Tandon, J. - (1.) The petitioner, who is Dr. S. N. Shukla, is a Professor of Chemistry in the Lucknow University. The third respondent, Dr. A. B. Sen is also a Professor in the same Department. The other two respondents are the Chancellor of the University and the Lucknow University as such.
(2.) Dr. A. C. Chatterji who was the then Professor of Chemistry retired on the 30th April, 1956, and it became necessary to make an appointment in the vacancy thus created. Earlier in January, 1958, the University Grants Commission had in pursuance of their scheme for the development of the higher scientific education during the Second Five Year Plan sanctioned various grants one of which made provision for the entertainment of one further Professor of Chemistry in this University on condition that the State Government also placed a matching grant of similar amount to meet the cost of the post. Appointment of two Professors thus became necessary. An advertisement inviting applications from candidates for these posts and some other posts was then published in the papers. It was thus:- "UNIVERSITY OF LUCKNOW. Applications are invited for the following posts of Professors in the grade of Rs. 800-50-1250 and Assistant Professors in the grade of Rs. 300-20-500 E. B.-25-800. Probation two years. Benefits of Provident Fund available under Rules. Knowledge of Hindi will count as an additional qualification: Professors: 1. Two Professors of Chemistry 2. One Professor of Bio-Chemistry 3. One Professor of Statistics 4. One Professor of Geology. Candidates must possess high academic qualifications and substantial experience of teaching post graduate classes and of guiding research in their respective subjects and specialty. They should also have a well established reputation for scholarship based on original contributions and research publications." In response to the above advertisement Dr. Shukla and Dr. Sen and a few others whose names are not relevant applied for appointment in the two vacancies. The power to make appointments of teachers of the University, to which category a Professor also belongs, belongs under Section 20(1) of the Act to the Executive Council. The above power, however, is subject to the provisions of Statutes; at the same time, Sub-section (1) of Section 31-A has imposed the further limitation on it that an appointment as teacher shall be made on the recommendation of the Selection Committee which is one of the authorities of the University. The Selection Committee, therefore, met on the 7th November. 1958 and interviewed six candidates Including the aforementioned two persons and made the following recommendation:- "It was resolved to recommend that Dr. A. B. Sen, M.Sc., Ph.D., be appointed Professor of Chemistry vice Dr. A. C. Chatterji, on Rs. 800/- p.m. in the grade of Rs. 800-50-1250. It was further resolved that the other appointment be considered later." The Committee thus confined its recommendation on this date with respect to the vacancy which occurred consequent upon the retirement of Dr. Chatterji and in its case suggested the candidature of Dr. Sen. No recommendation was made at the moment for appointment to the post created pursuant to the grant sanctioned by the University Grants Commission. There was, however, another meeting of the Selection Committee on the 18th December, 1958, in which it resolved that Dr. S. N. Shukla, i.e. the petitioner be appointed in the post sanctioned by the Commission. Thereupon the Executive Council, accepting the two recommendations of the Selection Committee, resolved on December 20, 1958 that Dr. Sen and Dr. Shukla shall be appointed to the two posts of Professors of Chemistry. There is no doubt that the two gentlemen then took over charge of the respective posts to which they had been appointed by the Executive Council.
(3.) Sub-section (6) of Section 23 of the Act requires that there shall be a Head in each Department of teaching who shall be responsible to the Deon for the organization of the teaching in the Department. It further provides that the senior most teacher of the Department shall be the Head of the Department. In view of the above provision it became necessary to declare who out of the two Professors shall be the Head of the Department of Chemistry. On a query by the Dean of tile Faculty made in that behalf, the Vice Chancellor ordered on the 3rd of January, 1959 as follows: "VC In accordance with the provisions in the statutes Dr. S. N. Shukla is senior to Dr. Sen as professor. He is therefore entitled to be the Head. Sd. K. D. Tewari Registrar 2/1/1959. Approved. Sd. K. A. Subramania Iyer Vice Chancellor 3-1-1959" It might be worthwhile at this very place to reproduce tile fallowing report which had been placed before the Vice Chancellor on the letter from the Dean and on which he ultimately made the above order:- "Dr. S. N. Shukla and Dr. A. B. Sen were appointed Professor of Chemistry by the Executive Council on December 20, 1958. "In order to determine seniority among the above teachers attention is invited to the following Clause (v) of Statute 198 printed at page 77:- 'Where more than one person in a service becomes entitled under this statute to count the same period of service for the purpose of seniority, the relative seniority among such persons shall be determined on the basis of seniority in age'." "The date of birth of Dr. A. B. Sen and S. N. Shukla, as verified from the copies of the High School Certificates submitted by these gentlemen, are given below:-- Dr. A. B. Sen...... ..17th June, 1911Dr. S. N. Shukla...... ..24th Decr. 1905. Sd. G. L. Srivastava 2/1/59".;