G.B. Singh, J. - (1.) These two writ petitions have been filed by Dr. I. B. Sinha regarding his confirmation as Professor and the appointment as Head of the Department of Commerce, Lucknow University, Lucknow. Since common question of fact and law are involved in these two writ petitions they shall be disposed of by this common judgment. Dr. I. B. Sinha joined the Lucknow' University in the year 1955 as a Lecturer in Commerce Department. In the month of March, 1974 the Selection Committee of Lucknow University recommended the name of Dr. I. B. Sinha for appointment as Professor of Commerce. The Executive Council approved the recommendations of the Selection Committee in its meeting on 17-12-1974. In accordance with that resolution a letter of appointment was issued on 18-12-1974 and the petitioner took over as Professor of Commerce, Lucknow University on the same day. The appointment was on probation for a period of one year. The petitioner was not confirmed after the completion of that period. The period of probation was extended by the Executive Council from time to time because an enquiry was pending against the petitioner. It appears that some complaints by the teachers of the Faculty of Commerce, Lucknow University had been made against Dr - I. B. Sinha due to which an enquiry committee was constituted by the Executive Council by its resolution dated 1-5-1976 to submit a report to the Council as early as possible and by the same resolution the probationary period of Dr. I. B. Sinha was extended by six months or till the consideration of the report of the enquiry committee by the Executive Council whichever was earlier (Annexure No. 3). This resolution was further amended by the Executive Council by another resolution dated 13-11-1976 Annexure No. 4. The probationary period was extended upto 30-4-1977 or till the consideration of the report of the enquiry by the Council whichever was earlier. Another complaint against Dr. I. B. Sinha filed earlier to the aforesaid complaint was that he was practising as Chartered Accountant illegally. The Executive Council considered the matter on 30-6-1976 and withdrew the permission granted to the petitioner earlier for practising as Chartered Accountant. The petitioner, therefore, filed Regular Suit No. 77 of 1976 in the Court of Civil Judge, Malihabad for perpetual injunction and declaration and obtained temporary injunction restraining the Executive Council from implementing the aforesaid resolution. That order was, however, set aside in appeal. The enquiry committee appointed on the aforesaid complaints of the teachers of the Commerce Faculty of the Lucknow University submitted its report on 10-1-1978 (Annexure No. A - 3 to W. P. No. 2912 of 1984). In this report the enquiry committee mentioned that the work and conduct of Dr. I. B. Sinha during his service as Professor and Head of the Department of Commerce cannot be considered satisfactory. The equiry committee, therefore, recommended that the case of Dr. Sinha may be dealt with according to the provisions of the Statute 11.08 (II) of the Lucknow University First Statute 1976 read with Section 31(2)(a) of the U.P. State Universities Act, 1974. Before the consideration of the report of the enquiry committee alongwith the matter of confirmation of the petitioner by the Executive Council, the petitioner filed another Suit No. 174 of 1978 in the Court of Munsif North, Lucknow and obtained temporary injunction restraining the University from considering the report of the enquiry committee alongwith the matter of confirmation. When the petitioner was not confirmed he made two Reference under Section 68 of the U.P. State Universities Act on 12-2-1977. Those References were rejected by the Chancellor by his order dated 14-8-1981 observing that there could not be any automatic confirmation of the petitioner as Professor as claimed by him. The petitioner thereafter filed Writ Petition No. 5539 of 1981 contending that the period of probation could not be extended beyond two years and on the expiry of that period he shall be deemed to have been automatically confirmed. He prayed in this writ petition that the resolutions passed by the Executive Council on 1-5-1976 and 13-11-1976 and the order dated 14-8-1981 be quashed and a writ in the nature of mandamus be issued commanding the Executive Council respondent No. 2 to declare the petitioner confirmed as Professor of Commerce with effect from 18-12-1976.
(2.) Dr. K. K. Saxena opposite party No. 3 is also a Professor in the Department of Commerce, Lucknow University. He made representation on 3-8-1981 to the Chancellor under Section 68 of the U.P. State Universities Act challenging the appointment of Dr. I. B. Sinha as Dean Faculty of Commerce with effect from 11-8-1981 and his continuance as Head of the Department of Commerce. This representation was partly allowed by the Chancellor on 11-6-1984 holding that Dr. I. B. Sinha cannot act as Head of the Department of Commerce in preference to Dr. Saxena as Dr. I. B. Sinha is not a confirmed Professor whereas Dr. Saxena is a confirmed Professor and Dr. Saxena is senior to Dr. I. B. Sinha. The Chancellor, therefore, directed the University to take necessary steps to rectify the mistake in appointment of Dr. I. B. Sinha as Head of the Department in preference of Dr. K. K. Saxena. The Chancellor, however, rejected the prayer of Dr. Saxena for quashing the appointment of Dr. I. B. Sinha as Dean of Faculty of Commerce as it was to be made from amongst the Professors by rotation. Against this order of the Chancellor Dr. I. B. Sinha filed Writ Petition No. 2912 of 1984 praying that the order dated 11-6-1984 be quashed. In this writ petition Dr. I. B. Sinha pleaded that he was appointed as Lecturer in Commerce in the year 1955 whereas Dr. Saxena was appointed as Lecturer in the Commerce Department on 29-9-1956. He further pleaded that he was made permanent Lecturer in Commerce in substantive vacancy on 16-1-1959 whereas Dr. Saxena was appointed as permanent Lecturer in substantive vacancy on 26-2-1963. It was further pleaded that the Executive Council of the Lucknow University in its meeting on 31-10-1973 held that the petitioner is senior to Dr. Saxena and a letter to that effect was issued by the Registrar of the University on 9-11-1973 (Annexure No. 2). In the year 1973 posts of Professor, Reader and Lecturers in the University were advertised and the petitioner was selected and appointed as Professor whereas Dr. Saxena was appointed as Reader in the year 1974. The petitioner was appointed in the Department as Professor on 18-12-1974 and the period of two years probation expired on 17-12-1976 The petitioner, is, therefore, deemed to be confirmed on 18-12-1976 and Dr. Saxena who is in service as a Professor of Commerce Department since May, 1978, cannot be senior to the petitioner and as such cannot be appointed as Head of the Department of Commerce in preference to the petitioner. 2-A. Dr. K. K.. Saxena was impleaded as respondent No. 3 in Writ Petition No. 5539 of 1981 on his own application for his impleadment. In the other Writ Petition No. 2912 of 1984 Dr. K. K. Saxena has been impleaded as respondent No. 3 at the time of the presentation of the writ petition. In the first writ petition counter-Affidavit and supplementary counter-Affidavit were filed on behalf of the University as well as Dr. K. K. Saxena. In the other writ Petition Dr. K. K. Saxena alone filed counter-Affidavit and supplementary counter-Affidavit. The opposite-parties have pleaded in reply that Dr. I. B Sinha was not confirmed as Professor and since the enquiry was pending against him, his probation period was extended. When the enquiry committee submitted report against Dr. I. B. Sinha and the Executive Council was going to consider the recommendations of the enquiry committee, Dr. I. B. Sinha filed Civil Suit and obtained a temporary injunction restraining the Executive Council to consider the report with the result no order regarding his confirmation could be passed. Dr. K. K. Saxena was appointed as Professor in the Commerce Department in the year 1978 and thereafter confirmed in the year 1979. He was, therefore, senior to Dr. I. B. Sinha and he has been rightly appointed Head of the Commerce Department. It has been further pleaded that Dr. I. B. Sinha cannot be deemed to be confirmed and he cannot take into the advantage of his own wrong. It has also been pleaded that the enquiry committee submitted adverse report against Dr. I. B. Sinha and such a person cannot be appointed as Head of the Commerce Department.
(3.) The main dispute in the two writ petitions is that of Dr. I. B. Sinha v.as deemed to be confirmed from 18-12-1976 and he is senior to Dr. K. K. Saxena as Professor of the Commerce Department and as such entitled to be appointed as Head of the Commerce Department.;