- (1.) R. A. Sharma, J, In 1973 both, the petitioner and the respondent No. 4, were appointed as lecturers on regular basis in Shri Durgaji Post Graduate Mahavidyalaya, Chandesar District Azamgarh (hereinafter referred to as the College) on the recommendation of the Selection Committee. Both of them there after continued to work in the College. , The Vice-Chancellor of the Gorakhpur University to which the College was af filiated earlier, prepared in 1981 a seniority list of the teachers of the College. Petitioner filed a representation on 3-1-1982 against the said seniority list before the Vice-Chancellor. The representation was, however, not disposed of by the Vice-Chancellor and remained in pending. In 1987 the Purvanchal University, Jaunpur, was established and the College was af filiated to it. The petitioner thereafter filed a representation in connection with his seniority before the Principal of the College, who upheld the claim of the petitioner by holding him senior to the respondent No. 4. The respondent No. 4 filed an appeal against the above order before the Vice-Chancellor who, vide order dated 11-3-1991 allowed the appeal holding that the seniority list prepared by the Vice-Chancellor in 1981 showing the respondent No. 4 as senior to the petitioner cannot be interfered with by the Principal of the College. Against the above order of the Vice-Chancellor the petitioner filed a representation under Section 68 of the State Universities Act, 1973 (hereinafter referred to as the Act) before the Chancellor, who dismissed it vide order dated 23-11-1991 on the ground that the seniority list prepared by the Vice-Chancellor in 1981 cannot be disturbed by the Principal, because it has become final, as it was neither challenged before the Principal under statute 18. 14 nor was a representation filed against it before the Chancellor. Being aggrieved by the aforesaid orders of the Vice Chancellor and the Chancellor, the petitioner filed this writ petition.
(2.) THE contention of the learned counsel for the petitioner is that the Vice-the Principal of the College. In this con nection learned counsel has pointed out that the Vice-Chancellor is the appellate authority against the order of the Principal of the College, who is empowered to decide the dispute of seniority of the teachers of the affiliated college. It is, therefore, contended that the order of the Vice-Chancellor is without jurisdiction and is nullity. Learned counsel for the respondents has supported the aforesaid order of the Vice-Chancellor. Earlier the college was affiliated to the Gorakhpur University. In 1987 it has been affiliated to the Purvanchal Univer sity, Jaunpur. The learned counsel for both the parties have stated that the Pur vanchal University has not yet framed Statutes for the affiliated colleges and the Statutes of the Gorakhpur University are still applicable to the College and the dis pute of seniority between the parties in the instant case has to be decided on their basis. Statutes 18. 10 to 18. 16 have laid down the rules for determining the seniority of the teachers of the affiliated colleges. Statute 18. 14, which provides the forum for settlement of the dispute regarding the seniority of the teachers of the affiliated colleges, is as under: "18. 14. All disputes regarding seniority of teachers (other than the Principal), shall be decided by the Principal of the College who shall give reasons for the decision. Any teacher ag grieved with the decision of the Principal may prefer an appeal to the Vice- Chancellor within 60 days from the date of communication of such decision to the teacher concerned. If the Vice-Chancellor disagrees from the Principal, he shall give reasons for such disagreement. (Section 49 (o ). " (Emphasis supplied) By the above Statute all the disputes regarding the seniority of the teachers of the affiliated Colleges are to be decided by the Principal of the College and against the order of the Principal an appeal has been provided for before the Vice Chan cellor of the University to which the Col lege is affiliated.
(3.) IN view of the provisions contained in Statute 18. 14 the dispute regarding the seniority between the petitioner and the respondent No. 4, can be decided by the Principal of the College and not by the Vice Chancellor of the University. The Vice Chancellor, being the appellate authority against the decision of the prin cipal, could not have exercised the original jurisdiction which is vested in the Prin cipal. Supreme Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank Ltd and others, 1995 (1) UPLBEC 566, has laid down that the ap pellate authority cannot exercise the original jurisdiction, because in such a case the concerned employee is deprived of the right of appeal which is a substantive right given to him by the Rules. IN this connection the Supreme Court has laid down as under: "it is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/regulations. An employee cannot be deprived of his substantive right. ' Therefore, the Vice-Chancellor does not have the jurisdiction to determine the seniority of the teachers of the affiliated College. Learned counsel for the respon dents have, in this connection, submitted that the Vice-Chancellor has power to fix the seniority of the teachers of the af filiated Colleges under Statute 18. 02 in view of the provisions contained in Statute 18. 16 whereby provisions of Statutes 18. 01, 18. 02, 18. 05 and 18. 08 have been made applicable mutatis mutandis to the teachers and the Principals of the affiliated College. Statute 18. 16 is reproduced below: "18. 16. The provisions of Statutes 18. 01, 18. 02, 18. 05 and 18. 08 shall mutatis mutandis apply to the teachers and Principals of affiliated Colleges as they apply to the teachers of the University. (Section 49 (o) ). " Statutes 18. 01, 18. 02, 18. 05, and 18. 08, which have been referred to in Statute 18. 16 are also reproduced below: "18. 01. The Statutes contained in this Chapter shall not affect the inter-se seniority of teachers employed in the University from before the commencement of these Statutes. (Sections 16 (d) and 49 (d ). 18. 02. It shall be the duty of the Registrar to prepare and maintain, in respect of each category of teachers of the University, a com plete and upto date seniority list in accordance with the provisions hereinafter appearing. (Sec tions 16 (4) and 49 (d ). " 18. 05. The following rules shall be fol lowed 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. (b) In the same cadre, inter-se seniority of teachers, appointed by personal promotion or by direct recruitment, shall be determined ac cording to length of continuous service in a sub stantive capacity in such cadre: Provided that where more than one ap pointments have been made by direct recruit ment at the same time and an order of preference or merit was indicated by the Selec tion Committee or by the Executive Council, as the case may be, the inter-se seniority of persons so appointed shall be governed by the order so indicated: Provided further that where more than one appointments have been made by promo tion at the same time, the inter-se seniority of the teachers so appointed shall be the same as it was in the post held by them at the time of promo tion. (c) When any teacher holding substantive post in any University (other than the University of Gorakhpur) or in ;any constituent College or in any Institute whether in the State of Uttar Pradesh or outside Uttar Pradesh is appointed whether before or after August 1,1981 to a post of corresponding raipk or grade in the Univer sity, the period of service rendered by such teacher in that grade or rank in such University shall be added to his length of service. (d) When any teacher holding substantive post 'in any college affiliated to or associated with any University is appointed as a Lecturer in the University, then one-half of the period of substantive service rendered by such teacher in such college shall be added to his length of service, (e) Service against an administrative ap pointment in any University or institution shall not count for the purposes of seniority. " Explanation in this Chapter the expres sion "administrative appointment" means an ap pointment made under sub-section (6) of Sec tion 13. (f) Continuous service in a temporary post to which a teacher is appointed after reference to a Selection Committee, if followed by his appointment in a substantive capacity to that post under Section 31 (3) (b) shall count towards seniority. " 18. 08. (1) Notwithstanding anything con tained in any other Statute, if the Executive Council (Section 49 (d)- (a) agrees with the recommendation of the Selection Committee, and approves two or more persons for appointment as teachers in the same Department, it shall, while recording such approval, determine the order of merit of such teachers; (b) does not agree with the recommenda tions of the Selection Committee and refers the matter to the Chancellor under Section 31 (8) (a), the Chancellor shall, in cases where appoint ment of two or more teachers in the same Department is involved, determine the order of merit of such teachers at the time of deciding such reference. (2) The order of merit in which two or more teachers are placed under clause (1), shall be communicated to the teachers concerned before their appointment. Statutes 18. 01 to 18. 09 deal with the seniority of the teachers of the University, whereas Statutes 18. 10 to 18. 16 deal with the seniority of the teachers and Principals of the affiliated Colleges. Although Statute 18. 16 has laid down that Statutes 18. 01,18. 02,18. 05 and 18. 08 shall mutatis mutandis apply to the teachers and Prin cipals of the affiliated Colleges, but they cannot override the express provisions contained in Statutes 18. 10 to 18. 15. Supreme Court in Mis. Ashok Service Centre and another v. State of Orissa, AIR 1983 SC 394, has considered the effect of making certain provisions mutatis mutan dis applicable to the persons or things dealt with separately by separate provisions. In this connection it was laid down as under: "earl Jowitt's "the Dictionary of English Law (1959), 'defines 'mutatis mutandis' as with the necessary changes in points of detail. " Black's Law Dictionary (Revised 4th Edn. 1968) defines 'mutatis mutandis' as 'with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like, Housman v. Waterhouse, 1991 App Div 850,182 NYS 249,251. " In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis' is defined as "the necessary changes. This is a phrase of frequent practical occur rence, meanin' that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like'. Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed subject of course to express provisions made in the later Act. " Therefore, if it is necessary for the purpose, Statutes 18. 01, 18. 02,18. 05 and 18. 08 can be applied to the principals and teachers of the affiliated colleges with necessary changes 'without altering essen tial nature of the things changed. " Even if the aforesaid four Statutes are applied with or without changes to the Principal and the teachers of the affiliated colleges, they do not confer any power on the Vice- Chancellor either to fix or alter their seniority or to decide their dispute about it. That apart, no other Statutes confer any such power on the Vice Chancellor. Statute 18. 02, on which reliance has been placed by the learned counsel for the respondents, also does not give any such power to the Vice- Chancellor. Statute 18. 02 gives the power to the Registrar of the University to prepare and maintain the seniority list of the teachers of the Univer sity. The Vice-Chancellor and the Registrar are two different officers of the University as mentioned in Section 9 of the Act. The Vice-Chancellor and the Registrar exercise different powers given to them by or under the Act. Section 13 of the Act enumerates various powers of the Vice-Chancellor. Powers of the Registrar have been dealt with in Section 16 of the Act. Both of them are different statutory functionaries of the University. That apart, even the Registrar cannot decide the dispute about seniority of the teachers of the affiliated College. That power belongs to the Principal of the College. The Vice-Chancellor, therefore, does not come in picture in these matters. In the case of teachers of the affiliated College the Vice-Chancellor is the appellate authority and in the case of the teachers of the University he is the Chairman of the Committee constituted under Statute 18. 09 for deciding their dispute of seniority. The Vice-Chancellor thus has no power at all to draw the seniority list and determine the disputes about seniority of the teachers of the affiliated Colleges. If he passes any such order it is without jurisdiction and is nullity, liable to be ignored.;