ORDER N.L. Gangully, J.
1. This writ petition by a Lecturer in Psychology Departmentof Raja Balwant Singh College, Agra seeking a writ of certiorari quashing the orders dated March 18, 1980, a seniority list dated July 1, 1980 as far as petitioner and respondent No. 5 are concerned. The orders dated November 20, 1980 and May 13, 1983 passed by the Vice-Chancellor and Chancellor, respectively, were also prayed to be quashed.
2. The petitioner was appointed as Lecturer in Raja Balwant Singh College, Agra on September 1, 1963 for teaching in Working Men's Section of the said College. Raja Balwant College was previously named as Balwant Singh Rajput College (here-in-after referred as the 'College') which was a posts Graduate College. No doubt the petitioner was teaching in Working Men's Section of the College for the Degree class but there was an agreement between the petitioner and the Committee of Management of the College dated April 28, 1968 by which it was agreed that petitioner shall work as Assistant Prof, of Psychology in Working Men's Section of the College and the appointment was for whole-time duties. The Dy. Registrar, Agra University by letter dated February 3, 1966 has sanctioned that the whole-time employees of the Working Men's Section in the College which is an 'A' Class college, are entitled to post graduate pay scales as envisaged in Sub-clause (iv) of the Statute 2 in Chapter XVIII relating to Working Men's College. It is also admitted that the Agra University Act was applicable to the said University and its affiliated Colleges till it was repealed by U.P. State Universities Act, 1973. As a result of approval and sanction by Dy. Registrar, Agra University, the petitioner and other teachers of the Working Men's Section of the College were accorded approved post Graduate scales w.e.f. April 1, 1966 vide a resolution No. 4 dated July 10, 1967 by the Board of Management of the College which had agreed to pay the scale of post Graduate Lecturers to the petitioner w.e.f. April 1, 1966. The respondent No. 5 Dr. H.M. Singh was appointed in the College on July 16, 1969. The appointment was in the main College. He was confirmed in 1970 after one year probationary period. A seniority list was prepared by the College dated July 15, 1977. The petitioner was shown correctly as senior to respondent No. 5 in the seniority list. The seniority list dated July 15, 1977 was published by the Board of Management of College.
3. The petitioner pleaded that he had no information or any notice about the rede termination of the seniority matter concerning the petitioner and the respondent No. 5. It appears that by a letter dated March 18, 1980, the Principal of the College wrote to the Registrar (Affiliation), Agra University that with regard to determination of the seniority of the teachers of the evening section (working in Working Men's Section) of the College, it was decided that Dr.Har Mohan Singh is senior to petitioner Dr. S.N. Sharma in the Department of "Psychology". The seniority of Dr. Har Mohan Singh, respondent No. 5, was to be counted w.e.f. December 4, 1970 and that of the petitioner from July 1, 1975.
4. The petitioner being aggrieved by the change of seniority, made a representation on May 6, 1980 to the Vice-Chancellor. The petitioner in the appeal sent to the Vice-Chancel lor narrated that he was appointed in the Department of Psychology on September 1, 1963 and was confirmed after expiry of one year period. He was given the post Graduate pay scale also w.e.f. date of appointment by the Board of Management of the College after approval by the Dy. Registrar of the Agra University. It was specifically pleaded that Dr. H.N. Singh, respondent No. 5, was appointed on July 16, 1969. The College Raja Balwant Singh College, Agra is a post Graduate College having large number of students studying there. There was an evening section in the College for the Degree classes for the benefit of working men. It is argued that it is the same College having different sections therein. The mere fact that the classes were taken for working men in the evening by certain group of Lecturers of the College would not amount to a separate Institution in itself. The Board of Management of the College themselves had decided and had paid the salary in the pay scale of post Graduate teachers to the petitioner irrespective of the fact that during the said period, the petitioner was given the degree classes for teaching in the Working Men's Section of the College. In the appeal before the Vice-Chancellor, the petitioner submitted that other teachers of the College who were also working in the Working Men's Section of the College were put into common roll of teachers of the College and their seniority was accordingly determined where as the petitioner's seniority which was once determined finally by the Board of Management vide resolution dated July 1, 1977 was modified illegally, arbitrarily and with-out any notice to the petitioner.
5. The representation/appeal of the petitioner to the Vice-Chancellor was rejected and the Dy. Registrar had communicated the order of rejection of the appeal by letter dated November 20, 1980. The Dy. Registrar in the order dated November 20, 1980 indicated that these teachers who were working in the main college prior to the date of merger of the Working Men's College in the main college, the services rendered in the Working Men Section of the College cannot be taken into account for treating him at par with ' the post graduate teachers for the purpose of seniority. Again a representation was sent by the petitioner to the Vice-Chancel lor in the matter of determination of seniority in service by letter dated November 25, 1980, June 1, 1981 and November 16, 1981. There was no response from the side of the Vice-Chancellor, hence the peti-tionersubmitted a reference petition under S. 68 of the U.P. State Universities Act explaining the delay that had accrued in making the reference to the Chancellor explaining all the facts and circumstances for the cause of delay. The Chancelllor also vide order dated May 13, 1983 rejected the reference of the petitioner. The Chancellor of the Agra University rejected the reference representation on the ground of delay as it was filed beyond three months of the initial 1 order. However, the Chancellor was pleased to enter into the merits of the reference representation. He rejected the representation on merits also. Being aggrieved by the final rejection of the reference, the petitioner approached this Court under Article 226 of the Constitution of India for the reliefs mentioned in the preceding paragraphs.
6. The learned counsel for the petitioner submitted that the Working Men College is the part and parcel of the Raja Balwant Singh College. The only special feature is that it runs the classes in the same premises in the evening so that working men may study for degree classes in evening hours. There is one and the same Committee of Management called Board of Management It is not disputed that the Working Men's Section of the college was closed and the petitioner and all others in Working Men's Section started functiohing in the main college in 1975. The learned counsel for the petitioner placed the provisions of Sections 24A. 2(a), 2(f), 2(fi) and 2(i) of the Agra University Act to emphasise that Working Men's College is affiliated under S. 24A of the Act, is an affiliated college as defined under Section 2(a) of the act. A teacher in the Working Men's College or affiliated college shall also be a person employed in such college forgiving instructions for University degrees. The submission in a nut shell is that a person employed as Teacher in Working Men's College shall be teacher for all purposes similar to other regular affiliated colleges.
7. The learned counsel for the petitioner has made categorical his submissions under we following heads:-
(i) The modification in the seniority list prepared and finalised on July 15, 1977 Annexure 6 by the Board of Management was done behind the back of the petitioner, without any notice to him, thus the rule of natural justice was violated.
(ii) The order of the Chancellor which holds the petitioner's representation as belated and barred by time is patently illegal.
(iii) The petitioner was senior to the opposite party not only on the ground that his appointment was prior to him and admittedly petitioner was given post-graduate teachers pay scale w.e.f. April 1, 1966 and the same was approved also by University.
(iv) The Chancellor was wrong in holding that the petitioner was appointed w.e.f. September 1, 1963 as a teacher to teach under graduate classes in the Working Men's College and the said Working Men "s College had a separate entity till its merger in 1975.
(v) It is the pay scale and grade given to a teacher which would be relevant and not the class allotted for teaching in determining the seniority of teaching staff.
8. A counter-affidavit of Sri R.K. Agarwal on behalf of respondents Nos. 1 and 2 and another counter-affidavit of Sri R.S. Pandey. Deputy Registrar. Agra University has been filed. The petitioner filed 3 rejoinder affidavits.,
9. I have heard the learned counsel Sri Shyam Narain for the petitioner and Dr. R. Dwivedi for the respondents Nos. 1 and 2 at length and perused the record of the petitioner. There is no dispute regarding the fact that the date of petitioner's appointment is May 1, 1963 as a full time teacher in the Working Men's Section of the College. It is also admitted that opposite party No. 5 was appointed on July 16, 1969 in the main college. Petitioner was admittedly given post-Graduate teachers salary grade w.e.f. April 1, 1966 as per Managing Board's Resolution dated July 10, 1966, Annexure 4 of writ petition. The Dy, Registrar of Agra University by letter dated February 3, 1966, wrote to the Principal of the Raja Balwant Singh College (Annexure 3 of writ petition) that whole time teachers of Working Men's College are entitled to get postgraduate pay scale. The petitioner was given degree classes for teaching. It is also stated that petitioner was given post-graduate classes for teaching for certain dates in the main college.
10. The first question for the consideration before the court is whether the seniority list of 1977 (Anneure 6) was modified by the College's Management Board after giving an opportunity to the petitioner. The petitioner at para 12 of the writ petition categorically stated that he was not afforded any opportunity nor had any information about any objection filed by opposite party No. 5 in the matter of seniority already coneluded. The opposite party Nos. 1 and 2 in their counter affidavits at para 17 nowhere stated that petitioner was given any notice or opportunity. It was stated that on the representation of the respondent dated November 2, 1977, August 23, 1978 and May 2, 1979 the University had sought comments from the College in the said matter. In para 16 it was said that the College corrected the Seniority list on the instructions of the University in view of statute 17, 16 and 17:01 of I Statute of Agra University. The counter affidavit of the Dy. Registrar in respect to the allegation in para 11 do not say anything as it related to the College and the Managing Board. Learned counsel for the respondent Nos. 1 and 2submitted that the copy of the seniority list dated March 18, 1980 was given to the petitioner. He had full knowledge and information about the corrected seniority list. It was urged by Dr. R. Dwivedi that at least petitioner after receiving the corrected seniority list dated March 18, 1980 filed appeal and representation and had all opportunities to get his grievances redressed. After getting the copy of seniority list the petitioner had full say in the matter and petitioner actually submitted appeal before the Vice Chancellor and reference to the Chancellor. The copies of representation, memo of appeal, reminders have been annexed by the petitioner with the writ petition which shows that detailed and elaborately stated petitions were submitted by the petitioner which were duly considered by the Vice Chancellor and Chancellor. Thus, there was ample opportunity available to the petitioner in the matter. The submission of Dr. R. Dwivedi is not acceptable. The opportunity of hearing is to be given at the very initial stage i.e. the preliminary enquiry itself. The opportunity provided after concluding enquiry and after arriving at the decision by the original authority in appeal, representation reference providing opportunity is of no consequence, it would not be curing the initial omission to provide opportunity of hearing. The learned counsel for the petitioner cited AIR 1971 SC 1650 (State of Gujarat v. Krishna Cinema (and another decision reported (1985 Lab IC 172) (All) Dr. Chandra Bhushan v. The Governor as Chancellor, Meerut University). These authorities do not help the petitioner. It is not disputed that no opportunity was given to the petitioner when representation was submitted by the contesting opposite party for putting his name above the petitioner in the seniority list. It is settled law that no order shall be modified, varied by any authority without giving due opportunity to the person concerned. I am of the firm opinion that in the present case the seniority list finally prepared was modified at the instance and representation of opposite party No. 5 Dr. H.M. Singh without any notice or opportunity to the petitioner. Thus, the seniority list dated July 1, 1980 is bad on ground of violation of rule of natural justice and liable to be quashed.
11. The second question whether representation to the Chancellor is barred by limitation needs consideration by the Court. The Chancellor in his order dated Mary 13, 1983 upheld the preliminary objection of the opposite party No. 5 that representation was filed with delay of more than 3 months from the date of the impugned order hence was barred by limitation. The learned Chancellor in spite of the fact that he had accepted the preliminary objection about the bar of limitation still proceeded to decide the reference on merits. Hence rejected the reference observing as devoid of force, besides being tune barred,
12. The petitioner pleaded that petitioner's seniority list was prepared and published on July 15, 1977. Thereafter petitioner had no knowledge/information or notice of any objection or representation of opposite party No. 5 Dr. H.M. Singh about the seniority list dated July 15, 1977. It was after March 18, 1980 petitioner came to know about the modified new seniority where he had been shown junior to opposite parity No. 5. The true copy of the letter sent to Registrar (Affiliation) dated March 18, 1980 is annexed as Annexure 6 with the petition. A new seniority list was accordingly prepared dated July 1, 1980 a copy of which has been annexed as Annexure 7 with the petition. The petitioner submitted his representation on May 6, 1980 to the Vice Chancellor against the changed seniority communicated on March 18, 1980. The representation sent by the petitioner was rejected by letter dated November 20, 1980 which contained no reasons. The petitioner sent letters dated November 15, 1980, June 1, 1981 and November 16, 1981 to the Vice Chancellor for reconsidering the petitioner's representation. There was no response to the said letter. Thus, the petitioner submitted reference u/S. 68 of the U.P. State University Act before the Chancellor giving all facts and circumstances in the reference petition for the delay in filing the reference. True copy was annexed as Annexure XI with the writ petition. It was stated in the petition for reference that petitioner's representations and reminders dated November 25, 1980, June 1, 1981, November 16, 1981 are still pending before the Vice Chancellor, Agra. The Chancellor in his order dated May 13, 1983 without recording any reasons for holding that reference was barred by limitation observed 'The reference has been made more than three months after the impugned order and hence the same is time barred. The preliminary objection raised by the opposite party about limitation must, therefore, be upheld," 1 have carefully perused the order of Chancellor and of the opinion that such an order cannot be said to have been passed after due application of mind. Had the authority considered the facts and circumstances for the delay and after rejecting the explanations, said that reference was barred by limitation. No argument for non application of mind could have been entertained.
13. Further it may be noticed that although the Chancellor upheld the preliminary objection of opposite party No. 5 that reference was barred by limitation still proceeded to decide the reference on merits also. In such circumstances where the authority proceeds to decide the reference on merits it has to be assumed that the authority had condoned the delay in filing of the reference and gave a decision on merits. The learned counsel for the petitioner cited 1990 (Suppi) SCC 773, Management Committee, Atarra post Graduate College v. Vice Chancellor, Bunkelkhand University, Jhansi to show that Hon'ble Supreme Court also condoned the delay in filing the reference u/S. 68 of U.P. State Universities Act in similar circumstances. Aperusal of the aforesaid decision shows that the circumstances there was different and not akin to the present case. There the order of the Vice Chancellor was not clear, it was apparently a report by him. The Committee of Management was under a dilemma and in such circumstances there was a delay in filing the reference. The Hon'ble Supreme Court held in such a circumstances the delay liable to be condoned. In the present case as I have already observed that since the Chancellor after observing about the preliminary objection of the respondent, chose to proceed to decide the reference on merits there can be the only inference that the delay in filing of the reference before him was condoned. Now this Court is to proceed and decide the petition and examine the legality of the order of Chancellor on merits.
14. In order to consider the remaining points that whether petitioner was senior by prior date of appointment liable to be declared senior than opposite party No. 5 Dr. H.M. Singh, the Chancellor in his order recorded the following findings:
1. The petitioner was appointed as a Lecturer to teach under-graduate classes in Working Men's College w.e.f. September 1, 1993 with P.G. Staff Scale of Rs. 760-1600/- i.e. in 1963 the petitioner was in pay scale of Rs. 740/- p.m.
2. The opposite party No. 5 Dr. H.M. Singh was appointed on the post of Lecturer to teach post Graduate classes in the Main College w.e.f. July 16, 1969 and Dr. H.M. Singh got basic pay of Rs. 700/- w.e.f. January 1, 1973.
3. The Working Men's College was recognised for teaching up to degree classes up to B.A. and had separate entity till its merger in 1975.
4. The petitioner was a Lecturer for degree classes in Working Men's College which was a distinct and separate entity and not being in the same cadre.
5. The period of service by the petitioner in the Working Men's College could not be counted for the purposes of seniority. It is clear from the language of Section 24-A read with Section 2(a), 2(f), 2(ff) and 2(e) of Agra University Act that Working Men's College is an af filiated College and teachers employed for whole time teaching are teachers of the af filiated colleges under the Agra University Act. ;
15. It is also not disputed by the respondents that petitioner was appointed as whole time Lecturer w.e.f. September 1, 1963 and was confirmed after completion of one year probation. It is further not disputed that the petitioner was given post Graduate teachers scale and the Dy. Registrar of the University approved post Graduate pay scale to the petitioner and Board of Management also agreed to pay the post graduate pay scale to the petitioner w.e.f. April 1, 1966 by agreement dated April 28, 1968. Thus, it is clear that petitioner although was appointed in the Working Men's College in 1963 as a whole time teacher, he was given post graduate pay scale w.e.f. April 1, 1966. The question for consideration would be that whether the pay scale and cadre given to the teacher would be relevant for determination of the seniority or the class allotted to the particular teacher would be relevant for decision of seniority. The Chancellor in his order proceeded to decide the seniority on the ground of the classes allotted to the respondent No. 5. It was stated that the opposite party No. 5 was appointed on July 16, 1969 in post Graduate section in the main college and petitioner was teaching the degree classes w.e.f. September 1, 1963 to April 1, 1975 the date of merger of both the Colleges. It was thus held that opposite party No. 5 was senior to the petitioner. The petitioner has annexed as Annexure 13 the provisions of Statute 7(B) of the true copy of relevant statutes with the writ petition. In paragraph 19 of the counter affidavit of Sri R.K. Agarwal it has not been stated that copy of the Statute annexed is not the correct reproduction of the Statutes. It has been stated that the Statutes quoted are not applicable to the petitioner's case. The ground stated in the paragraph 19 of the counter affidavit is that opposite party No. 5 was appointed for post Graduate classes whereas petitioner was appointed for degree classes. The post of petitioner was entirely of distinct grade and cadre.
16. The Statute 7(B) of Agra University Act are quoted as under:
17. The provision of Statute 7(B) proviso shows that if a teacher working in affiliated/associated college in the Uttar Pradesh leaves it and joins another affiliated, associated college in the same grade, the service rendered by him in the previous college in that cadre only will also be taken into account for determining the seniority. It is the grade and cadre which would be the only consideration relevant for determin-ingseniority. It appears from the judgment of the Chancellor that he had not noticed certain admitted facts, namely that the Working Men's college which was run in the same premises of Raja Balwant Singh College was a part or a section of the Raja Balwant Singh College, there was only one and same Board of Management. The petitioner was given the grade of post graduate teacher since before the appointment of opposite party No. 5. The learned Chancellor appears to have wrongly interpreted "on post in the same cadre" the word cadre has been explained in Chamber's Twentieth Century Dictionary as a "frame work" permanent skeleton of a military unit, the Commissioned and non commissioned officers etc. The New Webster's Dictionary deluxe edition of 1987 also explains the word cadre as "permanent nucleus of an organisation".
18. In AIR 1958 SC 113 (Nohiria Ram v. Union of India) the word Cadre was interpreted to show the strength of the establishment and stated that the word cadre does not mean post. In (1970-I-LLJ-70) (Director General of Health Services v. Bikash Chatterjee) the word Cadre as defined in Fundamental Rules 9 and 4 was interpreted as to mean the strength of an establishment or service sanctioned as a separate Unit.
19. When the court examined the scope and interpretation of word "in the same cadre and in the same grade" in light of the above mentioned meanings as given in dictionaries and the case laws of Supreme Court and Calcutta High Court (supra), it becomes abundantly clear that it was wholly an irrelevant consideration by the Chancellor that since petitioner was teaching the degree classes till merger of the Working Men's Section of College in 1975 he would be only a teacher for degree classes. The relevant consideration was working in a grade and pay scale given to the teacher concerned. A person may be appointed in the post-graduate pay scale and he is allotted only degree classes for teaching, does not mean that he ceases to be a post graduate grade teacher. There are specified numbers of postgraduate teachers for an institution depending on the number of students. The number of students may vary from year to year or may be reduced. A post graduate teacher may be asked to teach degree classes, such teacher shall still be postgraduate grade teacher. If any other interpretation is allowed as suggested by Dr. R. Dwivedi, it is likely to provide a free hand to the Principal or Committee of Management to permit or not to permit a post graduate teacher to teach a post graduate class and he may be asked to take only degree classes although appointed in post graduate pay scale. Such situation may lead to hardship and injustice to the particular teacher. From the discussion above it is clear that petitioner was given post graduate pay scale much before the appointment of opposite party No. 5 and even for argument sake it is assumed that Working Men's Section was a distinct and separate Institution, the petitioner would be entitled for benefits provided in Statute 7(B) of the Agra University Act and seniority would be determined accordingly.
20. This court could have decided the present writ petition on the preliminary point that the order dated March 18, 1980 and seniority list dated July 1, 1980 was made without notice or opportunity of hearing to the petitioner, violating the rule of natural justice and remanded the case for decision according to law. Since there are important questions of lawand interpretation of Statutes involved in the case, about which the learned Chancellor committed manifest error of law, this Court considered just and proper to point out the errors in detail so that the Chancellor may decide the reference afresh in the light of observations made in this judgment. I am not remanding the case to the Board of Management or Vice Chancellor on the ground that the material factual aspects are admitted and the case being pretty old one, the controversy may be legally and conveniently decided by the Chancellor in Reference in the light of observations made in this judgment.
21. In view of the facts and circumstances discussed above, the writ petition is liable to be allowed and the impugned order dated May 13, 1993 passed by the Chancellor respondent No. 4 is quashed. Since the matter is pretty old, it would be appropriate to decide the reference in accordance with law and observations made in this judgment in a period of four months by the Chancellor from the date of filing of a certified copy.
22. Writ petition is allowed. Parties to bear costs.