Judgment:
Palok Basu, J.
1. Viewed from any angle the only question in these two writ petitions is whether inter se seniority of Professor or Reader in the Aligarh Muslim University (A.M.U.) appointed, directly in the cadre or promoted under the merit promotion scheme personal promotion scheme (A.P.S., P.P.S.) has to be determined on the principles laid down by the Hon'ble Supreme Court in Dr. Bal Krishna Agarwal, (1995) 1 SCC page 614, or Dr. Rashmi Srivastava, (1995) 3 SCC page 653, or Dr. Suman Agarwal, (1996) 1 SCC page 632 or, can it claim to remain out of the purview of any of these three decisions.
2. Professor M. Wajid Khan prays that seniority list dated 18-1-1996 relating to Botany Department In Aligarh University be quashed in so far as it determines the inter se seniority of cadre Professors and M.P.S. Professors on uniform basis and the A.M.U. be commanded to re-determine the inter se seniority in accordance with law and further opposite party No. 5 Prof. Wazahat Husain be removed from the Office of the Chairman of Department of Botany and the petitioner be directed to be appointed as such. When the writ petition was filed on 13-5-1996 a Division Bench called for affidavits in reply from all the opposite-parties and in the meantime directed that if any appointment of a teacher promoted under M. P. S. is made to the post of Chairman and/or the Dean, the same shall be subject to the final orders in this writ petition.
3. Similarly petitioner Shreen Moosvi sought the relief that the names of all M. P. S. Professors (including respondent Nos. 4 to 6) be expunged from the seniority list of professors in accordance with the decision in Dr. Rashmi Srivastava (Supra) and further that a fresh seniority list should be prepared in term3 thereof and the posts of Chairman/Dean of the Department in the A. M. U. be filled afresh following the dictum of Hon'ble Supreme Court. In this case also by an interim order dated 21-5-1996 a Division Bench directed that any appointment or promotion of a Teacher or Professor under M, P. S. and also to the post of Chairman/Dean of any Department in A. M. U. shall be subject to the final orders in this writ petition.
4. Not only counter and rejoinder affidavits but also supplementary affidavits have been exchanged and as prayed by the learned counsel for the parties both these petitions are being disposed of finally at the admission stage under the Rules of the Court. Shri Murlidhar, Senior Advocate assisted by Shri Pradeep Kumar, and, Shri Vijay Bahadur Singh, Advocate for petitioners in the two writ petitions and Shri K. N. Tripathi, Senior Advocate, assisted by Shri Dilip Gupta, standing counsel for A.M.U. have been heard at substantial length for and against the reliefs claimed. On behalf of the private opposite-parties in W.P. No. 5821 of 1996 and W.P. No. 17731/96 Shri Ashok Khare and Shri K. R. Sirohi have been heard. It may be mentioned here that the petition of petitioner M. Wafid Khan relates to the Botany Department of A.M.U. whereas that of petitioner Shreen Moosvi relates to the History department thereof.
5. Before coming to the discussion on the legal aspect involved it may be mentioned that petitioner M. Wajid Khan undisputedly was appointed a Professor in the Department of Botany at A.M.U. through the process of direct recruitment, after undergoing selection process as prescribed under statute 29(2) (a) of the Statutes framed under Section 28 of the A. M. U. Act, 1920. The opposite-party Nos. 5, 6, 7, 8 and 9, all Professors, were appointed on M.P.S. i.e. Professor Wazahat Hussain, M. P. S. on 13-7-1987, Professor S. A. Siddiqui, M. P. S. on 14-3-1987, Professor I. H. Khan, M. P. S. on 4-6-1993. Professor Z. A. Siddiqui, M. P. S. on 4-6-1993 and Professor A. H. Khan, M. P. S. on 4 6-1993. The petitioner Professor M. Wajid Khan was directly recruited admittedly on 10-3-1992 when his probation period begin and was confirmed Professor on 10-3-1993. As per the seniority list under challenge the petitioner is shown at No. 10 in order of seniority i.e. below opposite-party Nos. 5 and 6. It was contended that three other private opposite-parties have been arrayed because they also have been promoted under M.P.S. and do not have the right to be declared Professors as such alongwith a directly recruited Professor such as the petitioner.
6. Similarly, petitioner Shreen Moosvi was also appointed a Professor in the Department of History through a direct recruitment Process on facing the selection committee and the appointment came into being on 23-8-1988 The opposite-party Nos. 4, 5 and 6 are shown in the seniority list at SI. No. 2, 3 and 5 whereas the petitioner has been shown at SI. No 8 though it is mentioned in the seniority list Annexure-2 that Professor I. H. Siddiqui got M.P.S. on 31-5-1985, Professor S. P. Gupta got M. P. S. on 31-5-1985 and Professor Mansoora Haider got M. P. S. on 1-5-1986 whereas the petitioner was selected directly by the selection Committee on 23-8-1988 as Professor on which date her probation period begin and was confirmed as such on 23-8-1989.
7. The argument on behalf of the petitioners in both the writ petitions therefore in short is that there was no cadre of M P.S. Professors and if a correct reading of the provisions contained in the A. M. U. Act, its statutes and ordinances is made, and also declaration of law made by the Hon'ble Supreme Court in Rashmi Srivastava (supra), is kept in view, none of the private opposite-parties in both the writ petitions can be shown senior to the respective petitioners.
8. The stand of the A. M. U. in short as well as that of the private opposite-parties who have been admittedly promoted to the pest of Professors under M. P. S. is that in view of the later decisions of the Hon'ble Supreme Court in Dr. Suman Agarwal (Supra) the said private opposite-parties have been rightly given the seniority because no distinction on facts and in law can be made between a Professor selected directly through a selection committee as well as a Professor appointed as such under the Selection Committee's recommendation through M.P.S. Learned counsel for contesting sides have relied upon observation of the Hon'ble Supreme Court in Dr Bal Krishna Agarwal (Supra) to support their respective points of view.
9. It may be noted here that in the State of Utter Pradesh the Universities are governed by the provisions contained in the U. P. State Universities Act. Provisions of that Act do not apply on A. M. U. just as those provisions do not apply to Banaras Hindu University or some Agricultural Universities etc. It may further be noted here that A. M. U. as well as B. H. U. are Central Universities.
10. It may further be noted here that personal promotion scheme came to be accepted by State Governments in view of the recommendation of the University Grants Commission from time to time. It is well known that the said Commission came to be established under the University Grant6 Commission Act, 1956 primarily to determine the standard of education etc. in the Universities. It is empowered to take all steps for the promotion of University Education in our country. Similarly it has to lay down guidelines for maintenance of standards of teaching, examination and research in Universities. It is also possible for the Commission to go into the financial needs of Universities and consequently allocate and disburse grant to Universities from out of its own funds. It can thus regulate all State Universities including those governed by Central Act. It was on 23-11-1982 that the said Commission recommended that a 'merit promotion scheme' for universities and subsequently by its resolve dated 31-10-1982 for the teachers of the Colleges, should be implemented, Necessary guidelines were also provided in the said two orders of the Commission. The primary objective of M. P. S. was to recognise outstanding work done by the teachers the work so done should be evaluated by experts and then provide professional advancements to such teachers whose merits are recognised. It fellows that no additional pests were to be created under this scheme and the existing persons were to be promoted to the next higher level and the said position is held by such incumbents as personal to them and no resultant vacancy is required to be filled. It therefore, further follows that even though one may get a promotion under M. P. S. his lien on the earlier cadre is to continue It is thus clear that such a claim was deemed to be conducive to encourage the teachers to advanced teaching and research. Detailed guidelines were laid down such as eight years competition of service in the initial cadre (details are omitted here as no necessary for this case), merit of the teacher to be judged by a Selection Committee which was to consider the opinion of the refere which Selection Committee must have two outside experts. The teachers getting M.P.S. were not to count for determining total posts in the cadre to which promotion was to be made i. e. from Reader to Professor. It is therefore obvious that alignment in the new pay scale and the salary drawn was to be made for those recommended under M.P.S.
11. In the State of Madhya Pradesh however there was some dispute as to the basis on which seniority inter se as well as between M. P. S. promoties and direct recruits was to be determined Some laws were brought about and amendments were made in the statutes of Universities in the State of Madhya Pradesh. An argument was advanced before the Hon'ble the Supreme Court in Rashmi Srivastava (supra) hat 'once a merit promotee is promoted from the post of Lecturer to that of Reader or from the post of Reader to that of Professor there is no question of any reversion of such a promotee only on the ground that there is no vacancy of a Reader or Professor. That Section 49 of the University Act only prescribes the procedure for selection of a Reader or Professor but is not confined to only direct recruitment of such University teachers.........It was contended that statutes and ordinances of the Universities are part of the Act and they can create new sources of recruitment. On the basis of resolution of co-ordination committee it was argued that by the said resolution an additional source of recruitment of teachers in the University was created........and once that is accepted on the principle of continuous officiation original petitioner would be junior to original respondent No. 4 who is appellant before us. 'The Hon'ble Supreme Court also considered the argument of the University Grants Commission (for short U. G. C.) that ''provision for promotional opportunities to University teachers was essential for removing stagnation of the concerned merit oriented teachers and that was the basis of the scheme.' The Supreme Court also considered the argument that 'The selection comittee had considered the cases of appellants for merit promotion on 13-3-1986 after direct recruits were interviewed and recruitment was over, University had wrongly and mala fide issued promotion orders to the appellants by way of backdating them on 12-3-1986. The merit promotion was purely personal to the incumbent, the moment the incumbent retired or resigned or otherwise ceased to be a merit promotee there will be no question of promoting somebody else vice him. 'It is concluded by the Hon'ble Supreme Court in paragraph 40 that 'if a prevision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Readers or Professors as So case may be. They would remain ex-cadre employees who cannot claim inter-se seniority with direct recruits forming the concerned cadre. It is not possible to agree with the contention that under the merit promotion scheme though the promotions were personal, to that extent there was a temporary extension of the cadre of Reader or Professor as the case may be or that they were special promotions,'...... ' we can profitably refer to the decision of Dr. Bal Krishna Agrawal... . ..By inserting Section 31(A) in the University Act with effect from 10-10-1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in University was created by State Legislature.........That section was brought into force from 10-10-1984.....a Division Bench took the view that appellant was entitled to be treated as senior to the promotee Professor as Section 31 (a) was not on the statute book when the respondents 4 and 5 were promoted and therefore their promotions could be treated as valid only from 21st February. 1985 when Section 31 (A) was enforced. Before the date the appellant had already entered the cadre of Professors on 11-11-1984 and therefore he had to be treated as senior to respondents 4 and 5. '.........' the aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of Ex-cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited , Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst these who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. 'The ultimate conclusion of the Hon'ble Supreme Court in para 47 is :
'Amongst person forming the same class to which he belongs, namely, merit promotee Readers or Professors their inter se seniority has to be fixed on the basis or continuous officiation as such merit promotee. Such a separate seniority list of merit promotee Readers and Professor has to be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the cadre. It is not as if not as if and they are still to be treated as only Lecuters or Readers as the case may be from which posts they got merit promotion, as wrongly assumed by the High Court. In short there have to be two seniority lists. One of the cadre Headers and Professors who are direct recruits and. the other of Merit promoter readers and professors. The directions issued by the High Court in para 12 will stand modified as aforesaid.'
12. Subject to this modification Rashmi Srivastava's appeal to the Supreme Court was dismissed.
13. For all practical purposes the decision of the Hon'ble Supreme Court in Dr. Bal Krishna Agrawal (supra) has also been considered in the aforesaid paragraph. The emphasis is that so long there is no provision specifically equating the M. P. S. candidates with the direct recruits, the M. P. S. Readers or Professors would from a separate cadre and cannot claim seniority as against the direct recruits which consists the cadre of the Reader or Professors.
14. In Suman Agarwal (supra) also the same Section 31 (a) of the U. P. State Universities Act again came to be considered by the Hon'ble Supreme Court. It has been observed by the Hon'ble Supreme Court in para 11 that clause 11 is relevant in this case which reads as follows :
'11. (i) The post of Reader or Professor to which personal promotion is made, shall be temporary addition to the cadre of Professor or Reader, as the case may be, and the post shall stand abolished on the incumbent ceasing to occupy it.'
The Supreme Court further observes in subsequent paragraphs :
Paragraph 12.-The persona! promotion, though does not have any effect on the post held by the direct recruit by operation of Clause 11 (i), the post held by the promotees on personal promotion to the cadre of the Reader or the Professor, as the case may be. In other words, the temporary promotions so long as the candidate continues to hold the post as Reader or Professor will be in addition to the sanctioned strength of the Reader or Professor direct recruit. The post held by a promotee is conterminous with the holder of the post ceasing to exist either on retirement or termination, removal, dismissal etc. In other words, both the direct recruits as well as the temporary promotee on personal promotion would form part of the cadre as Reader or Professor, as the case may be. But the Promotee is ineligible to get a berth into the quota of direct recruits. He/She would only be a temporary addition to the sanctioned quota to which direct recruit alone is eligible to hold the post as a Reader or Professor, as the case may be.
Paragraph 13.--The question, then, is how would inter se seniority between direct recruit and promotee is required to be determined. This has specifically been provided in Statute 17.05, Clause (b) is relevant which reads as follows :
In the same cadre, inter se seniority of teachers, appointed by personal promotion or by direct recruitment, shall be determined according to length of continuous service in such cadre.
Paragraph 14-'....................'
Paragraph 15-'...................'
(i).......................
(ii)......................
(iii)......................
(iv).......................
(v).......................
(vi)....................
(vii) There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in the posts concerned as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits.
Paragraph 16--Nonetheless, the post of Promotees was made as temporary addition to the cadre strenght and the inter se seniority has been provided between the direct recruits and the promotees. The relative seniority of the candidates from two streams fuse into the relevant cadre as Professor or the Reader, as the case may be be. in the light of the statutory operation of the provisions referred to hereinbefore, the conclusion reached by us in inevitable.
Paragraph 17-In Dr. Rashmi's case statutory source of recruitment was absent. In Dr. Rashmi case this court observed that in the absence of similar provision like Section 31-A of the U. P. Act, as was considered in Dr. Bal Krishna Agarwal v. State of U.P., no post could have been created for promotion by way of extension of the cadre of the Readers or Professors, as the case may be. in the absence of statutory provision in the Act, Section 6 by itself could not be of any assistance to the appellant therein. Thus, this Court had pointed out that here is a specific provision in the Act to regulate to inter se seniority which was not available in Dr. Rashmi case.'
15. Having thus noted the gist of the arguments made from either side as well as the law laid down by the Hon'ble Supreme Court as crystalized by their Lordship in Suman Agarwal's case (supra), it has to be seen whether there is such provision as Section 31 (A) of the U.P. State Universities Act in A.M.U. Act of for that matter in its Statutes, Ordinances or Regulations, Both sides have placed reliance on some of the Provisions as they exist in the A M.U. Act and its statutes. Both parties agree that the personal promotion scheme was adopted by the A.M.U. to be applicable in the A.M.U. with effect from 20-2-1984. it is also admitted to the learned counsel for the parties that whatever provisions existed in the A.M.U. Act concerning recruitment to a cadre, hove net been amended by any amending act so far. To repeat therefore, the learned counsel for the petitioners said that the provisions existing do not contemplate the M.P.S. candidate getting into the regular cadre on which direct recruits are appointed. The University's counsel as well as counsel for the private opposite parties argued that whatever provision exist they may be interpreted favourably so as to permit appointments into the same very cadre made through merit promotion scheme. It is therefore obvious that if one can read into the provisions the permissibility of M.P.S. candidates joining the cadre of direct recruits, the writ petitions should fail which have to succeed otherwise. Since there is no dispute that the following provisions are the only relevant provisions on the point whether they are in the Act or in the Statutes or in the Ordinances, all the provisions which have been quoted by respective sides are incorporated below seriatim so as to facilitate discussion on the respective arguments advanced. Relevant Provisions from A.M.U. Act, 1920 are :
A.M.U. Act :-
Section 2(hh)
2(k).........
5(7).........
27(d) .........
27(e).........
27(f)..........
27(e) .........
27(h), .........
28(1) .........
28(2), .........
28(3), ..........
28(4), ..........
28(5), .........
28(6), 'No new statute or amendment or addition or repeal of any statute shall come into force unless it is approved by the visitor, who may sanction of disallow it, or return it for further consideration '
Section 29 Powers to make ordinances-(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely :-
(a) '.........'
(b) '.........'
(c) '.........'
(d) '.........'
(e) '.........'
(f) '.........'
(g) '.........'
(h) '.........'
(i) '.........'
(j) '.........'
(k) 'the emoluments and the terms and conditions of service of the academic and other staff of the University ;'
(p) 'such other terms and conditions o]f teachers as are not prescribed by the Statutes ; and
(q) '.........'
Section 29(2),-The Ordinances In force immediately before the commencement of the Aligarh Muslime University (Amendment) Act, 1972, may be amended, repeled or added to at any time by the Executive Council, provided that-
(i) in making the Ordinances in respect of the matters enumerated in sub-section (l) other than those enumerated in clauses (k) and (p), the Executive Council shall act en the recommendation of Academic Council.
(ii) Omitted.
29 (3) The Executive Council shall not have power to amend any draft proposed by the Acadamic Council under the provisions of sub-section (2) but may reject the proposal or return the draft to the Acadamic Council for reconsideration, either in whole or in part, together with any amendments which the Executive Council may suggest.
29 (5) Every Ordinance made by the Executive Council shall come into effect immediately.
29 (6).
31 (1) The authorities of the University may make regulations consistent with this Act, the Statutes and the Ordinance (a), (b), (c).
31 (2) X
31 (3) X
STATUTES
17. Powers and Functions of Executive Council.-(1) The Executive Council shall have the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for.
(2) Subject to the provisions of the Act, the Statutes and the Ordinances the Executive Council shall, in addition to all other powers vesfed in it have the following powers, namely :-
(i) to appoint the Registrar, Finance Officer, Libration, Principals of Colleges and Institutions established by the University and such Professors, Readers, Lecturers and other members of the teaching and academic staff as may be necessary, on the recommendation of the Selection Committee constituted for the purpose ;
* Provided that no action shall be taken by the Executive Council in respect of the number, qualifications, emoluments, and other conditions of service of teachers, without consideration of the recommendations of the Academic Council.
(ii) '.........'
(iii) '........'
(iv) '.........'
(v) '.........'
(vi) '........'
(vii) '.........'
(viii) '.........'
(ix) '.........'
(x) '.........'
(xi) '.......'
(xii)'.........'
(xiii) '.........'
(xiv) '.........'
(xv) '.........'
(xvi) '.........'
(xvii) '........'
Statutes 27 Selection Committees.-(1) The selection committee for appointment to the posts specified in column (1) of the Table below shall consist of the Vice Chancellor, the Pro-vic-Chancellor, a nominee of the visitor and the persons specified in the corresponding entry in column (2) of the said Table :
Provided that where the appointment of a teacher is to be made in a College or the University polytechnic/** Women's Polytechnic, the Principal of that College or the University Polytechnic/ **Women's Polytechnic, as the case may be shall be also ex-officio member of the Selection Committee constituted for such appointment:-
TABLE
--------------------------------------------------------------------------------(1) (2)--------------------------------------------------------------------------------Professor *(i)(ii)(iii)(iv)Reader/Lecturer (i)(ii)(iii)(iv)**Registrar/Controller ofExams./Finance Officer (i)(ii)Librarian (i)(ii)Principal of College orInstitution maintainedBy the UniversityNote :-The constitution of the Selection Committee for the posts of other teaching and academic staff and nonteaching staff other than those specified in the above table shall be as approved by the Executive Council from time to time'.
--------------------------------------------------------------------------------(2) The Vice-Chancellor or in his absence, the Pro-Vice-Chancellor shall preside at the meetings of the Selection Committee.
*(3) The meeting of the Selection Committee may be fixed with the prior consent of the Visitor's nominee or the exports to be appointed by the Executive Council;
Provided that the proceedings of the Selection Committee shall not be valid unless :
(a) where the number of Visitors nominee, and the persons nominated by the Executive Council is fear in all, at loast three of them attend the meeting ; and
(b) where the number of Visitor's nominee, and the persons nominated by the Executive Council is three in all, at least two of them attend the meeting.
*(4) The meetings of the Selection Committee shall be convened by the Vice-Chancellor or in his absence, by the Pro-Vice-Chancellor.
*(5) The procedure to be followed by a Selection Committee in making recommendations shall be laid down in the ordinances.
*(6) If the Executive Council is unable to accept the recommendations made by the Committee, it shall record its reasons and submit the case to the visitor for final orders.
*(7) Notwithstanding anything contained in the foregoing clauses of this Statute or Statute 29, the Executive Council may invite a person of high academic distinction and professional attain merit to accept a post of Professor in the University, on such terms and conditions as it deems fit, and on the person aggreeing to do so, appoint him to the post.
*(8) The Executive Council of the University may appoint teacher or any other academic staff working in any other University or institution for undertaking a joint project in accordance with the manner prescribed in the Ordinances.
'29. Terms and Conditions of Service of Teachers- (1) All the teachers of the University or any of its Institutions shall, in the absence of any agreement to the contrary, be governed by the terms and conditions of service as specified in the Statutes, Ordinances and Regulations of the University :
Provided that no alternation in the salary, the rate of contribution to the Provident Fund and the age of superannuation of a teacher in the service of the University shall be made to his disadvantage except with the previous approval of the visitor.
29(2) '......... .'
29(3) '............'
29(4) '............'
29 (5) '............'
29 (6) '............'
29 (7) '..... ......'
29 (8) '...........'
29 (9) '............'
29 (11) 'Notwithstanding anything contained in the foregoing clauses of this Statute, the University may permit any Professor or Reader to accept, concurrently on a part-time basis appointment in any University or institution on such terms and conditions as may be prescribed in the Ordinances.
Statute 30. Seniority Lists-(1) Whenever, in accordance with these Statutes, any person is to hold an office or be a member of an authority of the University by rotation according to seniority, such seniority shall be determined according to the length of continuous service of such person in his grade, and, in accordance with such other principles as the Executive Council may from time to time prescribe.
30(2) '............'
30 (3) '............'
ORDINANCES
1. The assignments of the Departments of studies to the various faculties shall be as follows :-
(b) '............'
(c) '............'
(d) '............'
(e) '............'
(f) '...........'
(g) '............'
(h) '...........'
(i) '............'
(j) '...........'
CHAPTER II
DEPARTMENTS/BOARDS OF STUDIES
1. '...........'
2. '............'
3. '...........'
*4 (a) Subject to the provisions of Statute 8 (1) of the Statutes of the University, the Chairman for a period of three years.
(i) '...........'
(ii) ' .........'
(iii)'...........'
4(b)'........ ...'
4(c) '............'
5. The Chairman of a Department shall under general supervision of the Dean :-
(a) issue notice for meetings of the Department;
Provided that the notices of the meeting of the Department when it has to perform the functions of Board of Studies shall be issued by the **Controller of Examinations ;
*Provided that the **Controller of Examinations shall convene a meeting of the Board of Studies at the written request of at least one third of the members of the Board of Studies concerned within 10 days of the receipt of such request.
(b) organise teaching work and frame the time table in conformity with the allocation of teaching work made by the Boards of Studies :
(c) organise research in the Department:
(d) assist the Deans in according the teaching and research activities of the Department with the activities of other Departments of the Faculty ;
(e) assign to the teachers in the Department such duties as may be necessary for the proper functioning of the Department; and to assign work and to exercise control over the non-teaching staff in the Department :
(f) '............'
(g)'............'
(h) '............'
6. Boards of Studies for subjects other than those assigned to the Departments of Studies as in Chapter I shall be assigned as follows:
6(a)'..........'
(b) '..........'
(c) '............'
(i) '........
(ii) '...........'
(iii)'..........'
16. On behalf of the petitioners it was argued that Section 29 and the Statute No. 29 (2) under the A. M. U. Act are the only provision which may be nearer to Section 31 of the U. P. State Universities Act which in turn is closest to Section 49 of the Madhya Pradesh Act. It was contended that there is absolutely no provision for accommodating the M. P. S. candidate into the regular cadre of the direct recruits. It was emphasised that the very language used in the Statute 29 quoted above would not permit the M. P. S. candidate to be quoted into the cadre of the regularly directly selected Readers and, or, Professors.
17. It was further contended on behalf of the petitioners that the words 'ere duly advertised' can bring by no stretch of imagination within its meaning the candidates getting promotion under M. P. S.
18. On behalf of the University it was canvassed that if Section 5(7) of the A. M. U. Act is read alongwith Statute 17 quoted-above, the 'other mode' of appointment by way of promotion under M. P. S. is also permissible and therefore those candidates who are promoted under this scheme should be treated as beneficiaries joining the parent cadre temporarily and it was thus argued that the provisions of A. M. U. Act and the statutes should be held to be convered by Dr. Bal Krishna Agarwal and Dr. Suman Agrawal cases (supra), and not the case of Dr. Rashmi Srivastava (supra).
19. On behalf of the private opposite parties it was strongly contended that a combined reading of Sections 27 and 28 make provisions for candidates getting promotions under M. P. S and therefore Section 29 should not be interpreted as shutting out the entry of the M. P. S. candidates. It was further argued on their behalf that since the Executive Council gave sanction to the M. P. S. scheme by its approval resolution, it should be held that the Executive Council has permitted those M. P. S. candidates to be absorbed in the regular cadre of the directly recruited Readers or Professors. In this regard reliance was placed on the decisions of Dr. Suman Agarwal's case and also on Harikishan Singh of Punjab and others, AIR 1971 SC page 1602 to tell the Court as to what is meant by power to select, Agra Electricity Supply Co. Ltd. v. The Labour Court, Meerut, 1969 SCC Volume 1 page 245, to tell the Court what should mean by the word grade and G.R. Luthra, ADJ, Delhi v. Lt. Governor, Delhi and Ors., AIR 1974 SC page 1908, to tell the Court that cadre will include permanent and temporary posts, both. On the point that a post should not be confused with cadre reliance was placed on Nahiria Ram v. Union of India, AIR 1958 SC page 113 and Baleshwar Dass and Ors. v. State U.P. and Ors., AIR 1981 SC page 41. Reliance was also placed on The State of Assam and Ors. v. Kanak Chandra Dutta, AIR 1967 SC page 884 to emphasise that the word post means the office.
20. Having examined the language used in the provisions of the A. M. U. Act, the statutes and the Ordinances which have been quoted above it can be said that it will be doing violence to the simple language used if one was to hold that the candidates seeking or getting M. P. S. promotions would be absorbed in the regular cadre of directly appointed Professors or Readers. The laid down by the Hon'ble Supreme in I>r. Bal Krishna Agarwal (supra), has been fully explained by Dr. Suman Agarwal's case (Supra). It must be held that there has to be unambiguous provisions under the law, creating equal status or fusing the directly recruited and the promotees under M. P. S. promotion scheme into one cadre and it is only then that question of inter se seniority between direct recruits and promotees under M. P. S scheme can be permissible, Since none of the provisions quoted above can be stretched to the extent to which the respondent's counsel wanted this Court to, a case has been made out by the petitioners that they have to be treated as those in the regular cadre and therefore those who have been promoted under the M.P.S. scheme have to be maintained in a separate list, for, their Professorship or Readership will terminate with those persons by their retirement, resignation, removal or death, those M.P.S. promotees cannot be shown senior to the petitioners in the seniority list prepared by the A.M.U.
21. Before parting it may be mentioned that in Writ Petition No. 17731 of 1996, Shreen Moosvi, it was contended by the respondent's counsel that since this petitioner was also a M.P.S. promotee in the Reader cadre, the cannot be permitted to challenge the promotion of the private respondents in the Professor's cadre. It was replied on behalf of the petitioner Prof. Moosvi that Reader's cadre was the feeding cadre for direct recruits in the Prefessors cadre and when the Selection Committee met for directly recruiting candidates, respondent No. 6 was rejected by the Selection Committee on 12-12-1986, He was again rejected on 22-6-1988 and then on 23 8-1988. He was given M. P. S. Professorship with effect from 1-5-1986. Concerning opposite-party Nos. 4 and 5 it was stated that they never faced the Selection Committee and were given Professorship under M P. S. on 28-8-1987 with effect from 31-5-1985. It was thus contended by the petitioner's counsel that none of the opposite-party Nos. 4, 5, and 6 are members of the direct cadre of Professors as none of them has been selected through the Selection Committee appointed for choosing the direct recruit Professor. This contention has been practically accepted by the respondents and therefore, it is of no importance as to whether in the feeding cadre of Readership the petitioner Ms. Moosvi had been a direct recruit or a promotee under M. P. S. It has therefore, to foe held that Professor Shreen Moosvi having been directly recruited on 23 8-1988 has to be declared the only one in the regular cadre of Professor in the Department of History and the respondent Nos. 4, 5 and 6 cannot be shown senior to her.
22. Similarly Professor M Wajid Khan is also the only one in the Botany Department who was selected as a direct recruit to the Professors cadre by a regularly appointed Selection Committee and therefore the opposite-party Nos. 5, 6, 7, 8 and 9 all of whom were granted Professorship under M. P. S. cannot be shown in that cadre as senior to the petitioner.
23. In view of the aforesaid discussion the writ petitions succeed and are allowed. The petitioners ate held to be the directly recruited Professors entitled to be in the cadre of the Professors Opposite-party Nos. 5, 6, 7, 8 and 9 in Writ Petition Nos. 5821 of 1996 and opposite-party Nos. 4, 5 and 6 in Writ Petition No. 17731 of 1996 have to be shown separately in distinct list of personal promotees and none of the private opposite-parties in these two writ petitions can be shown senior to the two petitioners in these two writ petitions.
24. The Aligarh Muslim University is hereby directed to correct the seniority lists keeping in view the observations and directives in this judgment and also not to appoint or continue with the appointment of any of the private opposite-parties to the post of Chairman or Dean of any department or faculty in A. M. U. The petitioners are entitled to their costs.