendations of the Selection Committee,. which was approved by the Syndicate and it is also recorded in Annx. 2 that the petitioner's appointment will be on probation for one year from the date he joins the duty. It was also stated that the petitioner will be governed by Service Conditions of the University. It may be recalled that those, who were appointed on deputation, it was clearly stated in their order Ex. R/l that officers sent, on deputation will continue to be governed by the State Rules applicable to-the service to which they belong and it was also stated that the period of deputation will be one year or till permanent absorption by the University or reversion from the University, whichever is earlier. From the correspondence, exchanged between the Director of College Education and the Special Officer, what transpires is that the University simply agreed that the candidates may appear in the interview before the Selection Committee and if they are selected, they would be given appointment. The correspondence does not reveal that the appointment would be considered on deputation or the appointment would; be considered not through an open competition. Those who opted for University service, can be taken in the University Service on their selection by the Selection Committee. The correspondence came to be made when the process of appointment through open competition in different departments had already commenced and the date of submission of applications had already expired. The Government was accommodated to allow the optees of the University service to appear for interview for appointment in those departments, in which interview was yet to be held and the dates of interview were already fixed. Thus, in the absence of any Government order, and in the absence of any representation by the University agreeing to consider the services of such optees on deputation, it cannot be found that the petitioner came to be appointed by the University on deputation as the earlier RES Officers were appointed. If the petitioner was given to understand that his appointment would be on deputation, he ought to have got it clarified from the Government as well as from the University. The petitioner was clearly informed by Annx. 2 that he has been appointed by the Syndicate on the recommendations of the Selection Committee on probation for a period of 1 year. Appointment letter thus clearly reflects that the petitioner's services are not on deputation with the University but he has been appointed in open competition like other direct recruits. Merely because, the petitioner's salary was revised & refixed, his nature of service thereby is not in any way altered. Simply on the basis that intimation for appearing at the interview was received by the petitioner through the Principal of his College as informed by the Director, it cannot be taken that the petitioner's appointment was on deputation. What the Government has done is that after taking options from the Lecturers, their names were recommended to University for being called for interview and it appears that for such optees, the requirement of submission of application in pursuance to the advertisement has been dispensed with. The petitioner, of course, could have been directly called for interview as his address was written in the application, but he having been called through, the Director of College Education, will not in any way affect his nature of appointment. Even those, who have not applied and if were given appointment, cannot be considered to be appointed on deputation, they too, can only be considered to be given appointment by open competition. It may be stated here that the Director of College Education by Annx. 1, had asked the University to call the candidates for interview on trunk telephone and a list was sent containing present posting of the RES Officers and simultaneously, the Director of Collage Education also asked the respective Principals vide Annx. 16 of the same date to inform the respective RES Officers to appear at the interview. So, nothing would turn on the question as to who informed the petitioner for appearing at the interview. It is significant to note that the petitioner had already applied on 28-5-1963 before the last date i.e. 4-5-1963 which shows his intention to join the University Service through open competition. Application or no application, Annx. 2 and Ex. R/7 completely negative the petitioner's contention. In face of the contentions of these documents, the striking of the words in the application in Annx. 2 and mentioning of (RES) against the petitioner's name in Ex. R/2 is not of any help to the petitioner. Thus, considering Annx. 1, 2, 3, 16, 23 to 25 and Annx. R/l, R/2, R/3 R/4 and the respective averments and affidavits of the parties and other circumstances. I am clearly of the opinion that the petitioner was given appointment through open competition. The first contention of Mr. Mridul, therefore, fails.
14. Now I may proceed to deal with the various grounds of challenge to the seniority rules (Annx. 9).
15. Mr. Mridul, first of all contended that resolution of the Syndicate dated 7-1-1984 whereby the Seniority Rules were passed is vitiated on account of participation by Dr. D.S. Jha & Mr.M.S. Maheshwari. Both the teachers were the members of the Syndicate and they were interested in the Seniority Rules as passed by the Syndicate. Both of them participated in the deliberations of the Syndicate and so, the resolution stands vitiated. He submitted that the University had submitted it that as the representative of the teachers both Dr. D.S. Jha and Shri Maheshwari, have taken part in the meeting of Syndicate. Mr. Mridul referred to the representation dated 3-12-1983 of Dr. D.S. Jha in his capacity as a member of Syndicate to the Vice-Chancellor. In the said representation, with reference to the meeting of some teachers with Justice Kan Singh Committee, he stated that this deeply concerns him and that he feels disturbed, that it may lend to some influence on the decision of the Committee and may adversely affect the interest of large numbers of teachers, who will not have the opportunity of meeting the members. Reference has also been made to the representation dated 21-11-1983 (Annx. 28) made by Shri Mohan Swaroop Maheshwari to the Vice-Chancellor, in which, he emphasised that it would be proper if the University before proceeding with the Promotion Scheme, takes upon itself the task of framing proper seniority rules. He pointed out some aspects relating to framing of Seniority Rules. Further communications made by Shri M.S. Maheshwari (Annx. 21) dated 12-12-1983 and Annx. 22 dated 13-12-1983 have been referred to. Mr. Mridul also made reference to the affidavit of Dr. D.S. Jha, in which he stated that he was present in the meeting as a duly selected representative of teachers and was discharging his statutory duty by attending the meeting. In the said meeting, the question of seniority of teachers was considered in general and as a whole, and the Rules were approved by a voice vote. His presence in the meeting was of no material consequence. No individual case or individual representation regarding the seniority was placed before the Syndicate on 7-1-1984. He however, categorically stated that he left the Syndicate Meeting Room on 7-1-1984, when the question regarding the seniority of teachers from General Science was taken up for consideration, and he abstained from taking part in the deliberations held in this connection. He also stated that he did not influence the Syndicate or its decision in his favour regarding the seniority rules and he could not have influenced the decision of the Syndicate, when nine other members were present and eight of them being senior to him in rank and position. He mentioned the names of nine other members. Mr. Mridul submitted that in view of reply o the University and in view of the fact that it is nowhere recorded in the minutes of the meeting that Dr. D.S. Jha abstained from taking part in the deliberation when the question regarding seniority of teachers from General Science was taken up for consideration, reliance should not be placed on the affidavit of Dr. D.S. Jha. Mr. Mridul pointed out that it was in the interest of Dr. D.S. Jha as well as Shri Maheshwari to get the Seniority Rules revised to the detriment of teachers like the petitioner as they were interested in their own cause, so the resolution becomes bad on account of their participation. He placed reliance on the decision of the Supreme Court in Mohapatra & Co. v. State of Orissa and Anr. : 1SCR322 , and Smt. Rani Kheria v. Welfare Commissioner, Assam Tea Employees Welfare Board, Shillong and Ors. 1974 SLR 241.
16. How far the above submission is valid, needs to be examined. In the constitution of the Syndicate there is a provision of representation by the two teachers. The two teachers on the Syndicate are elected by the teachers of the recognised constituent colleges. The Syndicate is an executive body of the University consisting of Vice-Chancellor, two persons nominated by the Vice-Chancellor from amongst the Deans of faculties or the Deans or Directors of the constituent colleges or recognised Colleges, two University Professors nominated by the Vice-Chancellor, one educationist, Director of College Education, Rajasthan, two persons nominated by the State Government, two members of the State Legislature nominated by the State Government, one member as the Students representative and two representatives from the teachers In the meeting dated 7-1-1984, besides the Vice-Chancellor and two teachers. representatives Shri Shivnath Singh, Director College Education, Shri A.L. Gehlot former MLA, Shri Jugal Kishore Kabra and Shri Narpatram Barbar were present and besides these, Dr.H.C. Arya Dean Faculty of Science, Dr. (Mrs.) Kamini Dinesh and Professor D.S. Surana, Professor and Head of Department of Electronics were present. The historical background of framing of the Seniority Rules has also some bearing on the question. When the University of Jodhpur came to be established, initially, the teachers were appointed on deputation from the Government and powers were also conferred on the Vice-Chancellor under the Jodhpur University (Removal of Difficulties) Order, 1963. Situation also arose on account of reversion of some RES Officers from the University back to the Government Colleges. In the beginning, some Seniority Rules were approved and provisional Seniority List dated 1-3-1964 was notified. Thereafter, objections and representations were made against the criteria for determination of seniority. The Bishnoi Committee, the Gattani Commission and the Kansingh Committee were constituted to examine the question of framing of the Rules for seniority. The Syndicate approved some Rules by resolution No. 4 dated 17/18th July 1968 and dated 25th April, 1970. It is in pursuance of the recommendations of Kansingh Committee, the Seniority Rules (Annx. 9) came to be framed by the Syndicate. It would appear that despite several resolutions of the Syndicate, the matter continued to be agitated as there was dissatisfaction and resentment against the criteria adopted for determination of seniority in the past as relevant considerations were not given due weight. Mr. Maheshwari, therefore, in his representation dated 21-11-1983 (Annx. 20) pointed out certain aspects for determination of seniority for different categories of persons, who were appointed by the University by different modes. It is true that both Dr. D.S. Jha and Shri Maheshwari being teachers were, in someway or the other interested in the seniority rules. By any Rules, which the Syndicate may frame, they may be affected favourably or adversely. It would be natural for them to advance their cause in adoption of seniority rules by pleading for such rules, which may be favourable to them. It is significant to note that being the representative of the teachers Community, they were within their legitimate right to plead for larger interest of the teaching community and to watch and protect the interest of their community. Under the earlier Seniority Rules, the RES officers, seniority was maintained despite the fact, as to whether RES officer was earlier rejected in the screening and came to be appointed in the University not on deputation but through open competition much later to those who have already been appointed and taken in the University service. The Syndicate, while exercising the power of framing the seniority rules was acting as if it is discharging the legislative function. The Syndicate is the executive body of the University. In the absence of any statutory law or rules it is competent for the Syndicate to frame seniority rules in its executive capacity. When so functioning the teachers representatives were within their right to place their view. The other members who were present at the meeting may take into consideration, the view point of teacher's representatives & it is for them to agree with them or not. Any decision taken by such a body, in my opinion, does not stand vitiated on account of participation of such members. The two teachers were not leading their personal interest as such. They may in fact be pleading for the adoption of proper criteria and by adoption of such criteria, it may be that they may be individually benefitted. As stated above, the meeting was attended by 10 members in all including the two teachers representatives. It cannot be conceived that the other eight members without application of mind acted in a manner whereby decision can be said to have been influenced by the teacher's representatives. There were four independent members representing the State Government and other bodies and there were senior Professors present in the meeting. Considering the number of members and sources from which they were drawn, in my opinion, the decision taken by the Syndicate in its meeting of 7-1-1984 was a decision based on the view found reasonable by the members present and voting. Such a decision, is not vitiated on account of the participation of the two teachers representatives. The cases cited by Mr. Mridul to my mind, are distinguishable.
17. In J. Mohapatra's case (supra), their Lordships of the Supreme Court were concerned with the question of selection of books by the Assessment Sub-Committee. Some of the members of the Assessment Sub-Committee were the authors of some books, which were submitted before the committee for such assessment. They were therefore, persons interested in the matter of selection of their own books. Their Lordships observed that 'whether or not the other members of the sub-committee were actually influenced by the fact that the books which they were considering for approval was written by one of their members, is a matter impossible to determine. It is not, therefore, the actual bias in favour of the authorised members that is material but the possibility of such bias, which exists in this case'. In the context of the fact of that case, it was further observed that 'it is also immaterial that an author-member is only one of the members of the Assessment Sub-Committee and that the ultimate decision rests with the State Government which may reject any book out of the list of approved books. The State Government would normally be guided by the list approved by the Assessment Sub-Committee. Similarly, the contention that such author-member is only one of the members of the A ssessment Sub-Committee is not of much consequence. Further where non-participation in or withdrawal of an author-member from the deliberations of the Committee while his or her book or books are being considered is not sufficient because evil of quidproque with other author-members cannot be eliminated by this'. In that case, the pecuniary interest of the members of the Assessment Sub-Committee who were the authors of such books was involved. In that case, the Sub-Committee was appointed by the Government and changes in the constitution of the Sub-Committee, could have been brought about by informing the Government. In the present case, being statutory members of the Syndicate, the teacher representatives were required to discharge their statutory duties in attending the meeting of the Syndicate. Besides that, the very object of the representatives of the teacher community would be defeated in case, the teacher representatives were required to abstain from the meeting of the Syndicate. They could abstain if the individual personal interest is involved in the decision of the Syndicate but a matter like framing of seniority rules, is not such a matter. In such a matter adoption of particular view point from the teachers' side can be presented to the Syndicate.
18. Smt. Rani Kheria's case (supra), is also distinguishable. In that case, the respondent No. 3 was closely associated with the petitioner and had some animus against the petitioner. In that case, the petitioner's services were terminated and malafides were imputed. Certain letters were writeen to the respondent No. 3 by the petitioner, which, were made annexures and on reading of those letters, it was observed that the respondent No. 3 was possibly emotionally involved. However, it was also observed that this aspect of the case may not be examined further as the meeting was not a validly constituted meeting in accordance with Rule 14(1).
19. I may refer here a decision of this Court in S.N. Jodhawat v. University of Jodhpur 1981 ILR (31) Raj 137. That was also a case relating to the participation by some members in the meeting of the Syndicate. It was observed that 'the Syndicate is comparatively a larger body. Even if, one of the members is animated by bias, still, in my opinion, the decision of such a body cannot be held to have been effected by such a such a bias, unless it can be said that such a member is in an influencing position, whose opinion may have weight and impact on the other members. I do not find that respondent No. 6 occupied such a position in the Syndicate whereby he could have influenced the mind of the others and would have surrendered their individuality. The rejection or acceptance of the recommendations did not rest with respondent No. 7 alone and primarily the view on this question rated with the other senior members of the Syndicate, whose opinions must have held the field as sworn by them. Thus, taking the conspectus of the case, probabilities and common course of human conduct in view, I have not even lurking doubt in my mind and I am clearly and firmly of the opinion that the resolution of the Syndicate has in no way been influenced by the bias of respondent No. 7. The resolution of the Syndicate thus, is not vitiated on account of participation of respondent No. 7.'
20. So far as the question of abstaining of Dr. D.S. Jha is concerned, when the matter relating to teachers of General Science was taken up for consi-deration, it may be stated that it is true that such abstenance is not recorded but there is no reason to disbelieve the affidavit of Dr. Jha, more particularly when it is supported by the five members namely Dr. Mrs. K.Dinesh, Shri A.L.Gehlot, Shri Jugal Kishore Kalra, Prof. H.C. Arya, Prof. D.C, Sharma and the Vice-Chancellor who have certified that Dr. Jha had left the Syndicate meeting when the question regarding the seniority of General Science teachers was taken up for consideration.
21. Thus, in view what 1 have discussed and considered above, the seniority rules (Annx. 9) are not liable to be quashed on the ground of participation by Dr. D.S. Jha and Shri M.S. Maheshwari in the meeting of the Syndicate on 7-1-1984. The contention, therefore, fails.
22. Mr. Mridul next contended that the Syndicate is not competent to frame the seniority rules, which may have retrospective operation affecting the acquired rights. Mr. Mridul emphasised that the University teachers continued to be governed by the seniority rules as approved by the Vice-Chancellor or as adopted by the Syndicate from time to time and in the earlier seniority rules RES seniority was retained. After a lapse of about 20 years for the first time, a change was brought about to the detriment of some RES officers. Earlier seniority rules were adhered to for about 2 decades and they were acted upon in various ways and were given effect in ex-cadre promotion scheme of 1978, so, it was not open to the Syndicate to alter the seniority rules in the year 1984. He submitted that the University has no plenary powers of legislation. Even if it has such a power, it cannot be exercised so as to affect the acquired rights. Mr. Mridul placed reliance on some case law.
23. The learned counsel appearing for some of the respondents on the other hand, urged that the Syndicate is the executive body, and in exercise of the executive power it is competent to make rules and the rules are not retroactive in character. The rules have been enforced from the date they have come into force. They will not affect the past actions. The authorities relied upon by Mr. Mridul have been distinguished and they cited some case law in support of their contention.
24. As to whether, the Syndicate is competent to revise the seniority Rules one has to examine the question in the historical perspective as has already been dealt with earlier. Initially, the RES officers were taken on deputation and under the Removal of Difficulties Order, temporary powers were conferred on the Vice-Chancellor. Initially, when the teachers were taken on deputation, some teachers were screened and were not found suitable. Then at the stage of regular appointments through open competition, at the instance of the Government, some RES teachers appeared before the selection committee and were interviewed along with the direct applicants and they were selected by the selection committee. The question regarding the seniority continued to be agitated and final seniority list was never published. The provisional seniority list of course, continued to be acted upon and three committees were appointed to go into the question of seniority rules. The final seniority rules came to be adopted by the Syndicate as a result of the recommendation of justice Kan Singh Committee. It is in this historical setting the question requires consideration as to whether the Syndicate was competent to make seniority rules. It is true that about two decades had passed. But this fact cannot be ignored that no final seniority list was notified, and it appears, that the matter continued to remain under consideration. Although, some criterion were, of course, adopted by the Syndicate. Perhaps, the matter continued to remain pending for a very long period as the matter then was not of much importance and the matter assumed importance only when the personal promotion scheme was introduced in the year 1978 in which one of the criteria was seniority-cum-merit. As the promotion chances were directly affected by seniority, so, since 1978 the question was seriously taken. The unreasonableness, unfairness and unjustness which had prevailed earlier was taken note of. The RES officers, who came to be appointed through open competition, could not be given the RES seniority. The seniority of the RES officers, who have come in the open competition would necessarily go by merit. Similarly, the RES officers who were not found suitable earlier in the screening, could not gain seniority over those, who were found suitable and were absorbed in the University. Such like anomalies were required to be taken into account, which were considered by the Kansingh Committee and so, on the basis of the recommendation made by the committee, the seniority rules were adopted by the Syndicate. Where there were no statutory rules governing seniority the Syndicate in the exercise of its executive power, is competent to make the Rules. Reference in this connection may be made to V.T. Khanzode and Ors. v. Reserve Bank of India : (1982)ILLJ465SC . In that case, the challenge was to the decision of the Reserve Bank of India, as regards the introduction of the common seniority and inter group mobility amongst different grades of officers belonging to Group-I (Section A). Group II and Group III with retrospective effect from May 22, 1974. The decision or order was contained in Administration Circular No. 8 dated January 7, 1978 and Order No. 679 dated April 27, 1978. The question was whether administrative instructions or circulars for regulating service conditions could be issued. In that connection, it was observed as under:
So long as staff regulations are not framed under Section 58(1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by Section 7(2) of the Act. The power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject-matter on which a rule or regulation can be framed until it is so framed.
There is no doubt that a statutory corporation can do only such act as are authorised by the statute creating it and that the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited. This does not, however, mean that the Central Board of Directors of the Reserve Bank is not competent to issue administrative directions or circulars regulating the conditions of service of the Bank's staff and that the Central Board must frame staff regulations under Section 58(1) only. Section 58(1) is in the nature of an enabling provision under which the Central Board 'may' make regulations in order to provide for all matters for which it is necessary or convenient to make provision for the purpose of giving effect to the provisions of the Act. This provision does not justify the argument that staff regulations must be framed under it or not at all. The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Bank's staff and it may exercise it either in accordance with Section 58(1) or by acting appropriately in the exercise of its general power of administration and superintendence. Section 7(2) confers upon the Central Board the power of general superintendence over the affairs and business of the Bank. The Central Board, therefore, is authorised by the statute to regulate the service conditions of the Bank staff by issuing administrative circulars. The provisions of Section 58(1) do not prohibit the exercise of such power under Section 7(1).
25. In that case, the Reserve Bank of India (Staff) Regulations, 1948 contained the Regulations regarding seniority and promotions. Those regulations were amended from time to time. The Staff Regulations were not statutory in character. Ever since the date of Staff Regulations of 1948 and even prior thereto, there were groups constituted for the different departments of the Reserve Bank and officers were required to exercise irrevocable options for service in any particular group. The grouping was revised w.e.f. April 1951 and in 1951, the various departments of the Bank were re-classified into four groups. There were four separate seniority lists, one for such group. The latest of such lists, prior to the impugned combined seniority lists, was of July 1, 1976. In the year 1970, a cadre review committee was constituted, which submitted its report in October 1972 and the Administrative Circular dated May 22, 1974 was issued. Following the persistent demand made by the majority of the officers, Shri C.L. Thareja Committee was appointed which unanimously recommended the introduction of combined seniority, simultaneously for all grades of officers. However, on the question of operative date, it was divided in its views. The Bank by the impugned Circular accepted May 22, 1974 as the date from which the combined seniority list was to have effect. Their Lordships considered the matter as under:
It is clear from this narration of historical events that the various Departments of the Reserve Bank were grouped and regrouped from time to time. Such adjustments in the administrative affairs of the Bank are a necessary sequel to the growing demands of new situations which are bound to arise in any developing economy. The group system has never been a closed or static chapter and it is wrong to think that officers of the various groups were kept, as it were, inquarantine. The group system has been a continuous process trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the experience of the past. Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and common seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot over-ride public interest and an effort has to be made to harmonize the two considerations. No scheme governing service matters can be fool proof and some Section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and malafides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. Vested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one Section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cadre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undergoing what these Committees have achieved after an objective and integral examination of the whole issue. We may mention that the conclusions to which these committees came were considered by the bank when Shri M. Narasimhan, later India's Executive Director in the World Bank, was the Governor and it was after Dr. J.G. Patel, formerly Secretary, Economic Affairs, Government of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 that the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority.
26. Their Lordships referred to an earlier decision in Reserve Bank of India v. N.C. Paliwal : 1SCR377 , and observed that the integration of different cadres into one cadre did not involve violation of the equality clause and the integration of non-clerical with clerical services, was not violative of Articles Hand 16. With regard to the retrospective operation given to the Scheme with effect from May 22, 1974, it was observed that the Board has struck a via media between two extreme contentions but that was inevitable and that was the best solution in the peculiar circumstances of that case, ft was further observed that in order to rectify the imbalances and anomalies caused by the compartmentalised and groupwise seniority, it was necessary to give retrospective effect to the combined seniority list. It was also observed that at least on May 22, 1974, it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain Section of officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dis-satis-faction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Attention was drawn to the various individual cases of officers in group I, whose seniority has gone down by several steps in the new Scheme. Their Lordships observed that any scheme of seniority is bound to produce isolated adheration. That cannot justify the argument that the entire scheme is for that reason violative of the guarantee of equality. It would appear from the observations made in the above case that when any scheme is introduced whereby the seniority is revised, it is bound to affect some incumbent in some way adversely but on that basis the scheme is not liable to be struck down and the scheme can be given even retrospective effect.
27. In Wing Commander J. Kumar v. Union of India : 3SCR453 their Lordships observed that it is a well-settled law that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotions that have already been earned under the previous rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service. It is therefore, open to the Government of India to introduce a new principle of seniority by promulgation of the rules so as to affect rights for future promotion. It was further observed as under:
It cannot be said that R. 16 not having been specifically declared to be retrospective in operation, its provisions cannot be applied to the Service Officer who had been inducted into the Defence Research and Development Organisation Cadre alone prior to the promulgation of the new rules. When a statutory rule governing seniority is issued in respect of a service the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, there is no element to retroactivity involved. Of course, the rules will not operate to deprive any person of promotions already earned in the past, but, for purposes of future promotions and seniority in the department, the principles laid down in the rule will necessarily govern all the personnel alike.
28. Mr. Mridul, however, referred to a decision in Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors. 1984 (2) SLR 97. In that case, the petitioners were appointed as Assistant Engineers and they became entitled to get their seniority fixed giving them the benefit of their military service. According to the Punjab National Emergency (Concessions) Rules, 1965 and the previous assurances as given by the Government, the petitioners were to be given seniority by counting period of military service for the purpose of determining seniority, increments and pension etc. The seniority list prepared, however, did not include the military service of the petitioners for the purpose of fixation of their seniority. The State of Haryana amended the rules with retrospective effect from 23-3-1976 and the definition of military service was also amended with retrospective effect from 1-11-1966. Under the existing rules, the military services were counted for seniority. It may be stated that the amendments were struck down and were declared ultra vires to the Constitution as they prejudicially affected those who had acquired the rights. Their Lordship followed the decision in State of Gujarat v. Ramanlal Keshav Lal Soni : (1983)ILLJ284SC . It may be mentioned that in both the cases, the rules were found to be arbitrary and unreasonable and so, were declared unconstitutional. If the seniority rules as framed by the Syndicate on 7-1-1984 are found to be violative of any fundamental rights like Article 14 and 16 or violative of Article 311, then the rules can be declared unconstitutional but it has not been contended before me as to how the seniority rules adopted by the Syndicate contravened any fundamental rights.
29. In State of Gujarat v. Ramanlal Keshav Lal's case (supra), the facts were that the personnel drawn from different sources viz. Government Departments as well as Local Authorities or Municipal Services were merged together to constitute a single integrated civil service (Panchayat Service) under the State by a legislative enactment. On that basis irrespective of original status all became Government servants. By Gujarat Panchayats (Third Amendment) Act, 1978 a differential classification in relation to their original position was made whereby the ex-Municipal employees were deprived of their present status of Government servants and of consequential benefits. It was held that the Third Amendment Act, 1978 was violative of Articles 14 and 311 of the Constitution. It was observed that the retrospective operation of the amended law should be in relation to the present status and rights of the affected persons, it should not be violative of fundamental rights acquired by such persons at the time of enforcement of the principal law and date-back to the time, when they were entitled to those rights. Their Lordships observed as under:
Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Article 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Article 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwa's who became Secretaries, Officers and servants of Gram and Nagar Panchayats were government servants, even to start with, while Municipal employees who became such Secretaries, Officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 & Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile Municipal employees never became members of a service under the State. Can a law be made to destory today's accrued constitutional rights by artificially reverting to a situation which existed 17 years ago No.
The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws are made under a written constitution, and have to conform the dos and dont's of the Constitution, neither prospective or retrospective laws can be made so as to satisfy the requirements to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights therefore, the requirement of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the match of events and the Constiu-tional right accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B.S. Yadav v. State of Haryana, Chandrachud, C.J. speaking for the Court held (SCC head-note).
Since the Governor, exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case.
Today's equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (unconstitut-toinal) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayat (Third Amendment) Act, 1978 is un-constitional, as it offends Articles 311 and 14 and is arbitrary and unreasonable.
30. These cases in my opinion, are not of much help to the petitioner. The University teachers were well aware that the seniority list has not been finalised and the matter is under active consideration more particularly after introduction of the Ex-cadre personal promotion scheme and after appointment of the Kansingh Committee. What was sought to be achieved, was to rationalize the existing seniority rules which were felt to be offending the rights of some class of university teachers. Any rules, which attempt to rationalize the existing rules by removing anomalies, unfairness and unjustness, cannot be considered to be bad or violative of fundamental right. However, no such argument has been advanced before me. Besides that, the rules will operate from the date of their enforcement only. The future, promotions can be legitimately regulated by enforcing such rules. The promotions already given, have not been in any way affected.
31. Reference has also been made by Mr. Mridul to Ramendra Singh and Ors. v. Jagdish Prasad and Ors. 1984 (1) SLR 520. In that case it was observed that the executive power of the State though co-extensive with the legislative power but such power cannot be exercised, which may offend Article 16. In that case, the retrospective appointment affecting the seniority of others was challenged. The retrospective appointment was held to be illegal. This case is of no help to the petitioner.
32. Similarly the case of Balasaheb Vishan Chavan v. State of Maharashtra and Ors. 1984 (1) SLR 701 does not in any way advance the cause of the petitioner as it was a case relating to the seniority between direct appointees District Judges and promotees. It was observed that the direct appointees were required to work as Assistant Judges. But on that basis the promotees Assistant Judges cannot claim seniority as against the District Judges. These are two distinct cadres and there is no comparison between the two.
33. Reference has also been made by Mr. Mridul to the decision of the Supreme Court in the Income-tax Officer v. M.C. Ponnoose and Ors. : 75ITR174(SC) . That was a case of investing the powers of a Tax Recovery Officer with effect from a date prior to the date of notification i.e. retrospectively or retroactively. Such investing of powers was held to be invalid. The ratio of this case does not in any way apply to the facts of the present case.
34. In Lila Kanta Barut and Ors. v. Collector of Customs and Central Excise, Shillong and Ors. 1979 SC (UJ) 933, the challenge was to the criteria of seniority. The petitioners' contention was that continuous officiating service should be the guideline and not the length of service after confirmation. It was observed that these are matters of policy which Government must have discretion to adopt. A some what similar view has been taken in K. Jagannath Rao v. State of A.P. : (1981)IILLJ252SC .
35. In the light of the above decisions, I find no force in the aforesaid contention of Mr. Mridul and hold that the Syndicate is competent to frame Seniority Rules Annx. 9 and they are valid.
36. It is next contended by Mr. Mridul that the University is precluded from laying down the criteria of seniority (Annx. 9) on the principle of equitable estoppel. In this connection, suffice it to say that the University is in no way estopped from revising the seniority rules. In exercise of its executive power, it is within the competence of the University to do away with the anomalies in the existing seniority rules and rationalize them. In doing so, some persons may be adversely affected but on that basis, the principle of equitable estoppel cannot be attracted, so as to debar the University from doing so. I am afraid how the principle of equitable estoppel can be made applicable in such a situation. The equity is not in favour of the petitioner, who was not selected initially by the Screeing Committee and he was taken in the University service through open competition and the petitioner's name stood at No. 10 in order of merit and at No. 2 in the waiting list. In such circumstances, it is not open to the petitioner to raise an argument that principle of equitable estoppel applies against the University.
37. Mr. Mridul, also contended that the discrimination has been practised between the persons similarly situated, so as to violate Article 14 and 16 of the Constitution. This contention too, in my opinion, is devoid of any merit. The petitioner is not similarly situated. This petitioner's service with the Government, cannot be taken into consideration as his appointment was through open competition. His seniority would be in accordance with the merit assigned by the Selection Committee and approved by the Syndicate. The case of those, who were given appointment as a result of having been screened by the screening Committee initially stand on different footing & those who have been given appointment by competent authority, also stand on different footing. As such the ground of discrimination is not available to the petitioner. So far as the seniority rules dated 7-1-1984 are concerned, they will operate equally in accordance with the seniority assigned under these rules. I have already found that these rules are not retroactive whereby promotions already affected do not in any way stand nullified or cancelled. Thus, this contention as well is without any merit.
38. Mr. Mridul, next urged that the seniority list (Annx. 9A) has been issued without affording an opportunity to those affected by it so it is in complete breach of the principle of natural justice.
39. Reliance has been placed on Union of India v. P.K. Roy and Ors. 1968 (2) SLR 104, N. Subba Rao, Dy. Director of Public v. Union of India and Ors. 1969 (3) SLR 537, Kesar Singh v. State of Rajasthan 1979 (2) SLR 813 and Harbhagwan Chetandass Bhatia and Anr. v. Union of India and Ors. 1982 (1) SLR 611.
40. Before issuing list (Annx. 9A). Annx. 1 and 2 annexed to Annx. 7 were issued on promulgation of Ordinance No. 7 of 1983 on 3-10-1983. Faculty-wise and department-wise list of Lecturers and Readers were prepared and representations were invited. Thereafter, the seniority rules (Annx. 9) were adopted by the Syndicate of the University after taking into consideration the large number of representations. In the light of the seniority rules the lists annx. 1 and 2 i.e. Annx. 9A were issued re-arranging the names faculty-wise according to the seniority in the department. It may be mentioned that the framing of seniority rules is in the nature of law making function thought itwas in the exercise of the executive power and these rules came to be framed after considering the various objections or representations received by the University and in the light of the recommendations made by the Kansingh Committee. At this stage, in my opinion, before framing the rules, the University was not required to issue draft rules and invite objections against the draft rules and give opportunity to the objectors of hearing, against any draft rules. But before finalizing the seniority list in accordance with the rules, a provisional seniority list should have been issued and after inviting objections against the provisional list, final list should have been finalised. But in the present case, it is not necessary to quash the list as the petitioner has raised objections against the list, which I have considered. As regards, the objection based on the seniority subject-wise, I shall be considering the same here in after. But so far as the other objections are concerned, I have dealt with the same and no objections have been found tenable. In this view of the matter, it would be a superflous and empty formality to quash the list on the ground that there has been a violation of the principles of natural justice in as much as, before the final list having been issued opportunity of hearing has not been given to the petitioner. The law, of course, is well settled that whenever any such list is finalised, opportunity of hearing should be given and opportunity may be given in the form of inviting the objections & considering of those objections. But in view of the consideration of the objections in this writ petition, the list Annx. 9A. Annx. 2 relating to Lecturers of department of Chemistry is riot liable to be quashed and set aside.
41. It has also been urged by Mr. Mridul, that the lists are contrary to the thrust of the explanation of Section 11 of Ordinance No. 7 of 1983 which is replaced by Amending Act No. 18 of 1984. The Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 was amended by Act No. 18 of 1984 dated November 6, 1984. Explanation has been appended to Sub-section (4) and (5) to Section 11, which provides that for the purpose of seniority and counting of period of service, the service rendered as Lecturer or Vice-Principal or Principal, after regular selection as Lecturer in a College established or run by the State Government as also the service rendered in an ad hoc or temporary capacity immediately before regular appointment shall also be taken into account. It appears that the explanation does not take into account the situation when a lecturer is appointed through open competition. The explanation applies to the service rendered with the Government immediately before joining the University service through the other modes other than open competition. The explanation does not expressly state that even when the recruitment is made through open competition, the seniority and counting of period of service shall be reckoned in accordance with the explanation. Besides that, it may also be stated that for the purpose of personal promotion against the ex-cadre posts, the provision of Section 11 would apply and eligibility lists are required to be prepared according to the provisions of Section 11. But so far as the seniority for other purposes is concerned, that could be laid down by the Syndicate and the same has rightly been laid down under Annx.9. A further contention has been advanced relating to the assignment of the seniority to Dr. D.S. Jha and Dr. (Mrs.) Saroj Rani Bansal. The contention is that both of them were serving in the department of General Science in RES, therefore, their seniority of RES in General Science cannot be taken into consideration for the purpose of determining their seniority in Chemistry department. Rule 5 of the Seniority Rules(Annx.9) says that the seniority shall be determined subjectwise. Rule 6 has to be read along with the second proviso to Rule 3. It may be stated that under the second proviso to Rule 3, inter se seniority in RES has been retained. Considering in the light of inter se seniority, these respondents were senior to the petitioner. Besides that, both Dr. Jha and Mrs. Bansal were M.Sc. in Chemistry. The teaching of General Science will not make any difference in the RES Rules, but the seniority given was in Science. So far as the petitioner is concerned, he cannot claim seniority in view of the first proviso to Rule 3 of the Seniority Rules (Annx. 9), which is a specific provision saving RES seniority. Rule 6 will apply on joining University service otherwise than what is contemplated under the second proviso to Rule 3.
42. Mr. Parekh, learned Counsel for the University submitted that the petitioner has already been appointed as Reader on November 18, 1984 and no question for further selection in order of seniority-cum-merit can arise, so the writ petition has become infructuous. I am unable to agree with the submissions of Mr. Parekh. If the petitioner's case was not considered on the basis of wrong seniority then despite his appointment as Reader, the petitioner is entitled to continue the petition in claiming the correct seniority and for promotion, after assignment of due seniority to him, However, on merit, I have considered the petitioner's case and I have not found any force in the writ petition on merits. As per the criteria, the respondents are senior to the petitioner either on account of their earlier screening and the seniority in the RES or on account of seniority on the basis of order of merit as a result of direct appointment through open competition. The respondents No. 2 to 10 were members of the RES, and were taken on deputation vide Government Order Ex. R/1 and respondents No. 11 to 15 were higher in merit in the selection made by the Selection Committee.
43. No other point has been pressed before me nor any other point survives for consideration.
44. In the result, this writ petition has no force, so it is hereby dismissed. The parties are left to bear their own costs.