JUDGMENT B. Dikshit, J.
1. Aggrieved by order of Vice-Chancellor, Mahatma Gandhi Kashi Vidyapith, Varanasi (in short 'Vice'-Chancellor') whereby while ordering petitioner's re-employment with effect from 5th September, 1998 till 30th June, 1999 by an order dated 28th June, 1998 under Statute 14.24 (3) of First Statutes of Uttar Pradesh Kashi Vidyapith, Varanasi (in short 'Statute'), on the day following the petitioner's attaining age of superannuation, the Vice-Chancellor directed that petitioner shall neither be member of the Faculty nor Head of the Department nor he will hold these offices during re-employment. The petitioner has filed this writ petition as he was Head of the Education Department on the date he attained the age of superannuation at the time of retirement but on re-employment, the Vice-Chancellor appointed Dr. Sarla Pandey. Reader in the Department of Education of Mahatma Gandhi Kashi Vidyapith, Varanasi (in short 'Kashi Vidyapith') in exercise of power under Section 27 (4) of the Uttar Pradesh State Universities Act (in short 'Act') read with Statute 2.19 as Head of the Department in place of petitioner with effect from 5th September, 1998.
2. Brief facts, giving rise to present controversy, are that petitioner Joined Kashi Vidyapith on 30.1.1988 on a clear permanent vacancy as Professor following an offer of appointment. Soon after joining, petitioner was notified as Head of the Department and Dean of Faculty of Education under Section 27 of the Act. Subsequently, the petitioner was also notified as senior most Professor on 28.3.1998. The petitioner attained the age of superannuation of 60 years on 4th September. 1998 but as the date of superannuation did not fall on June 30. in view of proviso to Statute 14.24 (3), the petitioner is entitled to continue in service till the end of academic session, ie., till June 30, 1999. So far status of petitioner is concerned, he is to be treated as re-employed teacher from the date immediately following the date on which he attained the age of superannuation. Although there is no dispute between the parties on facts, the dispute has arisen as the petitioner is sole Professor in Education Department and, therefore, he claimed that he has to be continued as Head of the Department of Education and. therefore, Dr. Sarla Pandey, a Reader could not be appointed as Head of the Department. Being dis-satisfied, as Vice-Chancellor appointed Dr. Sarla Pandey as Head of the Department, the petitioner moved Chancellor Kashi Vidyapith under Section 68 of the Act. The Chancellor rejected petitioner's claim. Feeling aggrieved by order of Chancellor, the petitioner has prayed for quashing of order of Vice-Chancellor and Chancellor and for Issue of a writ, order or direction in the nature of mandamus commanding the opposite parties not to interfere in petitioner's functioning as Head of the Department and Dean Faculty of Education at Kashi Vidyapith. As counter-affidavits and rejoinder affidavits stand exchanged and counsel for the parties agreed that the writ petition can be finally disposed of at this stage of admission, we proceeded to hear the writ petition on merit, which is being disposed of finally in accordance with rules of the Court.
3. The argument of leaned counsel for petitioner has been that petitioner is sole Professor at Education Department, therefore, under the Statutes, he is entitled to hold the post of Head of the Department even after attaining the age of superannuation till the end of academic session, i.e., 30th June. 1999 and Dr. Sarla Pandey, who happens to be only a Reader in the Education Department, could not be appointed as Head of the Department till he is there. The argument was opposed by learned counsel for Kashi Vidyapith as well as by the leaned counsel appearing on behalf of Dr. Sarla Pandey, who claimed that after attaining age of superannuation, on re-employment, the petitioner is not entitled to hold the post of Head of the Department and, therefore, Dr. Sarla Pandey had rightly been appointed as Head of the Department. As all the counsel for parties relied on Statutes of Kashi Vidyapith. reference to relevant Statutes is necessary for resolving the controversy. The relevant Statutes are 2.19, 14.24, 14.26 and 15.05 (a). They are as under :
"2.19. The senior most teacher in each department of teaching in the University shall be Head of that Department."
* * * * "14. 24. (1) The age of superannuation of a teacher of the University governed by the new scale of pay shall be sixty years.
(2) The age of superannuation of a teacher of the University not governed by the new scale of pay shall be Sixty years.
(3) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes :
Provided that if the date of superannuation of a teacher does not fall on June 30, the teacher shall continue in service till the end of the academic session, i.e., June 30 following and he will be treated as on re-employment from the date immediately following the date of his superannuation till June 30 following."
* * * * "14.26. The date of retirement of a teacher of the University shall be the date immediately preceding the 60th Birthday of such teacher."
* * * * "15.05. The following rules shall be followed in determining the seniority of teachers of the University :
(a) A Professor shall be deemed senior to every Reader, and a Reader shall be deemed senior to every Lecturer."
4. As on the date of attaining age of superannuation, the petitioner was working as Professor and held the post of Head of the Department and stood re-employed in view of Proviso to Statute 14.24 (3). therefore, this re-employment of petitioner is as a Professor. As under Statute 15.05 (a). Professor happens to be senior to a Reader, the petitioner is to be considered senior to Dr. Sarla Pandey and, therefore, the only question. which remains to be answered is as to whether a Professor, who stands re-employed under proviso to Statute 14.24 (3) is entitled to continue as Head of the Department.
5. The question of status of a Principal of an affiliated college of Gorakhpur University after attaining age of superannuation during middle of academic session came up for consideration before Division Bench in Udai Narain Pandey v. Director of Education (Higher Education). U. P. Allahabad and others. Civil Miscellaneous Writ Petition No. 36746 of 1998, district Sidharthnagar, decided on 21.1.1999. The petitioner of that case, who was working as Principal on the date of attaining age of superannuation claimed that being senior most teacher at the college, he was entitled under statute to officiate as Principal. The question arose for consideration in that case was whether the Principal of an affiliated college, whose age of superannuation did not fall on June 30th. will continue in service till end of academic session, i.e., June 30 following. The controversy in that case was to be decided in the light of Gorakhpur University First Statute, 1977. Under Statute 16.24 (3) of First Statute of Gorakhpur University, no extension could be granted to him but under proviso to said statute, he was to be treated as re-employed Immediately following the date of his attaining age of superannuation and was to continue till June 30 following. In the case of Udai Narain Pandey (supra), relying on the case of Dr. Rajpati Chauhan v. V. C. Sampurnanand Sanskrit University. Varanasi and others. 1098 (2) E&SC 1190 and Paras Nath Pandey v. District Inspector of Schools, Basti and others, 1995 (1) UPLBEC 667, it was argued that after attaining the age of superannuation, a Principal of an affiliated college is not entitled to continue as a Principal at the College. After considering the case of Prof. R. N. Tewari v. Allahabad University and others. (1991) UPLBEC 563, wherein similar Statute of Allahabad was under consideration, it was held that it is apparent that Statute 16.24 provides for re-employment on the post on which concerned person was employed on the date of superannuation. In the case of Prof. R. N. Tewari (supra), the petitioner therein was a Professor on the date of his superannuation and, therefore, he was to continue as Professor on re-employment under first proviso of Statute 16.24.
6. The Apex Court, while dismissing Special Leave to Appeal (Civil] No. 3895 of 1999 on 22.3.1999 against the decision of this Court in the case of Udai Narain (supra), passed following order :
"We are in agreement with the High Court that in view of the provisions of Statute 16.24 read with Section 2 (18) of the U. P. State Universities Act, 1973. the Principal who was in office could be re-employed till 30th June, following his age of superannuation. In this view of the matter, the continuation of respondent No. 5 till June, 1999 is in accordance with law.
The special leave petition is dismissed."
7. As the view expressed by Division Bench of this Court in the case of Udai Narain Pandey (supra) stands upheld by Apex Court while considering similar provision that a Principal of an affiliated college has to be re-employed as a Principal of concerned college, on same analogy a Professor of University is to be continued as re-employed Professor.
8. This takes us to determine the question if petitioner as a re-
employed Professor is senior to Dr. Sarla Pandey. Reader. In the case of Dr. Avinash Kumar v. State of Uttar Pradesh, (1983) UPLBEC 264, a Division Bench of this Court, while considering Statute 16.24 (3) of Lucknow University First Statute. which is similar to Statute 14.24 (3) of Kashi Vidyapith First Statute, and Statute 18.05 (a) of Lucknow University First Statute, which is identical to Statute 15.05 (a) of Kashi Vidyapith First Statute, a Division Bench of this Court held that:
"Having been re-employed as a Professor in accordance with the Statute mentioned above, the petitioner undoubtedly is as per Statute 18.05. senior to respondent No. 5. Dr. G. N. Agarwal, who is merely a Reader in the Department of Radiology, Like a Professor Emirate the Statutes do not make him ineligible for holding the Post of Head of the Department and there is no reason why he should not, in preference to respondent No. 5, Dr. G. N. Agarwal, function as Head of Department of Radiology as laid down in Statute 2.20. In the instant case the petitioner has been re-employed as Professor and respondent No. 5 is merely a Reader. Irrespective of whether the services of a Professor are extended or he is re-employed, he would in both the case be senior to a Reader."
In that case. Dr. Avinash Kumar was held to be entitled to hold the post of Head of the Department despite the fact that in the appointment letter of re-employment issued to Dr. Avinash Kumar, it was specifically mentioned that he was not to act as Head of the Department and that the charge of that office was to be handed over to respondent No. 5, Dr. G. N. Agarwal. The Court upheld his right to work as Head of the Department with following observation :
"The consequence flowing from the provisions contained in Statute 16.24 are automatic and they do not contemplate issuing of any fresh appointment letter.
Moreover, even the appointing authority could not. while saying that a person stood re-employed as a professor, impair any condition which was inconsistent with statutory provisions."
9. The next case which requires consideration is that of Ramesh Chandra Vyas v. University of Lucknow, (1989) 2 UPLBEC 58, wherein the petitioner claimed that as he was Head of the Department and Dean of Faculty of Law at Lucknow University on date of superannuation and whereas he is the only Professor in the department, he is entitled to continue as Head of the Department and Dean of Faculty of Law and, therefore, Senior Reader could not work as Head of the Department and Dean of Faculty of Law. While rejecting the claim of petitioner, this Court held that :
"The position of a re-employed teacher or Professor in the University gets re-employment because of the provision of Statutes is somewhat similar to an ex-cadre post and his post is not included in the hierarchy of the 'teacher of the University though it runs parallel to it closely. The status of a 'retired teacher' is the same that is equivalent to a teacher held by him before retirement but there being some truncation in the powers and rights he is not entitled to hold any other office by virtue of the same which could have been held by him as a full fledged teacher of the University. In the absence of a Professor it is the senior most Reader who will hold the office of the Head of Department and even of the Dean of Faculty as if there is no other teacher above him at that time in the department."
10. The case of Ramesh Chandra Vyas (supra) came up for consideration tn the case of Prof. R. N. Tewari v. Allahabad University. (1991) 1 UPLBEC 563. where argument was advanced to the effect that a re-employed Professor will be deemed to be holding a post somewhat similar to an ex cadre post which post is not included in the hierarchy of the "teachers of the University" though it runs parallel to it closely. This Court distinguished the case of Ramesh Chandra Vyas (supra) in the case of Prof. R. N. Tewari (supra) on the ground that there was a condition in letter of re-employment in the case of Ramesh Chandra that the teacher would not be entitled to hold any office or membership of Kashi Vidyapith Body while in case of Prof. R. N. Tewari, there was no such condition. The Court under facts and circumstances with said distinguishing feature agreed with the view taken by this Court in the case of Dr. Avinash Kumar (supra).
11. Although we have referred to case law cited before us but in view of Division Bench decision of this Court in the case of Udai Narain Pandey (supra), which has been upheld by Apex Court, wherein similar provision came up for consideration for the post of a Principal of an affiliated college, we hold that the petitioner K. P. Pandey stands re-employed as Professor under Proviso to Statute 14.24 (3) on the date immediately following the date of his attaining the age of superannuation. We further hold that as there is no other Professor in the department concerned, petitioner K. P. Pandey being Professor is senior to Dr. Sarla Pandey, who is Reader in the department concerned and, therefore. Professor K. P. Pandey even on superannuation became Head of Education Department on re-employment and shall continue as such till 30th June. 1999. However, as Dr. Sarla Pandey took over as Head of the Department on 5th September, 1998, and has been de facto Head of the Department, the action taken by her under colour of office will not be invalid for the reason that her appointment was invalid.
12. For aforesaid reason, we quash the order of Chancellor Mahatma Gandhi Kashi Vidyapith, Varanasi dated 7.10.1998 (Annexure-11 to writ petition), order passed by Vice-Chancellor and Registrar of Mahatma Gandhi Kashi Vidyapith Varanasi dated 28.8.1998 (Annexures-6 and 7 to writ petition) and direct them to treat petitioner as Head of the Department from 5.9.1998 with all the benefits of the office. The writ petition is allowed with costs.