R.M.Sahai, J. - (1.) Prior to 1979 large number of Homoeopathic Colleges had come into existence in the State. From time to time representation was made to the Government by the students of non-government colleges for their provincialisation and affiliation as the standard of education and facility to the students in these colleges was not up to the mark. In 1979 the Government issued an ordinance which was replaced by the Uttar Pradesh Homoeopathic Medical Colleges (Taking Over of Management) Act, 1979 (U.P. Act 20 of 1979) by which the management of all the colleges mentioned in the Schedule of the Act vested in the State for a period of one year. The period was later on extended. S. 4 of the Act contemplated appointment of Administrators of every scheduled colleges for taking over and carrying on management of such colleges. Sub-section (3) of S. 4 empowered the State Government to issue directions from time to time and sub-section (4) permitted the Administrator to apply to State Government for instructions as to the manner he should conduct the management of the college or in relation to the manner arising in course of management. Sub-section (5) vested in the Administrator all the powers of person or body in charge of the schedule colleges. Sub-section (6) permitted him to appoint and terminate the services of a teacher or other employee in the college to take disciplinary action to manage the properties appurtenant or endowed to and to operate the bank account. Sub-section (7) empowered Administrator to terminate the appointment of a teacher or employee if he was satisfied that continuance of such teacher or employee of a Schedule college was prejudicial to the purpose of the Act or interest of the college.
(2.) In the schedule appended to the Act as many as 15 colleges were mentioned whose management was taken by the Act. Two such colleges were Ghazipur Homoeopathic Medical College, Ghazipur and Homoeopathic Medical College, Mullikapur, District Ghazipur. For both these colleges District Magistrate, Ghazipur was appointed Administrator. On 1st Jan., 1980 direction was issued by the State Government to the District Magistrate of various districts including Ghazipur that the Government had decided to permit nine nongovernment colleges to admit students In first year. One of the colleges amongst the nine was Ghazipur Homoeophathic Medical College, Ghazipur. It was further directed that the remaining six colleges out of which Homoeopathic Medical College, Mullikapur was one was debarred from admitting any student in the first year and those students who had already been admitted by these colleges may be transferred to some other college. In respect of transferred students the letter further laid down the guideline that where there were two colleges in the same districts the students of the colleges which have been debarred from admitting first year students may be transferred to the other colleges. On 15th April, 1980 the students of Mullikapur Medical College made a representation to the Officer-in-charge of the college to transfer them to Ghazipur Homoeopathic Medical College. Copy of this representation was sent to various authorities including State Government. On this representation the Officer-in-charge appears to have obtained report of the Principal of two Colleges and in May, 1980 he sent his recommendation to the Administrator that the Principal of Ghazipur Homoeopathic Medical College was agreeable to accept the students of Mullikapur Medical College and arrangements for their education etc. could be made therein. It was also pointed out by him that absorption of staff of Mullikapur College would entail heavy expenditure, therefore, it was necessary to obtain direction of the State Government as to how the Principal and teachers and other members of the staff may be absorbed in the other college. On this the Administrator wrote to the Government that arrangement for all the students of Mullikapur College reading in various classes could Medical College. It was also pointed out that the transfer of the staff of the Mullikapur College to Ghazipur College shall not create any problem. In August, 1980 the State Government intimated the Administrator that it had no objection to the transfer of students of Mull kapur College to Ghazipur College. The Government also intimated the Administrator that it had no objection even to the absorption of the staff of Mullikapur College. In September, the Officer-in-charge issued an order in the light of the intimation received from the State Government. It provided for preparation of inventory of moveable and immoveable property of Mullikapur College which may be converted into Hospital and the Medical Officer may be appointed therein. In respect of absorption the order directed that the entire teaching staff and other employees may be adjusted (Samaniyojit) in the Ghazipur Medical College and after adjustment the senior amongst the two Principals should be appointed as Principal of the college and junior may be appointed as Superintendent which post was created by the Administrator. It also directed for transfer of all the students of Mullikapur College to Ghazipur College. In pursuance of the above noted order the Officer-in-charge Administrator determined that opposite party No. 3 who was Principal of Mullikapur Medical College being senior was appointed as Principal, Ghazipur Medical College and the petitioner who was till then Principal of Ghazipur Medical College was appointed as Superintendent. Petitioner's representation against order of Administrator was rejected by the State Government. In these circumstances the petitioner approached this Court and claimed both a writ of certiorari for quashing the order of Administrator and the State Government and also a direction to opposite parties to treat him as Principal of the college.
(3.) On facts narrated above the question that arises for consideration is two fold. If the Administrator had any power to adjust staff of two colleges and even if he had did he have power to disturb the seniority of the Principal who was already confirmed in Ghazipur Medical College and lay down the principle for determining seniority amongst Principals of two colleges. S. 4 does not confer any power on the Administrator to direct adjustment as by being appointed as Administrator the identity of the two colleges did not merge. The section contemplates Administrator of every college. The use of every' is significant. It is another matter that as the Administrator was District Magistrate of Ghazipur and the two Colleges were situate in the same district, therefore, by virtue of being District Magistrate he became Administrator of both the colleges but for all purposes he was Administrator of two different colleges. He could, therefore, exercise his power under section 4 or under section 7 or any other section in respect of such colleges or could seek direction from the State Government. In all sub-sections of Section 4 the Legislature used the words such colleges' which obviously refer every college' mentioned in sub-section (1)- Therefore, whatever the order the Administrator could issue or could seek direction from the State Government could be in relation to either Mullikapur College or either Ghazipur College. There could be no order by which the two colleges could be treated as one unit. Further the Act did not provide for merger or integration nor did the Government issue any order. The only guidance was in respect of students. It was as a matter of compassion and accommodation of displaced members of the staff and employees of a college which was de-recognised by the State Government that the Principal of Ghazipur Medical College agreed for absorption 0r adjustment to which the State Government did not have any objection but it did not result in petitioner and opposite party becoming two Principals of the same college. The Principal of Mullikapur College at the time of absorption could not be treated at par with Principal of Ghazipur Medical College. In fact petitioner being a permanent principal there was no vacancy. It was not a case where there were two persons of equal rank whose seniority was to be determined. It was a case where displaced staff of a college was to be absorbed in other college. Merger of the two colleges by the Act or order of State Government may have resulted in creation of one unit. But in absorption the unit absorbing that is Ghazipur College, retained its identity. It could not be affected. Therefore the opposite party could utmost be placed below petitioner. The Administrator did not have any power under the Act to equate opposite party with petitioner. It cannot be justified on any principle. Even in cases of merger the interest of the unit with which other unit is being/merged is normally protected and remains unaffected. Seniority is determined amongst equals and not otherwise. Any order administrative or executive which attempts to make an unequal equal is not only unfair but irrational. After derecognition of Mullikapur College opposite party ceased to be similarly situated. The order of competent officer determining seniority, therefore, was both factually and legally incorrect. Apart from being unjust it cannot be supported on any principle. If what has been done by officer-in-charge is accepted then it shall result in not only unfairness and hardship but against all principles of absorption and adjustment It resulted in displacement of petitioner because he agreed to accommodate the students and staff of Mullikapur College. The adjustment could not displace the permanent incumbent. The order passed by the competent officer, therefore, cannot be maintained.;