Full Judgment Text
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PETITIONER:
DR. H.P. HAJELA
Vs.
RESPONDENT:
N.S. VERMA & ORS.
DATE OF JUDGMENT02/05/1986
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1986 AIR 1638 1986 SCR (2) 967
1986 SCC (3) 292 1986 SCALE (1)1202
ACT:
University-Seniority of teachers - Kanpur University
old statutes/First Statutes, 11.34/18.10 and 18.16 -
Affiliated col1eges - Whether deputation service effects a
break of service resulting in loss of seniority.
HEADNOTE:
The appellant was granted extra-ordinary leave on the
request of the Government of India for being sent on a
teaching assignment to the University of Aden (South Yeman)
on the express condition that his lien on the post of Head
of the Department of Zoology in a college affiliated to the
Kanpur University will be maintained and his seniority will
be protected. After having fulfilled the aforesaid teaching
assignment and on return to India, he sought to resume his
post in the college. The first respondent who was acting as
the Head of the Department of Zoology in the college refused
to handover charge on the ground that he had attained
seniority over the appellant. The Principal also rejected
the appellant’s claim to seniority. Thereafter, the
appellant challenged the order of the Principal before the
Vice-Chancellor of Kanpur University on the ground that he
had not suffered a break in service and his seniority over
the first respondent remained intact all through his period
of service on deputation. The Vice-Chancellor upheld the
appellant’s claim and held that he was entitled to his
rightful place of seniority. The Chancellor, in appeal by
the first respondent, affirmed the order of the Vice-
chancellor.
The first respondent filed a writ petition in the High
Court. A learned single Judge of the High Court held that in
terms of either the old Statutes or the First Statutes of
the Kanpur University, the appellant is not entitled to
reckon the period of service at the University of Aden for
computing length of service in the DAV College and as such
the recognition of the seniority of the appellant over the
first
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respondent by the Vice-Chancellor and the Chancellor in
their respective orders cannot be sustained.
Allowing the appeal,
^
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HELD: l. The High Court has not properly comprehended
the Statutes. Because of the failure of the High Court to
have applied the appropriate provision in the Statutes, the
period of service of the appellant on deputation has been
wrongly held to be non-includible in the total length of
service of the appellant. The Principal, as the Head of the
Institution, was undoubtedly competent to grant leave on
loss to pay to the appellant in order to enable him to take
up a foreign assignment on deputation basis. The period of
leave granted to the appellant was utilised in holding
another position involving similar work and therefore, the
appellant is automatically entitled to the benefit of sub-
clause (4) of old Statute 11.34. [976 D; 978 G]
2.(i) & b-clause (1) of statute 11.34 of the Old
Statutes deals with the reckoning of seniority on the basis
of the length of service in one and the same college and in
the same cadre and grade; sub-clause (2) provides for the
addition of service in another University or
associated/affiliated college etc. provided the University
is situate in Uttar Pradesh and the college is affiliated to
or associated with one of the Universities in the State;
sub-clause (3) excludes service in an officiating capacity
and grants recognition of temporary service only if it has
continuity with a subsequent permanent appointment; and
lastly sub-clause (4) prescribes for tacking on of leave
period with the total length of service provided ; (1) the
period of leave has been spent in holding another position
involving similar work or (2) it was medical leave.[976 D-F]
2.(ii) The case of the appellant would not fall under
sub-clause(2) because his service in the University of Aden
will not constitute such kinds of services as are envisaged
in the sub-clause. However, sub-clause (4) would undoubtedly
cover the case of the appellant because he had been granted
leave of absence on loss of pay for a period of three years
for rendering service in the University of Aden on
deputation basis. The word "unless during such leave another
position
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involving similar work was held" would squarely apply to the
A period of leave of the appellant. It is significant to
note that the qualifying words "University or College
situated in Uttar Pradesh and the Colleges affiliated to or
associated with one of the Universities in the State"
occurring in sub-clause (2) are conspicuously absent in sub-
clause (4). [976 F-G; 977 A-B] B
2.(iii) As there is no conflict between sub-clause (4)
of Statute 11.34 of the Old Statutes and any provision in
the First Statutes, there is no room or scope for invoking
the overriding provision contained in Statute 1.02(1) for
denying the application of Old Statute 11.34(4) to the case
of the appellant. On the other hand, the appellant will be
entitled to claim the benefit of First Statute 18.16 which
preserved "inter seniority of teachers employed in the
University from before the commencement of the Statute."[977
C-D]
3. Sub-clause (2) and (4) of Old Statute 11.34
contemplate different situations and act in different
fields. While sub-clause (4) contemplates service rendered
elsewhere during the period of leave, sub-clause (2) does
not contemplate any such service but contemplates the
service rendered elsewhere without taking leave from any
institution. proper exposition of the fields of operation of
sub-clauses (2) and (4) of Old Statute 11.34 will at once
bring to light the merit in the contentions of the appellant
and the error that has been committed by the High Court.
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Moreover, the provision contained in sub-clause (4) of Old
Statute 11.34 has not been disturbed in any manner by the
First Statutes and hence the appellant will be entitled to
the benefit of this provision, especially in terms of
statute 18.16 of the First Statutes. [977 D-H; 978 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1477 of
1986.
From the Judgment and Order dated 20th May, 1985 of the
Allahabad High Court in Writ Petition No. 3710 of 1985.
S.N. Kacker and R.B. Mehrotra for the Appellant.
S.C. Birla for the Respondents.
The Judgment of the Court was delivered by
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NATARAJAN, J. This appeal by special leave is directed
against the order of a learned Single Judge of the Allahabad
High Court in Civil Misc. Writ Petition No. 3710 of 1985
filed in the High Court by the first respondent herein. The
appeal lies within a narrow compass as the limited question
for consideration is whether the extraordinary leave granted
to the appellant for the period 24.12.80 to 31.7.83 on the
request of the Government of India for his being posted on a
teaching assignment in the University of Aden (South Yemen)
effected a break in service so as to deprive the appellant
his seniority in the Department of Zoology in the D.A.V.
College, Kanpur.
The facts which are not in controversy, of the case,
are briefly as set out below.
On 1.9.49 the appellant was appointed as Lecturer in
Zoology in a substantive capacity in the D.A.V. College,
Kanpur. About six weeks’ later i.e. On 12.9.49 the first
respondent was also appointed as a Lecturer in Zoology in
the same college. In the year 1974 the appellant was
appointed as the Head of the Department of Zoology in the
said College. On 24.12.80 the appellant was granted
extraordinary leave on the request of the Government of
India for being sent on a teaching assignment to the
University of Aden (South Yemen) on the express condition
that his lien on the post in the College will be maintained
and his seniority will be protected. On the basis of such an
arrangement the appellant fulfilled his teaching assignment
at the University of Aden and on return to India he sought
to resume his post in the College. The first respondent who
was acting as the Head of the Department refused to hand
over charge on the ground he had attained seniority over the
appellant. It is relevant to mention here that the first
respondent did not also continuously serve the College but
left its services and went to other teaching institutions,
and after stints of service therein, he rejoined the
Department of Zoology in the D.A.V. College, Kanpur. It
would appear that the first respondent went over on 21.1.78
as Principal of the D.A.V. College, Dehradun and thereafter
he went over as Principal of the D.B.S. College, Kanpur and
subsequently he came back to the D.A.V. College, Kanpur.
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As the first respondent refused to hand over charge of
the Department, the appellant made a representation to the
Principal and sought his intervention. After considerable
delay the Principal refused to countenance the appellant’s
claim to seniority and sustained the stand taken by the
first respondent.
The appellant challenged the order of the Principal
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before the Vice-Chancellor of Kanpur University. While
contending that he had not suffered a break in service and
his seniority over the first respondent has remained intact
all through his period of service on deputation, the
appellant further contended that the first respondent had in
fact suffered break in service because of his spells of
service at the D.A.V. College, Dehra Dun and the D.B.S.
College, Kanpur and as such the first respondent’s claim of
continuous service was an untenable one. The Vice-Chancellor
upheld the appellant’s claim that he had not suffered any
break in service and by virtue of his lien he was entitled
to his rightful place of seniority. Aggrieved by the order
of the Vice-Chancellor, the first respondent preferred an
appeal to the Chancellor but the Chancellor affirmed the
order of the Vice-Chancellor and dismissed the appeal.
Thereafter the first respondent filed Civil Misc. Writ
Petition No. 3710 of 1985 under Article 226 of the
Constitution before the High Court of Allahabad. By the
impugned order a learned Single Judge of the High Court
allowed the writ petition holding that in terms of either
the Old Statutes or the First Statutes of the Kanpur
University the appellant herein is not entitled to reckon
the period of service at the University of Aden for
computing the length of service in the D.A.V. College and as
such the recognition of the seniority of the appellant over
the first respondent by the Vice-Chanceller and the
Chancellors in their respective orders cannot be sustained.
Accordingly the learned Judge has issued a rule in favour of
the first respondent and it is against that order this
appeal by special leave has been filed.
While presenting the case of the appellant before us
Shri S.N. Kacker, learned counsel did not press the
alternative contention of the appellant that the first
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respondent had suffered break in service in the D.A.V.
College, Kanpur and as such he has no locus to claim
seniority. Consequently, the only ground on which the order
of the High Court was assailed is that the High Court was in
error in holding that the deputation service of the
appellant has effected a break of service and as such he has
lost his original seniority in the Department of Zoology. As
the High Court has held that neither under the Old Statutes
nor under the First Statutes of the Kanpur University the
appellant is entitled to tack on his service in the
University of Aden with his service in the D.A.V. College,
Kanpur it is necessary to advert to the relevant provisions
in the two Statutes. However, before such advertence, it
will be relevant to refer to the letter of consent issued to
the appellant by the then Principal viz. Shri S.C.
Srivastava of the D.A.V. College, Kanpur as a condition
precedent for his accepting the teaching assignment abroad.
The letter, addressed to the Ministry of Home Affairs, is
worded as under :-
"From :
Principal
D.A.V. College,
Kanpur, U.P.
India.
To
Ministry of Home Affairs,
Department of Personnel and Administrative Reforms,
(Foreign Assignment Section)
New Delhi.
Assignment of Indian Experts abroad
Certified that the appellant Dr. K.P. Hajela, Head of
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Zoology Department, D.A.V. College, Kanpur, will be relieved
for service abroad on foreign service terms in public
interest (i.e. retaining the applicant’s lien and protecting
his seniority within thirty days of selection if need be. It
is
973
further stated that the applicant, Dr. Hajela, can be
released for service abroad for a total period of three
years.
August 21, 1978. Sd/- S.C. Srivastava"
It may be seen from this letter that the appellant had been
granted leave for a period of three years and a specific
undertaking had been given on behalf of the College that the
appellant’s lien in the College will be retained and his
seniority also will be protected during his period of
service abroad. It will also be relevant to mention in this
context itself that even now the present Principal, who has
declined to uphold the seniority of the appellant, has
conceded in his order dated September 1, 1983 that the
appellant’s lien has been maintained. The relevant portion
in the order is contained in para 6 and reads as under :
"Dr. Hajela’s lien has been maintained on his post
here in so far as he was granted extraordinary
leave without pay for the period of contract
service abroad and that no appointment was made in
his place. Other claims are not admissible."
No doubt the first respondent and the present Principal
of the College have taken the stand that the former
Principal had no authority to guarantee the appellant his
lien in the Department and his rank of seniority. The merit
of this stand will be gone into later but for the moment we
would only like to point out that one part of the
undertaking given by the former Principal namely, retention
of lien has been conformed to and what is disputed is only
the guarantee regarding the protection of seniority.
Now coming to the Statutes the relevant one in the Old
Statutes is 11.34 and the one in the First Statutes is
18.10. They are in the following terms:-
Old Statutes:
"Seniority of teachers in Affiliated Colleges :
11.34(1) Subject to the provisions of this Statute
the seniority of teachers in a particular college
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shall be determined by the length of service in
that College in the same cadre and in the same
grade.
(2) The periods of service in another University
associated/affiliated college in the same or
higher cadre and grade shall also count towards
seniority if the University of College is situated
in Uttar Pradesh and the College is affiliated to
or associated with one of the Universities in the
State.
(3) Service in an officiating capacity shall not
be counted. Temporary service shall be counted
only if it is in continuation of a subsequent
permanent appointment.
(4) The period of leave without pay shall not be
counted in calculating the seniority unless during
such leave another position involving similiar
work was held or it was medical leave."
First Statutes
"Seniority of Principals and Teachers of affiliated
colleges.
18.10 The following rules shall be followed in
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determining the seniority of Principals and other
teachers of affiliated colleges :
(a) the Principal shall be deemed senior to other
teachers in the College ;
(b) the Principal of a post-graduate college shall
be deemed senior to the Principal of a Degree
College ;
(c) the seniority of Principals and teachers of
the affiliated colleges shall be determined by the
length of continuous service from the date of
appointment in substantive capacity ;
975
(d) service in each capacity (for example, as
Principal or as a teacher), shall be counted from
the date of taking charge pursuant to substantive
appointment ;
(e) service in a substantive capacity in another
University or another degree or post-graduate
college whether affiliated to or associated with
the University or another University established
by law shall be added to his length of service."
Another provision, which has not been adverted to by the
High Court, is also set out, as it has relevance : C
"18.16 : The statutes contained in this Chapter
shall not affect the inter seniority of teachers
employed in this University from before the
commencement of these statutes".
In order to give operative force to the First Statutes
over the Old Statutes in the event of any conflict in the
provisions of the two Statutes a specific provisions has
been made in Chapter I Section 50(1) 1.02(1) and it is
worded as under :
"All existing Statutes and all such Ordinances in
force in the University, as are inconsistent with
these Statutes are to the extent of such
inconsistency, hereby rescinded and shall
forthwith cease to have effect except as respects
things done or omitted to be done before the
commencement of these Statutes".
The High Court has taken the view that there is no
inconsistency between Statute 11.34 of the Old Statutes and
Statute 18.10 of the First Statutes and as such the
seniority of the appellant should be determined in
accordance with Statute 11.34(2). As it is provided in sub-
clause (2) of Statute 11.34 that the periods of service in
another University or College would count for seniority only
if the University or College is situated in Uttar Pradesh
and the College is affiliated to or associated with one of
the Universities in the State, it has been held that the
appellant
976
cannot tack the period of his service in the University of
Aden with his service in the D.A.V. College for purposes of
seniority. The High Court has further held that even if the
First Statutes are held applicable the appellant will fare
no better because under sub-clause (e) of Statute 18.10 it
is only the service rendered in a substantive capacity in
another University or affiliated or associated College in
the University or another University established by law that
would count. As the University of Aden would not fall within
the definition of "University or another University
established by law" envisaged in the sub-clause the High
Court has stated that any service rendered in a foreign
University has to be necessarily excluded while computing
the length of continuous service.
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On a careful consideration of the matter we find that
the High Court has not properly comprehended the Statutes.
Taking up Statute 11.34 of the Old Statutes it may be seen
that sub-clause (1) deals with the reckoning of seniority on
the basis of the length of service in one and the same
College and in the same cadre and grade; sub-clause (2)
provides for the addition of service in another University
or associated/ affiliated College etc. provided the
University is situate in Uttar Pradesh and the College is
affiliated to or associated with one of the Universities in
the State; sub-clause (3) excludes service in an officiating
capacity and grants recognition of temporary service only if
it has continuity with a subsequent permanent appointment;
and lastly sub-clause (4) prescribes for tacking on of leave
period with the total length of service provided; (1) the
period of leave has been spent in holding another position
involving similar work or (2) it was medical leave.
Admittedly, the case of the appellant would not fall under
sub-clause (2) because his service in the University of Aden
will not constitute such kinds of services as are envisaged
in the sub-clause. However, sub-clause (4) would undoubtedly
cover the case of the appellant because he had been granted
leave of absence on loss of pay for a period of three years
for rendering service in the University of Aden on
deputation basis. The words "unless during such leave
another position involving similar work was held" would
squarely apply to the period of leave of the appellant. It
is significant to note that the qualifying words "University
or College situated in Uttar Pradesh and the
977
Colleges affiliated to or associated with one of the
Universities in the State" occurring in sub-clause (2) are
conspicuously absent in sub-clause (4). It is not the case
of the first respondent and for that matter there can be no
such contention also that the position held by the appellant
in the University of Aden did not involve the performance of
work similar to the one he was performing in the D.A.V.
College, Kanpur. Unfortunately, this sub-clause which is the
one directly governing the case of the appellant has not
been noticed by the High Court. As there is no conflict
between sub-clause (4) of Statute 11.34 of the Old Statutes
and any provision in the First Statutes there is no room or
scope for invoking the overriding provisions contained in
Statute 1.02(1) for denying the application of Old Statute
11.34(4) to the case of the appellant. On the other hand the
appellant will be entitled to claim the benefit of First
Statute 18.16 which preserves "inter seniority of teachers
employed in the University from before the commencement of
the Statutes-
The High Court has failed to notice that sub-clauses
(2) and (4) of Old Statute 11.34 contemplate different
situations and act in different fields. The service
contemplated under sub-clause (2) is a distinctly different
service and has no bearing with the service rendered in the
particular institution in which seniority is claimed. Even
so, a link is provided between the services rendered
elsewhere and the services rendered in the concerned
University or College because of the similarity of features
in the two services and the integral connection between the
Universities situated in the State and the affiliation or
association of the Colleges with one or the other of the
Universities in the State. On the other hand the service
contemplated under sub-clause (4) is the service rendered
elsewhere during leave period even while the teacher
continues to be on the rolls of the institution in which he
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has been rendering service. Thus while sub-clause (4)
contemplates service rendered elsewhere during the period of
leave, sub-clause (2) does not contemplate any such service
but contemplates the service rendered elsewhere without
taking leave from any institution. A proper exposition of
the fields of operation of sub-clauses (2) and (4) of Old
Statute 11.34 will at once bring to light the merit in the
contentions of the appellant and the error that has been
committed by the High Court. As we have already stated the
provision contained
978
in sub-clause (4) of Old Statute 11.34 has not been
disturbed in any manner by the First Statutes and hence the
appellant will be entitled to the benefit of this provision,
especially in terms of Statute 18.16 of the First Statutes.
Because of the failure of the High Court to have applied the
appropriate provision in the Statutes, the period of service
of the appellant on deputation has been wrongly held to be
non-includible in the total length of service of the
appellant and this has led to the denial of the appellant’s
rightful seniority.
As the appellant’s case falls squarely within Old
Statute 11.34(4) there is no need or necessity for resorting
to the provisions of the First Statutes for determining the
appellant’s claim of seniority. It is not the case of the
appellant that he had rendered service in a substantive
capacity in another University or another affiliated or
associated College established by law as contemplated by
sub-clause (e) of First Statute 18.10. On the other hand his
claim is that he had all along continued to be in the
service of the D.A.V. College, Kanpur notwithstanding his
service on deputation in a foreign University because he had
been granted extraordinary leave on loss of pay with
guaranteed lien and seniority of service.
It was hesitantly contended by the counsel for the
first respondent that the former Principal of the D.A.V.
College had no authority to guarantee the appellant the lien
on his post and his seniority rights and that such powers
vested only with the University. This contention does not
require examination because the Principal, as he Head of the
Institution, was undoubtedly competent to grant leave on
loss of pay to the appellant in order to enable him to take
up a foreign assignment on deputation basis. Once it is
proved by the appellant that the period of leave was
utilized in holding another position involving similar work
the appellant is automatically entitled to the benefit of
sub-clause (4) of Old Statute 11.34. On account of this
irrefutable position it is needless for us to consider
whether the Principal had acted within his powers or had
exceeded his powers in committing the College to confer
rights of lien and seniority status to the appellant when he
was granted leave.
979
In the light of our conclusion the appeal has to
succeed. Accordingly it will stand allowed and the judgment
of the Court is set aside. The parties will, however, bear
their respective costs.
M.L.A. Appeal allowed.
980