- (1.) The learned Single Judge of the High court held that the appellant, a lecturer in the College, who was admittedlysenior to respondent 5, in the same cadre (lecturers) , did not become junior to the latter upon the salary of both of them being fixed in the higher pay grade at Rs. 350. 00 p. m. and that the fact that respondent 5 was older than him in age was of no consequence. The view is taken that the appellant's seniority vis-a-vis respondent 5 did not become topsy-turvy and their inter se seniority continued to operate notwithstanding upgradation, in the new grade with effect from 5/01/1965.- The division bench has reversed the learned Single Judge and held that one who was junior till then (respondent 5) became senior overnight by virtue of upgradation. The erstwhile senior (appellant) who is adjudged to be junior vis-a-vis erstwhile junior (respondent 5) has appealed to this court and prayed for restoration of the order of the learned Single Judge, and his seniority.
(2.) The question before the court is as regards the inter se seniority between the appellant on the one hand and respondent 5 on the other in the cadre of lecturers in the new grade of Rs. 310. 00 in the D. S. College at Aligarh. Both of them were holding the post of lecturer in the college in the grade of Rs 250-15-400-EB-20-500. Admittedly the appellant was senior having regard to his length of service in the College in the cadre of lecturers. On 5/01/1965, the secretary of the College informed the appellant as also respondent 5 that the Managing Committee had fixed their salary in the new grade of Rs. 310. 00 with effect from 1/08/1964. Some two years later respondent 5 contended that he was entitled to be treated as senior to the appellant with effect from 5/01/1965, on which date the appellant as also respondent 5 were fixed in the higher scale of pay at Rs. 310. 00. The Managing Committee repelled this contention and decided that the appellant who was admittedly senior to respondent 5 continued to be senior and that he did not become junior merely because the pay scale of Rs. 250-5 00 was upgraded and both of them were fixed in the same cadre of lecturers at Rs 3.10 by virtue of the order dated 5/01/1965. This decision was confirmed by the Vice-Chancellor. Respondent 5 carried the matter to the Chancellor of the University. The Chancellor confirmed the view taken by the Managing Committee and the Vice-Chancellor. Not deterred by these decisions respondent 5 approached the High court by way of a writ petition. The learned Single Judge of the High court took the same view and dismissed the writ petition. Having failed before the Managing Committee, the Vice-Chancellor, the Chancellor, and the learned Single Judge of the high court respondent 5 carried the matter by way of a special appeal to a division bench of the High court. The division bench took a different view from the view taken by the learned Single Judge and came to the conclusion that having regard to Statute 7 (B) of Ch. XVIII respondent 5 was entitled to be treated as senior witheffect from the date of upgradation i. e. 5/01/1965 because respondent 5 was older in age than the appellant. S. 7 (B) reads thus: The seniority in service of teachers in a particular college shall be determined by the length of service in that college in the same cadre and in the same grade : Provided that in the case of teachers whose length of service is the same, the seniority shall be determined by age according to the High School or equivalent certificate: Provided further that if a teacher working in an affiliated/ associated college in Uttar Pradesh leaves it and joins another affiliated/associated college in Uttar Pradesh, on a post in the cadre and 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 his seniority. We are of the opinion that the learned Single Judge was right in taking the view that the proviso was not applicable to the facts of the case and that the rule embodied in the proviso was not attracted when the two lecturers were given a higher grade by reason of the fact that they were also required to teach post-graduate classes. In our opinion, Statute 7 (B) is not attracted in a situation where the teachers in the grade of lecturers are given a higher grade. Statute 7 (B) will be attracted to the initial recruitment to a cadre or a grade. Once the seniority in the college in the cadre of lecturer is determined, it cannot be altered except under a rule which directly governs a situation like the present one where they are offered a higher grade. Assuming that the fixation in the higher grade is to be treated as a promotion, even then the appellant as also respondent 5 having been appointed on the very same day would carry their inter se seniority with them, there being nothing to the contrary in the statutes. Their seniority in the cadre of lecturers in the grade of Rs. 250-500 would remain undisturbed upon their being fixed in the cadre of Rs. 310. 00 in the absence of any rule to the contrary. The proviso contained in Statute 7 (B) does not have in contemplation entry in a promotion post from a lower cadre or a lower grade. In the absence of any specific provision both of them would carry their seniority with them to the promotion post and their inter se seniority would remain undisturbed. Even otherwise if there is no specific provision, seniority in the promotion cadre between two persons appointed simultaneously will have to be determined by principles of fair play. And would it be fair to make one who has been senior all these years a junior of his erstwhile junior, merely because both of them are promoted Apart from the unfairness and the irrationality of doing so, it would introducean element of uncertainty and a fluctuating seniority unrelated to principle, for who is more aged is irrelevant in this context. Be it realized that we are not concerned with promotion to a selection post where selectors under the authority of rules have on the basis of merits recommended inter se seniority by ranking them in order of merits. In such a case seniority would be governed by the ranking. In the present context the issue regarding the inter se seniority between the appellant and respondent 5 does not admit of any other view. That is how the Vice-Chancellor and the Chancellor who were concerned with the administration of the University have interpreted the rule of seniority. We see no good reason to disturb it. The division bench of the High court was, therefore, wrong in disturbing the inter se seniority between the appellant and respondent 5. The appeal is, accordingly, allowed. The order passed by the division bench of the High court is set aside and the order passed by the learned Single Judge is restored. There will be no order as to costs.;