Patna High Court
Dr. Samir Kumar Sharma vs The State Of Bihar & Ors on 30 November, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18733 of 2013
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Dr. Samir Kumar Sharma Son Of Sri Shio Sahay Sharma Associate Professor Of
English, Bihar National College, Patna, 102, Madhu Kunj Apartment, Opp. Forest
Department, Nehru Nagar, Patliputra, Patna- 800013
.... .... Petitioner
Versus
1. The State Of Bihar, Through The Principal Secretary Higher Education, New
Secretariat, Govt. Of Bihar, Patna
2. Dr. Arun Kumar Sinha, Acting Vice-Chancellor, Patna University, Patna
3. The Registrar, Patna University, Patna
4. The Deputy Registrar, Patna University, Patna
5. Dr. Pradip Kumar, Professor, Sociology Department, Patna University, Patna
6. Anil Kumar Verma, son of late Chamanlal, resident of C-204, Charminar
Apartment, Road No.12, Rajendra Nagar, Patna- 800016
7. Prabhakar Jha, son of late Diwakar Jha, C-101, Charminar Apartment, Road
No.12, Rajendra Nagar, Patna- 800016
8. Ranvir Nandan, Research Officer, B.N.College, Patna
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Awadhesh Prasad Sinha, Adv.
For the Patna University : Mr. Ashok Kumar Keshari, Adv.
For respondent no.5 : Mr. Sahilendra Kumar Sinha, Adv.
For respondent no.8 : Mr. Manan Kumar Mishra, Sr.Adv.
For respondents no. 6 & 7: Mr. Basant Kumar Chaudhary, Sr.Adv.
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 30-11-2015
The present case is one more burning example of complete
chaos and anarchy prevailing in Patna University. As a matter of fact
what the writ petitioner had tried to canvass before this Court is that
there is no sanity in the functioning of Acting Vice Chancellor who
despite being aware that he had been authorized to work as a Vice
Chancellor only by way of stopgap arrangement and till appointment
of a permanent and regular Vice Chancellor has gone to create a reign
of terror by taking his despotic decisions in the matter of grant of
promotion to the teachers of Patna University.
Patna High Court CWJC No.18733 of 2013 2
2. This writ application was actually filed on 16.9.2013
wherein the petitioner while complaining that his mature case of
promotion on the post of Professor has not been taken up by
respondent no.2, Dr. Arun Kumar Sinha, the Acting Vice Chancellor,
he has in a very short period of his functioning as Acting Vice
Chancellor gone to take decision and also become party to issuance of
a large number of illegal and irregular promotions including that of
respondent no.5. Thus, he has assailed the promotion of respondent
no.5 merely by way of elucidation and in fact his case as against
respondent no.5 is that though respondent no.5 is not even
substantively appointed as a Lecturer in the University yet he has been
promoted on the post of Reader by an order dated 4.5.2013 under the
Merit Promotion Statutes with retrospective effect i.e. 25.4.1995.
3. The direct allegation of the petitioner against respondent
no.2, the Acting Vice Chancellor, Dr. Arun Kumar Sinha, is that
respondent no.5 was appointed through backdoor on the post of
Research Officer on compassionate ground though such appointment
on compassionate ground was permissible only against a Class III and
Class IV post and even when the attempt of respondent no.5 to
become a member of teaching cadre in the department of Sociology of
the University was thwart under the order of the then Vice Chancellor
dated 20.6.2009 and at a point of time when his appointment on
compassionate ground was under consideration of the State
Patna High Court CWJC No.18733 of 2013 3
Government as would be evident from the letter of Patna University
dated 8.9.2010 addressed to the Deputy Director of Higher Education
of the State Government, he was all of a sudden promoted on the post
of Reader on 4.5.2013 by respondent no.2, who himself was only an
Acting Vice Chancellor and had joined the office on 26.4.2013 only
by way of stopgap arrangement in view of the interm order of the
Apex Court in the case of Dr. Ram Tawakya Singh v. the State of
Bihar & ors., reported in 2013(3) PLJR (SC) 421. The petitioner in
fact has also highlighted that the impugned order of promotion of
respondent no.5 apart from violative of the provision of the Statutes of
Merit Promotion is also bad because respondent no.2, the Acting Vice
Chancellor, has tried to mislead by quoting such order to be in
accordance with the directions of this Court in a writ petition filed by
respondent no.5 being C.W.J.C.No. 14070/2010 and in this regard he
has enclosed the order passed by this Court dated 17.7.2012 in
C.W.J.C.No. 14070/2010 to show that the writ application of the
petitioner was simply dismissed as withdrawn with a clear observation
that this Court had not expressed any opinion with regard to the merit
of the claim of respondent no.5.
4. Thus, the petitioner while assailing the order of promotion
of respondent no.5 more or less by way of elucidation of arbitrary
decision being taken by the Acting Vice Chancellor had not only
enclosed the notification of promotion of respondent no.5 dated
Patna High Court CWJC No.18733 of 2013 4
4.5.2013which is quoted hereinbelow but had also enclosed two notifications dated 25.7.2013 whereby and whereunder the merit promotion on the post of Reader was given to one Dr. Ranvir Nandan (respondent no.8), Research Officer in the Department of Geology in B.N.College, Patna again on the post of Reader under Merit Promotion Statutes with retrospective effect i.e. 2.7.2001 which reads as follows:
^^iVuk fo'ofo|ky;
vf/klwpuk fo'ofo|ky; p;u lfefr dh vuq'kalk ij vfHk"kn dh cSBd fnukad 13-07-2013 dh dk;kZoyh la[;k&2&¼b½ ¼N½ ds fu.kZ;kuqlkj es/kk izksUufr ifjfu;e ds vUrxZr Mk0 j.kohj uUnu] 'kks/k inkf/kdkjh] HkwxHkZ'kkL= foHkkx] ch0,u0dkWyst] iVuk dks mikpk;Z ds in ij fofgr osrueku esa fnukad 02-07-2001 ds izHkko ls izksUufr nh tkrh gSA vfHk"kn ds vkns'k ls] g0@& 25@7@13 mi dqylfpo iVuk fo'ofo|ky;] iVukA Kki la[;k& th@904 fnukad & 25-07-2013**
5. Simultaneously the petitioner had also brought on record the notification of promotion of four more teachers, namely, Sri Prabhakar Jha, Dr. Ravindra Kumar Sinha, Dr. Munindra Mohan and Dr. Kumar Rajeev Ranjan Prasad Singh, who too were given promotion on the post of Reader under Merit Promotion Scheme with retrospective effect by yet another notification dated 25.7.2013 which Patna High Court CWJC No.18733 of 2013 5 reads as follows:
iVuk fo'ofo|ky;
vf/klwpuk fo'ofo|ky; p;u lfefr dh vuq'kalk ij vfHk"kn dh cSBd fnukad 13-07-2013 dh dk;kZoyh la[;k&2&¼b½ ¼d½ ds fu.kZ;kuqlkj es/kk izksUufr ifjfu;e ds vUrxZr fuEufyf[kr f'k{kdksa dks mikpk;Z ls fo'ofo|ky; izkpk;Z ds in ij muds ukeksa ds lkeus vafdr frfFk ls fofgr osrueku esa izksUufr nh tkrh gS%& ¼d½ es/kk izksUufr Ldhe ds rgr mikpk;Z ds fo'ofo|ky; izkpk;Z ds in ij izksUufr%& dz-la0 f'k{kd dk uke fo"k; izksUufr dh frfFk 1- Jh izHkkdj >k ih0,e0vkbZ0vkj0 23-12-1994 2- Mk0 johUnz dqekj flUgk tUrq foKku 22-12-1994 3- Mk0 equhUnz eksgu tUrq foKku 03-02-1995 4- Mk0 dqekj jktho jatu izlkn flag jlk;u'kkL= 14-09-1998 vfHk"kn ds vkns'k ls] g0@& 25@07@13 mi dqylfpo iVuk fo'ofo|ky;] iVukA Kki la[;k&th@915@13 fnukad&25-07-13**
6. After filing of the writ petition the petitioner had filed I.A.No. 6967/2013 on 23.9.2013 by making an additional prayer that since the Acting Vice Chancellor (respondent no.2) was involved in corruption, nepotism and favouritism and doing all type of wrong work, a direction should be issued by this Court for lodging of a criminal case and its investigation by an independent agency. In this application he had also enclosed an order dated 6.9.2013 whereby and Patna High Court CWJC No.18733 of 2013 6 whereunder the respondent no.5 within less than a period of four months of his being promoted on the post of Reader vide an impugned order dated 4.5.2013 had been said to have completed three years of teaching experience as a Reader and thus, entitled to be designated as an Associate Professor with effect from 1.1.2006 entitling him for all the benefits in terms of the decision of the University Grants Commission (U.G.C.) and the State Government of the post of Associate Professor.
7. Thus, when this case was taken up on 31.10.2013 and notices were issued to respondent no.5 this Court having noticed that there was no order directing promotion by this Court in C.W.J.C.No. 14070/2010 had directed respondent no.2, the Acting Vice Chancellor, to file his personal affidavit as to how such order of promotion was said to be in terms of the direction of this Court in C.W.J.C.No. 14070/2010. When this case was again taken up on 12.11.2013 the petitioner had filed a supplementary affidavit bringing on record the order of promotion of one Dr. Dilip Kumar, from the post of Curator to the post of Reader dated 31.10.2013 which again was by way of retrospective promotion to Dr. Dilip Kumar with effect from 25.3.1995. The case of the petitioner against such promotion of Dr. Dilip Kumar was that on an earlier occasion the case of promotion of Dr. Dilip Kumar was considered in view of certain observation and direction given by this Court in C.W.J.C.No. 6649/2006 and the then Patna High Court CWJC No.18733 of 2013 7 Vice Chancellor Dr. Shyam Lal on 29.5.2010 had rejected such claim of Dr. Dilip Kumar by a reasoned order holding therein that a Curator though may be in the same pay scale of Lecturer but he was not entitled to promotion on the post of Reader under the Merit Promotion Statutes for want of his substantive appointment on the post of Lecturer in the University. The petitioner, thus, had highlighted that what was rejected by Dr.Shyam Lal, the then Vice Chancellor, on 29.5.2010 and reiterated by the next Vice Chancellor Sri Shambhu Nath Singh holding that the claim of promotion to the post of Reader of Dr. Dilip Kumar, Curator in the Department of Ancient Indian History and Archeology for his being promoted on the post of Reader could never be allowed as he was never appointed to the post of Lecturer. The then Vice Chancellor in his order in fact had also gone to hold that as none of the promotion scheme had ever envisaged promotion of a person without holding the sanctioned vacant post of Lecturer, the claim of promotion of Dr. Dilip Kumar could not be allowed. The petitioner, thus, came out to say that after the two decisions of the two earlier regular Vice Chancellor the present acting Vice Chancellor had the audacity to overrule all of them by way of passing the order of promotion of Dr. Dilip Kumar, another ineligible person like respondent no.5 during the pendency of this writ application by way of an order dated 31.10.2013.
8. This Court in fact was amazed to find out from the Patna High Court CWJC No.18733 of 2013 8 notification dated 31.10.2013 whereby and whereunder a number of persons were sought to be promoted under the order of the Acting Vice Chancellor (respondent no.2), under different promotion schemes. Such promotion included promotion from the post of Reader to the post of Professor under Merit Promotion Scheme of Dr. Anil Kumar Verma and Dr. Rohit Raman, in the Department of Physics, Dr. (Smt.) Maya Sinha and Dr. Dezy Narayan, in the Department of History, Dr. R.S.Mishra, in the Department of Statistics and Dr. Ashok Kumar Gupta, in the Department of Geology. Let it be noted that all such promotion to the aforesaid persons from the post of Reader to the post of University Professor under the Merit Promotion Statutes were given from retrospective effect from various dates in between 4.9.1994 to 23.8.1997 as more specifically described in the notification of the University dated 31.10.2013, wherein apart from the aforesaid promotions a number of promotions were given as would be more clear from reading of the notification dated 31.10.2013 quoted hereinbelow:
^^iVuk fo'ofo|ky;
vf/klwpuk fo'ofo|ky; p;u lfefr dh vuq'kalk ,oa vfHk"kn dh cSBd fnukad 26-10- 2013 dh dk;kZoyh la[;k&3 ds fu.kZ;kuqlkj fofHkUu fo"k;ksa ds fuEufyf[kr f'k{kdksa dh fofHkUu izksUufr Ldheksa ds rgr izksUufr ,oa izksUufr dh frfFk esa la'kks/ku djrs gq, muds ukeksa ds lkeus vafdr frfFk ls fofgr osrueku esa izksUufr nh tkrh gS%& ¼d½ es/kk izksUufr Ldhe ds rgr mikpk;Z ls fo'ofo|ky; izkpk;Z ds in ij izksUufr%& Patna High Court CWJC No.18733 of 2013 9 fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk HkkSfrdh ¼1½ Mk0 vfuy dqekj oekZ 01-03-1996 ¼2½ Mk0 jksfgr jeu 17-07-1998 bfrgkl ¼1½ Mk0 ¼Jherh½ek;k flUgk 22-08-196 ¼2½ Mk0 Msth ukjk;.k 17-07-1996 lkaf[;dh ¼1½ Mk0 vkj0,l0feJk 04-09-1994 HkwHkxZ'kkL= ¼1½ Mk0 v'kksd dqekj xqIrk 23-08-1997 ¼[k½ dSfj;j ,MHkkUlesUV Ldhe ds rgr mikpk;Z ls fo'ofo|ky; izkpk;Z ds in ij izksUufr%& fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk laLd`r ¼1½ Mk0 fxjh'k dqekj >k 29-01-199 ¼x½ dSfj;j ,MHkkUlesUV Ldhe ds rgr O;[;krk ¼ojh; osrueku½ ls mikpk;Z ds in ij izksUufr& fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk izk0Hkk0 bZ0 ,oa iqjkrRo ¼1½ Mk0 t;nso feJ 27-07-2003 ¼?k½ dkyc} izksUufr Ldhe ds rgr D;wjsVj@O;k[;krk ls mikpk;Z ds in ij izksUufr%& fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk izk0Hkk0 bZ0 ,oa iqjkrRo ¼1½ Mk0 fnyhi dqekj 25-03-1995 ¼M0½ es/kk izksUufr Ldhe ds rgr izksxkzej@O;k[;krk ls ojh; izksxzkej@mikpk;Z ¼mikpk;Z osrueku½ ds in ij izksUufr%& fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk dEI;wVj lk;al@lkaf[;dh ¼1½ Mk0 d`".k izrki flag 24-03-1996 ¼p½ dSfj;j ,MHkkUlesUV Ldhe ds rgr O;k[;krk ls O;k[;rk ¼ojh; osrueku½ ds in ij izksUufr%& fo"k; dz-la- f'k{kd dk uke izksUufr dh frfFk HkkSfrdh ¼1½ Mk0 ¼Jherh½ lqfurk flag 30-06-2003 ¼2½ Mk0 'kadj dqekj 06-11-2007 ¼3½ Mk0 vt; dqekj iafMr 01-07-2003 izk0Hkk0bZ0,oa iqjkrRo ¼1½ Mk0 eks0 lbZn vkye 26-06-2007 mnwZ ¼1½ Mk0 eks0 lgkc tQj vkteh 28-06-2007 ¼2½ eks0 ukS'kkn vgen 26-06-2008 ¼3½ Mk0 lqjt nso flag Not Recommended due to nonavailability of the paper ouLifr'kkL= ¼1½ Jherh iq"ikatyh [kjs 28-06-2009 Patna High Court CWJC No.18733 of 2013 10 ¼2½ Mk0 fouksn izlkn 07-11-2007 ¼3½ Mk0 lqjsUnz dqekj izlkn 15-10-2009 eSfFkyh ¼1½ Mk0 v:.kk pkS/kjh 26-06-2007 ¼2½ Mk0 Qqyks ikloku 28-06-2003 ¼3½ Mk0 ghjk eaMy 22-07-2007 n'kZu'kkL= ¼1½ Mk0 fdj.k dqwekjh 02-07-2007 ¼2½ Mk0¼Jherh½vferk t;loky 26-06-2003 xf.kr ¼1½ Mk0 'kf'k Hkw"k.k jk; 24-07-2007 ¼2½ Jherh iwue dqekjh 28-06-2009 ¼3½ Mk0 izHkkl dqekj pkS/kjh 26-06-2007 f'k{kk ¼1½ Mk0 tslh tkWtZ 26-06-2007 ¼2½ Mk0 'kf'k izHkk 27-06-2007 ¼3½ Mk0 chuk izlkn 26-06-2007 laLd`r ¼1½ Mk0 y{eh ukjk;.k 16-04-2004 ¼2½ Mk0 eqjkjh 'kj.k ekaxfyd 03-07-2007 ¼3½ Jherh fLerk dqekjh 26-06-2009 ¼4½ Mk0 fdj.k ekyk 26-06-2007 ¼N½ fuEufyf[kr f'k{kdksa dk dSfj;j ,MHkkUlesaV Ldhe ds rgr O;k[;krk ls O;k[;krk ¼ojh; osrueku½ ds in ij izksUufr dh frfFk esa ifjorZu %& fo"k; dz-la- f'k{kd dk uke iwoZ esa nh la'kksf/kr xbZ izksUufr izksUufr dh dh frfFk frfFk ouLifr'kkL= ¼1½ Mk0 pkS/kjh ljQq|hu 18-03-1997 10-01-1997 ¼2½ Mk0 ¼Jherh½ vkHkk flag 30-05-1997 10-01-1997 ¼3½ Mk0 ohjsUnz izlkn 17-12-1997 10-01-1997 ¼4½ Mk0¼Jherh½ pUnzizHkk 30-01-1997 30-11-1997 ¼5½ Mk0 ukghn vgen 17-10-1998 17-10-1998 ¼6½ Mk0 jhuk eksgudk 01-12-1997 30-11-1997 ¼7½ Mk0 'kjnsUnq 17-12-1997 03-12-1997 HkwxHkZ'kkL= ¼1½ Mk0 vrqy vkfnR; ik.Ms; 27-07-1998 26-02-1998 ¼2½ Mk0 jkecyh flag 04-09-2002 26-02-1998 ¼3½ Mk0 vfuy dqekj 26-02-1997 26-02-1997 ¼4½ Mk0 jfoUnz dqekj 27-07-1998 26-02-1998 vaxzsth ¼1½ Mk0 vtqZu dqekj 22-07-2007 21-07-2003 ¼2½ Mk0 lehj dqekj 'kekZ 27-07-1998 01-02-1998 ¼t½ fuEufyf[kr f'k{kdksa dk dSfj;j ,MHkkUlesaV Ldhe ds rgr O;k[;krk ¼ojh; osrueku½ ls mikpk;Z ds in ij izksUufr dh frfFk esa ifjorZu%& fo"k; dz-la- f'k{kd dk uke iwoZ esa nh la'kksf/kr xbZ izksUufr izksUufr dh dh frfFk frfFk ouLifr'kkL= ¼1½ Mk0 pkS/kjh ljQq|hu 18-03-2002 10-01-2002 ¼2½ Mk0 ¼Jherh½ vkHkk flag 13-04-2004 10-01-2002 ¼3½ Mk0 ohjsUnz izlkn 13-04-2004 10-01-2002 ¼4½ Mk0¼Jherh½ pUnzizHkk 13-04-2004 30-11-2002 ¼5½ Mk0 ukghn vgen 01-07-2004 17-10-2003 ¼6½ Mk0 jhuk eksgudk 13-04-2004 30-11-2002 Patna High Court CWJC No.18733 of 2013 11 ¼7½ Mk0 'kjnsUnq 13-04-2004 03-12-2002 HkwxHkZ'kkL= ¼1½ Mk0 vrqy vkfnR; ik.Ms; 27-07-2003 26-02-2003 ¼2½ Mk0 jkecyh flag 04-09-2007 26-02-2003 ¼3½ Mk0 vfuy dqekj 01-04-2004 26-02-2002 ¼4½ Mk0 jfoUnz dqekj 03-01-2004 26-02-2003 vaxzsth ¼1½ Mk0 Mh0 ,u0 flUgk 19-01-2006 27-07-2003 ¼2½ Mk0 lat; dqekj flUgk 19-01-2006 06-07-2004 ¼3½ Mk0 Lrqfr izlkn 19-03-2005 27-07-2003 ¼4½ Mk0 lehj dqekj 'kekZ 18-11-2003 26-08-2003 izk0 Hkk0 bZ0 ¼1½ Mk0 uohu dqekj 23-12-2005 05-11-2005 ,oa iqjkrRo ¼>½ fuEufyf[kr f'k{kdksa dk es/kk izksUufr Ldhe ds rgr O;k[;krk ls mikpk;Z ds in ij izksUufr dh frfFk esa ifjorZu%& fo"k; dz-la- f'k{kd dk uke iwoZ esa nh la'kksf/kr xbZ izksUufr izksUufr dh dh frfFk frfFk bfrgkl ¼1½ Mk0 Msth ukjk;.k 26-12-1991 17-07-1988 vfHk"kn ds vkns'k ls] g0@& 31@10@13 dqylfpo iVuk fo'ofo|ky;] iVukA Kki la[;k&th@1575 fnukad& 31&10&2013**
9. As a matter of fact a bare reading of the notification dated 31.10.2013 will go to show that 66 teachers in all including aforesaid Dr. Dilip Kumar were granted promotion by respondent no.2, the Acting Vice Chancellor.
10. This Court, thus, on 12.11.2013 having found that the present respondent no.2 though working as a Vice Chancellor under the acting arrangement made by the Chancellor in view of the order of the Apex Court in the case of Dr. Ram Tawakya Singh (supra) had been on rampage and had also not filed the counter affidavit as Patna High Court CWJC No.18733 of 2013 12 directed in the order dated 31.10.2013, had passed an interim order on 12.11.2013, relevant portion whereof reads as follows:
" In the background of the fact that the present adhoc arrangement of acting Vice Chancellor is continuing under the order of the Apex Court and the appointment of the regular Vice Chancellor is likely to be completed soon, this Court would direct Mr. Arun Kumar Sinha, the acting Vice Chancellor who is present in Court today to file his personal affidavit giving the background and the reasons for the decisions taken by him, other than in day to day routine affairs, including the present one of giving retrospective promotion or shifting of the date of promotion as contained in Annexure 8 as well as the promotion given to respondent no.5, Mr. Arun Kumar Sinha, the acting Vice Chancellor would be also under an obligation to remain present on the next date with all the relevant records relating to such decisions involving policy matter or financial implication taken during his regime as acting Vice Chancellor. Mr. Sinha, the acting Vice Chancellor of Patna University is however now restrained from taking any decision involving policy matter or financial implications, and will confine his activities only in discharging day to day routine work on the post of Vice Chancellor as is the scope and prospect of incharge arrangement on the post of Vice Chancellor made under the orders of the Apex Court."
11. Thereafter the acting Vice Chancellor on 18.11.2013 had filed his counter affidavit wherein he had claimed that he took charge of the office of Vice Chancellor on 26.4.2013. He had also explained that a decision had been taken for shifting the date of promotion of the Patna High Court CWJC No.18733 of 2013 13 petitioner in the scale of Senior Lecturer from 27.7.1998 to 1.2.1998 and in the grade of Reader from 18.11.2003 to 26.8.20013 vide a notification dated 31.10.2013 and thus, the petitioner‟s grievance had remained partly redressed on account of getting advantage of three months in the grade of Reader. It was also stated in the counter affidavit that the case of promotion of the petitioner was still under consideration awaiting the report of the experts and the decision on the promotion of the petitioner could be taken only after receipt of the report of the expert and the consequential decision of the Selection Committee by holding interview for promotion under Career Advancement Scheme only in respect of such candidates who were declared to be qualified in minimum of three positive recommendations from the experts in relation to their research publication/ books. Having thus set out this part of the case as with regard to the petitioner it was also sought to be impressed that since respondent no.2, the acting Vice Chancellor, did not succumb to the pressure tactics adopted by the petitioner by considering his case in isolation, the present writ application has been filed by him by way of vengeance.
12. In the said counter affidavit the case of respondent no.5 was sought to be defended by the Acting Vice Chancellor by taking the following plea:
"20 i) Dr. Pradeep Kumar was appointed as Research Officer in Sociology in the Institute of Public Administration on Patna High Court CWJC No.18733 of 2013 14 25.4.1987 in pursuance to the resolution of the Syndicate dated 10th March, 1981, whereby it was resolved that in case of death of university servant while in active service his/her widow or one son or one unmarried daughter would be given employment in the University to which he/ she may be suitable.
ii) That in pursuance to R-3/4, Dr. Pradeep Kumar was appointed as stated above on 25.4.1987.
iii) That the appointment of Dr. Pradeep Kuamr was against the vacant sanctioned post of Research Officer. The Department of Higher Education, Govt. of Bihar, Patna, vide letter No. J/P-44/79 Sh 1286 dated 25.7.1981 accepted the decision of the Academic Council and the Syndicate.
iv) That it is further relevant to state here that the Department of Higher Education had fixed the pay scale of Dr. Pradeep Kumar by letter no. 278 dated 30.4.2003. The fixation was so made by the State Government after giving full consideration to the matter and his pay was fixed in the scale of lecturer and communicated to the Registrar, Patna University by letter no. 278 dated 30.4.2002.
v) That thereafter Dr. Pradeep Kumar moved before Hon‟ble Patna High Court in which the then permanent Vice Chancellor Dr. Shambhu Nath Singh had filed counter affidavit on behalf of University and had stated that in compliance to order dated 28.6.2012, had fixed a meeting of the Selection Committee in the 1st Week of August 2012 for consideration by the Selection Committee and the case of Dr. Pradeep Kumar would be placed for consideration before the said Selection Committee. The recommendation of the Selection Committee, thereafter was placed in the meeting of the Syndicate dated 12.1.2013 and the same was approved Patna High Court CWJC No.18733 of 2013 15 but it could not be notified.
vi) That after the deponent took over charge, the notification was issued and the language of the notification was the same as it was placed before the Syndicate in the Agenda which was prepared by the then Vice Chancellor, Shri Shambhu Nath Singh. Accordingly, in the notification, the case number was indicated but subsequently when this deponent came to know about mentioning of the case number, he took step immediately for deleting the same and a modified notification was issued, of course on 2.11.2013.
vii) That the mentioning of the case number in the notification of Dr. Pradeep Kumar was made inadvertently as it was copied from the resolution of the Syndicate itself. The error is regretted and the deponent has constituted one man committee authorizing the Pro Vice Chancellor, Patna University to inquire into the matter and report back so that appropriate action may be taken for such dereliction of duty."
13. From the aforesaid explanation it becomes very clear that the order of promotion of respondent no.5 of its being in terms of the decision of the judgment of this Court in C.W.J.C. No. 14070/2010 was found to be erroneous and in fact it was represented before this Court that the enquiry has been set up as to how and who was committed such error but nothing has been done in a period of one year which will only reflect and substantiate the allegation of the petitioner that it was respondent no.2 who himself has coined the use of High Court order of illegal promotion of respondent no.5. The explanation of the Acting Vice Chancellor with regard to the case of Dr. Ranveer Nandan, respondent no.8, in the counter affidavit reads as Patna High Court CWJC No.18733 of 2013 16 follows:
"22 i) That as regards Dr. Ranveer Nandan, Research Officer, Geology, B.N.College is concerned, he was promoted to the grade of Reader after all formalities were completed earlier and approval was accorded by the Syndicate on 13.7.2013. In this context, it is relevant to state here that the Academic Council, Patna University had taken a resolution which was notified on 19.12.1978 whereby Research Associate, Research Officer, Research Fellow who were on regular cadre of the Patna University were recognized as teacher of the University and were designated as Research Officer. They were allowed to continue in their present post and draw same salary which they were drawing at the relevant time in their existing designation. The decision regarding empanelment of the lecturers scale of pay was accepted by the State Government, which will be apparent from Annexure- R-3/6. It is relevant to state here that Dr. Ranveer Nandan was confirmed with effect from 24.3.1988 by notification dated 13.11.1998.
The pay scale of Dr. Ranbir Nandan was fixed by State Government and notified on 30.7.1999.
It is relevant to state here in this context that one Akhileshwar Tewari was also appointed by one and the same notification along with Dr. Rajnbir Nandan. He had been promoted to the grade of Reader under merit Promotion Scheme as far back in the year 2002 by 646 dated 16.5.2002.
ii) That Dr. Ranveer Nandan‟s case for promotion to the grade of Reader was considered earlier by Selection Committee and on account of non supply of supporting documents, his case was kept in abeyance in the meeting of Selection Committee dated 30.6.2011. Thereafter Dr. Patna High Court CWJC No.18733 of 2013 17 Ranveer Nandan filed C.W.J.C.No. 15605 of 2011 in which the University had filed counter affidavit stating that Dr. Ranveer Nandan has been asked by letter no. G.78 dated 30.1.2012 to submit necessary documents so that his case for promotion may be placed before the Selection Committee.
After the documents were supplied, his case was placed before the Selection Committee which recommended his case for promotion. The recommendation was placed before the Syndicate for approval and thereafter his promotion was notified under Annexure 7 to the writ petition. Thus there has been no illegality or ill-motive nor any favour has been shown by this deponent so far as the case of Dr. Ranveer Nandan is concerned."
14. In the similar manner the Acting Vice Chancellor in his counter affidavit had also defended his decision of giving promotion to Dr. Dilip Kumar, Curator in the Department of Ancient Indian History and Archeology on the post of Reader under the Time Bound Promotion Statutes with retrospective effect by taking the following plea:
"23. That as regard Dr. Dilip Kumar is concerned, (wrongly described by writ petitioner as Dilip Kumar Sinha), Ancient History and Archeology, he is in Ancient Indian History and Archeology Department) he has never been promoted in the grade of Professor as claimed by the writ petitioner. He was promoted under time bound promotion scheme to the grade of Reader from Curator/ Lecturer, which is apparent from notification dated 31.10.2013 (Annexure- R-3/3), his name appears at Sl.No. „gha‟. It is relevant to point out here that the then Vice Chancellor Dr. Shambhu Nath Singh had issued Patna High Court CWJC No.18733 of 2013 18 office order indicating that he was inadvertently designated as Curator instead of Lecturer as notified by P.U.Syndiate on 25.3.2011 and directed that he is naturally entitled to all consequential benefits of the said post."
15. The Acting Vice Chancellor apart from defending the cases of three persons, namely, respondent no.5 and respondent no.8, the two Research Officers promoted on the post of Reader and one Dr. Dilip Kumar, from the post of Curator to the post of Reader had given his further explanation with regard to rest of the decision taken by him in relation to 66 teachers by taking a plea that it was not his individual decision and in fact he was authorized to do so under the orders of the Chancellor dated 28.4.2013 and 10.5.2013. His explanation in this regard in his counter affidavit was as follows:
"26. That on 12.11.2013 while the case was being heard petitioner questioned some of the decisions of the University taken after this deponent was appointed as Vice Chancellor vide Annexure- R-3/1. In this context, the deponent begs to submit that the notification of this deponent was issued on 26.4.2013 and on 28.4.2013 the Principal Secretary in the office of the Governor cum Chancellor issued a further clarification by letter no. 472/G.S.(T) dated 28.4.2013 in which it has been stated that His Excellency, the Governor cum Chancellor of the Universities, Bihar, has desired that the Universities be kindly advised as under:-
"Functioning of the Universities should be carried out in terms of provisions of the Act (s)/ Statutes. For this purpose, it would be important to hold the meetings of the Senate, the Syndicate, the Academic Council, the Patna High Court CWJC No.18733 of 2013 19 Examination Board, etc. on time and as provided under the relevant Act(s)/ Statutes. Meetings of other decision making bodies should also be held in a timely manner."
27. That it is further relevant to state here that again by letter no. 644/G.S.(T) dated 10.5.2013 issued by the Principal Secretary to the Governor cum Chancellor of the Universities in which it was categorically mentioned that:-
"It has, however, been noticed that meetings of Senate and the Syndicate are not held regularly, as provided for in the aforesaid sections of the Act(s) and certain important decisions are taken in anticipation of the approval of the aforesaid statutory bodies. This practice is contrary to the provisions of the Act(s)/ Statute. It is, therefore, directed to ensure that the meetings of the Senate and the Syndicate of the Universities are held on time/ regularly as provided for in the Act(s) referred to above. This may kindly be treated as urgent."
30. That if the deponent does not act in terms of the direction issued by His Excellency the Governor cum Chancellor of the Universities of Bihar in terms of Annexure- R-03/13 and R- 3/13, the deponent would deem to have failed to discharge his duties imposed upon him in terms of section 12 of the Patna University act 1976 and therefore, the deponent had to follow the mandate issued by His Excellency the Governor of Bihar cum Chancellor of the Universities of Bihar."
16. Apart from the aforesaid stand the Acting Vice Chancellor had also taken his defence with regard to his decision in the case of Dr. Krishna Pratap Singh, Dr. Daisy Narain, Dr. Beena Rani and Dr. Maya Sinha by taking the following plea:
"38. That the aforesaid Krishna Pratap Singh was appointed Patna High Court CWJC No.18733 of 2013 20 in the scale of lecturer and his date of joining was 24.3.1988. Subsequently, his promotion was due in the scale of Reader (as Sr. System Analyst/ Sr. System Programmer/ System Manager). The qualification required for this post amongst others was M.Sc. D.C.A. with 7 years experience in computing. Shri Krishna Pratap Singh was possessing this qualification and thereby Selection Committee approved his case which was placed before the Syndicate and the Syndicate also approved the same and thereafter it was notified as contained in Annexure- R-3/3 and Annexure 8.
39. That as regards the statement made in paragraph no.8 of the supplementary affidavit in which the writ petitioner has alleged about shifting of date of Dr. Daisy Narain is concerned, it is stated that Dr. Daisy Narain had filed a representation dated 20.7.2012 relying upon the judgment of Dr. Beena Rani passed in C.W.J.C.No. 1269 of 2006 disposed off on 26.8.2010 and C.W.J.C.No. 7128 of 1996- Maya Sinha & Anrs. Vrs. State of Bihar and ors. dated
17.12.1996 and had been pursuing for consideration of her case also in the light of aforesaid two judgments as the case of Dr. Beena Rani was considered by the University and notified on 3.4.2012, as the case of Dr. Beena Rani and Fr. Maya Sinha were similar to that of Dr. Daisy Narain. Accordingly, the matter was placed before the Selection Committee which recommended the shifting of the date as well as for promotion to the grade of Professor. The same was placed in the meeting of Syndicate having approved the same it was notified accordingly. Thus it was not an individual act of this deponent as alleged by the writ petitioner."
17. Having given this explanation the Acting Vice Chancellor Patna High Court CWJC No.18733 of 2013 21 had defended his all actions/ decisions of there being in terms of the provisions of the Act and the Statutes and in furtherance to the direction issued by the learned Chancellor of the Universities of Bihar and has questioned the maintainability of the writ petition in view of alternative remedy for the petitioner by way of moving before the Hon‟ble Chancellor in terms of the provisions made in Patna University Act.
18. The respondent no.5 had also filed his counter affidavit wherein apart from questioning the maintainability of the writ petition on the ground that the petitioner has no locus standi to challenge his promotion on the post of Reader in the Institute of Public Administration, Patna University on the ground that the petitioner belongs to the Department of English in Patna University had also justified his compassionate appointment directly on the post of Research Officer by taking a plea that it was possible for the University in the year 1987 to appoint respondent no.5 even directly on the post of Research Officer as by that time the Government Resolution of compassionate appointment with regard to appointment only on Class III and Class IV post had not been adopted by Patna University. Apart from that respondent no.5 had sought to explain that the decision of striking of the name of respondent no.5 from the seniority list of the teachers of Department of Sociology could in no way affect him from his functioning on the post of Research Officer in Patna High Court CWJC No.18733 of 2013 22 the Department of Institute of Public Administration in Patna University where his seniority was directed to be restored and having said so he has sought to justify his promotion on the post of Reader from the post of Research Officer by claiming that he was promoted actually on the post of Reader in Sociology and to that extent his explanation in paragraph 9 of his counter affidavit reads as follows:
"9. That the statement and allegation made in paragraph 8 of the writ petition under reply is completely wrong unfounded and misleading. In this regard it is relevant to state that on 24.7.2012 the selection committee recommended the name of the answering respondent for his promotion as Reader in Sociology to the Syndicate, Patna University for its approval. On 12.1.2013 the Syndicate, Patna University gave its approval for appointment of the answering respondent to the post of Reader in Sociology, Patna University and accordingly the answering respondent was promoted to the post of Reader in Sociology, Patna University by the impugned order dated 4.5.2013, appended as Annexure 4 to this writ petition. On the facts stated herein that promotion of the answering respondent was given as per the Rule and procedure of the Patna University for promotion therefore the statement and the allegation made in the para of the writ petition is fit to be rejected."
19. With the aforesaid pleadings when the case was heard on 20.11.2013 an interlocutory application, I.A.No. 8184/2013, had been filed by Mr. Anil Kumar Verma and Mr. Prabhakar Jha, the two Lecturers promoted under the Merit Promotion Scheme by an order dated 25.7.2013, as contained in Annexure 6 to the writ application, Patna High Court CWJC No.18733 of 2013 23 they were impleaded as respondents no. 6 and 7 to this writ application. The case thereafter was adjourned for hearing to 2.12.2013 because some of the affidavits were filed only in the Court Room requiring the parties to file their rejoinder.
20. The petitioner thereafter had filed his exhaustive reply to the counter affidavit of respondent no.2, the Acting Vice Chancellor, wherein he had contested the claim of respondent no.2 that under the order of the Chancellor dated 28th April, 2013 he had not been authorized to take decisions in capacity of regular Vice Chancellor much less for making appointment and promotion of any employee.
The petitioner has also alleged that respondent no.2 was not at all looking into the main work which he was supposed to do within a period of one year, namely, examination work and is more interesting in taking decision for appointment and promotion of teachers. He had also denied the then Vice Chancellor with regard to respondent no.5 on the ground that he was never appointed as Research Officer in the Department of Sociology and that his such appointment on compassionate ground on the post of Research Officer even in the Institute of Public Administration was incorrect and in any event merely because he was given the equivalent pay scale of Lecturer by way of his appointment on compassionate ground will not make him at par of being substantively appointed on the post of Lecturer so as to earn the benefit of promotion under the Merit Promotion Statutes. In Patna High Court CWJC No.18733 of 2013 24 this regard the case of the petitioner in his reply to the counter affidavit of respondent no.2 though described as second supplementary affidavit reads as follows:
"5. That the reply given under para no.20 of the counter affidavit that Dr. Pradeep Kumar was appointed as a Research Officer in Sociology in the Institute of Public Administration on 25.4.1987 is highly misleading, deceptive and baseless. His letter of appointment does not mention that he was ever appointed as Research Officer in Sociology which is marked as Annexure- R 3/5 and Annexure 1 of the writ petition. Further it is also to be added that there has never existed any post like Research Officer in Sociology in any constituent unit of Patna University till this date. The University authorities have not placed any record to prove their contention in favour of respondent no.5. In this connection the following facts are worth mentioning:-
(i) That the post of Research Officer may be equivalent to the post of Lecturer in terms of salary, but both have never been the same or inter-changeable.
Lecturer and Research Officer belong to two different streams of academic posts. They are neither same nor similar with respect to terms of appointment and promotion. And therefore Research Officer cannot claim the benefits and privileges of a Lecturer in matters of promotion to the higher rank of Reader or Associate Professor.
(ii) That as per the Merit Promotion Scheme only Lecturer holding substantive post sanctioned by the Govt. of Bihar and appointed following the due process of law is entitled for promotion to the post Patna High Court CWJC No.18733 of 2013 25 of Reader or Associate Professor.
(iii) That merely on the basis of analogous pay scale Research Officer‟s claim to be promoted as Reader is not at all supported by the Statute of merit Promotion Scheme. Only on the basis of similarity of pay scale such promotions can create serious financial disorder in the university because all the Section Officers, Budget and Accounts Officer, Assistant Registrar, Assistant Librarians, Medical Officers, Examinations Controller, Establishment Officer, Planning Officer, etc. who are getting the salary of Lecturer would one day become eligible for promotion to the post of Reader/ Associate Professor.
(iv) That despite vehement opposition by the then Pro Vice Chancellor Dr. J.P.Singh (Professor of Sociology, in PU) and some teachers of the Dept. of Sociology Dr. Shambhunath Singh placed the case of Dr. Pradeep Kumar before the Selection Committee for consideration for promotion to the post of reader. But realizing the act of illegality of promotion he later on tactfully kept the notification of promotion of Pradeep Kumar pending.
(v) That the statement made under para 20 that the mention of C.W.J.C.No. 14070/2010 in "the notification of Dr. Pradeep Kumar was made inadvertently", which is marked as Annexure 4, is absolutely false and misleading. The respondent no.2 has tried to mislead the court by recording that the matter is under enquiry by the present acting Pro Vice Chancellor now. As a matter of fact, the test of Patna High Court CWJC No.18733 of 2013 26 all the notifications done by the University is always carefully drafted and approved by the Deputy Registrar, the Registrar, and finally the Vice Chancellor because notification carries very huge significance with respect to date of promotion, seniority and payment of arrears of salary.
(vi) The Hon‟ble Court would be amazed to learn that Dr. Pradeep Kumar is a very crafty fellow, as he go this Ph.D. through fraudulent means. He submitted a verbatim copy of Ph.D. thesis of his supervisor Dr. Anand Kumar Sinha, Professor of Sociology, Patna University under a slightly changed heading. The text or contents of the theses are exactly the same. This matter of duplication of thesis was also brought to the notice of the Hon‟ble Chancellor for necessary action. In fact, the Hon‟ble Chancellor had once ordered for enquiry into the matter, but the then Registrar, Vice Chancellor and other associated people like his Ph.D. supervisor suppressed the fact because Pradeep Kumar happens to be the son of an ex-section officer of the Academic Section of Patna University. Anyway, the petitioner had once full opportunity to see the copy of both the Ph.D. theses and found them exactly the same piece of work. This matter needs a thorough investigation, leading to cancellation of degree and termination of job as a Research Officer.
(vii) That since the Registrar was very much opposed to all such illegal promotions, he refused to sign the said notification and so the notification has been issued in the name of Deputy Registrar (Dr. Najmuz Patna High Court CWJC No.18733 of 2013 27 Zaman) which is highly improper. This shows that nothing has happened inadvertently, rather everything has been done by the Vice Chancellor- in-charge in full knowledge of the circumstances of the case."
21. What is very significant to be noted here is that the petitioner had questioned the decision passed by respondent no.2, the Acting Vice Chancellor, by taking a plea that the things which could not be even done by regular Vice Chancellor in last 16 years was sought to be done by respondent no.2 in his tenure of six months and to that extent his averments in reply affidavit reads as follows:
"7. That it is very much obvious now that things which could not be done over a period of sixteen years or more even by several regular Vice Chancellors have been done by the present Vice Chancellor-in-charge within a period of about six months. The Act and Statute of Patna University do not permit even the duly appointed Vice Chancellor to give promotion with retrospective effect, as promotion is not based on the consideration of length of teaching experience alone. All promotions have always been based on time cum merit considerations and hence Reader or Associate Professor becomes eligible for promotion only on the day the candidate attains the requisite qualifications as laid down in the Statute. Promotion from retrospective effect entails drain on the State resources and in case of non-payment of arrears of salary there starts problems of civil writ petition against the State Govt. as well as university to release the arrears of salary accruing from such illegal promotion.
8. That the Vice Chancellor-in-charge cannot exonerate Patna High Court CWJC No.18733 of 2013 28 himself from allegation that everything was done by the Selection Committee and the Syndicate. The hard truth is that the Selection Committee and Syndicate are headed or chaired by the Vice Chancellor only. Even the agenda of the Syndicate and cases of promotion to be placed on agenda of Syndicate are finally decided by the Vice Chancellor alone. In all fairness he cannot shift responsibility on others‟ shoulder to escape the consequences of the acts of wrong doings."
22. Having explained the case of respondent no.2 the petitioner had also refuted the claim of Vice Chancellor in respect of promotion given to respondent no.8, another Research Officer on the post of Reader under Merit Promotion Statutes by taking the following plea:
"9. That as regards promotion given to Dr. Ranveer Nandan, as stated under para 22 of the counter, it is to be noted that the promotion of Dr. Ranveer Nandan is highly arbitrary and illogical, same as that of Dr. Pradeep Kumar. He is not qualified to be Associate Professor because his substantive appointment is in the rank of Research Officer. Only on the ground of similarity in the pay scale between Research Officer and Lecturer, promotion of a Research Officer to the rank of Reader under Merit Promotion Scheme with effect from 2.7.2001 cannot be justified (Annexure 7). There is no room for promotion of Research Officer or person with other such designations equivalent to that of the Lecturer. The MPS is specifically meant for only duly appointed Lecturers against substantive post following the due process of law. The appointment of Research Officer is always a kind of Patna High Court CWJC No.18733 of 2013 29 backdoor entry done by the Vice Chancellor alone."
23. Similarly as with regard to promotion of one Dr. Dilip Kumar, a Curator in the Department of Ancient Indian History and Archeology, on the post of Reader the petitioner had insisted the same to be illegal by taking the following plea:
"10. That as regards the facts stated above Dr. Dilip Kumar, a Curator in the Dept. of Ancient Indian History & Archeology made under para 23, are not correct because he was not really qualified for promotion to the post of Associate Professor as per the Statute for promotion because he was never appointed as a Lecturer on a substantive basis and he never possessed requisite teaching experience as a Lecturer. Dr. Dilip Kumar was merely re-designated as a Lecutrer on 25.3.2011 and hence not entitled for promotion with retrospective effect, i.e. from 25.3.1995 without having requisite teaching experience as a Lecturer (Annexure 8)."
24. He had also questioned the decision of the Acting Vice Chancellor with regard to grant of full salary to Awadhesh Singh, the Finance Officer with whom the petitioner claimed that the Acting Vice Chancellor was hand in gloves because the acting Vice Chancellor was himself drawing the financial benefit of both the post of Acting Principal of Patna Science College and also Vice Chancellor-in-charge of Patna University. The petitioner in fact had that all these hurriedly actions were being taken by respondent no.2 fully realizing that he was working as In-charge Vice Chancellor of Patna University in terms of the order of the Apex Court in the case of Patna High Court CWJC No.18733 of 2013 30 Dr. Ram Tawakya Singh (supra) and the fact that respondent no.2 had his limited tenure as an Acting Vice Chancellor only till 31st December, 2013 when he was going to superannuate from service.
25. The petitioner had filed third supplementary affidavit on 29.11.2013 wherein he had also denied the allegation of writ petition being motivated in any manner on account of refusal of personal favours in the matter of his own promotion by respondent no.2. In this regard the petitioner had stated as follows:
"2. That as regard to para 16, 17 and 43 of the counter affidavit filed by respondent no. 2, it is to be made clear that this writ petition has not been filed to secure any undue favour from him. It has been filed against the practice of irregular and illegal promotions pursued by the Acting Vice Chancellor. This writ petition is necessitated with a view to ensuring fair play in the system of promotion.
3. That as regard para 16, 17 and 43 of the counter affidavit filed by respondent no.2, it is to be made clear that the petitioner has never put any pressure on the respondent no.2 to send his papers alone by ignoring the case of the appointee of 1987 or any teacher senior to him.
The petitioner has humbly submitted that since his case for promotion to the rank of Professor got matured on 18.11.2011, he should be granted promotion. But with a view to delaying the petitioner‟s legitimate claim, the respondent authorities have deliberately delayed his case and as stated by respondent no.2 in para 13 of the counter affidavit, the papers of 5 teachers were sent to the experts on 11.9.2013, after this writ petition was filed on 2.9.2013. Respondent no.2 has also Patna High Court CWJC No.18733 of 2013 31 sent the papers of those teachers who did not complete 8 years of service as Reader, which is the essential criterion as per clause 5.2.0(III) of the Career Advancement Scheme, 1998 as per the decision of the State Govt. letter no. 15/M-1- 218/98-1300 dated 20.7.2001 notified by the Governor‟s Secretariat, Bihar letter no. BSU/8/2008-1915 GS(1), Patna, dated 29.6.2005.
The charge leveled against the petitioner by respondent no.2 is false and baseless. The petitioner has been denied his legitimate claim for promotion to the post of Professor for two years while others are being favoured in an injudicious and partisan manner by the respondent no.2.
4. That irregular or illegal way of giving promotion affects inter se seniority of different teachers including that of the petitioner in the long run. It is clearly obvious from different annexures attached with the instant petition that the Vice Chancellor has tended to grant promotion in a very irregular and illegal manner, following discriminatory practices to suit the interests of his favourites as well as of his own.
5. That the respondent authorities have promoted Dr. Dilip Kumar from the post of Joint Director to Additional Director and Dr. R.R.Sinha from the post of Analyst to Research Officer and with effect from 8.6.2012 and 9.6.2014 respectively in the Population Research Centre vide PU notification no. AC/Estab/1099 dated 26.9.2013 and AC/Estab/1100 dated 26.9.2013. This centre has been created and sponsored by the Ministry of Health and Family Welfare, Govt. of India as a temporary organization and it functions on a year to year basis grant by the Ministry and here there is no system promotion ever since it has come into existence. All posts are filled through direct advertisement in national Patna High Court CWJC No.18733 of 2013 32 dailies. This fact is clearly obvious from two enclosed letters of the Ministry‟s letter No. W.11011/8/ 95-E&I dated 27.5.20013 addressed to the Registrar, PU and No. 11011/7/2008 Stat(PRC) dated 16.5.2008 and another addressed to the then Vice Chancellor, Dr. Dilip Kumar and Dr. R.R. Sinha have been favoured because they are closely related to respondent no.2 since long, as they are old students at the M.Sc. level and they have also done their Ph.D. under his supervision.
6. That the Vice Chancellor is least bothered about the financial implications of his well designed venture of promotion for the State Government. Through this act he also denied the opportunities of direct recruitment to a massive number of unemployed youth who possess all the necessary educational attainments and ability for direct recruitment against these posts."
26. Let it be noted that when the case was taken up on 2.12.2013 the learned counsel for the University has again sought time for adjourning this case for a fortnight and accordingly, the case was directed to be listed on 17.12.2013 on which day a supplementary counter affidavit has been filed on behalf of respondents no. 2 and 3 duly sworn by Dr. Arun Kumar Sinha, the Acting Vice Chancellor, wherein he had again wanted to defend the promotion of respondent no.5 by taking the following plea:
"5. That coming on the question raised by the petitioner that Sri Pradip Kumar was a Research Officer and the post was not equivalent to Lecturer.
In the aforesaid context, it is submitted that it is wrong Patna High Court CWJC No.18733 of 2013 33 notion of writ petitioner.
The question relating to equivalent, not in salary but in the matter of teaching experiences also has been considered earlier by inter university Board as well as the Hon‟ble Chancellor and the Hon‟ble Court and also by the State Government.
It is submitted that on reference being made earlier by T.M.Bhagalpur University, the Bihar Inter University Board had intimated to the Special Officer in the Secretariat of H.E., the Governor of Bihar, Patna that such Research Associate who had the qualification for appointment as Lecturer and who is in continuous service and is working as such, validly appointed and the post of Research Associate has the sanction of State Higher Education Department, such Research Associate who fulfills this criteria and has experience of doing research or has acquired experience by assisting in research, that would be treated as teaching experience and would be entitled for the scale of Reader and Professor under Time Bound Promotion Scheme.
In this context it is submitted that one Dr. Akhileshwar Tiwary, who was appointed as Research Officer, Geology Department, B.N.College, Patna alongwith others in the year. The matter relating to his promotion was referred to Bihar State University (Constituent College) Service Commission. The Secretary of the Bihar State University (Constituent College) Service Commission, herein after referred as „Commission‟ informed Registrar of Patna University by letter no. 216/Biswa/ BSUSC dated 12.5.2001, recommended for promotion as Reader under Merit Promotion Scheme subject to condition that he has completed 8 years as Research Officer and 1/3rd post is available in the department.Patna High Court CWJC No.18733 of 2013 34
The recommendation of the Commission was placed before the Syndicate which in its meeting dated 15.5.2001 considered the matter and submitted the report where the matter under consideration was "whether Research Officer of the University fulfills the prescribed condition laid down by the State Government for promotion to the post of Reader or not?"
The Sub Committee of the Syndicate laid down certain condition for promotion of Research Officer and to be treated as separate cadre without affecting the seniority of general cadre.
In response thereto, the Syndicate resolved by Resolution no.30 dated 10.12.2001 to refer the matter to His Excellency the Chancellor to bring these facts to his notice. The Chancellor‟s Secretariat by letter no. PU-5/2002- 78/GS1 dated 16.1.2002 made certain quarry with regard to conversion of the post of Research Officer to that of Lecturer (where no financial benefit/ avenue burden is involved) and promotional benefits/ avenues and demanded the copy of the resolution of the Syndicate specially the portion covering Agenda no.30 alongwith copy of letter of concurrence of the Commission.
The direction of the Chancellor‟s Secretariat was complied with by the then Registrar by letter no. 10/R dated 23.1.2002, finally the Deputy Secretary in the Secretariat of His Excellency the Governor of Bihar by letter no. PU-5/2002- 538/ G.S.(i) dated 7.3.2002 informed as follows;-
".. a reference to your letter no.1-/R dated 23.1.2002 on the above subject and to say that the matter be placed again before Syndicate, which is the competent authority, for consideration and decision in the Patna High Court CWJC No.18733 of 2013 35 matter."
Thereafter the matter was placed in the meeting of the Syndicate dated 27.4.2002 and the Syndicate as an Additional Agenda no.4 took decision and accepted the recommendation and consequently notification was issued by the University by memo no. G/646 dated 16.5.2002.
6. That in the aforesaid context, it is humbly submitted that one R.K.Sinha, Research Associate of Bhagalpur University had preferred with application vide C.W.J.C.No. 11631/1997 for a direction on the respondents to consider the cases for promotion to the post of Reader from retrospective date and to grant consequential benefits, praying therein that Bihar Inter University Board has already made recommendation to the Chancellor for promotion of Research Associate/ Research Officer to higher grade. The Hon‟ble Court by order dated 15.2.2000 directed the petitioner to move His Excellency, the Chancellor to take a decision preferably within a period of 3 months and the operative portion of the order reads as follows:-
".. it is needless to say that the aforesaid promotion policy is approved by H.E. Chancellor, the respondent will act on the same and consider the case of the petitioner and other similarly situated Research Associate/ Research Officer."
In pursuance of the aforesaid direction of the Hon‟ble Court, H.E., the Chancellor considered the case and ultimately on 22nd October, 2008 was pleased to order that-
".. on perusal of reply received from the State Government vide letter no. 1481 dated 22.9.2008, it appears that the State Government is an agreement with the recommendation of the Inter University Patna High Court CWJC No.18733 of 2013 36 Board with regard to promotion of Research Associate/ Research Officer on the basis of condition laid down by the Inter University Board."
H.E., the Chancellor decided to send the letter of the State Government to the University to decide the matter of promotion in the light of aforesaid letter and the recommendation of the Inter University Board.
7. That in the context of Dr. Pradip Kumar, it is submitted that he was appointed against one of the sanctioned vacant post which was held by Sri I.H.Khan, who was having Ph.D. in Sociology. It would transpire from the letter of appointment of Dr. Pradip Kumar that he was appointed in the scale of 700-40-1100-50-1600 plus other admissible allowance as a Research Officer, the appointment letter is at page 9 of the writ application at Annexure 1. Subsequently, thereafter the State Government by letter no. 1286 dated 25.7.1981 (Annexure r-3/6) had already sanction/ and spelt out that those Research Associate/ Research Assistant/ Research Fellow who fulfill the qualification laid down by Academic Council was approved by the State Government and the State Government asked the proposal of such Research Officer in details for confirmation of the appointment of Research Officer.
In pursuance of that proposal, the pay scale of Dr. Pradip Kumar was fixed as contained in Annexure R-3/7 and the University paying the same scale to him.
In this context, it is submitted that under clause (z) of section 2 of Patna University Act, 1976 "other equivalent post" has been defined as follows:-
"other equivalent post" means any other post, the scale of pay of which is equivalent or as the State Patna High Court CWJC No.18733 of 2013 37 Government may declare equivalent."
In fact the word „equivalent post‟ was not included in merit promotion statute but word equivalent post was included in the Time Bound Promotion Scheme approved by H.E. Chancellor and communicated by letter dated 24.12.86 under the Heading Note (2) after Article 12 which provides as under:-
".. the word Lecturer/ Reader/ University Professor shall include equivalent post having different nomenclature in various faculty."
It is submitted that equivalent post be considered for doing the same work and not the other post having the same scale. Research Officer or Lecturer impart instruction to the students as the Research Officer who were appointed in the scale of Lecturer as such question of serious financial disorder does not arise.
8. That as regards to the promotion of Dr. K.P.Singh is concerned, it has adequately been replied in main counter affidavit. However, it is reiterated that Dr. K.P.Singh, a Programmer has been promoted as per U.G.C. norms as Senior Programmer which is equivalent to the scale of Reader, which is apparent from Annexure 8 itself. In this context, it is stated that the post was sanctioned by the State Government vide letter no. 1851 dated 29.10.1999 with retrospective effect with reference to letter of Patna University bearing no.700 dated 3.9.1992 which clearly states at page 3, as below:-
"BISHESH ROOP SE DO PROGRAMMER JO BAYAKHATA KE SCALE ME HAI, VISHWAVIDYALAYA DWARA CHALAYE JA RAHE DIPLOMA IN COMPUTER SCIENCE KE Patna High Court CWJC No.18733 of 2013 38 COURSE ME PADATHE HAI TATHA PRAYOG KARATE HAIN."
It is further fully described in the letter of Patna University no.415 dated 17.3.1993."
27. The petitioner in his reply by way of 4th supplementary affidavit had questioned the stand taken by the University and respondent no.5 that there was actually an order or decision to show that there were three post of Research Officer in the rank of Lecturer in the Institute of Public Administration clearly specifying three subjects like Political Science, Statistics and Sociology and in this regard he has revealed that even the original file of appointment of respondent no.5 was missing from the University. The plea of the petitioner in this regard reads as follows:
"4. That it is interesting to note that the original file of respondent no.5 is missing from PU administrative office and the FIR was lodged with the Pirbahore Police Station, Patna and despite the incidence of missing of the original service record of the respondent, he has been given promotion. Facts relating to illegal appointment and missing of original file leading to FIR are stated in a letter issued by the Registrar vide PU letter no. G/1504 dated 8.9.2010. The file is learnt to have been missing because his letter of appointment as Research Officer is reported to be spurious. On the original file the respondent was actually appointed as a Research Assistant on compassionate ground at the Institute of Public Administration and accordingly the letter was issued by the then Registrar B.K. Verma, but the original file alongwith the said letter of appointment is lost. But later on in connivance Patna High Court CWJC No.18733 of 2013 39 with then Deputy Registrar Binay Prasad the respondent manipulated to get the post of Research Assistant transformed into Research Officer without any knowledge of the then Registrar and Vice Chancellor. The letter of appointment, marked as Annexure 1 to the main petition, cannot be issued by both Registrar and Deputy Registrar at the same time. This is unusually unprecedented.
5. That since Pradeep Kumar has secured the job of Research Officer and obtained Pd.D. degree through manipulation, no Vice Chancellor found him fit or suitable for promotion to higher rank. The Vice Chancellor Dr. K.K.Jha even refused to treat him as a Lecturer in his noting on the official file on 8.10.2001, while Pradeep Kumar wanted to contest for election for the membership of the PU Syndicate under Lecturer‟s quota. And also he never considered him qualified for promotion to the rank of Reader. The present acting Vice Chancellor too knows this fact very well, but because of some special or personal considerations in mind he has finally promoted the respondent to the rank of Reader with effect from 25.4.1995, Both the Ph.D. theses and original file dealing with appointment of the respondent should be called for verification of facts."
28. It has to be also taken into account that respondent no.5 had also filed a counter affidavit to the second supplementary affidavit filed on behalf of the petitioner and apart from repeating the plea of locus standi of the petitioner to question the decision of promotion of respondent no.5, he has referred to certain information given under the Right to Information Act as with regard to existence of the post of Research Officer in the Department of Sociology in the Institute of Patna High Court CWJC No.18733 of 2013 40 Public Administration, Patna University. What is more interesting is that respondent no.5 has himself stated that his claim for promotion on the post of Reader was pending since 2001 and has given certain justification for his belated promotion in the year 2013 by taking the following plea:
"5. That the statement made in sub paragraph (i) (ii) & (iii) of paragraph 5 of the second supplementary affidavit under reply is also misleading and a bald statement based on no document at all, and therefore, fit to be rejected. In fact the matter of promotion of Research Officer came into consideration way back in the year 2001 to the post of Reader, when the Patna University vide its notification contained in Memo No. 2039 dated 22.12.2001 has given promotion to altogether 13 Research Officers working in different departments and Institutes of Patna University to the post of Reader on the recommendation of the Syndicate and erstwhile Bihar State University Service Commission now selection Committee according to the Time Bound Promotion Rule.
Similarly, one Dr. Akhileshwar Tiwari, on the recommendation of the erstwhile Bihar State University (Constituent Colleges) Services Commission has been given promotion by the Patna University from the post of Research Officer to the post of Reader according to the Merit Promotion Rule vide notification contained in memo No. G/646/dated 16.5.2002.
Further, the office of the Chancellor vide its letter to Vice Chancellor, Patna University, Patna contained in memo No. 2333 dated 29.7.1997 had categorically stated that Academic Patna High Court CWJC No.18733 of 2013 41 Council and Senate of Patna University as well as the State Government have given equality of status of the Research Officer as Lecturer long back and the University cannot at this stage disown or disclaim the equivalence of Research Officer to that of Lecturer and hence cannot justify meting out a different treatment from the Lecturers. The said observation was made by the office of the Chancellor on the complaint of one Dr. M.M.Patnaik who was working as Research Officer in statistics in the Institute of Public Administration Patna University and was promoted to the post of Reader in statistics in the said Institute of Public Administration in Patna University, with regard to non allotment of rented residential quarter to him by the Patna University.
From the aforesaid the untenable stand taken by the writ petitioner in the paragraph under reply is fit to be rejected as the Answering Respondent has also been promoted to the post of Reader in Sociology in the Institute of Public Administration Patna University by the order impugned on the recommendation of the Selection Committee and approval by the Syndicate Patna University since the answering respondent was appointed as Research Officer who was having requisites qualification to be appointed as Lecturer and on the basis of the prevalent Rule by the competent Authority i.e. the Vice Chancellor which is also confirmed by the perusal of Annexure R-S/D appended to the reply affidavit filed by the respondent no.5 and even the salary of the answering respondent was fixed as Research Officer by the State Govt."
29. Respondent no.5, however, had conceded that the notification of his promotion on the post of Reader in view of the Patna High Court CWJC No.18733 of 2013 42 order of this Court in C.W.J.C.No. 14070/2010 was incorrect and the explanation of the Acting Vice Chancellor in this regard should be accepted. Respondent no.5 in fact has also filed a separate reply to the 4th supplementary affidavit filed by the petitioner wherein apart from defending his degree of Ph.D. he had explained that his appointment on the post of Research Officer in the Institute of Public Administration was justified, inasmuch as the post of Research Assistant was upgraded to the post of Research Officer much before his appointment. His such explanation reads as follows:
"5. That the allegation made in paragraph 4 of the 4th supplementary affidavit under reply is totally wrong, unfounded and misleading. The petitioner did not disclose in the affidavit about the authority of the information and is based on no material at all and the document appended as Annexure 15 with the said paragraph is also vague and apparently appears to be creation of the writ petitioner who has got good influence and access in the Patna University, and is a great manipulator. The further allegation in the paragraph under reply the answering respondent got the post of Research Assistant into Research Officer in the paragraph under reply is mischievously false and emphatically denied. In fact the Academic Council of the Patna University took a decision long back in the year 1978 much prior to the appointment of respondent no.5 that the Research Assistant, Research Officers, Research Follows who are on the regular cadre of the Patna University have been recognized as teacher of the University and are designated as Research Officers and that they will continue in their present posting and will draw Patna High Court CWJC No.18733 of 2013 43 the same salary which they are drawing at present in their present designation till decision regarding the implementation of the lecturers scale of pay is accepted by the State Govt. The said decision is incorporated in the Notification No. G/17479 dated 10.8.1979 issued by the Dy. Registrar, Patna University. Thereafter the Education Department, Govt. of Bihar vide its letter no. 1570 dated 29th August, 1981 communicated the Government‟s decision to the Registrar, Patna University about the approval of the State Govt. with regard to lecturer pay scale of Rs.700-1600/- to the Research Officers, and the Patna University vide its notification dated 30th September, 1986, i.e. prior to the appointment of the answering respondent no.5 in the year 1987, has allowed lecture‟s pay scale of Rs.700-1600/- to the Research Officers w.e.f. 1st April 1981, and accordingly the answering respondent no.5 who was having the requisite qualification of lecturer at the initial appointment of Research Officer was given the pay scale of lecturer.
The further allegation made with regard to the appointment letter of the respondent no.5 contained in Annexure 1 to the writ petition is also wrong, unfounded and misleading. In fact the copy of the appointment letter contained in the notification No. 13851 has been forwarded vide Memo No. G/13852-58 to the different authorities and there is no infirmity in the said annexure as wrongly alleged by the writ petitioner in the paragraph under reply"
30. It is significant to also note the stand of respondent no.1, the State of Bihar. In the counter affidavit sworn by Under Secretary in the Department of Education it has been stated that the letter relating to illegality in compassionate appointment of the petitioner as Patna High Court CWJC No.18733 of 2013 44 sent by the Registrar to the State Government was never received. In fact it was for the University to explain as to how respondent no.5 got appointed on the post of Research Officer on compassionate ground.
A direct effort, however, was made to espouse the cause of respondent no.5 by taking a plea by the State Government that the Government communication in letter no. 1236 dated 28.8.1995 was the basis on which the University was asked to make compassionate appointment and since that was only to be enforced with prospective effect, the earlier decision of the State Government of compassionate appointment confining it to only Class III and Class IV post could not have adversely affected the case of respondent no.4, who has already been appointed on compassionate ground in the year 1987. What has really amazed this Court is the approach of the State Government with regard to its explanation in the matter of grant of promotion to respondent no.5 on the post of Reader under Merit Promotion Statutes because in paragraph no.10 it has been stated that the issue of illegal promotion of respondent no.5 could be the answer by the University which was expected to follow the provisions of the Act and Statutes relating to promotion but then it has also somehow indirectly gone to support the case of respondent no.5 by taking the following plea:
"9. That as far as the petitioner has raised the issue related to the promotion of Research Officer on the post of Reader is concerned, it is pertinent to submit here that prior to amendment in 2012 in the Bihar State University Act and the Patna High Court CWJC No.18733 of 2013 45 Patna University Act, 1976, the P U Act 1976 contained in Sub Section (r) of Section 2, the definition of Teacher includes the Principal, University Professor, Reader, Lecturer, Demonstrator and other persons imparting instructions in any department or in any college or in institute maintained by the University. It is further submitted that sub- section „Z‟ of Section 2 of P U Act 1976 other equivalent post „means any other post those scale of pay is equivalent or the State Government may declare equivalent. And obviously the government of Bihar through its letter dated 7.8.2000 has treated the Research Officer as equivalent post of Lecturers and liberty has been given to the concerned University to promote them under the Statute of Time Bound promotion or merit promotion scheme or career advancement scheme. However, this Hon‟ble Court in C.W.J.C.No. 4430/1997 and subsequently in LPA no. 72/1998 has already resolved the issue related to seniority over equivalent post of Lecturer. The Hon‟ble Court has decided that if a person is on equivalent teaching post the person appointed earlier will be senior.
10. That so far as allegation related to discrimination or illegal promotion is concerned the University is an appropriate authority to answer because the Universities are expected to follow the provision of the Act and statutes related to promotion.
11. That in view of the aforesaid facts and circumstances of the case the University is an appropriate body to resolve the grievance of the petitioner in accordance to the said Rules, Regulations and practices."
31. It has to be also kept in mind and in fact it would be very significant to note the changed stand of respondent no.2, Arun Kumar Patna High Court CWJC No.18733 of 2013 46 Sinha, the Acting Vice Chancellor in his supplementary affidavit which was filed on 30th January, 2014, wherein he had now come out to say that the promotion of respondent no.5 on the post of Reader under Merit Promotion Statutes was by way of upgrading his substantive post of Research Officer on which he was working and he will be treated as a teacher of Sociology only for the purposes of teaching, research and examination without any claim of seniority in the general cadre of teachers of the Department of Sociology, Patna University. This very important shift in the stand of respondent no.5 is quoted hereinbelow:
"5. That the matter of promotion of Dr. Pradeep Kumar, Research Officer needs modification to the extent that Dr. Pradeep Kumar, Research Officer, in Sociology, in the Institute of Public Administration, Patna University, is promoted to the post of Reader by upgrading the substantive post of Research Officer on which he has been working and he will be treated as a teacher of Sociology only for the purpose of teaching, research and examination, without any claim of seniority in the general cadre of teachers of the Department of Sociology, Patna University. In the past also, Research Officers promoted to the post of Readers have not been allowed any claim of seniority among the general cadre of teachers in their respective departments and as such their promotions have always been treated as ex-cadre. Hence, the deponent seeks the permission of this Hon‟ble Court to make this modification in the notification for promotion of Dr. Pradeep Kumar and get it subsequently approved by the Syndicate of the Patna University."Patna High Court CWJC No.18733 of 2013 47
32. Having said so he has come out to also defend the promotion of another Research Officer, namely, respondent no.8 by taking the following plea:
"7. That as regards the case of the respondent no.8 (Dr. Ranbir Nandan), the deponent submits that following facts and circumstances in which respondent no.8 was appointed on the post of Research Officer in the Department of Geology, B.N.College, Patna and further promoted to the post of Reader and subsequently designated as Associate Professor:
i) The post of Research Officer on which Dr. Ranbir Nandan (respondent no.8) was appointed, was sanctioned by Government of Bihar vide Memo dated 28.1.1988 in the teaching category equivalent to lecturer in the scale of Rs.700-1600/- in the Department of Geology, B.N.College, Patna.
ii) That Dr. Ranbir Nandan (respondent no.8) is a teacher within the meaning of Sub-section (R) of section 2 of Patna University Act 1976, as Dr. Ranbir Nandan was appointed as Research Officer against the above- mentioned sanctioned post for teaching jobs in the scale of lecturer.
iii) That since his appointment, (respondent no.8) has been doing teaching work as well as Research work in the Department of Geology, B.N.College, Patna and he is entitled for promotion to the post of Reader in terms of the guidelines of the University Grants Commission (UGC) as well as Patna University Act 1976 and the related statutes.
iv) That it is relevant to submit here that in accordance with the law/ statutory provisions, Dr. Ranbir Nandan Patna High Court CWJC No.18733 of 2013 48 (respondent no.8) was promoted to the post of Reader with effect from 2.7.2001 vide order dated 25.7.20132 and subsequently after completion of stipulated period of service was designated as Associate Professor with effect from 1.1.2006 vide order dated 6.9.2013.
v) That on account of earlier precedents, Dr. Ranvir Nandan (R/B) Research Officer in Geology was also promoted as Reader as one Dr. Akhileshwar Tiwary had been earlier promoted to the post of Reader. Dr. Ranvir Nandan will also be treated as ex-cadre and will be allowed the pay scale of Reader without any claim of seniority in the Department of Geology of Patna University."
33. On 31st January, 2014 respondent no.8 had also filed his counter affidavit justifying his promotion on the post of Reader under Merit Promotion Statutes with retrospective effect on the ground that his initial appointment was made on the post of Research Officer in the pay scale of Rs.700-1600 in the Department of Geology under the Academic Development Programme of B.N.College, Patna and since he had fulfilled the requirement of qualification of having a high II Class in Master degree in the subject of Geology, his appointment came to be made after selection on 24.3.1998 on the post of Research Officer in the pay scale of Rs.700-1600. According to him, the said post of Research Officer was in teaching category and that he was allowed to engage classes and associate himself in teaching work in Under Graduate and Post Graduate level under the orders of the Principal of the College and as such, his promotion by notification Patna High Court CWJC No.18733 of 2013 49 dated 25.7.2013 under Merit Promotion Statutes with retrospective effect i.e. 2.7.2001 was justified and is further being designated as Associate Professor in view of teaching work done by him on the post of Reader in Geology Department by notification dated 6.9.2013 was also in accordance with law. Respondent no.8 has gone to justify his promotion on the post of Reader under Merit Promotion Statutes by also placing on record the Statutes itself dated 23.9.1995 and also by comparing it with the Time Bound Promotion Statutes dated 24.12.1986. He has emphasized that even a Research Officer will be a teacher in terms of Section 2(3) of Patna University Act, 1976 and as such, there is no anomaly in grant of promotion to the petitioner on the post of Reader under Merit Promotion Statutes. In this regard he has also referred to certain precedents in the case of Arun Kumar Singh and some judgment of this Court which would be taken note of in this judgment subsequently.
34. On 17.9.2014 on the eve of the case being taken up for final hearing the University had filed a supplementary counter affidavit wherein it has been stated as follows:
"6. That so far as the promotion of the petitioner on the post of Professor is concerned, it is stated that the petitioner applied for the promotion to the post of University Professor under Career Advancement Scheme on 5.4.2011.
7. That, according to the provisions of the Statute for promotion under the CAS scheme, the application of the petitioner was sent to the Refrees by the University-Patna High Court CWJC No.18733 of 2013 50
respondents on 11.9.2013 vide letter no. 554/R, 555/R and 556/R dated 11.9.2013.
8. That, the Refrees have submitted their reports on 4.11.2013, 8.11.2013 and 11.11.2013. The same was sent to the section concerned on 16.7.2014.
9. That, the section concerned has initiated the process on the same day i.e. 16.7.2014. Now, the matter for promotion of the petitioner will be placed before the University Selection Committee as per the statutory provisions.
10. That, as soon as the recommendation of the Selection Committee is given, the same will be placed before the Syndicate for approval and, after approval, the same will immediately be notified.
11. That, in view of the above, it is humbly submitted that the promotion of the petitioner is under process as per the statutory provisions of CAS and the University has never denied the same to the petitioner at any stage."
35. These are the pleadings on record on the basis of which this Court has to decide the case in hand. As noted above, the grievance of the petitioner in this writ application is in two fold.
Firstly that while his case for promotion has been unnecessarily delayed and even not decided within a period of three years as is apparent from the averments made in the last supplementary affidavit, the cases of others including respondent no.5 to 8 and in or around 100 of teachers of Patna University for their promotion were expedited by respondent no.2. In such a situation this Court will not be guided by the strict rule of locus standi, inasmuch as what has sought to be complained by the petitioner in this case is the matter in Patna High Court CWJC No.18733 of 2013 51 which alleged anomalies have been committed in course of consideration of promotion of the teachers in Patna University on pick and choose basis during the period of functioning and in the regime of respondent no.2, the Acting Vice Chancellor. The challenge of the petitioner to the promotion of respondents no. 5 to 8 by elucidation to such gross arbitrary decision taken by respondent no.2, the Acting Vice Chancellor, is a merely tip of iceberg.
36. Thus, the answer to the preliminary objection raised by the respondents and particularly respondents no. 5 and 8 with regard to maintainability of the writ application will be plain and simple, inasmuch as what was being highlighted by the petitioner was that though he and alike him many others in Patna University having fulfilled the conditions of promotion under the Merit Promotion Statutes and Time Bound Promotion Statutes were not being considered for promotion on one ground or another, the cases of ineligible persons like a Research Officer, namely, respondent no.5 and respondent no.8 or a Curator, namely, Dilip Kumar, who had never held the substantive post of Lecturer in Patna University, were promoted the post of Reader under the Merit Promotion Statutes/ Time Bound Promotion Statutes. This Court, therefore, would hold that such writ petition complain of non-consideration of the cases of promotion of eligible persons as well granting promotion to ineligible persons is definitely maintainable at the instance of the petitioner.
Patna High Court CWJC No.18733 of 2013 5237. A question in fact would arise as to whether the promotion of respondent no.5 initially notified under the garb of the order of this Court passed in C.W.J.C.No. 14070/2010 was factually correct and legally permissible?
38. Let it be noted that C.W.J.C.No. 14070/2010 was filed on 25.8.2010 wherein respondent no.5 had prayed for the following relief:
"That this writ application is being filed for directing the respondent Patna University to promote the petitioner who is presently working as a Research Officer in Sociology in the Institute of Public Administration in Patna University, Patna to the post of Reader in Sociology, with effect from 25.4.1995 with all consequential benefits and for all other relief or reliefs to which the petitioner is found entitled in course of hearing of this application."
39. In that writ petition the Registrar of Patna University had only stated that the case of respondent no.5 for his promotion was under consideration and reference was made to the Statutes dated 30.6.2008 under which the case of respondent no.5 was required to be sent to the experts of Academic Council before its being placed before the Selection Committee. As a matter of fact in the supplementary counter affidavit the University had taken a plea that the Selection Committee in the meeting held on 25.7.2011 did not take any decision for grant of promotion to respondent no.5. Thereafter the Vice Chancellor of the University had also filed a personal affidavit stating Patna High Court CWJC No.18733 of 2013 53 that the meeting of the Selection Committee for considering the promotion of respondent no.5 was fixed in the 1st week of August, 2012.
40. With these pleadings the writ application of respondent no.5 on the prayer of the learned counsel for respondent no.5 in C.W.J.C.No. 14070/2010 was allowed to be withdrawn as would be evident from reading of the order dated 17.7.2012 passed in C.W.J.C.No. 14070/2010:
" After some argument, learned counsel for the petitioner seeks leave to withdraw this application in view of the statement made in the supplementary counter affidavit on behalf of the Patna University sworn by the Vice Chancellor- cum- Chairman of Selection Committee stating that, in compliance of the order dated 28.6.2012, a date has been fixed for the meeting of the Selection Committee in the first week of August, 2012 for consideration of the case of the petitioner.
There is no objection of the aforesaid prayer on behalf of the Patna University.
Accordingly, this writ application is dismissed as withdrawn. However, it is made clear that this Court has not formed or expressed any opinion with regard to the merit of the case of the petitioner."
41. Two things, therefore, would be very clear from the order of this Court dated 17.7.2012 in C.W.J.C.No. 14070/2010, namely, that this Court had not issued any direction for giving promotion to respondent no.5 on the post of Reader and the writ application in fact Patna High Court CWJC No.18733 of 2013 54 was dismissed as withdrawn. Secondly, whatever may have been the orders passed as with regard to constitution of the Selection Committee or placing the case of respondent no.5 before the Selection Committee, this Court had made it clear that they had no relevance to the merit of the case of the petitioner which was being dismissed as withdrawn.
42. In the backdrop of the aforementioned order dated 17.7.2012 in C.W.J.C.No. 14070/2010 it has to be necessary held that the authorities of Patna University including the Vice Chancellor or even the Syndicate had tried to mislead or hoodwink this Court by notifying the promotion of respondent no.5 pursuant to the order/ judgment of this Court in C.W.J.C.No. 14070/2010.
43. As a matter of fact the acting Vice Chancellor having been confronted with this direct question as to how the order of this Court in C.W.J.C.No. 14070/2010 was made the basis for promoting respondent no.5 had frankly conceded in his counter affidavit that there was no such order of the Court and that such reference to the promotion of respondent no.5 being in compliance of direction of this Court in C.W.J.C.No. 14070/2010 was by way of mistake on the part of his office. The manner in which the corrective notification was issued by the respondent no.2 on 2.11.2013 and had part of his defence in his counter affidavit will itself go to show that only when an order was passed by this Court on 31.10.2013 directing the acting Patna High Court CWJC No.18733 of 2013 55 Vice Chancellor of Patna University to explain as to under what circumstances in the impugned order of promotion of respondent no.5 it had been mentioned that the same was passed in accordance with the order passed by this Court in C.W.J.C.No. 14070/2010 wherein there was no such direction or even indication for promoting respondent no.5 on the post of Reader. Such modification was made as would be borne out from the notification dated 2.11.2013 produced by Patna University in its counter affidavit, contained in Annexure R3/8 which readsas follows:
^^iVuk fo'ofo|ky;
vf/klwpuk iVuk fo'ofo|ky; vf/klwpuk Kki la[;k&th@663 fnukad 04-05-2013 esa vkaf'kd la'kks/ku djras gq, fo'ofo|ky; p;u lfefr dh vuq'kalk ij vfHk"kn dh cSBd fnukad 12-012013 dh dk;kZoyh la[;k&4 ds fu.kZ;kuqlkj es/kk izksUufr ifjfu;e ds vUrxZr Mk0 iznhi dqekj] 'kks/k inkf/kdkjh] yksd iz'kklu laLFkku] iVuk fo'ofo|ky; dks mikpk;Z ds in ij fofgr osrueku esa fnukad 25-04-1995 ds izHkko ls lekt'kkL= fo"k; esa izksUufr nh tkrh gSA dqyifr ds vkns'k ls] g0@& 2@11@13 dqylfpo iVuk fo'ofo|ky;] iVukA Kki la[;k&th@631@R fnukaad& 02&11&2013**
44. Pausing for a moment this Court must record it here itself that had the petitioner not filed this writ petition specifically raising this issue the order of promotion dated 4.5.2013 could for all time create the impression that such promotion to respondent no.5 was Patna High Court CWJC No.18733 of 2013 56 given only in compliance of directions given in C.W.J.C.No. 14070/2010 filed by respondent no.5. Thus, it has to be essentially held that there was a deliberate camouflage in the order dated 4.5.2013 notifying the promotion of the respondent no.5 on the post of Reader at the instance of respondent no.2 which becomes more clear on perusal of the earlier notification dated 4.5.2013, already quoted earlier, and the corrective notification dated 2.11.2013, also reproduced above.
45. That would bring now this Court to examine a more important aspect as to whether the respondent no.2, Vice Chancellor, who was taking these decisions regarding giving promotion to respondent no.5 either on 4.5.2013 or even on 2.11.2013 was regular Vice Chancellor so as to exercise the power conferred on him under the Patna University Act or whether he was only an acting Vice Chancellor who was required to do routine nature of duty till appointment of a regular Vice Chancellor as directed by the Apex Court in the interim order passed in the case of Ram Tawakya Singh (supra)?
46. There is no dispute to the aspect that the respondent no.2 was appointed only as a Vice Chancellor by way of stopgap arrangement under the orders of the Apex Court when appointment of all the Vice Chancellor were quashed by this Court in the case of Dr. Ram Tawakya Singh v. State of Bihar & ors.. It was only because of Patna High Court CWJC No.18733 of 2013 57 the interim order passed by the Apex Court in the resultant SLP(C) No. 12409/2013 which had created a situation for replacement of regular Vice Chancellor by making an interim arrangement in view of the order of the Apex Court dated 18.3.2013, 16.4.2013 and 23.4.2013 which reads as follows:
" In the premise aforesaid, we are convinced that it is a fit case in which an interim order should be passed by the Court.
Accordingly, the operation of notifications dated 9.2.2013 and 19.2.2013 issued by the Governor cum Chancellor, Bihar appointing the private respondents as Vice Chancellors and Pro Vice Chancellor of different Universities is stayed and they are restrained from functioning as Vice Chancellors and Pro Vice Chancellors of the concerned Universities. With a view to ensure that functioning of the various Universities is not jeopardized, we direct that as a purely stop gap arrangement, the senior most Deans in the Universities shall discharge the function of the Vice Chancellors and Pro Vice Chancellors................."
(underlining for emphasis) The said interim order was further reiterated on 16.4.2013 while adjourning the case to 23.4.2013 and ultimately on 23.4.2013 also, the Apex Court had clarified its earlier aforesaid interim orders by recording as follows:
" On an oral request made by the learned counsel for the State and the Governor cum Chancellor, it is made clear that the Chancellor shall be free to make working arrangements for all the Universities (except Lalit Patna High Court CWJC No.18733 of 2013 58 Narayan Mithila University, Darbhanga) keeping in view the provisions of Section 13 of the Bihar State Universities Act,1976"
(Underlining for emphasis)
47. Thus, when the Apex Court in its aforesaid interim orders had not only clearly directed making stopgap arrangement on the post of Vice Chancellor in all but one (L.N.M.U.) Universities and in fact had also referred to the provisions of Section 13 of Bihar State Universities Act prescribing arrangement of work during temporary absence of the Vice Chancellor, nothing will remain for speculation that all the senior most Deans of the University were only authorized to work under a concept of current charge arrangement known under Service Jurisprudence. This would become more clear from the provisions of Section 13 of the Bihar State Universities Act which reads as follows:
"13. Arrangement of work during temporary absence of the Vice-Chancellor.- (1) During the temporary absence of the Vice-Chancellor by reason of leave, illness or for any other cause, the information of which shall immediately be communicated to the Chancellor by the Vice-Chancellor, the Pro-Vice-Chancellor or the Registrar, the Chancellor may make such arrangement for the performance of the duties of the office of the Vice-Chancellor as he deems fit:
Provided that until such arrangement is made, in case of the temporary absence of the Vice-Chancellor, it shall be lawful for the Pro-Vice-Chancellor to perform the duties of the Vice-Chancellor.Patna High Court CWJC No.18733 of 2013 59
(2) In case of vacancy of the post of the Vice-Chancellor caused due to resignation, death, completion of the term or any other reason the Chancellor on the basis of the information received from the Pro-Vice-Chancellor or Registrar or any other source, may make such arrangements for the performance of the duties of the office of the Vice-
Chancellor, as he deems fit."
48. As a matter of fact it was in terms of these interim orders that even respondent no.2 Mr. A.K.Sinha, the acting Vice Chancellor of Patna University, was also notified under the order of the Chancellor by a notification issued by the Governor‟s Secretariat on 26.4.2013 which for the sake of clarity and convenience is also quoted hereinbelow:
" GOVERNOR‟S SECRETARIAT, BIHAR
RAJ BHAVAN, PATNA- 800022
NOTIFICATION
Dated: 26.4.2013
No. BSU-26/2013- 468/GS(I)- By orders of the Hon‟ble Supreme Court dated 18.3.2013, 16.4.2013 and 23.4.2013, passed in S.L.P.(C) No. 12409 of 2013, it has been ordered to fill up the vacancies of Vice Chancellor and Pro Vice Chancellor in the Universities of Bihar (Except L.N.Mithila University, Darbhanga).
In exercise of powers conferred on him under section 13 of the Patna University Act, 1976, read with the abovementioned orders passed by the Hon‟ble Supreme Court on 18.3.2013, 16.4.2013 and 23.4.2013 in SLP(C) No. 12409 of 2013, the Hon‟ble Chancellor, Universities of Bihar, is pleased to appoint Dr. Arun Kumar Sinha, Patna High Court CWJC No.18733 of 2013 60 University Professor (Statistics), Patna University, Patna as the Vice Chancellor of Patna University, Patna and Dr. Sudeepto Adhikari, University Professor (Geography), Patna University, Patna as the Pro Vice Chancellor of Patna University, Patna. This is a purely temporary arrangement.
By order of Hon‟ble Chancellor Sd/-
(Sudhir Kumar Rakesh) Principal Secretary to Governor Memo No.BSU-26/2013-468/GS(I) Dated: 26.4.2013"
(underlining for emphasis)
49. In view of above appointment of Dr. Arun Kumar Sinha, the acting Vice Chancellor, by way of a purely temporary arrangement he cannot be said to be a substantive holder of the post of Vice Chancellor and therefore, he could not have exercised the power of regular Vice Chancellor. This aspect of the matter stands settled by the Full Bench judgment of Madhya Pradesh High Court in the case of Girja Shankar Shukla v. Sub-divisional Officer, Harda & ors., reported in AIR 1973 M.P. 104, which was subsequently also affirmed by the Apex Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India & ors., reported in 1991 Supp.(2) SCC 733, wherein it was held as follows:
"In Girja Shankar v. S.D.O., Harda (supra), it was held that a "person appointed to be In-charge of the current duties of the office" did not hold the rank and, therefore, could not discharge the statutory functions assigned to the post. In the present case the appellant cannot, on the strength of the office Patna High Court CWJC No.18733 of 2013 61 order dated 30th August, 1963, claim to have been promoted to the post of the "Treasurer"."
50. Thus, this Court will have no difficulty in holding that as an acting Vice Chancellor Dr. Arun Kumar Sinha had no jurisdiction to take decision for giving regular promotion or shifting the date of promotion as has been done by him in respect of a large number of at least in more than seventy two cases in Annexures 3, 6, 7 and 8.
51. Having thus held so that promotion of respondent no.5 was a camouflage by use of a non-existing order of this Court and by an authority who was only an acting Vice Chancellor this Court must address to the remaining aspect as to whether a Research Officer like respondent no.5 could have been promoted on the post of Reader under the Merit Promotion Statutes. It is here that this Court must note that Patna University is one of the most esteemed old institution not only of this State but of the entire Country. Respondent no.5 is admittedly an entrant through the back door to the extent that he was not even appointed against a teaching post. The appointment of respondent no.5 in fact was made on compassionate ground after the death of his father on 25th April, 1987 on the post of Research Officer.
52. Let it be made clear that at no point of time any appointment could be made on compassionate ground save and except on a Class III and Class IV post. The Government resolution dated 13.6.1977 was in fact still holding the field and was applicable to all local bodies and the authorities including the Universities under which Patna High Court CWJC No.18733 of 2013 62 the appointment on compassionate ground could be made only against a Class III or Class IV post. Surprisingly the appointment of respondent no.5 was made on 25th April, 1987 against the post of Research Officer on compassionate ground in the institute of Public Administration as would be evident from the notification dated 25th April, 1987 which reads as follows:
"No.C/13851 PATNA UNIVERSITY
NOTIFICATION
Patna, the 25th April, 1987
Sri Pradeep Kumar, S/o late R.K.P.Barial is appointed to the post of Research Officer on compassionate ground in the Institute of Public Administration, Patna University on an initial pay of Rs.700/- P.M. in the scale of Rs.700-40-1100- 50-1600/- plus other admissible allowance under Patna University rules Vice Sri I.H.Khan.
The appointment is on a purely temporary terminable at any time without notice.
By order of the Vice Chancellor Sd/- B.K.Verma Registrar, Patna University, Patna Memo No. G/13852-58 Patna, the 25th of April, 1987"
53. Whatever be the Status of the Research Officer as on 25.4.1997 he was definitely not a Lecturer for whom alone the Merit Promotion Statutes could be made applicable. The Merit Promotion Statutes were framed by the Chancellor on 22nd December, 1986 and reads as follows:Patna High Court CWJC No.18733 of 2013 63
"1. Notwithstanding anything to the contrary as contained in the Statutes of the University, Lecturers in the university engagd in advanced teaching and research and whose contribution and achievements are such as to merit recognition, may be considered for merit promotion after completing atleast eight years of continuous service as Lecturer of which at least four years should be in the department where he/she is being considered for such assessment and promotion.
2. The basic objective of such promotion shall be:-
(i) to recognize outstanding work by the University teachers in the areas of teaching and research;
(ii) to subject such work to objective evaluation by experts in the subject/ areas concerned; and
(iii) to provide for reasonable opportunities for professional advancement to such teachers, who merit academic recognition on a competitive basis.
3. The procedure for promotion under this Statutes shall be as follows:-
(a) Not more than one-third of the number of total permanent position of lecturers within a department may hold such merit promotion as Readers, provided that if in calculating the number of positions for purposes of merit promotion wherever more than point five (O.5) fraction arises, it will be rounded up as one (1.0) for giving such promotion:
Provided further that in case there is only one permanent position of lecturer in any department the case of the teacher holding that post may be considered for merit promotion if he fulfils all other conditions prescribed under these Statutes for such promotion.
4. The promotion will depend on consideration and Patna High Court CWJC No.18733 of 2013 64 assessment of the work done by the teacher, such as research, publications, book‟s review, curriculum development, teaching aids, innovation in teaching methods, equipment development etc. prescribed by the individual teachers which shall be referred to at least two referees in the subject/ discipline concerned.
5. The referees shall be selected by the Vice Chancellor out of a panel prepared by the Inter University Board for nomination of experts for the Bihar State University (Constituent Colleges) Service Commission.
6. The evaluation reports submitted by the referees shall be kept confidential.
7. The entire papers submitted by the teacher concerned alongwith the reports made by the referees shall be referred to the Bihar State University (Constituent Colleges) Service Commission for its recommendation. The Commission shall give due consideration to the opinion of the referees. There shall be at least two outside experts to assist the Commission in making recommendation.
8. The appointment shall be made by the Syndicate in accordance with the recommendation of the said Commission provided that if in the opinion of both the referees, a lecturer fulfils the conditions prescribed under these statutes and is fit to be promoted as Reader, the Syndicate may, on the recommendation of the Vice Chancellor, pass orders for promotion of such lecturer on a temporary basis till final decision is taken on the recommendation of the Bihar State University (Constituent College) Service Commission, but in case the Commission does not recommend his case for promotion, temporary promotion given to him shall cease to be effective immediately;Patna High Court CWJC No.18733 of 2013 65
Provided further that if the two referees do not agree in such a case the papers of the candidate concerned shall be submitted to a third referees selected by the Vice Chancellor out of the panel of experts prepared by the Inter University Board under Article 5 above.
9. Any teacher who has been considered and not selected for merit promotion in the initial presentation will be eligible to submit his work again only after a lapse of one year.
10. Teachers interested in such assessment and considerations of merit promotion shall be required to present their work to the Registrar of the University, through the head of the department concerned, latest by the 31st December, each year or a date to be fixed by the Vice Chancellor. The University will generally take a decision before the beginning of the next academic year so that such promotions take effect from the date of the beginning of the next academic session.
11. The University shall furnish to the University Grants Commission necessary particulars each year of the persons promoted under the scheme alongwith the reports of the referees, the recommendations of the Commission and the order of the Syndicate."
54. It is equally important to state here that the aforesaid Statutes had remained in force till 23.9.1995 when the Chancellor vide his letter No. BSU-20/95-2133/GS(1) dated 23.9.1995 had approved another Statutes regarding merit promotion of Reader as Professors applicable to those existing teachers opting for merit promotion in response to Human Resource Development Department letter No. 1044 dated 7.8.1989. It has to be kept in mind that when UGC pay scale was sought to be extended by the State Government vide its Patna High Court CWJC No.18733 of 2013 66 letter no. 1044 dated 7.8.1989 with effect from 1.1.1986 it had laid down as follows:
"REVISION OF PAY-SCALE OF UNIVERSITY AND DEGREE COLLEGE TEACHERS [No. 14/P2-09/87 HRD 1044 dated 7.8.1989] I am directed to say that the Government of India vide their letter no.F1-21/87 U.I. dated 17.6.1987 and dated 2.7.1988 requested the State Government to consider the question of implementation of revised pay scales of pay for the University and College teachers of the State as recommended by the University Grants Commission as a „Composite Scheme‟ as envisaged in the letters under reference.
2. The State Government have decided to introduce the revised scales of pay for teachers of the Universities and Degree colleges and also for Vice-Chancellors of the Universities as recommended by the University Grants Commission as detailed below with effect from 1.1.1986, subject to the conditions laid down in Appendix I:
FOR TEACHERS OF THE UNIVERSITY & COLLEGES Designation Existing Revised scales of pay Scale of pay introduced w.e.f.
1.1.86
1. University Professor 1500-2500 4500-150-5700-200-7300
2. Reader 1299-1900 3700-125-4950-150-5700
3. Lecturer 700-1600 2200-75-2800-100-4000
4. Lecturer (Senior Scale Not 3000-100-3500-125-5000 (Selection grade) existing
5. Lecturer (Selection Not 3700-125-4950-150-5700 Grade) existing
6. Principles of 1200-1900 3700-125-4950-150-5700 Patna High Court CWJC No.18733 of 2013 67 Colleges 1500-2500
7. Demonstrators 500-900 1740-60-2700-FB-3000 (Existing incumbent only)
8. Vice Chancellors 3000(fixed) 7600/- (fixed)
3. .... .... ....
4. .... .... ....
5. .... .... ....
6. .... .... ....
7. .... .... ....
8. .... .... ....
9. .... .... ....
10. .... .... ....
11. .... .... ....
12. .... .... ....
13. .... .... ....
14. .... .... ....
15. .... .... ....
16. .... .... ....
17. .... .... ....
APPENDIX I Coverage .... .... ....
Pay Scales .... .... ....
Recruitment and qualifications.
8. Recruitment to the posts of Lecturers, readers and Professors in Universities and Colleges shall be on the basis of merit through all India advertisement and selection, provided that Lecturers who fulfil the criteria prescribed in this scheme will be eligible for promotion to the posts of Readers.
9. The minimum qualifications required for appointment to the posts of Lecturers, Readers and Professors will be those Patna High Court CWJC No.18733 of 2013 68 prescribed by the U.G.C. from time to time. Generally, the minimum qualification for appointment to the post of Lecturer in the scale of pay of Rs.2200-4000 shall be master‟s degree in the relevant subject with at least 55% marks for its equivalent grade and good academic record.
10. Only those candidates who, besides fulfilling the minimum academic qualifications prescribed for the post of lecturer, have qualified in a comprehensive test to be specially conducted for the purpose, will be eligible for appointment as Lecturer. The detailed scheme for conducting the test including its design, the agencies to be employed in the conduct of tests, contents, administration etc. will be worked out on the guidelines given by the U.G.C.
11. In order to encourage research, in constitution of post- graduate studies, candidates who at the time of their recruitment as Lecturers, possess Ph.D. or M.Phil, degree, will be sanctioned three and one advance increments respectively in the scale Rs.2200-4000 alongwith the benefit of corresponding years of service for the purpose of promotion. The existing lecturers without research degree, and those similarly situate recruited in future will be eligible for a similar benefit in service for the purpose of promotion as and when they acquire research degrees, but will be eligible for advance increments. Existing Lecturers, with research degrees will also be eligible for a similar benefit. Career Advancement
12. Every Lecturer will be placed in a senior scale of Rs.3000-5000 if he/she has:
(a) completed 8 years of service after regular appointment with relaxation as provided in para 11 above;
(b) participated in who refresher courses/ summer institutes Patna High Court CWJC No.18733 of 2013 69 each of approximately 4 weeks duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the U.G.C.
(c) consistently satisfactory performance appraisal reports.
Explanation All lecturers in the existing scale of Rs.700-1600, who have completed 8 years of service on 1.1.1986 will be placed through a process of screening/ selection as indicated in para 21 below, in the scale of Rs.3000-5000. The benefit of service provided in para 22 will be available for the initial placement also.
13. Every Lecturer in the senior scale will be eligible for promotion to the post of Reader in the scale of pay of Rs.3700-5700 if he/ she has:-
(a) completed 8 years of service in the senior scale provided that the requirement of 8 years will be relaxed if the total service of the Lecturer is not less than 16 years.
(b) obtained a Ph.D. degree or an equivalent published work;
(c) made some mark in the areas of scholarship and research as evidenced by self assessment, reports of referees, quality of publications, contribution to educational renovation, design of new courses and curricula etc.;
(d) participated in two refresher courses/ summer institutes of approximately 4 weeks‟ duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the U.G.C. after placement in the senior scale; and
(e) consistently good performance appraisal reports.
14. Promotion to the post of Reader will be though a process of selection by Selection Committee to be set up under the Statutes/ Ordinances of the University concerned or other Patna High Court CWJC No.18733 of 2013 70 similar committees set up by the appointing authorities in accordance with the guidelines to be laid down by the U.G.C. Posts of Reader will be created for this purpose by upgrading number of lecturers in the Universities and Colleges.
15. Those lecturers in the senior scale who do not have Ph.D. Degree or equivalent published work and who do not meet the scholarship and research standards of a Reader but fulfil the other criteria mentioned in para 13 and have a good record in teaching and/or participation in extension activities, will be placed in the grade of Rs.3700-5700 subject to the recommendations of the committee mentioned in para 14 above. They will be designated as lecturers in the Selection Grade. Posts in the Selection Grade will be created for this purpose by upgrading the posts held by them. They could offer themselves for a fresh assessment after obtaining Ph.D. and/or fulfilling other requirements for promotion as reader and if found suitable, could be given the designation of Reader.
16. Lecturers in the existing Selection Grade of Rs.1200-1900 in the colleges will be placed at the appropriate stage in the revised Selection grade of Rs.3700-5700 in accordance with the pay fixation formula under this scheme. Existing Lecturers, who have completed or will complete, a total period of sixteen years of service on 1.1.1986 or thereafter will be eligible for promotion to the post of Reader or placement in the Selection Grade in accordance with the provisions in paras 13, 14, and 15. They will also be entitled to the relaxation in the years of service by 3 years and 1 year respectively if they hold Ph.D. or M.Phil degrees as mentioned in para 11.
17. More posts of Professors and readers will be created in Patna High Court CWJC No.18733 of 2013 71 the Universities and Colleges to broaden the channel of open selection. The U.G.C. would evolve suitable criteria for this purpose. The requirements of qualifications and experience for posts to be filled up through open selection will be prescribed by the U.G.C. from time to time. Universities will have the freedom, to seek out brilliant people, independent of their seniority from within the Universities and Colleges, or outside and provide them opportunities for joining the teaching profession at appropriate levels.
18. The promotions made or due under any existing scheme before 1.3.89 will not be re-opened. However, in such cases the benefit of revision will be available to teachers only from the date of their promotion.
19. The existing teachers in Universities and colleges where the merit promotion scheme formulated by the U.G.C. in 1983 or any other promotion schemes formulated by the State Govt. are in operation, will have an option to continue to be governed by the provisions of those promotion schemes provided that they exercise their option in writing prior to their pay fixation under this scheme. They will also be entitled to the designations envisaged for various categories of teachers in those schemes, but the scales of pay will be as follows:
(i) Lecturer Rs.2200-4000/-
(ii) Reader.Lecturer Rs.3000-5000/-
(Selection Grade)
(iii) Professor Rs.4500-5700/-
Continuing education and appraisal of performance
20. ... .... ....
21. ... .... ....
Other conditions of services:
Patna High Court CWJC No.18733 of 2013 72Probation
22. .... .... ....
23. .... .... ....
24. .... .... .....
25. .... .... ....
26. .... .... ....
27. .... .... ....
Annexure II .... ..... ....
ANNEXURE-II
Form of Option under para 20 of Government of India Letter No. F1.21/87 of U.I. dated 22nd July, 1988 I ....................Lecturer/ Reader/Professor in the Department of ..................../College ..............do hereby exercise my option to continue to be governed by the provision of the existing promotion scheme with all the conditions attached thereto.
Full signature of the teachers & Designation Countersigned Principal Head of the Deptt.
V.C. or Pro V-C. or President Of the G.B. in cases of Principal Of Affiliated colleges.
Annexure IV .... .... ...."
55. This Court has purposely extracted the relevant portion of letter no. 1044 dated 7.8.1989 in order to understand the scope of the Statutes of merit promotion framed by the Chancellor by his letter no.
BSU-20/95-2133/GS(1) dated 23.9.1995, inasmuch as from reading of the aforementioned Government letter it would become clear that only Patna High Court CWJC No.18733 of 2013 73 such of the Lecturers, Readers and Professors, who were already working in the University or its Colleges and had given their option in Annexure 3 to be governed by the provisions of the existing promotion scheme in terms of Clause 19 of Appendix I of the letter of the Government dated 7.8.1989 were to only get benefit of promotion under the Merit Promotion Statutes dated 23.9.1995, which reads as follows:
"STATUTE REGARDING MERIT PROMOTION OF LECT- UERS AS READERS AND STATUTE REGARDING MERIT PROMOTION OF READERS AS PROFESSORS APPLI- CABLE TO THOSE EXISTING TEACHERS OPTING FOR MERIT PROMOTION IN RESPONSE TO HUMAN RESOURCE DEVELOPMENT DEPARTMENT LETTER NO. 1044, DATED 7.8.1989 (As approved by the Chancellor vide letter no. BSU-20/95-2133/GS(1) dated 23.09.1995) Subject:- Statute regarding Merit Promotion of Lecturers as Readers and Statutes regarding Merit Promotion of Readers as Professors applicable to those existing feachers opting for Merit Promotion in response to Human Resource Development Department Letter No. 1044, Dated 7.8.1989.
I am directed to invite a reference on the above subject and to say that the Chancellor on the recommendation of the Bihar Inter University Board and the State Government has been pleased to approve the following Statutes under Section 5(2) of the Bihar Inter University Board Act, 1981 for implementation in your University.
Statute regarding Merit Promotion of Lecturers as Readers applicable to those existing Teachers opting for Merit Promotion in response to Human Resource Develop- ment Department letter No. 1044, Dated 7.8.1989
1. Notwithstanding anything to the contrary as contained in the Statutes of the University Lecturers serving in University Department in a Degree College managed and maintained by the University, engaged in advanced teaching and research and whose contributions and Patna High Court CWJC No.18733 of 2013 74 achievements are such as to merit recognition shall be eligible for promotion as Readers on the recommendation of the Bihar State University (Constituent Colleges) Service Commission under Merit promotion Scheme provided they give their prior option in writing for consideration under this Scheme. Accordingly, their pay fixation will be done under the Composite Scheme, of the U.G.C. subject to the conditions:-
(a) That, he holds the qualification as prescribed for the post of Lecturer under the Statute enforced at the time of his appointment as Lecturer and has fulfilled the conditions, if any, attached thereto, as laid down in the Statute.
(b) That he holds substantive appointment on the post of Lecturer.
(c) That, he has completed eight years of continuous service after regular appointment against a sanctioned post, of which at least four years should be in the Department of College/University where he is being considered for such assessment and promotion;
Provided that, in case of a Degree College, the service rendered during the period the College was not affiliated in the subject concerned shall not be taken into account for the purpose of this Statute;
Provided further that if a teacher appointment by the University as per proper procedure through open advertisement but placed in a Degree College even not imparting teaching in the subject concerned upto Degree level will be eligible for the above benefits, but only 2/3rd of the total period in an affiliated Degree College prior to its conversion into a Constituent Unit shall be considered.
Provided further that, the service rendered in more than one University shall be deemed to be continuous it the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statute.
2. The basis objective of such promotion shall be-
(i) to recognize outstanding work by the College/University teachers in the areas of teaching and research.
(ii) to subject such work to objective evaluation by Experts in the subject/areas concerned, and
(iii) to provide for reasonable opportunities for promotional Patna High Court CWJC No.18733 of 2013 75 advancement to such teachers who merit academic recognition on a competitive basis.
3. The procedure for promotion under this Statute shall be as follows:
(a) Not more than one third of the number of total permanent position of lecturers in a subject in the Colleges and University/Department taken together may hold such merit promotion of Readers:
Provided that if in calculating the number of positions for purposes of merit promotion wherever more than point five (0.5) fraction arises, it will be rounded up as one (1.0) for giving such promotion.
Provided further that if in case there is only one permanent position of lecturer in any subject the case of the teacher holding that post may be considered for merit promotion if he fulfils all other conditions prescribed under these Statutes for such promotion.
Note - Permanent position of lecturers in any subject shall include the permanent post of lecturers duly sanctioned and created.
(b) Such promotion shall be deemed to be personal promotion.
the main criteria for such promotion would be the merit of work and not the seniority of teachers.
(c) The post of lecturer who is promoted as Reader shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted to the post of Lecturer in the event of the incumbent's appointment to a higher post or when the post faills vacant due to his retirement, resignation death or otherwise. Nothing to these Statutes shall construe to have created any vacancy on the post of Lecturer which has been upgraded as that of Reader.
(d) The upgraded post shall be deemed to be a substantive post till the promotee holds it but any temporary vacancy on the post on account of the promotee being on leave or on foreign service or officiating or holding any other post on temporary basis, shall be that of Lecturer.
(e) A Lecturer who is promoted as Reader shall from the date of such promotion draw his pay in the Reader's scale (Rs. 3000-5000) as admissible to teachers opting for Merit Promotion Scheme under Patna High Court CWJC No.18733 of 2013 76 'Composite Scheme' of the U.G.C. Provided that the fixation of pay in the Readers' scale shall be done with effect from the date of promotion Payment in that scale shall be made with effect from the date of such promotion.
(f) The seniority of teachers promoted under these Statutes shall be determined from the date of promotion, but the inter-se seniority of teachers promoted on the same date shall be the same as they had on their lower post.
4. The promotion will depend on consideration and assessment of the work done by the teacher, such as publication of research papers, books reviews and curriculum development, teaching aids, innovation in teaching methods, equipment development etc. presented by the individual teacher which shall be referred to at least two referees in the subject/discipline concerned.
5. The referees shall be selected by the Vice Chancellor out of a panel prepared by the Inter University Board. The evaluation report of the referees shall become invalid if any of the two referees selected by the Vice-Chancellor are from outside the panel prepared by the Bihar Inter University Board;
Provided that, if the two referees do not agree, in such a case the papers of the candidate concerned shall be submitted to a third referee selected by the Vice-Chancellor out of the panel of Experts prepared by the Inter University Board.
6. The evaluation reports submitted by the referees shall be kept confidential.
7. The entire papers submitted by the teacher concerned along with the reports made by the referees who have found him fit, shall be referred by the University to the Bihar State University (Constituent Colleges) Service Commission for its recommendations. The Commission shall give due consideration to the opinion of the referees. There shall be at least two outside Experts to be nominated by the Vice- Chancellor from the panel prepared by the Inter University Board who will assist the Commission in making its recommendation.
Provided that the evaluation report of the referees with all relevant records and papers shall have to be sent to the Commission by the University within a period of one month from the date of the receipt Patna High Court CWJC No.18733 of 2013 77 of the report from 2nd/3rd referee otherwise it shall cease to be operative.
Provided further that the Bihar State University (Constituent College) Service Commission shall send its recommendation within six months from the date of the receipt of concerned papers from the University.
8. The appointment shall be made by the Syndicate in accordance with the recommendation of the said Commission.
9. Any teacher who has considered and not selected for merit promotion in the initial presentation will be eligible to submit his work again only after a lapse of one year.
10. Teacher interested in such assessment and consideration for merit promotion shall be required to present their work to the Registrar of the University, through the Head of the Department concerned, latest by the 31st December each year or a date to be fixed by the Vice- Chancellor. The University will generally take a decision before the beginning of the next academic year.
11. The University shall furnish to the University Grants Commission necessary particulars each year of persons promoted under the Scheme along with the reports of the referees the recommendations of the Commission and the order of the Syndicate.
12. The Statute shall come into force in supersession of the Statute approved by the Chancellor on 22.12.1986 vide letter no. BSU- 6/86-3975/GS(1).
(underlining for emphasis)
56. From reading of the aforementioned merit promotion Statutes dated 23.9.1995 it is more than clear that they were also meant for Lecturers alone serving in the University Department or degree colleges because there also in Clause 1(a) the requirement of holding the qualification for the post of Lecturer under the Statutes was made condition precedent for earning such promotion under the Merit Promotion Statutes alike in old one dated 22.12.1986 as also holding the substantive appointment on the post of Lecturer and Patna High Court CWJC No.18733 of 2013 78 completing eight years of continuous service after regular appointment against a sanctioned post of Lecturer out of which four years should be in the Department of the College or the University where he was to be considered for such promotion. Thus, in effect 1995 Statutes of Merit Promotion can also not be made applicable for a person like respondent no.5 who has never been appointed on substantive appointment on the post of Lecturer and was in fact appointed on the post of Research Officer on compassionate ground.
57. From the underlined portion of the Merit Promotion Statutes it would become very clear that in order to earn merit promotion on the post of Reader holding substantive appointment of the post of Lecturer is a sine qua non. From the Statutes it would be also very clear that such of the Lecturers, who are either engaged in advanced teaching and research and whose contribution and achievements are such as to merit recognition, are alone entitled for merit promotion on the post of Reader. That is how there is also the requirement of eight years working on the post of Lecturer out of which four years should be in the Department where he or she was being considered for such assessment and promotion. Yet again Clause 3 of the Statutes makes it abundantly clear that such Lecturers must hold the permanent post of Lecturer because only one-third of such Lecturers holding the permanent post can be given promotion on the post of Reader under the Merit Promotion Statutes.
Patna High Court CWJC No.18733 of 2013 7958. The Note under Clause 3 of Merit Promotion Statutes would also leave nothing for speculation that it is only permanent position of Lecturers in any Department against a duly sanctioned and created post of Lecturer which would be the Bench-mark for giving such promotion under the Merit Promotion Statutes. As a matter of fact when in Clause 3(b) of the Statutes such promotion has been held to be personal promotion and Clause 3(c) that post of Lecturer on which promotion is given on the post of Reader has to be treated to be upgraded, there would be hardly any scope for any other interpretation save and except that promotion under Merit Promotion Statutes from the post of Lecturer to the post of Reader can be given only to the person holding the substantive post of Lecturer duly sanctioned and created by the State Government.
59. In view of the clear provisions made in the Merit Promotion Statutes the respondent no.5, an entrant through backdoor by way of appointment on compassionate ground on the post of Research Officer without undergoing any process of selection cannot straightway steal march on the coveted and higher post of Reader. Let it be noted that the appointment on the post of Lecturer is regulated by the provisions of Patna University Act which at the time of appointment of respondent no.5 as a Research Officer had clearly laid down issuance of an advertisement and selection by the Bihar State Universities (Constituent Colleges) Service Commission. There is Patna High Court CWJC No.18733 of 2013 80 also no doubt that in presence of Section 57 of the Patna University Act and Statutes framed thereunder the appointment of respondent no.5 on the post of Lecturer could not have been made on compassionate ground and therefore, respondent no.5 having walked into on the post of Research Officer stealthily and through backdoor could not have become the beneficiary of the post of Lecturer for earning promotion on the post of Reader.
60. Having regard to the aforementioned settled position in law if now this Court goes into the defence of respondent no.5 either projected in course of hearing or even explained in the written notes of submission it has to be held that he has primarily concentrated on the aspect of equivalent post of Lecturer. According to respondent no.5, since the expression „Lecturer‟ as defined under section 2(o) of Patna University Act means a teacher of a college or the University possessing such qualifications as may be prescribed by the Statutes and also „teacher‟ has been defined under section 2(r) to mean person holding the post of only University Professor/ Reader and Lecturer and such sanctioned post in the teacher‟s grade on the basis of regulations issued by the UGC from time to time respondent no.5 would be deemed to be a Lecturer because he was holding a sanctioned post in the teachers grade as a Research Officer.
61. The Crucial question, however, would be from where respondent no.5 can be permitted to also add the word in the Statutes Patna High Court CWJC No.18733 of 2013 81 of Merit Promotion "Lecturer and/or holding any other equivalent post". To get the financial benefit of a post alike a teaching employee is one thing but then to claim promotion in the cadre of teachers which is essentially having three posts, namely, Lecturer, Reader and Professor one will have to hold the post of Lecturer to become Reader. Since respondent no.5 had never been appointed on the post of Lecturer nor was the teacher of any College of Patna University, his appointment as a Research Officer could not have given him the benefit of promotion on the post of Reader under the Merit Promotion Statutes.
62. The next limb of submission of the learned counsel for respondent no.5 that he had the necessary qualification for holding the post of Lecturer, namely, 59.2% marks in Master Degree as also Ph.D. in Sociology may enable him to claim any benefit on the basis of his being Research Officer or claiming the post in research wing or even allow him to get pay scale equivalent to the post of Reader or Professor or even higher but that cannot mean that on the basis of his being a Research Officer with a Post Graduation qualification and a Ph.D. degree he will be also have a right of being promoted on the post of Reader in Patna University under Merit Promotion Statutes.
63. The over emphasized reliance placed by the learned counsel for respondent no.5 on a communication of the State Government contained in letter No. 1298 dated 7th August, 2000 is Patna High Court CWJC No.18733 of 2013 82 also wholly misconceived as would be more visible from its content reading as follows:
^^i=kad $5@ih&3&01@99 m-f'k- 1298 fcgkj ljdkj mPp f'k{kk foHkkxA izs"kd] Jh mek'kadj izlkn] ljdkj ds mi lfpoA lsok esa] dqylfpoA iVuk fo'ofo|ky;] iVukA iVuk] fnukad 7 oha vxLr] 2000 fo"k;& 'kks/k inkf/kdkjh dks f'k[kd AO;k[;krkA ds :i esa ekU;rk fn, tkus ds laca/k esA egk'k;] mi;qZDr fo"k; ij vkids i=kad lk0@iz0@fe0&88&99&th&728 fnukad 22-04-99] i=kad th&1852 fnukad 03-08-99 rFkk th@2921 fnukad 17-12-99 ds izlax esa funs'kkuqlkj dguk gS fd 'kks/k inkf/kdkjh ds in dks dkyc} izksUufr ifjfu;e ds v/khu O;k[;krk ds lerqY; ekuus ds fcUnq ij jkT; ljdkj fuEu 'krksZa ij lger gS& ¼d½ O;k[;krkvksa dh fu;qfDr dh vgZrk j[krs gSA ¼[k½ lacaf/kr 'kks/k inkf/kdkfj;ksa dh fu;qfDr fofgr izfdz;k ds vuq:i fof/kor :i ls gqbZ gks rFkk mudk jkT; ljdkj }kjk O;k[;krk dk osrueku Lohd`r fd;k x;k gksA ¼x½ mudh lsok esa fujarjrk gksA ¼?k½ dkyc} izksUufr ds ifjfu;e esa fu/kkZfjr izfdz;k dk iw.kZ vxzlj.k gks x;k gks rFkk fo'ofo|ky; lsok vk;ksx AvaxhHkwr egkfo|ky;A dh vuq'kalk izkIr gks xbZ gksA mi;aZDr 'kRrksZa ds v/khu fuEu 'kks/k inkf/kdkfj;ksa ftUgsa jkT; ljdkj ds i=kad 1520 fnukad 29-08-81 rFkk i=kad 1160 fnukad 13-07-82 ds }kjk O;k[;krk ds lerqY; osrueku Lohd`r fd;k x;k Fkk] ds jhMj esa dkyc} izksUufr esa lgefr nh tkrh gS& dze la0 'kks/k inkf/kdkjh dk uke foHkkx@laLFkku Patna High Court CWJC No.18733 of 2013 83 1- MkW0 enu eksgu iVuk;d yksd iz0 laLFkku 2- MkW0 vkbZ0 ,p0 [kku ^^ 3- MkW0 ,y0ih0JhokLro ^^ 4- MkW0 fefFkys'k dqekj efYyd ^^ 5- MkW0 Jherh oh.kk flUgk ^^ 6- MkW0 Jherh fu'kk nsoh izk0Hkk0bfr0,oa iqjk0 7- MkW0 fot; izlkn flag bfrgkl 8- MkW0 jatu flUgk ^^ 9- MkW0 vkse izdk'k izlkn ^^ 10- MkW0 vo/k fd'kksj izlkn ^^ 11- MkW0 izeksnkuUn nkl ^^ 12- Jherh pUnz dyk euksoSkfud 'kks/k ,oa lsok laLFkku 13- Jherh lqjS;k ijohu ^^ 14- Jherh izrhek flag ^^ 15- MkW0 jes'k pUnz flUgk ^^ 3- funs'kd] mPp f'k{kk dh lwpuk nh tk jgh gSA fo'oklHkktu g0@& 17@8@2010 Amek 'kadj izlknA ljdkj ds mi lfpoA Kkikad 1298 iVuk] fnukad 7oha vxLr] 2000A**
64. As a matter of fact the aforesaid communication of the State Government will also be of no avail, firstly because the State Government under the Patna University Act has been given no power to give equivalence to the post of Lecturer. As a matter of fact the authorities of Patna University had to go strictly by the Statutes framed by the Chancellor because the Government under the powers that it has, can only sanction the post and provide funds for the same.
Patna High Court CWJC No.18733 of 2013 84In any event this order dated 7th August, 2000 which has to be dealt subsequently more elaborately in the case of respondent no.8 for the time being has to be held inapplicable to the case of respondent no.5 primarily for the reason that it talks about promotion to Research Officer by holding the equivalent post of Lecturer for the purposes of Time Bound Promotion Statutes and not Merit Promotion Statutes.
There is a world of difference between the promotion to be given under the Merit Promotion Statutes and the Time Bound Promotion Statutes which has to be also subsequently dealt in view of the fact that respondent no.8, a Research Officer, has been given promotion on the post of Reader under the Merit Promotion Statutes. For the time being this Court would find that the Government decision dated 7th August, 2000 which is confined only in respect of 15 persons for time bound promotion and does not include the name of respondent no.5 will confer no benefit to respondent no.5 even for saving his promotion under Merit Promotion Statutes.
65. The last part of the submission of the learned counsel for respondent no.5 that respondent no.5 subsequently after becoming Research Officer was also assigned the duty to engage classes in the Department of Sociology in Magadh Mahila College, Patna from 1992 to 2007 or that he was engaging classes in the Institute of public Administration conferring the P.G. Diploma course in Public Administration will also be of no avail because a Research Officer Patna High Court CWJC No.18733 of 2013 85 who has been appointed and confirmed in the Institute of Public Administration cannot claim promotion on the post of Reader by virtue of engaging classes. The crucial test for justifying promotion on the post of Reader under the Merit Promotion Statutes would be whether he was holding the substantive appointment on the post of Lecturer duly created and sanctioned which could be upgraded as per Scheme under Clause 3(a), (b) and (c) of the Merit Promotion Statutes. That obviously cannot be made applicable in the case of respondent no.5.
66. As a matter of fact after the case was heard at length and the Vice Chancellor in person as also in his affidavits could realize that there was no prospect for promoting respondent no.5 on the post of Reader as per the Merit Promotion Statutes because he did not belong to the cadre of Lecturer of any College or University had come out with a peculiar defence stating that though respondent no.5 was holding an ex-cadre post of Research Officer and as such, his promotion on the post of Reader under the Merit Promotion Statutes will not affect any seniority of Lecturers promoted as Readers under the regular promotion or time bound promotion or merit promotion but then he can be allowed to remain on the post of Reader with a modification in his order of promotion. To that extent paragraph no.5 of the Supplementary affidavit filed on behalf of respondents no. 2, 3 and 4 on 30th January, 2014 requires to be quoted once again for the Patna High Court CWJC No.18733 of 2013 86 sake of clarity and reads as follows:
"That the matter of promotion of Dr. Pradeep Kumar, Research Officer needs modification to the extent that Dr. Pradeep Kumar, Research Officer, in Sociology, in the Institute of Public Administration, Patna University, is promoted to the post of Reader by upgrading the substantive post of Research Officer on which he has been working and he will be treated as a teacher of Sociology only for the purpose of teaching, research and examination, without any claim of seniority in the general cadre of teachers of the Department of Sociology, Patna University. In the past also, Research Officers promoted to the post of Readers have not been allowed any claim of seniority among the general cadre of teachers in their respective departments and as such their promotions have always been treated as ex-cadre. Hence, the deponent seeks the permission of this Hon‟ble Court to make this modification in the notification for promotion of Dr. Pradeep Kumar and get it subsequently approved by the Syndicate of the Patna University."
67. From reading of the aforementioned changed stand of the University and particularly its Acting Vice Chancellor, who had himself sworn the aforementioned supplementary affidavit, it becomes very clear that neither respondent no.5 was never holding the substantive post of Lecturer nor belonging to the cadre of Lecturer for earning promotion on the post of Reader either by way of regular promotion or merit promotion but then he could be promoted on the post of Reader under the Merit Promotion Statutes because the Acting Vice Chancellor had found the post of Research Officer to be Patna High Court CWJC No.18733 of 2013 87 equivalent to the post of Lecturer. This concept of equivalence in view of specific provisions of the Statutes and particularly the mode and manner of appointment of Research Officer vis-à-vis Lecturer will have no meaning in law unless and until the Merit Promotion Statutes is itself amended. As the things stand respondent no.5 cannot claim promotion on the post of reader under the Merit Promotion Statutes dated 22.12.1986 or the next one as approved by the Chancellor vide his letter No. BSU-20/95-2133/GS(1) dated 23.9.1995.
68. Thus, having regard to the scheme of Merit Promotion Statutes this Court will have no difficulty in holding that the promotion given to respondent no.5 on the post of reader under the Merit Promotion Statutes being in teeth of the provisions of Merit Promotion Statutes has to be held to be bad and is, accordingly, quashed and all the three orders dated 4.5.2013 and 6.5.2013 as well as 2.11.2013 in relation to promotion of respondent no.5 from the psot of Research Officer to the post of Reader are hereby quashed and as a result whereof respondent no.5 shall stand reverted to the post of Research Officer and shall be entitled only for any benefit only in the cadre of Research Officer.
69. Reverting back now to the case of respondent no.8 there would be no difficulty in holding that his promotion also suffers from the same infirmity, inasmuch as he too was a Research Officer in the Department of Geology and has been promoted on the post of Reader Patna High Court CWJC No.18733 of 2013 88 by a notification dated 25.7.2013 which reads as follows:
^^iVuk fo'ofo|ky;
vf/klwpuk fo'ofo|ky; p;u lfefr dh vuq'kalk ij vfHk"kn dh cSBd fnukad 13-07-2013 dh dk;kZoyh la[;k&2&¼b)¼N½ ds fu.kZ;kuqlkj es/kk izksUufr ifjfu;e ds vUrxZr Mk0 j.kohj uUnu] 'kks/k inkf/kdkjh] HkwxHkZ'kkL= foHkkx] ch0,u0 dkWyt s ] iVuk dks mikpk;Z ds in ij fofgr osrueku esa fnukad 02-07-2001 ds izHkko ls izksUufr nh tkrh gSA vfHk"kn ds vkns'k ls g0@& mi dqylfpo iVuk fo'ofo|ky;] iVukA Kki la[;k&th@904 fnukad 25-07-2013**
70. Subsequently on 6.9.2013 he has also been designated as an Associate Professor with effect from 1.1.2006 and has been extended all financial benefit of the post of Associate Professor. Such a decision has been taken by the acting Vice Chancellor as would be borne out from the notification dated 6.9.2013 which also for the sake of clarity and convenience is quoted hereinbelow:
^^iVuk fo'ofo|ky;
vf/klwpuk ekuo lalk/ku fodkl foHkkx] fcgkj ljdkj ds ladYi Kki la[;k&15@Mh001@09 va'k m0f'k0&2374 fnukad 29-07-2010 ds dafMdk (XII) esa fn, x, fn'kk&funsZ'k ds vkyksd esa MkW0 j.kohj uUnu mikpk;Z ¼fnukad 02-07-2001½] HkwxHkZ'kkL= foHkkx] ch0 ,u0 dkWyst] iVuk ftUgksaus mikpk;Z ds :i esa rhu o"kksZa dh f'k{k.k vof/k iwjk dj fy;k gS] mUgsa fnukad 01-01-2006 ds izHkko ls ,lksfl,V izksQslj ds :i esa ukfer fd;k tkrk gSA blds QyLo:i fo'ofo|ky; vuqnku vk;ksx ,oa jkT; ljdkj ds fn'kk&funsZ'k ds vkyksd esa vU; ykHk ns; gksxkA dqyifr ds vkns'k la] g0@& Patna High Court CWJC No.18733 of 2013 89 mi dqylfpo iVuk fo'ofo|ky;
Kki la[;k&th@1103 iVuk] fnukad 06-09-13**
71. Thus, whatever has been said in the respect of promotion of respondent no.5 under the Merit Promotion Statutes holds good also for respondent no.8, inasmuch as he also was never appointed against a duly sanctioned post of Lecturer and was never appointed on substantive basis on the post of Lecturer.
72. The University, however, has sought to justify the merit promotion given to respondent no.8 in the affidavit of acting Vice Chancellor in his supplementary affidavit filed on 30th January, 2014 which reads as follows:
"7. That as regards the case of the respondent no.8 (Dr. Ranbir Nandan), the deponent submits the following facts and circumstances in which respondent no.8 was appointed on the post of Research Officer in the Department of Geology, B.N.College, Patna and further promoted to the post of Reader and subsequently designated as Associate Professor.
i) The post of Research Officer on which Dr. Ranbir Nandan (respondent no.8) was appointed, was sanctioned by Government of Bihar vide memo dated 28.1.1988 in the teaching category equivalent to lecturer in the scale of Rs.700-1600 in the Department of Geology, B.N.College, Patna.
ii) That Dr. Ranbir Nandan (respondent no.8) is a teacher within the meaning of Sub Section ® of section 2 of Patna University Act, 1976, as Dr. Ranbir Nandan was Patna High Court CWJC No.18733 of 2013 90 appointed as Research Officer against the abovementioned sanctioned post for teaching jobs in the scale of lecturer.
iii) That since his appointment, (respondent no.8) has been doing teaching work as well as Research work in the Department of Geology, B.N.College, Patna and her is entitled for promotion to the post of Reader in terms of the guidelines of the University Grants Commission (UGC) as well as Patna University Act, 1976 and the related statutes.
iv) That it is relevant to submit here that in accordance with the law/ statutory provisions, Dr. Ranbir Nandan (respondent no.8) was promoted to the post of Reader with effect from 2.7.2001 vide order dated 25.7.2013 and subsequently after completion of stipulated period of service was designated as Associate Professor with effect from 1.1.2006 vide order dated 6.9.2013.
v) That on account of earlier precedents, Dr. Ranvir Nandan (R/8) Research Officer in Geology was also promoted as Reader as one Dr. Akhileshwar Tiwary had been earlier promoted to the post of Reader. Dr. Ranvir Nandan will also be treated as ex-cadre and will be allowed the pay scale of Reader without any claim of seniority in the Department of Geology of Patna University."
73. Respondent no.8 also has filed his affidavit in defence of his promotion and he has brought on record the Government letter dated 28.1.1988 addressed to the Accountant General to show that two posts of Lecturer and two posts of Research Officer in the pay scale of Lecturer as also one post of Laboratory Superintendent, all in the Patna High Court CWJC No.18733 of 2013 91 Department of Geology in B.N.College, Patna were sanctioned and thereafter an advertisement was issued in „the Indian Nation‟ for appointment on the post of Research Officer and Laboratory Superintendent wherein the qualification laid down for both the post was High second Class Master‟s degree in Geology with consistently good career, preferably with specialization in Sedimentary Petrology.
According to the learned counsel for respondent no.8, since the advertisement itself had prescribed filing of the application by 15th February, 1988 and the interview to be held on 26th February, 1988 in the Chamber of the Vice Chancellor, respondent no.8 had applied whereafter he was appointed on the post of Research Officer on 24.3.1988 alongwith one Sunil Kumar Singh on the post of Laboratory Superintendent and he had also joined the post on the same day i.e. 24.3.1988. According to respondent no.8, on 13.11.1998 his services were confirmed on the post of Research Officer and therefore, as he was appointed in the pay scale of Rs.700-1600 which was the pay scale of the Lecturer he will be deemed to be also appointed on the substantive post of Lecturer in Patna University and thus, also entitled to get the benefit of merit promotion Statutes framed by the Chancellor in the year 1986 and reiterated in the year 1995 as already discussed while dealing with the case of respondent no.5.
74. The question, however, even in case of respondent no.8 Patna High Court CWJC No.18733 of 2013 92 shall be the same as to whether an appointment made by the Vice Chancellor on the post of Research Officer would be the same as one made by the University on the post of Lecturer only under the recommendation of the Bihar State Constituent Colleges Service Commission. As noted above, Section 56 of the Patna University Act lays down the manner of appointment on the post of Lecturer as prescribed under the Statutes and the Statutes, which were in vogue at the time of appointment of respondent no.8 as a Research Officer laid down in the Statutes as notified by the Chancellor in his letter no.
BSU-25/33-2377-GS(1) dated 12.12.1983 was as follows:
"Subject- Revised statutes in respect of the qualifications of teachers of University/ Colleges.
Notwithstanding anything to the contrary as contained in the Statutes, the following shall be the minimum qualification and pay scales for different categories of posts of teachers in the service of the University and colleges affiliated to it, provided that any relaxation in the prescribed qualifications can only be made by the University with the prior approval of the University Grants Commission:-
(1) University Professor: .... .... .... .... (2) Reader: .... .... .... .... ....
(3) Lecturer- (In all subjects in the above faculties except where otherwise provided under the Statute).
Lecturers in the service of the University Pay scale Rs.700-40-1100-50-1600 Qualifications:
(a) A Doctorate‟s degree or research work of an equally high standard, (b) good academic record with at best second class Patna High Court CWJC No.18733 of 2013 93
(c) in the seven point and Scale) Master‟s degree in a relevant subject from an Indian University or an equivalent degree from a foreign University.
Having regard to the need for the developing Inter- disciplinary programmes, the degrees in (a) and (b) above may be relevant subjects:
Provided that if the Selection Committee/ Public Service Commission is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of the qualifications prescribed in (b) above:
Provided further that if a candidate possessing a Doctor‟s degree or equivalent research work is not available or is not considered suitable, a person possessing a good academic records (weightage being given to M.Phil. or equivalent degree or research work of quality) may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory/ organization on the condition that he will have to obtain a Doctor‟s degree or give evidence of research of high standard within eight years of his appointment, failing which he will not be able to earn future increment until he fulfils these requirements."
75. Thus, if the qualification and the manner of recruitment on the post of Lecturer vis-à-vis Research Officer is compared it becomes very clear that on the date respondent no.8 claims to be appointed on the post of Research Officer he was not holding even the prescribed qualification on the post of Lecturer and therefore, his claiming equivalence only on the basis of same pay scale of Lecturer could have made any sense only if there was a clear provision in the Patna High Court CWJC No.18733 of 2013 94 Statutes laying down that apart from the Lecturer others holding the equivalent could also be eligible for time bound promotion on the post of Reader under the Merit Promotion Statutes. In absence thereof this Court has no option but to take the same view as has been taken in the case of respondent no.5.
76. As a matter of fact if this requirement for appointment on the post of Lecturer as prevailing at the time of appointment of respondent no.5 or respondent no.8 on the post of Research Officer is taken into consideration, it would be obvious that they did not fulfil even the prescribed qualification for the post of Lecturer, inasmuch as when the advertisement was made for the post of Research Officer in response of which respondent no.8 had applied and got appointed the same had read as follows:
" INDIAN NATION
SITUATIONS VACANT
PATNA UNIVERSITY
WANTED
APPLICATIONS on plain paper with complete bio-data are invited for temporary appointment of (1) Research Officers and (2) Laboratory Superintendent in the prescribed scale of pay of Rs.700-1600 and Rs.880-1510 respectively for the department of Geology under academic development programme at B.N.College, Patna. Applicants must possess High Second Class Master‟s degree in Geology with consistently good carrier, preferably with specialization in Sedimentary Petrology. Applications must reach the undersigned latest by 15th Feb. 1988 and interview will be Patna High Court CWJC No.18733 of 2013 95 held on 26th Feb. 1988 in the office chamber of the Vice Chancellor, Patna University. No T.A. & D.A. will be admissible for attending the interview.
THE REGISTRAR, Patna University.
2.2.88 Sd/- B.S.Prasad, Dy. Registrar, Patna University"
77. Now a bare comparison of manner of appointment on the post of Research Officer vis-à-vis Lecturer would make it absolutely clear that there was/ is a world of difference not only in the qualification but also manner of selection and therefore, those who have been walked in on the post of Research Officer either through backdoor like respondent no.5 or even respondent no.8 by way of advertisement, as quoted above, cannot equate to have been appointed substantively on the post of Lecturer. There would be, in fact, no concept of equivalence of post when the Merit Promotion Statutes does not recognize any equivalence and also clearly lays down the basic criteria for grant of merit promotion on the post of Reader of having been substantively appointed on the post of Lecturer and earning eight years post appointment, experience of working on the post of Lecturer and achieving distinction in their field so as to be conferred the benefit of promotion under Merit Promotion Statutes.
78. It may be by way of hit of digression but yet relevant to note here that under the University Laws there are series of Statutes for promotion of Lecturer, Reader and Professor. As a matter of fact the first Statute is dated 31st of January, 1963 laying down the mode Patna High Court CWJC No.18733 of 2013 96 of appointment of teachers in terms of section 30(f) of the Patna University Act. Then comes the Statutes dated 18.11.1980 which was known as Statutes for promotion of Lecturers to the post of Readers (no time bound, no merit promotion to general promotion).
70. It was only in the year 1986 that on 24.11.1986 the Statutes relating to merit promotion of Readers on the post of University Professor and another Statutes dated 22.12.1986 as with regard to Merit Promotion of Lecturers on the post of Readers had come into force. It is here that a distinction will have to be essentially made because on 24.12.1986 when a Time Bound Promotion Statutes was approved by the learned Chancellor the norms therein were entirely different, inasmuch as merit promotion could be earned only on completion of eight years subject to distinction of having proven track of accompliced record, whereas the time bound promotion on the post of Reader could be granted on simple completion of ten years and subject to fulfillment of minimum standards.
80. The whole thing in fact got a complete facelift and change in view of implementation of the UGC pay scale by way of Government notification dated 7.8.1989 when the revised pay scale for the teachers of the University and degree colleges were notified and as such, on 23.9.1995 a new scheme of promotion known as Career Advancement Scheme for promotion from the post of Lecturer to the Lecturer in senior scale as also promotion of Lecturer in senior Patna High Court CWJC No.18733 of 2013 97 scale on the post of Reader was notified. What is also very significant to note here is that on 23.9.1995 the learned Chancellor by notification the promotion of Lecturer in senior pay scale to the post of Reader had specifically superseded the Time Bound Promotion Statutes dated 24.12.1986 including its amendment dated 29.11.1986 and 28.11.1987.
81. Followed by that a separate Statute was framed for merit promotion of Lecturers to Reader and Reader to Professor for those opting for merit promotion in terms of revised pay scale with effect from 7.8.1989. On the same day i.e. 23.9.1989 a separate Statute for merit promotion of Readers to the post of Professor opting for merit promotion in respect of Government notification dated 7.8.1989 was notified.
82. For completion of the record it has also taken into account that on 20.7.2001 a fresh Statute by way of Career Advancement Scheme for promotion of Lecturer to the rank of Lecturer (senior scale) and the Lecturer (senior scale) to the rank of Lecturer (selection grade) and also for promotion of Lecturer (senior scale) to the rank of Reader and the Reader to the rank of Professor as well as for promotion of Reader to the post of Professor was notified which again is not at par with the Time Bound Promotion Statutes already superseded or existing Merit Promotion Statutes still in force.
83. As a matter of fact when on 29.6.2005 the fresh Statutes Patna High Court CWJC No.18733 of 2013 98 were approved by the learned Chancellor by way of even laying down the minimum qualification for direct recruitment on the post of Reader, the thing would become very clear that in this State of Bihar so far promotion on the post of Lecturers, Readers and Professors are concerned, there are various schemes and therefore, the requirement of a particular Statute whether general or Time Bound or Merit Promotion or Career Advancement will have to be fulfilled by a candidate and the eligibility conditions thereof cannot be substituted by reading something in the Merit Promotion Statutes what was provided only under the Time Bound Promotion Statutes.
84. Mr. Manan Kumar Mishra, learned Senior counsel, however, while seeking to defend the promotion of respondent no.8 on the post of Reader under the Merit Promotion scheme has sought to rely on a Statute of Time Bound Promotion Statutes with special emphasis to Note (2) below Clause 12 of the Statutes to contend that since in the Time Bound Promotion Statutes the work Lecturer, Reader, University Professor to also include equivalent posts having different nomenclature in various faculties it has to be by way of necessary implication held that even under the Merit Promotion Statutes the same principle will apply and as such, the Research Officer will be deemed to be holding the equivalent post of Lecturer.
85. This argument of Mr. Mishra has to be only noted for its being rejected because whatever has been laid down in the Time Patna High Court CWJC No.18733 of 2013 99 Bound Promotion Statutes of Lecturer to the post of Reader in the letter of the Chancellor contained in BSU-27/85-4032/GS(1) dated 24.12.1986 as modified by the subsequent letter of the Governor‟s Secretariat bearing No. BSU-25/89-3128/GS(2) dated 12.10.1990 will not apply in the case of Merit Promotion Statutes as they are two different things. This Court in this case is not called upon as to whether the Research Officer can be given the benefit under the Time Bound Promotion Scheme under the aforesaid Statutes dated 24.12.1986 but then as the very scheme of Time Bound promotion Statutes more or less is a routine exercise of giving promotion on completion of certain number of years of service either with the prescribed qualification or even without prescribed qualification on completion of 16 and 25 years of service as against merit being the sole criteria under the Merit Promotion Statutes this Court cannot even remotely look into the contents of the Time Bound Promotion Statutes for safeguarding promotion given to respondent no.5 and respondent no.8 under the Merit Promotion Statutes. Merit Promotion Statute in fact is an accelerated promotion in recognition of merit as has been specified in the Statutes itself and therefore, the same cannot be equated or analyzed on the criteria laid down for time bound promotion.
86. The next limb of submission of Mr. Mishra that the University Service Commission now has done away with the concept Patna High Court CWJC No.18733 of 2013 100 of the post of Lecturer and Reader and has replaced it by the expression Associate Professor and Assistant Professor can have also no application to the facts of the present case, especially when such promotion has not been given as per the guidelines issued by the University Grants Commission. UGC in fact is a regulatory body but the service conditions have to be laid down by the appointing authority and in this case the Merit Promotion Statutes as framed by the Chancellor alone can hold the field.
87. For the similar reason this Court will have nothing more to say about the Government letter dated 7th August, 2000 wherein certain Research Officers were treated to be equivalent of the post of Lecturer for the purposes of giving time bound promotion and this letter has already been quoted while dealing with the case of respondent no.5, nothing more is to be emphasized save and except that respondent no.8 also did not get the benefit of this letter dated 7.8.2000 by way of earning time bound promotion rather his notification of promotion, as quoted above, is under Merit Promotion Statutes.
88. The reliance placed by Mr. Mishra on a Division Bench judgment of this Court in the case of Jyoti Shekhar v. the Patna University, reported in 2003 BLJR 556, will also therefore be little application to the facts of the present case. In fact that case never related to grant of promotion under the Merit Promotion Statutes and Patna High Court CWJC No.18733 of 2013 101 thus, whatever was stated therein was individual dispute between the two persons, namely, Jyoti Shekhar and respondent no.4 therein Dr.Hira Kant Jha and the petitioner Jyoti Shekhar had questioned the notification of Patna University by which Dr. Hira Kant Jha was appointed as Lecturer in Commerce and consequently was given promotion under the Time Bound Promotion Schemes. As noted above, the case in hand is one relating to merit promotion and therefore, whatever has been said in the judgment of Jyoti Shekhar (supra) cannot be applied especially when the Division Bench had not even addressed to the requirement of any Merit Promotion Statutes.
89. The further reliance placed by Mr. Mishra on the next judgment of the Division Bench in the case of Shatrughana Sharan Singh v. the Chancellor of Universities, reported in 2007(2) PLJR 478, as with regard to equivalent post of Lecturer to a post of teacher again can be of no assistance. That case did not relate to Merit Promotion Statutes on the post of Reader nor declaration of the post of Director, Field Ex-cavation, Department of Ancient Indian History and Archaeology as a teaching post and equivalent to Lecturer can be of any help and assistance to throw any light on the issue involved in the present writ application.
90. Finally, an order of this Court in the case of Prof. Dr. Amarnath Singh & ors. v, the State of Bihar & ors., C.W.J.C.No. 11986/2001 and its analogous cases, dated 14.2.2002 with emphasis Patna High Court CWJC No.18733 of 2013 102 on paragraph no.27 holding the source of promotion of Lecturers in different schemes, namely, Time Bound Promotion Statutes, Merit Based Promotion Statutes or Career Advancement Promotion Statutes being in the same manner could not have led to disparity in fixation of pay scale will hardly be an explanation to the issue involved in this writ application. The order passed by this Court in the case of Prof. Dr. Amarnath Singh (supra) is not an authority that a Research Officer can earn his promotion on the post of Reader under the Merit Promotion Statutes.
91. For the same reason whatever may have been said in D.O. letter by the Chairman of University Grant Commission dated 21st December, 1982 as with regard to merit promotion scheme extending certain monetary benefit to the persons promoted under the Merit Promotion Scheme will have no bearing on the Merit Promotion Statutes which was framed in the year 1986 and was only revised to certain extent in the year 1995, as discussed above.
92. The last submission made on behalf of respondent no.5 and respondent no.8 that the Research Officers or other employees working in the research work in the Universities must have some avenue of promotion and therefore, this Court should not disturb the promotion of respondents no. 5 and 8 on the post of Reader on the basis of certain observations made by this Court in the case of Dr. Ranjan Kumar Sinha & anor. V. Bhagalpur University in C.W.J.C.No. Patna High Court CWJC No.18733 of 2013 103 11021/1997 vide an order dated 15.2.2000 can have no exception in law provided there was a corresponding change made in the Statutes of Merit Promotion. As a matter of fact even when in the case of Dr. Ranjan Kumar Sinha (supra) the learned Single Judge had made the following observation in his order dated 15.2.2000:-
" In the present case, as no guideline/ rule/ statute framed for promotion of Research Associate to higher grade/ post, I feel that the matter requires consideration by the respondents. It appears that the Bihar Inter-University Board has already made recommendation to the H.E.Chancellor vide letter dated 27.8.1999 for promotion of Research Associate/ Research Officers to higher grade. It is expected that the H.E.Chancellor will take a decision on the same on an one date, preferably within a period of three months from the date of receipt/ production of a copy of this order. Petitioners will file representation before the H.E.Chancellor enclosing therein the copy of this order and the letter of Inter-University Board ated 27.8.1999. The O.S.D., Governor Secretariat is directed to bring the mater to the notice of the H.E.Chancellor. It is needless to say that if the aforesaid promotion policy is approved by the H.E.Chancellor, the respondents will act on the same and consider the cases of petitioners and other similarly situated Research Associate/ Research Officers. The writ petition stands disposed of, with the aforesaid observations/ directions."
93. Nothing has been done by the learned Chancellor in this regard. The aforesaid order of this Court in the case of Ranjan Kumar Sinha (supra) will leave nothing for speculation that at least this Court Patna High Court CWJC No.18733 of 2013 104 till the year 2000 had not found there being any provision for giving promotion to the Research Officers on the post of Reader under the Merit Promotion Statues. The Chancellor also when confronted with the same situation while dealing with the aforementioned observations in his order dated 22nd October, 2008 had only made certain observations with regard to time bound promotion. Thus, there is nothing on record to show that either this Court or the Chancellor had ever held the Research Officer working in different Universities to be eligible for being promoted on the post of Reader under the Merit Promotion Statutes.
94. This Court at this place also must record here that some stray cases or some decision taken earlier cannot be the basis for laying down a law that Patna University can give promotion to Research Officer on the post of Reader under the Merit Promotion Statutes. As it is this State which has dubious distinction of having more number of Readers and Professor working in the Universities of this State as against the entire number of Readers and Professor all over India. It now has become virtually a mockery that anyone who walks in in the cadre of teachers has to be essentially promoted on the post of Reader and Professor irrespective of his eligibility. Much harm has already been done and this Court cannot become party to now also lay down a law for promotion of Research Officer on the post of Reader under the Merit Promotion Statutes.
Patna High Court CWJC No.18733 of 2013 10595. Accordingly, both the impugned orders dated 4.5.2013 and 6.5.2013 are hereby quashed and as a result whereof respondent no.8 shall stand also reverted to the post of Research Officer and shall be entitled only for any benefit only in the cadre of Research Officer.
96. Having thus found that respondent no.2, the Acting Vice Chancellor of Patna University was directly responsible in promoting to all the Research Officers on the post of Reader contrary to the provisions made in the Merit Promotion Statutes, this Court can also not shut its eye with regard to the allegations made in respect of other promotions given in the regime of respondent no.2. The difficulty, however, is that all such persons, who were promoted, are not party to this writ petition and two of them, namely, respondents no. 6 and 7, who have voluntarily appeared by filing intervention application and have also been impleaded as respondents, cannot represent those more than 70 promoted teachers of Patna University, inasmuch as their such promotion or shifting of the date of promotion has individual facts and consequential repercussions. This Court in fact having been informed that one Dr. Dilip Kumar, a Curator in the Department of Ancient Indian History and Archeology, has been promoted on the post of Reader though under the Time Bound Promotion Statutes would, therefore, deem it expedient in the ends of justice to direct the present Vice Chancellor of Patna University to send the records of all such decisions of appointment/ promotion made in the regime of Dr. Patna High Court CWJC No.18733 of 2013 106 A.K.Sinha, the Acting Vice Chancellor of Patna University and the Hon‟ble Chancellor thereafter will get an inquiry conducted in all such appointment/ promotion including those of four teachers covered by Annexure 6 and 66 teachers, who were either given promotion or their date of promotion was shifted under the notification dated 31.10.2013, as noticed in paragraph no.8 of this judgment. It would be, thus, open for the Hon‟ble Chancellor in exercise of its power vested under the Patna University Act to examine the correctness and validity of all such decision of appointment/ promotion given in the period of respondent no.2 in capacity of the Acting Vice Chancellor of Patna University.
97. As a matter of fact such recourse will have to be taken not only in the case of Patna University but in all other Universities of this State where the arrangement of Acting Vice Chancellor was made in view of the order of the Apex Court in the case of Dr. Ram Tawakya Singh (supra). Let it be kept in mind that one such case of abuse of power in the case of B.N.Mandal University, Madhepura has already been noticed by this Court in a batch of writ petitions as recorded in the order dated 20.12.2013 in C.W.J.C.No. 20332/2013 which for the sake of clarity and convenience is quoted hereinbelow:
" Heard learned counsel for the parties.
All these writ applications, though seeking separate individual relief, have one thing in common inasmuch as all of them are directed against the decisions taken and orders passed at the behest of Dr. R.N.Mishra, who was appointed as Vice Chancellor of the B. N. Mandal University (hereinafter referred to as 'the Patna High Court CWJC No.18733 of 2013 107 University') by way of purely temporary arrangement in terms of Section 13 of Bihar State Universities Act, 1976 (hereinafter referred to as 'the Act') read with interim orders of Apex Court dated 18.03.2013, 16.04.2013 and 23.04.2013 in S.L.P.(C) No. 12409 of 2013.
In order to appreciate the nature and scope of these writ applications, it would be thus necessary for this Court to first have an eye bird view as to nature of complain of the petitioners in all these writ applications.
C.W.J.C. No. 20332 of 2013:
This writ application has been filed by Dr. Jai Prakash Narayan Jha, the Pro Vice Chancellor of the University wherein all that he wants is that he should be allowed to work on his post without any hindrance as allegedly being caused by Dr. R.N.Mishra, the present acting Vice- Chancellor. He has a grievance that though both, the petitioner and Dr. R.N. Mishra, were appointed by way of temporary arrangement, in terms of the order of the Apex Court in S.L.P. (C) No. 12409 of 2013, to work as Pro Vice Chancellor and Vice Chancellor respectively, he (petitioner) is not being allowed to function and his statutory powers have been divested by Dr. Mishra. In this regard, he has stated that not a single file is being placed before him only under the instructions of Dr. Mishra, the present acting Vice- Chancellor and he has also been subjected to him to all sorts of humiliation at the behest of Dr. Mishra. He has also, in this regard, complained that despite powers exclusive vested in him under Section 12(5) of the Act as with regard to admission and conduct of the examination up to Bachelor course conducted by the University and publication of its result he has not at all been associated in any decision taking process.
The petitioner has a further grievance that he has not been even furnished with the basic facilities such as a furnished accommodation and a vehicle yearmarked to the post of Pro-Vice Chancellor. He has further enumerated a number of illegal actions taken by Dr. Mishra, the present acting Vice- Chancellor, by way of appointing two parallel Registrars, six Deputy Registrars, two Finance Officers, a Dean from a private medical College at Kishanganj as also indulging in transferring a large number of teaching and non-teaching staffs without taking into confidence the statutory standing committees constituted by the learned Chancellor as also approval of Syndicate, which infact has Patna High Court CWJC No.18733 of 2013 108 been allowed to meet only once in the period of last five months.
The cup of miseries of the petitioner present acting Pro-Vice Chancellor, in fact has been filled up on account of autocratic decisions taken by Dr. Mishra by way of an oral direction to the Principal of Purnea Mahila College to withhold the payment of salary of the petitioner from where he was being paid salary prior to being made Pro Vice Chancellor. In this regard, he has also explained that his leave applications though is required to be sanctioned only by the learned Chancellor, but Dr. Mishra has been himself passing order on such leave applications of the petitioner and also rejecting them whimsically.
All these facts, according to the petitioner, were also brought by him to the notice of the learned Chancellor and the office of the learned Chancellor had also made an enquiry from him (Dr. Mishra) but even that has not been replied by Dr. Mishra, the present acting Vice- Chancellor as yet. According to the petitioner, even a witch hunting in retaliation had been started by Dr. Mishra against him by summoning all his service records from the Principal of Purnea Mahila College vide letter dated 19.10.2013.
In reply to all these allegations, Dr. Mishra has filed an affidavit in which he has denied them by taking a plea that though the petitioner was allowed an official accommodation, but he himself had vacated the same on 17.06.2013 and, in fact, he (petitioner) is also not residing in the University's Headquarters and as such no work by way of his official duty can be assigned to him. He has further gone to deny the allegation of interference in the powers exercised by the petitioner in capacity of Pro Vice Chancellor and as claimed that whatever he has been doing is by way of his power of supervision in terms of Section 17(5) of the Act. As with regard to stopping of payment of salary of the petitioner, Dr. Mishra, the present acting Vice- Chancellor has taken a stand that it was done only in the wake of a letter received from the Principal of Purnea Mahila College dated 18.09.2013 and that such actions for stopping of payment of salary of the petitioner were taken in capacity of Vice-Chancellor of the University.
The petitioner has also filed a reply to the aforesaid counter affidavit, wherein apart from the documentary evidence led in the main writ application as with regard to misuse of Patna High Court CWJC No.18733 of 2013 109 powers of the office of Vice Chancellor he has also enclosed the orders passed by Dr. Mishra appointing Sri Birendra Mohan Thakur, Proctor- cum- Secretary of the B.M.T. Law College, Purnea to work as Dean Faculty of Law; Dr. Mrinal Kumar Jha, Assistant Professor, Millia Fakharuddin Ali Ahmad B.Ed. Teacher's Training College, Rambagh, Purnea as Inspector of Colleges of Education; Dr. Shampa Sinha, Principal, Associate Professor of Millia Fakharuddin Ali Ahmad B.Ed. Teacher‟s Training College, Rambagh, Purnea as Dean Faculty of Education as well transferring Dr. Narendra Shrivastava, Associate Professor in the Post-Graduate Department of Zoology on 07.08.2013 to the Purnea College, Purnea and again back to University Headquarters on 16.12.2013.
Let it be noted that in this case, an intervener application has been also filed by one Dr. Mohammed Kamal complaining his transfer from the post of Principal of Araria College, Araria vide order dated 22.10.2013 on the ground that his transfer was not only mala fide but also without jurisdiction. He has explained that he had been unceremoniously victimized by Dr. Mishra only because he had taken some strict measures for conducting the examination in the capacity of Principal -cum- Centre Superintendent of Araria College.
C.W.J.C. No. 16259 of 2013:
In this writ application the petitioner, Dr. Suresh Prasad Yadav, has assailed the order dated 07.08.2013 passed by Dr. R. N. Mishra, the present acting Vice Chancellor whereby and whereunder one Dr. T. V. R. K. Rao, Principal of Purnea College, has been appointed as Dean Faculty of Science. According to the petitioner, Dr. Rao is junior to him and yet it is only on account of grace bestowed by Dr. Mishra that Dr. Rao has been appointed as Dean Faculty of Science. He has explained that after advent of Dr Mishra, firstly he was transferred from the post of Principal of D.S College, Katihar to T. P. College, Madhepura and thereafter his claim for becoming Dean was unceremoniously rejected by appointing Dr. T. V. R. K. Rao as Dean Faculty of Science though he was appointed as a Principal in the University service only on 02.03.2009 while the petitioner was appointed as a Principal in the University on 21.01.1996.
In this case a counter affidavit has been filed on behalf of the present acting Vice Chancellor wherein no explanation has been given for the sudden transfer of the petitioner from the post of Principal of D. S. College, Katihar Patna High Court CWJC No.18733 of 2013 110 to L.T. College, Madhepura and in defence of the appointment of Dr. Rao, Dean Faculty of Science, it has been stated that since he was appointed as a Principal in the year 2009 in the higher pay scale of Professor, he would be deemed to be senior to the petitioner who is also working on the post of Principal since 1996 but in the pay scale of Reader.
In reply to the counter affidavit, the petitioner has alleged that on 13.08.2013 he has been served with a show cause notice only because of filing of his writ application before this Court on frivolous grounds. In the aforesaid reply to the counter affidavit filed by the petitioner, he has given further example of his being harassed by Dr. Mishra, by way of reduction of his salary. He has also disputed the fact that Dr. Rao is senior to him and, in fact, has claimed that appointment of Dr. Rao as Principal was actually made in the rank of Reader and that the question of seniority of Principal cannot be decided on the basis of the post of pay scale of Reader and Professor.
C.W.J.C. No. 16812 of 2013:
In this writ application the petitioner, Arun Kumar Yadav, has assailed an order passed by Dr. Mishra dated 19.07.2013 whereby and whereunder his assignment as an Additional Registrar has been cancelled and he has been kept waiting for posting and one Dr. Navin Kumar in the Department of Physics of the University has been deputed to work as Controller of Examination by changing his assignment of O.S.D. in the Examination Department. The petitioner has explained that his earlier posting as Additional Registrar was made in terms of the decision of the Syndicate and that could not have been disturbed by Dr. Mishra, the present acting Vice Chancellor.
He has further brought on record a Notification dated 04.06.2013 whereby and whereunder one Dr. Brahmanand Prasad, Professor in the Department of Chemistry, has been made Dean Faculty of Science. According to him yet another decision of removing of Nathan Prasad Yadav and Awadhesh Kumar Yadav from the Examination Department without even consulting the Pro Vice Chancellor, who is over all In- charge of the Examination Department, is bad. He has also enclosed a document by way of Notification dated 09.07.2013 to show that one Ramesh Prasad Singh, Library Assistant of M. L. T. College, Saharsa, working on deputation in Finance Department of the University and Sri Pramanand Singh, Library Assistant of M.H.M. Patna High Court CWJC No.18733 of 2013 111 College, Sonbarsa by way of deputation in University Library and making Ramesh Prasad Singh as In-charge of the University Library without even getting the approval of the statutory transfer and posting Committee constituted by the learned Chancellor, is bad.
According to the petitioner, the appointment of Dr. Sharda Mishra, University Professor in the Department of Sanskrit as Dean Faculty of Humanities in place of Dr. Rajaram Prasad and appointment of Dr. Lalitesh Mishra, an Associate Professor in the Post-Graduate Department of English of the University as Dean Student Welfare and appointment of Dr. Panchanan Ghosh, Principal of M.G.M. Medical College, Kisanganj as Dean Faculty of Medicine as well as transfer of Dr. Narendra Shrivastava, Associate Professor in the Post Graduate Department of Zoology to Purnea College, Purnea as well as deputation of Dr. Kishore Nath Jha on the post of Deputy Registrar, Finance and appointment of Dr. Anil Kant Mishra, University Professor in the Department of Sociology, R. M. College, Saharsa as Dean Faculty of Social Science only within two months after the appointment of Dr. Ratneshwar Chaudhary as Dean Faculty of Social Science, are out and out acts of personal favours being bestowed by Dr. Mishra, the present acting Vice Chancellor on his favorites.
In this case, a counter affidavit has also been filed on behalf of the Dr. Mishra, the present acting Vice Chancellor wherein it has been stated that since the Syndicate, in the meeting held on 24.06.2013, had constituted an enquiry in the functioning of the Examination Department, such decisions for certain transfers and postings were taken by him. In this counter affidavit, the order of the learned Chancellor, by way of Notification dated 28.04.2013, has also been enclosed to explain that the powers exercised by Dr. Mishra is strictly in keeping with the orders issued by the learned Chancellor.
C.W.J.C. No. 20755 of 2013:
In this writ application the petitioner, Raj Kishore Prasad Sinha, Finance Officer of the University, has questioned the order dated 29.08.2013 whereby and whereunder one Dr. Kishore Nath Jha, Deputy Registrar, has been delegated the power and function of the post of Finance Officer held by the petitioner as also for payment of his arrears and current salary.
The petitioner has explained that he was appointed as a Finance Officer in the University with the recommendation of Bihar Public Service Patna High Court CWJC No.18733 of 2013 112 Commission and yet he was humiliated after the advent of Dr. Mishra by way of stripping off the exercise of his statutory power. He has also submitted that there a large scale of financial irregularities has been committed by Dr. Mishra, the present acting Vice Chancellor for which the State Government had constituted an enquiry committee by its order dated 25.06.2013 but the present acting Vice Chancellor had not even allowed the said enquiry committee of the State Government to inspect the record of the University during the course of its visit to the University Headquarters between 08.07.2013 to 11.07.2013.
According to the petitioner, the assignment of duty to Dr. Jata Shankar Yadav, Deputy Registrar-I (Establishment) of the post of Registrar by isolating the function of the Registrar and designating him as a Registrar (Convocation), was wholly an unauthorized act on the part of Dr. Mishra, the present acting Vice Chancellor.
He has also brought on record his protest in capacity of Finance Officer made before Dr. Mishra as with regard to award of contract to M/s Chaudhary Printing Press, Mohanpur Devi Asthan, Punaichak, Patna, without even publication of the tender notice in the newspaper and award of such contract to the said firm is in complete violation of the Financial Rules.
According to the petitioner, his salary was withheld and reduced because of order passed by Dr. Mishra, the present acting Vice Chancellor. He has also alleged that Dr. Mishra does not reside in the official quarter of the Vice Chancellor in the Campus of the University and uses official vehicle everyday for attending offices from his own residence at Saharsa, whichis at the distance of 25 K.M. He has also enclosed a series of orders to show that a number of appointment/deputation has been made by Dr. Mishra on teaching and non-teaching posts.
A counter affidavit has also been filed in this case wherein Dr. Mishra has stated that all these complaints which have been made before this Court by the petitioner is the subject matter of enquiry before the learned Chancellor, wherein the present acting Vice Chancellor has already submitted his comments. As with regard to reduction of emoluments of the petitioner, an explanation has been given that the present acting Vice Chancellor has acted only in terms of the Government decision as such till the Patna High Court CWJC No.18733 of 2013 113 Government Auditors deputed in the University would verify the pay fixation of the petitioner; he would not be entitled to claim the salary that he was getting earlier before his (Dr. Mishra) being appointed as acting Vice Chancellor.
In this case also a rejoinder to the counter affidavit has been filed by the petitioner wherein it has been stated that the salary of the petitioner was fixed by a statutory pay fixation Committee and, therefore, Dr. Mishra, in capacity of acting Vice Chancellor, was not entitled to get the pay of the petitioner revised unilaterally.
The petitioner, further by filing a second supplementary affidavit, has brought on record the documents to show that despite his repeated written request he has not been assigned the work of the post of Finance Officer and he continued to remain without work and without pay. He has further brought on record the copy of the agreement executed by the University with the aforementioned M/s Chaudhary Printing Press and its being objected by three members of the Syndicate namely Mr. Satyajit, Mr. J.Paswan and Mr. Naziruddin, all of whom have stated that such award of contract, without publishing the tender notice in newspaper and completing the prescribed process of purchase, is an unauthorized act on the part of Dr. Mishra, the present acting Vice Chancellor.
Let it be noted that in this writ application, the Director, Higher Education has himself sworn a counter affidavit explaining that the Three Man Committee constituted by the State Government in the Education Department vide order dated 25.06.2013 was not allowed to look into the documents during the course of visit to the University Headquarters between 08.07.2013 to 11.07.2013 and, in fact, the Three Man Committee was not allowed to hold enquiry as per the report submitted by Three Man Committee on 09.07.2013.
Dr. Mishra, the present acting Vice Chancellor, has himself filed reply to the second supplementary affidavit wherein he has stated that the decision to award contract was approved by the Syndicate in its meeting held on 19.11.2013 and the objection of the three members of the Syndicate had no bearing inasmuch as M/s Chaudhary Printing Press was already working in the University since last many years even on much lesser rate which has been given prior to the present contract. It is very significant to note here that not a word has Patna High Court CWJC No.18733 of 2013 114 been said by Dr. Mishra, the present acting Vice Chancellor with regard to obstruction caused in the functioning of the Three Man Committee appointed by the State Government for examining the financial irregularities as has been specifically asserted by the Director, Higher Education in the aforesaid separate counter affidavit filed by him in this case.
C.W.J.C. No. 22732 of 2013:
In this writ application the petitioner, Prithviraj Yaduvanshi, has claimed payment of salary of the post of Librarian in the Central Library of the University in view of his appointment vide Notification of the University dated 11.11.2012.
According to him, the Library Committee, which is the statutory committee of the University, under the Chairmanship of the then regular Vice Chancellor, had taken a decision in the meeting on 05.03.2012 for appointment of the petitioner on the post of Librarian in the Central Library, which was also approved by the Syndicate in the meeting held on 07.10.2012 and the Finance Committee on 21.01.2013 and the Senate on 22.02.2013 respectively and yet Dr. Mishra, the present acting Vice Chancellor, had withheld his payment of salary of the post of Librarian whereas Shambhu Narayan Yadav, Secretary -cum-P.A. to the Vice Chancellor; Rajiv Kumar, Assistant to Registrar and Sudhir Kumar Verma, Clerk to C.D.C. were given the benefit of higher pay scale under the orders of the present acting Vice Chancellor, Dr. Mishra. He has also cited instances of Hemant Kumar, who was initially engaged on daily wage as Typist too has been made Assistant in the regular scale at the instance of Dr. Mishra, the present acting Vice Chancellor.
In this case, no counter affidavit has been filed but when during the pendency of this writ application, on 19.11.2013 the order was passed cancelling his appointment in view of the directions given by the Dr. Mishra, the present acting Vice Chancellor, an amendment petition has been filed wherein it has been stated that the present acting Vice Chancellor and the Registrar on 18.11.2013 having come to know of filing this writ application had given threatening and had cancelled the appointment of the petitioner on the post of Librarian which as noted above had already been received approval of the Syndicate, Senate and Finance Committee.
C.W.J.C. No. 25043 of 2013:
In this writ application five petitioners, being Dr. Lalitesh Mishra, Dr. Patna High Court CWJC No.18733 of 2013 115 Jagarnath Thakur, Dr. Daya Ram Yadav, Dr. Anant Kumar and Dr. Shiv Balak Prasad, have assailed an order dated 26.11.2013 issued under the orders of Dr. Mishra, the present acting Vice Chancellor whereby and whereunder they have been transferred from their respective post held by them in the Post Graduate Departments to the other different colleges without even obtaining the approval of the statutory transfer Committee constituted by the learned Chancellor. According to the petitioners, this was clearly in violation of the order of the learned Chancellor dated 30.06.2008 and had no sanctity in the eye of law.
In this case also, no counter affidavit has been filed as yet.
C.W.J.C. No. 25044 of 2013:
In this writ application the petitioner, Dr. Mohammed Kamal, has assailed an order dated 22.10.2013 whereby and whereunder he has been transferred from the post of Principal, Araria College, Araria to the University Headquarters with a direction him to hand over the charge immediately to one Dr. Udit Kumar Verma a teacher of Hindi Department of Araria College, Araria. The petitioner has explained that he was working as a permanent Principal of Araria College, Araria and yet he was unceremoniously removed by way of punishment under the order of Dr. Mishra, the present acting Vice Chancellor, on a wholly false and frivolous allegation.
In this case also, no counter affidavit has been filed.
As would appear from the nature of grievance in all these writ applications, the entire set up of teachers and administrative functionaries of the University right from the post of Pro Vice Chancellor to Dean Faculty, Registrar, Librarian, Examination Controller, Principals of the constituent colleges and Professors have become aggrieved on account of different decisions and consequential orders of appointment/deputation /transfer made by Dr. R.N.Mishra, present acting Vice Chancellor.
This Court has heard all these writ applications for a number of days. In fact, the present Vice Chancellor initially was not even prepared to file his personal counter affidavit despite serious personal allegations made against him. Good sense has however ultimately prevailed on Dr. Mishra, the present acting Vice Chancellor who has filed counter affidavit in few cases but whatever has been stated by him, does not satisfy this Court inasmuch as exercise of such power by him in capacity of a Patna High Court CWJC No.18733 of 2013 116 temporary/acting Vice Chancellor does not prima facie appear to be bona fide much less in the administrative and academic interest of the University. This Court, however, would not like to say anything more because of the order it proposes to pass today.
There is in fact at present a shocking state of affairs prevailing in the B. N. Mandal University, would be an under statement of the day. This Court, having heard these writ applications, has infact come to a prima facie conclusion that things are not well in the University. In view of the fact that this Court, however, does not intend to give any final opinion at this stage as with regard to allegation made in all these eight writ applications, namely, CWJC Nos. 20332 of 2013, 20755 of 2013, 16259 of 2013, 16812 of 2013, 25043 of 2013, 25044 of 2013, 22732 of 2013 and 25316 of 2013 which relate to dispute arising out of the posts of Pro-Vice-Chancellor, Finance Officer, Dean Faculty of Science, Examination Controller, Transfer of a regular Principal, Dean of Student Welfare, Transfer of a regular Principal as O.S.D. (Promotion) and Chief Librarian, all such allegations will have to be examined by some independent body because as noted above that this Court has noticed that Dr. R.N.Mishra, the present acting Vice Chancellor, in office since 27.04.2013, has invited many uncalled for controversies which were capable of being safely avoided by him in view of his limited assignment to hold the post of Vice Chancellor purely by way of a temporary arrangement till appointment of a regular Vice Chancellor.
The fact that Dr. R.N.Mishra is only functioning as a temporary Vice Chancellor, is itself clear from the Notification issued by the Governor's Secretariat dated 26.04.2013, the relevant portion whereof reads as follows:
"GOVERNOR'S SECRETARIAT, BIHAR RAJ BHAVAN, PATNA-800022 NOTIFICATION Dated 26.04.2013 No. BSU-26/2013-461/GS(I)-By orders of the Hon'ble Supreme Court dated 18.03.2013, 16.04.2013 and 23.04.2013, passed in SLP(C) No. 12409 of 2013, it has been ordered to fill up the vacancies of Vice Chancellor and Pro. Vice Chancellor in the Universities of Bihar (Except Lalit Narayan Mithila University, Darbhanga).
In exercise of powers conferred on him under Section 13 of the Bihar State Patna High Court CWJC No.18733 of 2013 117 Universities Act, 1976, read with the abovementioned orders passed by the Hon'ble Supreme Court on 18.03.2013, 16.04.2013 and 23.04.2013, passed in SLP(C) No. 12409 of 2013, the Hon'ble Chancellor, Universities of Bihar, is pleased to appoint Dr. R.N.Mishra, University Professor (Zoology), BN Mandal University, Madhepura as the Vice Chancellor of BN Mandal University, Madhepura and Dr. Jai Prakash Nr.Jha, University Professor (History), BN Mandal University, Madhepura as the Pro Vice Chancellor of BN Mandal University, Madhepura. This is a purely temporary arrangement.
By order of Hon'ble Chancellor Sd/-
(Sudhir Kumar Rakesh)
Principal Secretary to Governor
Memo No. BSU-26/2013-461/GS(I) dated
26.04.2013".
As it would be evident, it is the three
interim orders of the Apex Court in SLP(C) No. 12409 of 2013 which had created a situation for replacement of the regular Vice Chancellor by making an interim arrangement. In the orders dated 18.03.2013, 16.04.2013 and 23.04.2013 the Apex Court have passed the following order:
"In the premise aforesaid, we are convinced that it is a fit case in which an interim order should be passed by the Court.
Accordingly, the operation of notifications dated 9.2.2013 and 19.2.2013 issued by the Governor-cum-Chancellor, Bihar appointing the private respondents as Vice Chancellors and Pro Vice Chancellors of different Universities is stayed and they are restrained from functioning as Vice Chancellors and Pro Vice Chancellors of the concerned Universities.
With a view to ensure that functioning of the various Universities is not jeopardized, we direct that as a purely stop gap arrangement, the senior most Deans in the Universities shall discharge the function of the Vice Chancellors and Pro Vice Chancellors........................."
The said interim order was further reiterated on 16.04.2013 while adjourning the case to 23.04.2013 and ultimately on 23.04.2013 also, the Apex Court had clarified its earlier aforesaid interim orders by recording as follows:
"On an oral request made by the Patna High Court CWJC No.18733 of 2013 118 learned counsel for the State and the Governor-cum-Chancellor, it is made clear that the Chancellor shall be free to make working arrangements for all the Universities (except Lalit Narayan Mithila University, Darbhanga) keeping in view the provisions of Section 13 of the Bihar State Universities Act, 1976".
Thus from reading of the aforementioned three interims orders passed by the Apex Court, it is beyond any shadow of doubt that either the appointment of Dr. R.N.Mishra or for that purpose any other Vice Chancellor/Pro Vice Chancellor was purely by way of a temporary arrangement and in fact when a clear reference has also been made under Section 13 of the Act, nothing is left for speculation that such working arrangement made through the appointment and continuance of the In-charge Vice Chancellor did not vest them with the power of the regular Vice Chancellor. As a matter of fact the Apex Court has finally disposed of the aforesaid SLP(C) No. 12409 of 2013 by its judgment dated 19.08.2013 in the case of Dr. Ram Tawakya Singh vs. State of Bihar & Ors.; {2013(3)PLJR (SC) 421 wherein in paragraph 31 while allowing the writ petition of Dr. Ram Tawakya Singh (supra) and quashing the appointment of the Vice Chancellors made by the Chancellor on 9.2.2013,19.2.2013 and 14.3.2013, had given a direction for making appointment on the post of regular Vice Chancellor within a maximum period of four months and had indicated that the persons who were currently holding charge of the offices of Vice Chancellors and Pro Vice Chancellors shall continue to discharge duties of their respective offices till the joining of new appointees.
This Court, therefore, fails to understand as to how all the powers of a regular Vice Chancellor can be exercised either by Dr. R.N.Mishra, the present acting Vice Chancellor, brought in office by a Notification dated 26.4.2013 or he could become the LORD of what all he surveyed in capacity of being an In-
charge Vice Chancellor. Unfortunately, whatever has been alleged against him would amount to virtually paralyzing the functioning of the entire University inasmuch as all the aforementioned statutory authorities have alleged that despite their appointment being made in terms of the Act and the Statutes, they have been somehow or other restrained/demoralized/obstructed/prevented from functioning on their respective posts.
Having also regard to the fact that at Patna High Court CWJC No.18733 of 2013 119 one point of time even the learned Chancellor had himself addressed to the complaint filed by the petitioner in the first case, CWJC No. 20332 of 2013, namely, Dr. Jai Prakash Narayan Jha, and had directed the Registrar of the University to submit a report on the complaint of Dr. Jha, the Pro Vice Chancellor of the University and despite communication from the Chancellor‟s Secretariat dated 29.10.2013, no report has been submitted as yet, as stated by Mr. Y.V. Giri, learned counsel appearing on behalf of the learned Chancellor, this Court will have no difficulty in coming to a prima facie conclusion that even the learned Chancellor‟s enquiry has not made any headway till date.
The cup of prevailing anarchy and miseries in the University on account of precipitative actions of Dr. Mishra, in fact, gets further filled when this Court has been informed by Mr. Amar Nath Deo, learned counsel appearing for the State, that the present acting Vice Chancellor, who is in office since 27.04.2013, had also not allowed a Three man Committee appointed by the State Government of Bihar to look into the alleged financial irregularities committed in the regime of Dr. R.N.Mishra, the present acting Vice Chancellor. In fact there is an affidavit filed by the Director, Higher Education in C.W.J.C. No. 20755 of 2013 wherein he has stated as follows:
"3. That it is humbly stated that a Three Man Committee was constituted by the Education Department vide memo no.
1167 dated 25.06.2013 to look into the allegation of financial irregularities, made by the Finance Officer, B.N.Mandal University (Petitioner).
4. That it is stated that pursuant to the said decision the Joint Secretary being one of the member of the Committee on 02.07.2013, communicated to the Registrar of the respondent University that the team will visit the University between 08.07.2013 to 11.07.2013 and it was further requested that he will ensure the availability of requisite documents (Annexure-1 of the writ application).
5. That it is stated that thereafter as per the schedule communicated to the University, the Three Man Committee visited the University on 08.07.2013 for enquiry but the Committee was not allowed to make enquiry. The Committee on 09.07.2013, submitted its Patna High Court CWJC No.18733 of 2013 120 report in the Department.
6. That it is stated and submitted that the Committee was not allowed to make enquiry, which is evident from the said report of the Committee dated 09.07.2013".
This Court, having also read the report of the Three -Man Committee dated 09.07.2013, enclosed in the counter affidavit of the Director, Higher Education, would come to the conclusion that when an attempt was made by the State Government to look into the financial discipline of the University that also was not allowed by Dr. Mishra the present acting Vice Chancellor.
Let it be noted that Mr. Binod Krishna Jha, learned Senior Counsel for the University in presence of the acting Vice Chancellor in the Court, had produced a communication dated 08.07.2013 which would go to show that the learned Chancellor was apprised by the present Vice Chancellor as with regard to Three Man Committee of the State being not allowed to function and whole enquiry is awaiting for some sort of direction from the learned Chancellor. This Court however fails to understand such frivolous objections being raised by Dr. Mishra the present acting Vice Chancellor inasmuch as from Sections 52 and 54 of the Bihar State Universities Act, 1976, which ought to have been known by the present acting Vice Chancellor, would not give him any authority to make any obstruction in the functioning of the Three Man Committee of the State Government because the State Government being the financing authority has full powers to look into the state of financial discipline of the University. There was thus no requirement for the State Government or its Three Man Committee to obtain approval of the learned Chancellor so far it relates holding an enquiry in the matter of financial discipline of the University. Thus, it becomes clear that even the State Government and its officials have been deliberately obstructed in holding enquiry into the allegation made against the present acting Vice Chancellor by none else but himself.
In such a situation, when the learned Chancellor as also the State Government have failed to get the matter enquired into only on account of stubborn attitude of Dr. R.N.Mishra, the present acting Vice Chancellor, this Court would constitute a Three Man Enquiry Committee consisting of (1) Mr. Rahul Singh, Secretary, Education Department; (2) Mr. P.K.Thakur, Inspector General of the Vigilance Department Patna High Court CWJC No.18733 of 2013 121 and (3) Mr. Atul Prakash, Deputy Accountant General in the office of the Principal Accountant General (Audit), Bihar, who shall hold enquiry as with regard to exercise of entire administrative and/or financial decisions taken by Dr. R.N.Mishra, the present acting Vice Chancellor ever since of his being in office since 27.04.2013 and till date. The Committee shall also address to the complaint of the petitioners before this Court and having allowed the acting Vice Chancellor to also put his defence in support of the allegations made against him, will submit its report to this Court within a period of three months from the date of receipt of this order.
Pending final disposal of these writ applications, the present Vice Chancellor may continue in office by doing only routine job of the post of Vice Chancellor without taking any policy decision in administrative/financial matters, save and except, with the approval of the statutory committees constituted by the learned Chancellor namely "Statutes on Formation of the Standing Committee" dated 20th December 1986 which enumerates probably each and every aspect relating to the matters of the University. Thus, any decision which has to be urgently taken in the academic and administrative interest of the University till appointment of a regular Vice Chancellor in the University shall be taken only with the prior approval of the Standing Committees enumerated in the Statutes dated 20th December 1986.
It is also made clear that till final disposal of these writ applications and in order to enable the functioning of the Standing Committee enumerated in the Statutes framed by the Chancellor dated 20.12.1986, all such persons, who were holding their office as on 26.04.2013 shall remain in office unless their removal by the acting Vice Chancellor is approved by this Court after submission of the report of the Committee. In other words, all those persons, who were appointed, holding statutory posts or office in the University as on 26.04.2013, under the order of the learned Chancellor, shall form part of the statutory Committee. Any person appointed by the present acting Vice Chancellor on or after 27.04.2013 shall not be entitled to participate in the decision making process through the Standing Committees enumerated in the Statutes of formation of Standing Committee issued by the Governor's Secretariat in letter no. BSU 25/84- 3965-GS (1) dated 20th December, 1986.
Patna High Court CWJC No.18733 of 2013 122Let a copy of this order be given to Mr. Amar Nath Deo, learned counsel for the State.
Put up these cases on 15th January 2014 as a tied up matter at the top of the list."
98. A similar situation has been noticed by this Court even in respect of power of acting Vice Chancellor in the case of Veer Kunwar Singh University, Bhojpur at Ara where also appointments and promotions were made indiscriminately and this Court by an order dated 04.11.2015 in C.W.J.C. No. 14312 of 2013 (Mithilesh Kumar Pandey Vs. Veer Kunwar Singh University & Ors.) with analogous cases has remitted the matter before the Hon'ble Chancellor vide an order dated 04.11.2015 which reads as follows:-
"Heard learned counsel for the parties.
Having regard to the fact that in all these three writ applications, the grievance of the petitioners, as against the decision taken by the Acting Vice Chancellor, who came in the office on account of the order of the Apex Court in the case of Dr. Ram Tawakya Singh Vs. State of Bihar & Ors. reported in 2013 (3) P.L.J.R. (SC) 421, and that such order was wholly temporary in nature, this Court, without expressing any opinion on the merit of such order/action taken by the Acting Vice Chancellor, would deem it expedient in the ends of justice to request the Hon'ble Chancellor to exercise the power under Section 9(4) of the Bihar State University Act for finding out as to whether the impugned order/action taken by the Acting Vice Chancellor was in accordance with law.
Thus, if the petitioners would file their Patna High Court CWJC No.18733 of 2013 123 compact representation in terms of Section 9(4) of the Bihar State University Act, the learned Chancellor shall pass an appropriate order of-course after hearing all concerned including the petitioners/interveners, who have appeared before this Court in these cases.
This Court would also not find any
difficulty in giving opportunity to the
petitioner of CWJC No. 20483 of 2014 which is directed against the decision of the present Vice Chancellor, inasmuch as, the learned Chancellor has power under Section 9(4) of the Act to look into the order of the regular Vice Chancellor as well.
With the aforementioned observation, all these writ applications are disposed of."
99. From the perusal of the aforementioned order dated 20.12.2013 in C.W.J.C.No. 20332/2013 (Dr. Jai Prakash Narayan Jha v. the State of Bihar & ors.) and order dated 04.11.2015 in C.W.J.C. No. 14312/2013 (Mithilesh Kumar Pandey Vs. Veer Kunwar Singh University and Ors.) and analogous cases in which this Court had constituted an inquiry by a three-man Committee in respect of acts of omission and commission of another Acting Vice Chancellor of B.N. Mandal University in number of cases and which remains inconclusive till date it would become clear that every Acting Vice Chancellor in all the Universities of Bihar (barring L.N. Mithila University) had virtually started behaving like that proverbial "Bhisti"
(Waterman) in the period of Mughal King Humayun when the 'Bhisti' Patna High Court CWJC No.18733 of 2013 124 on account of saving the life of Humayun was granted his wish of becoming the king for one day. The legend further goes that the 'Bhisti' (Waterman) in order to immotalise himself and his clan in that one day of his exercise of power as a king had gone to make a royal proclaimation of introducing and enforcing the Sikka (coin) of leather for the whole kingdom. Here also in the present case all the Deans who were appointed as Acting Vice Chancellors in different Universities except L.N.Mithila University, appear to have resorted to similar exercise of arbitrary power and therefore, it will meet the ends of justice that not only all the decisions involving policy and financial implications including appointment and promotion given in the regime of respondent no.2 in capacity of Acting Vice Chancellor, Patna University but in respect of all other Acting Vice Chancellor appointed under the orders of Hon'ble Chancellor in compliance of interim orders of Apex Court in the case of Ram Tawakya Singh (supra) is made a subject matter of inquiry by the Hon‟ble Chancellor for taking corrective steps/ decisions. Such an enquiry infact would be absolutely necessary to review all the major decisions taken by the Acting Vice Chancellors appointed in April 2013 or thereafter in all the Universities of the State of Bihar (except L.N.Mithila University where no such arrangement of Acting Vice Chancellor was made on account of functioning of a regular Vice Chancellor) by the Hon'ble Chancellor in exercise of his statutory powers conferred on him both Patna High Court CWJC No.18733 of 2013 125 under Section 9 of Bihar State Universities Act and Section 10 of Patna University Act.
100. The Hon‟ble Chancellor for holding such inquiry in the matter of all major decision involving policy and/or financial implications including appointments and promotions given in the tenure of Acting Vice Chancellor in different Universities in the State of Bihar except L.N.Mithila University, who were appointed by the then Hon‟ble Chancellor in compliance of the interim order passed by the Apex Court in the case of Dr. Ram Tawakya Singh (supra), shall get all such cases individually examined and in the event it is found that those decisions are not in accordance with the provisions of Patna University Act/ Bihar State Universities Act and Statutes, he shall pass the consequential order but of course after giving notice and/or opportunity to the persons likely to be affected by his such decision.
101. For exercise of such power by the Hon'ble Chancellor in terms of Section 9(4) of Bihar State Universities Act or Section 10(4) of Patna Universities Act shall call upon the Registrar of all the Universities (except L.N. Mithila University) to furnish complete list of decisions as well as connected files and records and it shall be obligatory on the part of the concerned Vice Chancellors and Registrar to produce them in the Secretarial of Hon'ble Chancellor for enabling him to take his final decision in accordance with law.
102. Additionally the offices of the Chancellor shall get a Patna High Court CWJC No.18733 of 2013 126 notice issued and published in the leading newspapers inviting applications/objections to any major decision involving policy and/or financial implication including appointment and promotion taken in the working period of Acting Vice Chancellor appointed in April 2013 or thereafter in terms of the interim order of Apex Court in the case of Ram Tawakya Singh (supra) and such application/objections received pursuant to the aforesaid notice shall also be considered and disposed of by the Hon'ble Chancellor in accordance with law specially in terms of the provisions made under Patna University Act/Bihar State Universities Act and the Statutes framed thereunder.
103. Reverting back to the grievance of the petitioner and an intervenor, namely, Dr. Dhrub Narain Sinha, who has filed I.A.No. 6764/2014, with regard to their grievance of their cases of promotion not being considered this Court has to only record the undertaking given by Patna University in its supplementary counter affidavit wherein it has been said that their cases are under active consideration for grant of promotion and a decision is likely to be taken soon. To that extent it would be relevant to quote paragraphs no. 6 to 11 which reads as follows:
"6. That so far as the promotion of the petitioner on the post of Professor is concerned, it is stated that the petitioner applied for the promotion to the post of University Professor under Career Advancement Scheme on 5.4.2011.
7. That according to the provisions of the Statute for promotion under the CAS Scheme, the application of the Patna High Court CWJC No.18733 of 2013 127 petitioner was sent to the Refrees by the University- respondents on 11.9.2013 vide letter no. 554/R, 555/R and 556/R dated 11.9.2013.
8. That the Refrees have submitted their reports on 4.11.2013, 8.11.2013 and 11.11.2013. The same was sent to the section concerned on 16.7.2014.
9. That the section concerned has initiated the process on the same day i.e. 16.7.2014. Now, the matter for promotion of the petitioner will be placed before the University Selection Committee as per the statutory provisions.
10. That as soon as the recommendation of the Selection Committee is given, the same will be placed before the Syndicate for approval and, after approval, the same will immediately be notified.
11. That in view of the above, it is humbly submitted that the promotion of the petitioner is under process as per the statutory provisions of CAS and the University has never denied the same to the petitioner at any stage."
104. A question, therefore, would arise that if the petitioner had filed his application for promotion to the post of University Professor on 5.4.2011 how could his case remain pending for a period over 3½ years and in the meantime promotion of the persons even like respondents no. 5 to 8 and sixty six others in Patna University were taken and implemented within six months only.
105. Let it be noted that all the promotion whether under Time Bound Promotion Statutes or Merit Promotion Statutes or Career Advancement Scheme are based on the date of eligibility and Patna High Court CWJC No.18733 of 2013 128 if a Selection Committee has to take a decision it cannot postpone a decision for years together by allowing seniors to rot and juniors to flourish. In the present case the persons like the petitioner and Dr. Dhrub Narain Sinha working though claiming to be eligible in all respect for their promotion have still been waiting for consideration of their cases of promotion while a large number of persons (at least seventy of them) were given promotion or shifted their date of promotion in the regime of the Respondent no. 2, the Acting Vice Chancellor working only under temporary arrangement.
106. This Court would accordingly direct that the pending cases of promotion of the petitioner and the intervener Dr. Dhurb Narayan Sinha also must be decided, if not already decided by-now, by the competent authority of Patna University within a maximum period of six months from the date of receipt of this order by the Vice Chancellor of Patna University.
107. It is also hereby directed that in future no University shall never keep the cases of promotion of any teacher pending for a period of more than six months and a decision whether affirmative or negative must be taken within a period of six months from the date of filing of the application for such promotion by the person concerned and if it cannot be done so in the period of six months, no one applying for such promotion on a later date should be given such promotion unless the case of person applying earlier for promotion are Patna High Court CWJC No.18733 of 2013 129 decided in the aforesaid period of six months one way or the other.
108. In the result, this application with the aforesaid observations and directions, is allowed with a cost of Rs. 10,000/- to be paid by the Patna University to the petitioner.
109. Let a copy of this judgment be sent not only to the Hon‟ble Chancellor of the Universities of Bihar at Raj Bhawan, Patna but also to the Vice Chancellor of Patna University for its compliance in letter and spirit.
(Mihir Kumar Jha, J) PATNA HIGH COURT Dated 30th November, 2015 Surendra/ AFR U