S.R.Singh, J. - (1.) Challenge herein is to the legality of the order dated 13.9.2000 being Annexure-7 to the writ petition passed by the Chancellor, Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur (in short the 'University'). By means of the impugned order, the Chancellor has set aside the order dated 17.12.1968 of the Vice Chancellor and declared the respondent Dr. Prem Chand Singh, a lecturer in the Udit Narayan Post Graduate College. Padrauna, district Kushinagar, as the senior most teacher in the college. The Vice Chancellor by his order dated 17.12.1968 had declared the petitioner to be the senior most teacher. The representation filed by respondent Dr. Prem Chand Singh having been allowed by the Chancellor, the petitioner has approached this Court for quashing the order passed by the Chancellor.
(2.) The facts giving rise to this writ petition lie in a short compass. The petitioner was originally appointed Lecturer in Murli Manohar Town Post Graduate College, Ballia, where he worked from 19.7.1966 to 23.9.1974. Upon his appointment as Lecturer in Udit Narain Post Graduate College, Padrauna, district Kushinagar. with the approval of the Vice Chancellor, the petitioner has been working in the said college since 24.9.1974. He has been granted the pay scale of Reader w.e.f. 1.7.1982 as per the Government orders dated 8.9.1994 and 16.12.1994. It is not disputed that Murli Manohar Town Post Graduate College. Ballia, as well as Udit Narain Post Graduate College, Padrauna, district Kushinagar are affiliated to the University. The respondent No. 4 was appointed as Lecturer in Udit Narain Post Graduate College, Padrauna, district Kushinagar on 21.9.1971 where he joined his duties on 4.10.1971. It would appear that at the time of his appointment, the respondent Dr. Prem Chand Singh was not possessed of Ph.D. degree. Consequently his appointment was made subject to the condition that he would submit his Ph.D degree before the University which he did on 17.10.1972. He has been granted the pay scale of Reader w.e.f. 4.10.1984. Similarly the respondent Dr. Tej Bahadur Singh was appointed Lecturer in the college on 17.8.1967 and he has been given the pay scale of Reader w.e.f. 17.4.1986. In the tentative seniority list of Faculty of Arts of Colleges affiliated to University of Gorakhpur as on 1.7.1981. the name of Dr. Prem Chand Singh is shown at S. No. 424. In the tentative seniority list of Faculty of Science of Colleges affiliated to Gorakhpur University, the name of the petitioner is shown at S. No. 166 and that of Dr. Tej Bahadur Singh at S. No. 209. The inter se seniority of teachers of colleges affiliated to the University is governed by the First Statutes of the Gorakhpur University framed under Section 50 of the U. P. State Universities Act, 1973. The First Statutes were, however, framed on 26.1.1977 whereas the petitioner as well as the respondents 4 and 5 were appointed prior to enforcement of the First Statutes of the University. Accordingly, in view of Statute 18.01 of the First Statutes, their inter se seniority as it stood on the date of enforcement of the First Statutes of the University would not be affected by any thing contained therein. The question then is what should be the criterion for determining inter se seniority of the petitioner and the respondents 4 and 5. The Chancellor in his order impugned herein has held the fourth respondent senior to the petitioner in view of the fact that fourth respondent was appointed Lecturer to teach the Post Graduate students. Reliance has been placed by the Chancellor on a Government Order dated 9.7.1968. Paragraphs 1. 3 and 4 of the said Government Orders being relevant to the question involved herein are excerpted below : "1. As laid down in para 14 of G.O. No. CI1/2297/XV/-68-100(3)/66, dated March 7, 1968 and amended in G.O. No. CIl/4196/XV/-68-100(3)/66. dated June 14, 1968. the seniority in service of teachers in a particular college shall be determined by length of service in that college in the same cadre and in the same grade : Provided that in case of teachers whose length of service is the same, the seniority shall be determined by the age according to the High School or equivalent certificate : Provided further that the periods of service in another University, Associated/affiliated college or colleges in the same or higher cadre and grade will count towards seniority if the University or college is situated in U. P. and the college is affiliated to or associated with one of the Universities in the State. 2. A teacher in a higher grade would be senior to another teacher in the lower grade even though the latter may belong to a post-graduate department. If both the teachers are in the same grade the one belonging to post-graduate department will be senior to the one belonging to the degree department. Again, between two teachers A and B working as heads of the department in a degree college. A may be senior to B as he joined the college earlier, but if on a particular date the department of both A and B are raised to post-graduate and they are appointed as Readers in the respective post-graduate departments, their seniority in the new cadre will be determined by age only. 3. The seniority of a teacher of the post-graduate department will not depend upon whether he has been teaching post graduate classes or not. It will depend upon the grade in which he was appointed and the length of his service."
(3.) We have had heard Sri R. N. Singh, senior advocate for the petitioner and Sri Ashok Khare, senior advocate for the respondents. It has been submitted by Sri R. N. Singh that the petitioner was appointed on 19.7.1966 almost five years prior to the appointment of the fourth respondent who was admittedly appointed for the first time in the year 1971 and according to the Statutes framed under the Gorakhpur University Act, 1956, the petitioner was senior to the fourth respondent and the State Government had no authority to super-impose the Statutes by means of Government order dated 9.7.1968 reliance on which has been placed by the Chancellor in the order impugned herein. It has further been submitted by Sri R. N. Singh, senior advocate that the Government Order dated 9.7.1968 in so far as it is inconsistent with the old Statutes is illegal and without jurisdiction and does not confer any legally enforceable right. Sri Ashok Khare, senior advocate on the other hand submits that the relevant Statutes being skeletal, the Government was justified in issuing the Government Order of 1968 in order to fill in the gap. It has been submitted by Sri Khare that the fourth respondent was appointed as lecturer in the Post Graduate Department and, therefore, he has rightly been placed above the petitioner notwithstanding the fact that the petitioner was appointed lecturer prior to the appointment of the fourth respondent. The Government Order dated 9.7. 1968, it has been submitted by Sri Khare, does not contravene any provision contained in Chapter XVII of Statute of 1956 of the Gorakhpur University and it has the force of law having its origin from Article 162 of the Constitution of India which provides that the executive power of the State shall extend to the extent of the legislative power of the Legislature in the matters with respect to which the Legislature of the State has the power to make laws.;