S.H.A. Raza and Bhagwan Din, JJ. - (1.) The petitioner Dr. Raj Pati Chauhan, who is a Reader in the Department of Education in Sampurnanand Sanskrit University, Varanasi, while staking his claim to function as Head of Department of the Education in the University, prayed for issue of a writ in the nature of certiorari quashing the order dated 12.1.1998 by means of which the respondent No. 3 has been asked to continue as Head of Department. No doubt, the respondent No. 3, being the only Professor is the seniormost among all the teachers in the department of education in the University. Dr. Vachaspati Dwivedi, the respondent No. 3 attained the age of superannuation on 4.1.1998. He was allowed to continue as such till 30.6.1998. May be for the reason that he attained the age of superannuation in the mid-session. In that regard, the Statute 16.24, which is relevant for the purposes of deciding the case, is reproduced below: "16.24. (1) The age of superannuation of a teacher of the University governed by the new scale of pay shall be sixty years.: (2) The age of the superannuation of a teacher of the University not governed by the new pay scale of pay shall be sixty years. (3) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes : "Provided that a teacher whose date of superannuation does not fall on June 30 shall continue in service till the end of academic session, that is, June 30, following, and will be treated as on re-employment from the date Immediately following his superannuation till June, 30, following :
(2.) From the perusal of the proviso, it is evident that such type of continuance of service has been treated by the University Statutes as re-employment. The question as to whether re-employment of such a person, like Professor, will entitle him to remain as Head of Department or Member of the Academic Council, etc. was a matter of debate before this Bench in Ramesh Chandra and others v. University of Lucknow and others, Writ Petition bearing No. 5893 of 1988. In which one amongst us (S. H. Raza. J.) was a member, after considering the Statutes of the Lucknow University, which is more or less analogus to the Statutes in question, the Court observed that on re-employment, such a person cannot hold the office of the Head of Department as well as the Dean of the Faculty.
(3.) Similar view was expressed in Paras Nath Pandey a. District Inspector of Schools, Basti and others. 1995 (1) UPLBEC 667. Shri Paras Nath Pandey, at the relevant time, was working as a Head of Department of Grammar (Vyakaran) as well as officiating as Principal when he retired and re-employed thereafter. The post of the Principal was advertised in the Press. A mandamus was sought for restraining the respondents from filling up the post of the Principal in the college and quashing the appointment of the respondent. In the light of the aforesaid circumstance, the Court observed : ".....It was held by a Division Bench of this Court that re-employment being different from extension, the petitioner cannot add to his new service which started on his re-employment, his earlier service prior to his superannuation and, therefore, on his superannuation followed by re-employment the next Professor seniormost to him should be treated as senior. It was further held that the expression "continue in service" occurring in the proviso to Statute 16.24 (3) had to be interpreted in the light of legal fiction which has been provided in the same proviso and in the same sentence. That legal fiction is to the effect that a teacher so allowed to continue in service has to be treated as on re-employment and his re-employment is to commence on the date immediately following the date of his superannuation. The expression "continue in service" cannot, therefore, be decisive of the question as it cannot, be Interpreted as if the legal fiction did not exist." It was further held : "The net result of the discussion is that it is to be held that the petitioner who immediately after the date of his superannuation gets re-employment under Statute 16.24 (3) of the First Statute of the Sampurnanand Sanskrit University as a teacher ceased to be an officiating Principal of the College with effect from 5.11.1994, the date of his superannuation. In view of the provisions of Statute 12.22 of the First Statutes of the University, the post of Principal of the College having fallen vacant, the seniormost teacher of the College became entitled to act as Principal until a duly selected Principal assumes the office.";