S. R. Singh, J.@mdashThe petitioner, a Reader in Hindu Degree College, Jamania, district Ghazipur staked his claim of being senior-most teacher in the college. His claim came to be obligated by the Vice-Chancellor, Purvanchal University as well as the Chancellor. Jaunpur by means of the orders impugned herein. The college is affiliated to the Purvanchal University. Jaunpur and the provisions of the U. P. State Universities Act. 1973 and those of the First Statutes of the Gorakhpur University are admittedly applicable to tills college.
2. The case has a chequered history. The minimal facts necessary to highlight the controversy involved in the case may be stated thus. The petitioner was appointed Lecturer (Mathematics) in the college on 21.2.1977. On the recommendation dated 27.5.1992 of a duly constituted selection committee, he was appointed Reader pursuant to resolution dated 18.5.1992 of the Committee of Management. The petitioner took charge of the post of the Reader by submitting an application in respect thereof to the Principal of the college on 19.5.1992. The petitioner was so promoted in accordance with the Government Order No. 91/G.I./15-11-88-14(5)/87, dated 7.1.1989. It is alleged in the petition that at the relevant time, the petitioner happened to be the only Reader in the college and on that basis, he submitted an application on 25.5.1992 to the Principal of the college staking his name to be placed at S. No. 1 in the seniority list of the teachers of the college in view of Statute 18.05 read with Statute 11.16 of the Statutes of the First Statutes of the Deen Dayal Upadhyay University, Gorakhpur (in short ''the Gorakhpur University'') which are admittedly applicable to the Purvanchal University. Jaunpur. The Principal declined the request of the petitioner to be treated as the senior-most teacher of the college by order dated 14.8.1992 against which the petitioner preferred an appeal to the Vice-Chancellor, Purvanchal University. Jaunpur. It appears that the said appeal remained pending for a long time and feeling aggrieved by the failure of the Vice-Chancellor to take a decision within a reasonable time, the petitioner preferred a writ petition which came to be disposed of vide judgment and order dated 25.1.1995 directing the Vice-Chancellor to decide the petitioner''s appeal within a period of two months. The Vice-Chancellor vide his order dated 22.8.1995 decided the appeal in favour of the petitioner and declared him senior to other teachers of the college in view of the provisions of Statute 18.05. But on receipt of representations from respondents teachers, the Vice-Chancellor by his subsequent order dated 31.8.1995 stayed the operation of the earlier order dated 22.8.1995. However, in a writ petition filed by the petitioner, this Court by its interim order dated 24.1.1996 directed that the order of the Vice-Chancellor dated 31.8.1995 would remain inoperative until further orders. The Vice-Chancellor by his order dated 27.6.1996 directed the Principal of the College who was due to retire w.e.f. 30.6.1996 to handover the charge of his post to Rama Shankar Singh, respondent No. 4.
3. The petitioner felt aggrieved and filed Writ Petition No. 21412 of 1996 challenging the order of the Vice-Chancellor dated 27.6.1996. This Court by a common Judgment dated 23.7.1996 finally disposed of the two writ petitions thereby relegating the petitioner to avail of the alternative remedy u/s 68 of the U. P. State Universities Act. 1973 by means of representation to the Chancellor. As an interim measure, the Court, however, directed that the order of the Vice-Chancellor in favour of Dr. Rama Shankar Singh would be confined only for the time allowable under the statute depending upon final outcome of the reference u/s 68 of the State Universities Act. 1973. Statute 13.20. It may be observed, gives a discretion to the Vice-Chancellor to direct "any teacher" to act as officiating Principal for a period of three months. Thereafter, the senior-most teacher is to officiate as Principal in case regular Principal is not appointed in the meantime. In view of the Judgment of the Court, the University by letter dated 2.8.1996 directed Sri Rama Shankar Singh to handover the charge of post of the Principal to the petitioner who would act as such until assumption of charge by regularly appointed Principal or until any order was passed by the Vice-Chancellor. Consequently upon said order, the petitioner. It is stated, acquired charge of the post of Principal on 3.8.1996. Rama Shankar Singh preferred a SLP against the Judgment and order dated 23.7.1996 of the Court. It may be observed that on behalf of Sri. Rama Shankar Singh, an argument was advanced before the Supreme Court that the order of the Vice-Chancellor dated 22.8.1995 was an ex parte order and, therefore, it must be set aside. On behalf of the petitioner. It was urged that the Vice-Chancellor had no Jurisdiction to review or recall his order. The SLP came to be disposed of by the Supreme Court vide judgment and order dated 26.8.1996 with the direction that since the Vice-Chancellor had entertained the application of Sri Rama Shankar Singh seeking review or recall of the order dated 22.8.1995 and had also passed an order of stay dated 31.8.1995, he must dispose of the application filed by Rama Shankar Singh. The Supreme Court while disposing of the Special Leave Petition, however, made it clear that the question as to power of the Vice-Chancellor to review or recall the order dated 22.8.1995 could be "raised by Sri Anirudh Pradhan before the Vice-Chancellor himself."
4. Pursuant to the aforesaid direction of the Supreme Court, the Vice-Chancellor took up the matter and declared by his order dated 18.11.1996 that Sri N.N. Srivastava happened to be the senior-most teacher of the college while Sri Rama Shankar Singh and the petitioner were held to be 2nd and 7th in the order of seniority. The Vice-Chancellor, however, did not decide the question as to whether he had the jurisdiction to review his order dated 22.8.1995. The petitioner thereafter filed a writ petition being Civil Misc. Writ Petition No. 38916 of 1996 which came to be disposed of finally vide judgment and order dated 3.12.1996 with the direction that the petitioner had an alternative remedy u/s 68 of the U. P. State Universities Act and in the event of his availing the said remedy, the Chancellor would decide the representation "positively within a period of four months in accordance with law after hearing the parties by a speaking order". The Chancellor by his order dated 29.12.1997 remanded the matter to the Vice-Chancellor for decision afresh after taking into consideration the issue as to whether he had the power to review/recall his earlier order dated 22.8.1995. The Vice-Chancellor by his order dated 23.3.1998 maintained his earlier order dated 18.11.1996 and rejected the petitioner''s application dated 10.1.1998 whereby he had sought for direction to be handed over charge of the post of Principal. The petitioner again challenged this order before the Chancellor by means of representation u/s 68 of the U. P. State Universities Act, 1973. The representation came to be rejected by Chancellor by means of the impugned order dated 11.3.1999.
5. We have had heard Sri Gajendra Pratap for the petitioner and Sri S.P. Singh for the contesting respondents.
6. The Vice-Chancellor in his order dated 23.3.1998 while maintaining his earlier order dated 18.11.1996 has heavily relied on Government Order dated 16.12.1994 in which it has been provided that conferment of the designation of Reader to a Lecturer under the Government order would not affect his seniority. The Government order to the extent of repugnancy has, however, been held vide Judgment dated 15.5.1997 to be ultra vires the provisions of Statute 18.05 of Deen Dayal Upadhyay University, Gorakhpur according to which Reader is to be treated senior to Lecturer. The Government order dated 16.12.1994 having been held to be ultra vires, stands obliterated and, therefore, the decision taken by the Vice-Chancellor relying upon the Government order dated 16.12.1994 stands vitiated. Even the Chancellor has accepted this legal position in the impugned order but then instead of setting aside the order passed by the Vice-Chancellor, the Chancellor relegated the matter to the State Government as in his opinion it involved a policy decision. The Chancellor, in our opinion, fell into error in not giving effect to the law as declared by the High Court declaring the Government order dated 16.12.1994 as ultra wires the Statutes to the extent of its repugnancy. Seniority of teachers in the same cadre and same grade is to be determined with reference to the date of appointments and according to Statute 18.05 the Professor shall be deemed to be senior to every Reader and the Reader shall be deemed to be senior to the every Lecturer. Concededly, the petitioner was conferred the designation and grade of Reader earlier in point of time than the contesting respondents and, therefore, according to the Statute 18.05, he would be deemed to be senior to the contesting respondent albeit as Lecturer he was junior to the contesting respondents.
7, The impugned order passed by the Vice-Chancellor cannot be sustained on yet another ground. The Vice-Chancellor has no power to review an order passed on merit. Smt, Shiv Raji v. Deputy Director of Consolidation 1997 ACJ 908 (FB), except where the order sought to be reviewed was obtained by "fraud or misrepresentation". United India Insurance Co. Ltd. v. Rajendra Singh. JT 2000 (3) SC 151 ;
8. In the result the writ petition succeeds and is allowed. The impugned orders dated 18.11.1996 and 23.3.1998 passed by the Vice-Chancellor and the one dated 11.3.1999 passed by the Chancellor are quashed. Respondents are directed to treat the petitioner as senior-most teacher of the college and permit him to work as officiating Principal till selection and appointment of a regular Principal or till he attains the age of superannuation whichever event happens earlier.
