The following is an iminent and ensuing social problem of public interest. Can any one read this and suggest how to tackle it? Also, please discuss if there is a solution outside the court.
In fixing the inter se seniority between the direct recruited Readers or Professors and designated Readers or Professors promoted under CAS, Hon’ble Supreme Court of India in the matter of the Dr. Rashmi Srivastava versus Vikram University & ORS (1995) RD-SC 229 (20 April 1995) has held at paragraph:
(i) 37 of its decision as “It is true as submitted by learned counsel for appellants that for avoiding stagnation and heart burning promotional avenues should be made available in any service as laid down by this court in number of decisions to which our attention was invited by them. However the short question for our consideration is whether the concerned university Act has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Reader or Professor as the case may be. They would remain ex cadre employees who cannot claim any inter se seniority with direct recruits forming the concerned cadre.”
In Odisha, The Orissa University Act was enacted in 1989 and the Orissa Universities First Statute came into existence in 1990, whereas the Merit Promotion Scheme and the Career Advancement Scheme (CAS) came into existence and were adopted by the Government of Orissa in 1982 & 1987 respectively. Therefore, when the Act was enacted in 1989 the State Legislature was aware of the promotion of a Lecturer as Reader or Reader as Professor as the case may be under CAS. Despite this, only one source of recruitment of university teachers namely, Professors and Readers and even of Lecturers is contemplated in Section 21 of the Act (and Sections 4{2}, 4{3}, 4{4}, 4{5}, 4{6} & 4{7} of the Statutes) and that source is by way of direct recruitment. There is no provision, either in the Act or the Statute, of appointment by promotion in the cadre of Professor or Reader. Thus CAS promoted Professors and Readers must not be treated as senior to direct recruited Professors and Readers, as the case may be.
(i) 40 of its decision, on considering similar distinct characters between the two classes, as “At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as recommended by the Commission and adopted by the university concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer becomes obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible. ...”
(ii) 41 of its decision, on holding an office or becoming a member of any authority by rotation according to seniority, “The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated.”
(iii) 44 of its decision (in the last sentence) on doctrine of promissory estoppels, as “Such a promise if any also would have been unconstitutional being violative of Articles 14(1) and 16 of the Constitution.”
(iv) 46 of its decision on determining seniority of ex-cadre Professors and Readers, as “The question then remains as to how his seniority has to be reckoned as a merit promotee even though he is an ex cadre Reader or Professor. The answer is obvious. Amongst person forming the same class to which he belongs, namely, ‘merit promotee Readers or Professors their inter se seniority has to be fixed on the basis of continuous officiation as such merit promotees. Such a separate seniority list of merit promotee Readers and Professors has to be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the cadre. It is not as if they are still to be treated as only Lecturers or Readers as the case may be from which posts they got merit promotion, ...”
Appointments & nominations to Statutory positions were being made so as not to violate the Articles 14(1) and 16 of the Constitution of India, till the publication of the Orissa Gazette Notification Number 1600 dated 29 October 2009. The relevant portions of the Notification read as:
“2. In the Orissa Universities First Statutes, 1990, in sub-statutes (1) of Statutes 251 for the words “Regular Professors” the words “Professors and Readers” shall be substituted.
In the proviso for the words “Regular Professors” the words “Professor or Reader” shall be substituted.”
It is to be noted that:
1. The sub-statutes (1) of Statute 251 prescribes procedure for appointment of the Head of the Department from amongst the Professors & Readers on seniority-cum-rotation basis.
2. The amended sub-statutes (1) of Statute 251 neither contradicts nor overrides the recruitment procedure available at Section 21 of the Act nor does it mean statutory creation of a distinct and fresh source of recruitment by way of (CAS) promotion, which can be said to fall in the same class as directly recruited Readers or Professors as per Section 21 of the Act (and Sections 4{2}, 4{3}, 4{4}, 4{5}, 4{6} & 4{7} of the Statutes).
3. Therefore, even after the publication of the above Notification, the CAS promoted Professors & Readers are dehors Section 21 of the Act and hence remain outside the cadre of Professors & Readers which are to be filled only through direct recruitment.
4. This notification has neither said anywhere nor can be interpreted (as it has nothing to do with recruitment or fixing of seniority) in anymanner to change the Seniority List, which all of the Universities have done.
This has happened as there are only countable numbers of directly recruited Professors completely outnumbered by designated (i.e. promoted) Professors. The Universities are completely under the control of such designated professors. This is leading to some typical societal problem. It is a fact that, there are only some posts of Professors and only a very few selected faculties with proven academic excellence are appointed to these posts. On the other hand, those who can’t get direct appointment filling up the post of professors, are given a promotion and designated as professor (since they do not hold the post of professor) to overcome the discontent among them due to stagnation. The experience, appointment committees etc. are different. This is why a directly recruited professor gets higher start up salary than that of a designated professor. Thus, directly recruited professors definitely form a superior class. When Act & Statute says professor, it means these professors. To uphold academic standard, these professors are to be members of Statutory bodies like the Syndicate, the Academic Council etc. Otherwise, the academic standard in the Universities will be diluted. In the past four years, this dilution has already started and the standard is dropping down at an alarming rate. In addition, the academic output of the directly recruited professors is also declining, since they are being humiliated out of jealousy, and at times to settle score by the designated professors (since they had failed in the competation for direct recruitment). Because of this, the academic and research standard in the University is first declining and the product of these University are going to be very week academically. Thus the Universities are going to produce citizens of very low calibre and become Degree selling centres.
