Patna High Court
Dr. S.K. Sinha vs Patna University And Ors. on 1 December, 1964
Equivalent citations: AIR1965PAT253
ORDER U.N. Sinha, J.
1. This is an application under Articles 223 and 227 of the Constitution of India, in which the petitioner, a doctor employed as a lecturer in surgery in Prince of Wales Medical College at Patna, has prayed that a direction, order or writ in the nature of mandamus and/or prohibition may be issued against the Patna University, restraining it from making permanent appointments of two professors for the Medical College, and calling upon the said University to act in accordance with the relevant provisions of the Patna University Act (Bihar Act III of 1962), Statutes and Rules, read with certain terms of transfer laid down by the Governor of Bihar in 1960. This case had been heard by a Division Bench of this Court presided over by Mahapatra and Tarkeshwar Nath, JJ., who have, by their judgments, dated the 15th May, 1964, differed in some of their conclusions. In the result, Mahapatra, J. has held that the Patna University should be prohibited from making the appointments to the two posts of professors of surgery in the Medical College at Patna in question, on the basis of the recommendation of the State Public Service Commission, whereas Tarkeshwar Nath, J. has held that the petitioner has failed to make out a proper case for issue of any direction, order or writ in the nature of mandamus or prohibition. The learned Judges have formulated the points on which they have differed and thus this case has been placed before me for decision.
2. In view of the elaborate statements of fact given in the judgments of my learned colleagues. I would state only the necessary facts and the salient features of the case, without going into minute details. The petitioner is a civil assistant surgeon in the Bihar Medical Service and is now in the employment of the Patna University as a lecturer in surgery in the Prince of Wales Medical College at Patna (to be called hereinafter the College). He was posted as a lecturer in surgery in the College in July, 1951. Opposite Party No. 3, Dr. R. V. P. Sinha, was posted as a lecturer in the College in July, 1947, find Opposite Party No. 4, Dr. U. N. Shahi, was posted as a lecturer in the name College in January, 1949. Upto the time of the posting of the petitioner as a lecturer in the College, the control and management of the College and the Patna Medical College Hospital attached to the College were with the State Government. Then came the Patna University Act (Bihar Act No. 25 of 1951), which came into force on the 2nd January, 1952.
Under Section 51(1) of that Act several colleges, including this College, were transferred to the maintenance and control of the Patna University (to be hereinafter called the University) as its Colleges. The hospital attached to the College was, however, not transferred from the control of the Government. Under Section 52(1) of the 1961 Act it was enacted that the University shall employ, on such terms as may be determined by the State Government, all members of the teaching staff employed in the colleges transferred to the University, who immediately before the commencement of this Act, were serving in or were attached to the Colleges. Thus, the petitioner and Opposite Party Nos. 3 and 4 came under the employment of the University. [Such teachers have been referred to by the parties in the case as the transferred teachers]. By notification No. 211164/H, dated the 8th July, 1960, the Governor of Bihar laid down the terms of employment by the University of the members of the teaching staff and other servants of the State Government employed in the colleges, which had been transferred to the University. Clause (8)(c)(1) of the notification had as follows:
"In the matter of promotion of transferred officers to superior posts corresponding to those in the cadre of the Bihar Medical Service, the procedure laid down in Rules 12 to 14 of the rules for the regulation of recruitment to the Bihar Educational Service Class II read with Memo No. 2763-A dated the 15th July, 1944 of the Government of Bihar in the Appointment Department shall, with necessary modification, be followed." Rules 12 to 14, mentioned in this clause, Mm thus:
"12. Whether the Governor decides that vacancy either in Class I or Class II of Bihar Educational Service shall be filled by promotion or transfer of an officer already in the service of Government, a reference shall be made to the commission to advise on such selection. In doing so, the names of all officers eligible for such promotion shall be sent to the Commission arranged in order of seniority and accompanied by all the papers relating to them.
Note:-The Governor shall forward to the commission the names and records of all officers who are senior to the most junior officer recommended for promotion unless:--
(a) the officer has failed to pass the efficiency bar; or
(b) he has already been considered in previous years by the Commission and passed over as unsuitable for promotion.
3. When a reference is made to the Commission under Rule 12, the Commission shall advise the Governor in respect of each officer:
(1) Whether his qualifications are sufficient, and (2) Whether his record proves him to have the requisite character and ability for the service to which it is proposed to appoint him.
14. The final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Commission under Rule 13."
On the 12th July, 1960, a new Act came into effect, called the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act, 1960, being Bihar Act XIV of 1960. In substance, it repealed the previous 1951 Act with certain savings, so far as they were not inconsistent with the provisions of the 1960 Act. According to the 1960 Act, the teachers of the colleges, including the petitioner and opposite party Nos. 8 and 4 were deemed as transferred to the Universities created under the 1960 Act. They, therefore, remained in the category of what has been described above as the transferred teachers. Act XIV of 1960 was replaced by the Patna University Act, 1961 (being Act No. III of 1982), which came into force on the 1st March, 1962. It is stated in this miscellaneous judicial case application that in financial year 1961-62 it was decided that two professors of surgery, amongst others, should be appointed by promotion. The State Government sent a communication dated the 1st November, 1961 to the Registrar of the University, describing the subject matter as, "Panel of names for appointment of Medical officers to two posts of Professors of Surgery, two posts of Professors of Medicine, one post of Professor of Pediatrics and one post of Professor of Orthopaedics at to Patna Medical College."
It was mentioned in the letter that the Government were pleased to nominate the seven doctors, mentioned below, for the posts of Professors of Surgery, as required under Section 15(5) of the Bihar State Universities Act, 1960 (Bihar Act XIV of 1960), without arranging the names in any order of preference. The nominations were as follows:
1. Dr. S. K. Sinha, M S., F. R. C. S.
2. Dr. Baldeo Prasad Singh, F. R. C. S.
3. Dr. R. N. Sinha, F. R. C. S.
4. Dr. Kapildeo Prasad, M. S., F. R. C. S.
5. Dr. R. V. P. Sinha, M. S., F. R. C. S.
6. Dr. U. N. Shahi, M. S., F. R. C. S.
7. Dr. P. N. S. Jayaswal, M. S., F. R. C. S. Dr. S. K. Sinha is the petitioner and Dr. R. V. P. Sinha and Dr. U. N. Shahi are opposite party Nos. 3 and 4. The communication gave dates of temporary and permanent appointments in the Bihar Medical Service and the dates of postings as lecturers in the different colleges. It appears that on the 5th January, 1962, the Registrar of the University sent a letter to the State Public Service Commission (opposite party No. 2), stating that under Section 15(5) of the 1960 Act, the State Government had sent certain names for consideration for appointments to the various posts of professors, mentioning under the heading, "for two posts of professors of surgery", the names of Dr. R. V. P. Sinha, Dr. U. N. Shahi and Dr. S. K. Sinha as the first, second and the fifth names. Apparently, the alteration in the order of these three names was based on the dates of appointment as lecturers shown therein. Dr. R. V. P. Sinha was shown to have been appointed on the 26th July, 1947, Dr. U. N. Shahi was shown to have been appointed on the 10th January, 1949 and Dr. S. K. Sinha was shown to have been appointed on the 16th July, 1951. It was mentioned in the letter that the names had been arranged by the University according to their departmental seniority, according to which appointments in clinical subjects had so far been made by the University.
Sometime thereafter, the Registrar of the University sent a fresh letter dated the 21st September, 1962, to the State Public Service Commission (to be called hereinafter the Commission) on the same subject and in continuation of the letter dated the 8th January, 1962. In this letter, the order was changed, numbering Dr. S. K. Sinha, Dr. R. V. P. Sinha and Dr. U. N. Shahi as 1, 5, and 6 respectively It was stated that the State Government had sent seven names in accordance with their seniority in the Bihar Medical Service and the Vice-Chancellor was of the opinion that the order of seniority in the State Service should not be disturbed, unless there has been a decision to make a junior man supersede a senior man in respect of any teaching post. It was required that the Commission should recommend two candidates in order of preference for each of the two posts. In between the two letters from the University to the Commission, the 1962 Act had come Into force on the 1st March, 1962, and the provision corresponding to Section 15(4) of the 1960 Act was enacted In Section 52 of the 1962 Act, with necessary variations. Chronologically speaking, then followed the recommendation of the Commission by its letter dated the 18th/19th December 1962 The subject-matter was noted as the appointment to the two posts of professors of surgery in the Prince of Wales Medical College. Patna, and the Commission recommended the names of Dr. R. V. P. Sinha and Dr. U. N. Shahi only, in that order, for appointment to the two posts Thereupon, the Registrar of the University sent a letter dated the 3rd January, 1963 to the Commission on the same subject, drawing its attention to Section 26(3) of the 1962 Act, and requesting that the Commission should recommend two names for each of the posts, arranged in order of preference, as required by the Act, unless, the Commission was of the view that none of the other persons in the panel was suitable for appointment to the posts. On the 21st February, 1963, the Vice-Chancellor of the University sent another letter to the Chairman of the Commission, drawing his attention to the letter dated the 3rd January, and stating that the clarification sought in the earlier letter had not yet been received from the Commission and unless it was received by the 25th February, 1963, the University would act on the earlier recommendation of the Commission and the Registrar's letter dated the 3rd January, 1963, would be treated as withdrawn.
The last letter in this series was sent by the Commission, on the 25th February, 1963, stating finally that the Commission had already sent its recommendations by its letter dated the 19th December, 1962. It appears from paragraph 31 of this miscellaneous judicial case application that when the application was filed in this Court on the 25th February, 1963, the reply of the Commission dated the 25th February, 1963, was not known to the petitioner. Upon these facts, this case was originally filed in this Court on the 25th February, 1963, against the University alone, making the prayers mentioned above, and the application was admitted on the 27th February, 1963, with an ad interim order of stay. Thereafter, the restraint order was modified on the 5th March, 1963. It appears that during the course of the hearing of the case, the three other opposite parties were allowed to be added by an order dated the 25th September, 1963. An attempt to add the State of Bihar as an opposite party failed later on. Although the Commission was added as an opposite party, no specific prayer was made for any order against it. As a matter of fact, the original prayers made in the application still continue and there is no prayer for any relief against any of the added opposite parties.
Before filing this miscellaneous judicial case application the petitioner had filed a regular title suit on the 15th February, 1963, in the court of the Munsif 1st Court, Patna against the University and the Registrar of the University on the identical allegations made in this case, praying for similar reliefs, only couched in different terms. The title suit was numbered as Title Suit No. 50 of 1963 and the principal relief claimed in the suit was that the University be restrained by perpetual injunction from making permanent appointment of two professors of surgery for the college out of the two names sent by the Committee. A mandatory injunction was prayed for compelling the University to make the appointments in accordance with Section 54 of the 1962 Act, and the terms of transfer of 1960. In the title suit the petitioner-plaintiff had also asked for a temporary injunction restraining the University from making the disputed appointments, but by order dated the 20th February, 1968, the prayer was rejected. It appears that after this miscellaneous judicial case was admitted by this Court and an ad interim order passed in favour of the petitioner, the title suit was withdrawn. Another fact may be mentioned here from paragraph 33 of the present application, wherein it is stated that the petitioner had made certain representation to the Chancellor of the University, demanding justice, but no reply had been received to the said representation
3. The main point which had been argued on behalf of the petitioner, before the Division Bench, was whether in filling up the two posts of professors by promotion of teachers, was it incumbent upon the University to require that the provisions of Rules 13 to 14, mentioned above, were complied with, and, was it incumbent upon the Commission to follow strictly the provisions of these rules. It appears that the contention on behalf of the petitioner was that in the proposed appointments, the terms of transfer, read with the rules must apply to all the nominated teachers, transferred or otherwise, whereas the contention on behalf of the opposite parties was that the posis must now be filled up according to the requirements of the 1962 Act. The second point of importance that had been urged was, whether the petitioner should be allowed to move this Court under Article 226 of the Constitution of India, in view of the fact that after the University has acted finally on the recommendation of the Commission, the petitioner can move the Chancellor of the University under Section 9(4) of the 1962 Act. On the first point, Mahapatra, J. has held that the terms of transfer and the rules would be applicable in this case to all the persons nominated by the Government and, therefore, the recommendation of the Commission wits invalid and inoperative.
Nath, J. has held, on the other hand, that the terms of transfer and the rules cannot be applied in respect of a composite panel of transferred and non-transferred teachers, sent by the Government and the relevant provisions of the 1962 Act will apply to all the persons nominated in this case. On the second question, the view of Mahapatra, J. is that the alterative remedy under Section 9(4) of the 1962 Act was not available to the petitioner at the stage when he came to this Court and mere existence of an alternative remedy is not an impediment in the petitioner's way in asking this Court for the reliefs claimed. According to Nath. J. when the Chancellor can annul the proceedings of the University under Section 9(4) of the 1962 Act, no relief should be granted to the petitioner at this stage. A third subsidiary point had also been urged before the Division Bench, as to whether the petitioner can claim his reliefs against the University alone, without asking for any relief against the Commission. The answer given by Mahapatra, J. is in the affirmative whereas Nath, J. has held that any relief given to the petitioner against the University, would be futile in the absence of any direction or order passed against the Commission.
4. Upon differences between the conclusions of the two learned Judges, the following points have been formulated for consideration, namely:
"(1) Although the terms of transfer dated the 8th of July 1960 are applicable to all transferred Government medical officers (a) whether Clause 3(c)(1) (read with Rules 12 to 14) will apply to appointments in case of clinical subjects like surgery in the Prince of Wales Medical College; (b) whether the will stand modified by substitution thereof by the provisions of Sections 26(3) and (4) and Section 52 of the Patna University Act, 1961, in cases of appointment by promotion to posts in clinical subject where transferred Government officers and other Government officers are nominated by the State Government for consideration for such appointment.
(2) Whether the recommendations made by the Public Service Commission were invalid not being in accordance with Clause 3 (c)(1) of the terms or transfer.
(3) Whether the terms of transfer will apply to such Government medical officers nominated by the State Government for appointment to two posts of Professor of Surgery in the present case (4) Whether the writ or direction that may be issued to the University after a finding of invalidity, if any, in the recommendations made by the Public Service Commission in their presence, will be futile.
(5) Whether in the present case the writ application will fail for existence of an alternative remedy provided under Section 9(4) of the Patna University Act, 1961, or by a suit already filed.
(6) Whether the University shall be prohibited from making appointments on the basis of the recommendations received from the Public Service Commission."
Although the first three points have been urged by the learned counsel for the parties in as great detail as they were urged before the Division Bench, it appears to me that the most important question in this case is the one covered by the 5th point. In tracing the history of this litigation I have mentioned that the petitioner had made certain representations to the Chancellor of the University, as mentioned in paragraph 33 of the present application, which, according to the learned counsel for the petitioner, had been made sometime in the third week of December, 1962, apparently following the letter of the Commission to the University, dated the 18th/19th December, 1962. The Petitioner must have moved the Chancellor under the 1962 Act and presumably asking him to exercise his powers under Section 9(4) of the Act, although this fact is not clear from the application. If the representation made by the petitioner to the Chancellor had not been disposed of before the University had proceeded to act under Section 26(4) of the 1932 Act, the petitioner should have waited until he could properly move the Chancellor under Section 9(4), for annulling the proceeding of the University, if the appointments made by the University under Section 20(4) went against him. Instead of following this course of action, the petitioner took recourse to a regular title suit and failed in his attempt to obtain a temporary injunction against the University.
Instead of moving against the order refusing a temporary injunction in the title suit, this writ petition was filed, covering the same grounds involved in the suit, keeping the suit pending. As soon as the writ application was admitted and some interim relief was obtained by the petitioner, his purpose was fulfilled for the time being, in the sense, that the title suit became unnecessary. He promptly withdrew it. It is thus clear that the petitioner has been choosing his forum of litigation at his convenience, in the expectation that he would get redress in the forum of his own choice. When the petitioner conies to this Court for a writ of Mandamus (there is no question of a writ of Prohibition in this case), the history of the case cannot be wholly lost sight of. However, now that the title suit has been withdrawn, the question is whether the petitioner should be given in this writ application, or whether it should be held that in view of Section 9(4) of the 1962 Act, this Court should refuse to give him redress at this stage. In my opinion, this Court should refuse to come in aid of the petitioner at this stage. The petitioner must exhaust his remedies under Section 9(4) of the 1962 Act, if he is aggrieved by the decision of the University, before he can be permitted to move this Court under Article 226 of the Constitution, on the grounds on which he has filed this application.
In the matters involved in this controversy, it is my view that the more effective and efficacious remedy lies under Section 9(4) of the 1962 Act. For instance, in a proceeding under Section 9(4), on such questions as are involved here, the University will be heard by the Chancellor, and whatever may be his decision, at least the University shall be bound by it. But in the litigation that has been launched by the petitioner, the University has its own say, and if the judgment of this Court is adverse to the University, the latter may carry the litigation further. Then, although the petitioner was interested in the proceeding between the University and the Commission, for the ultimate selections, he was really not a party to the proceeding, in the sense, that, he was bound to be heard by any of these authorities, and, therefore, the apprehensions of the petitioner were merely surmises until the final decision had been taken by the University under Section 26(4) of the 1962 Act. His interest, if any, was really in an inchoate stage, at the point when he rushed into Court. The course that this case has taken from February 1963 up-to-date, clearly indicates, to my mind, that the course adopted by the petitioner has been more hazardous and burdensome than it would have been, had he been a little patient.
Some of the questions agitated by the petitioner In this Court, namely, those of his seniority vis a vis Dr. R. V. P. Sinha and Dr. U. N. Shahi and the effect of the leave taken by Dr. U. N. Shahi are such domestic matters that recourse to Section 9(4) would be more appropriate. For instance, it has been mentioned in the counter-affidavit filed by Dr. U. N. Shahi that the State Government had, in the past, included in other panels, persons who were not in the service of the University and selections had been made from such panels and a large number of instances have been mentioned in this counter-affidavit regarding appointments already made by the University. It is likely that a decision by this Court, on a writ application at this stage, may have repercussions on these appointments made by the University in the past. Moreover, if the judgment of this Court on this writ application compels the University to act in any particular manner, upon the conclusions arrived at by this Court, I fail to see how opposite parties Nos. 3 and 4 will be restrained from taking the matter to the Chancellor, under Section 9(4), at the appropriate stage. It is clear to my mind that a proceeding under Section 9(4) would be more efficacious, and, in any case, as their Lordships of the Supreme Court have repeatedly laid down for the guidance of the High Courts, when there is an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy, relief to the petitioner must be denied by this Court now.
5. Sri S. N. Datta arguing for the petitioner has contended that it would serve no purpose in approaching the Chancellor in this case, under Section 9(4), as he must be taken to have decided the matter already, as indicated by the following four documents, namely :
(i) Letter dated the 30th March, 1962, which is annexure D to the show-cause petition filed by Dr. R. v. P. Sinha.
(ii) Reply to this letter dated the 11th June, 1962, filed with the show-cause petition of the University,
(iii) Letter dated the 20th August, 1962, which is annexure 8 to the show-cause petition of the University.
(iv) Letter dated the 29th August, 1962, which is Annexure 9 to the same show-cause petition.
6. Upon these four documents it is contended that the Chancellor has already decided against the contentions raised by the petitioner in this case, based on the terms of transfer dated the 5th July, 1960, read with the rules mentioned above. I do not, however, think that this contention is valid and that the Chancellor would be precluded from considering the matter, as a whole under Section 9(4) of the 1962 Act, if he is called upon to do so at the proper stage. None of the documents shows that the Chancellor or his predecessor had applied his mind to these questions. In any event, I do not see how the Chancellor will be precluded from arriving at his own conclusions in a formal proceeding under Section 9 (4) of the 1962 Act, even if It be assumed that some tentative opinion had been expressed earlier in the four documents under consideration. After all, there is no material on the record to indicate how the first letter dated the 30th March, 1962, commenced and what were the representations made by the petitioner at that time.
The decision of their Lordships of the Supreme Court, in the case of Rashid Ahmad v. Municipal Board, Kairana, reported in AIR 1950 SC 163, relied upon by Sri S. N. Datta in this context, is not really of assistance to him, in Rashid Ahmad's case, AIR 1950 SC 163 their Lordships of the Supreme Court held that, on the facts of the case an appeal to the local Government could not provide an adequate legal remedy, as the respondent Board had put it out of its power to grant a licence, and as there was no special bye-law authorising issue of a licence. In the instant case, as indicated above, the Chancellor may very well accept the contentions raised by the petitioner in this case and the correspondence mentioned above cannot be put before him, precluding him from coming to conclusions in favour of the petitioner's contentions.
7. It is then argued by the learned counsel for the petitioner that the matters in controversy in this case cannot be decided by the Chancellor at any stage under Section 9(4) of the 1962 Act, because he cannot control the proceedings of the Commission, and if the Commission errs in any matter, the Chancellor will have no say. Although learned counsel may be right, in the sense, that the Chancellor may not be able to control the deliberations of the Commission, after reference Is made (to it, nevertheless, if the proceeding of the University is under the control of the Chancellor, then the Chancellor has the over-all control and his decision under Section 9 (4) is bound to end in an effective order in disputed cases. Moreover, if in this particular case, an effective control over the Commission is necessary, then the petitioner should have asked for an effective relief against the Commission also. The petitioner cannot urge that for purposes of this application, no relief against the Commission is necessary, and in the same breath, contend that an appeal under Section 9(4) will be Infructuous, because the Chancellor cannot give any relief against the Commission.
It has further been contended by Sri Datta that after this miscellaneous judicial case has been admitted by this Court and ad interim relief granted, the case must now be decided on merit, and the existence of any other alternative remedy, however efficacious, cannot be a ground for denying relief to the petitioner. Reliance Is placed on the case of G. Thangavel Nadar v. Deputy Commercial Tax Officer, Nannilam, reported In (1963) 2 Mad LJ 309. In my opinion, this argument is not valid, and until the final decision of this Court is given, the existence, efficacy and nature of any other alternative remedy Is open to scrutiny, and only because this case has been admitted, the petitioner cannot insist on a decision on merits, even if it be held that there is a moire efficacious remedy under the Statute governing the University of which the petitioner claims to be an employee. I am not inclined to follow the principle enunciated by the Madras High Court, An ex parte admission of a case cannot, in my judgment, lead to such a serious consequence, controlling cases at, the stage of hearing. It is only at the stage of final hearing in the presence of parties that this point can be fully dealt with for a reasoned conclusion.
Then, according to Sri Datta, when one of the learned Judges of this Court is of the view that on the merits of the case, the petitioner is entitled to relief, the petition cannot be disposed of on any other footing except that of a decision on merit. I do not accept this contention as valid, either. The very question as to whether this Court should interfere at this stage or not, is one of the matters formulated for decision and the existence or otherwise of an alternative remedy providing equally efficacious relief must be investigated for disposal of this case. Lastly, In connection with this point, Sri Datta has contended that the question of alternative remedy does not arise, if any fundamental right of a citizen is infringed, and in this case, the petitioner claims that his fundamental right has been infringed. Reference is made by learned counsel to Articles 14 and 16 of the Constitution of India in this context. I fail to see any infringement of any fundamental right as contended. It is clear that the application filed by the petitioner is not based on an infringement of any fundamental right, According to learned counsel, Rules 12 to 14 should have been made applicable to all the teachers, transferred or non-transferred; otherwise, there would be discrimination between transferred and non-transferred teachers In respect of the name in the panel sent by the Government on the 1st November, 1961. I do not appreciate the logic of this contention, as it may defeat its own purpose. If, for the sake of non-discrimination, the terms of transfer and the rules must apply to the transferred teachers and non-transferred teachers, It may equally be urged by the non-transferred teachers that the procedure under the 1962 Act should be applicable to all, otherwise, there will be discrimination between these two kinds of teachers. Whether the terms of transfer and the rules governing the transferred teachers should apply to non-transferred teachers also in a given circumstance, may very well be mooted before the Chancellor under Section 9(4) of the 1962 Act, and it will not be desirable to express a final conclusion at this stage on this question. But, I do not think any ground has been made out for holding that any fundamental right of the petitioner has been infringed in this ease.
8. In dealing with points Nos. 1, 2 and 3, learned counsel for the parties have taken them together for argument and the contention on behalf of the petitioner, in substance, is that the terms of transfer dated the 8th July, 1960, read with Rules 12 to 14 should be applied to all the persons nominated by the Government in their letter dated the 1st November, 1961, in this caser with the result that the Commission should have acted according to Rule 13, and should have advised the University in respect of each of the teachers of the panel. According to the learned Government Advocate appearing for the University, when the selection matter had commenced on the 1st November, 1961, by the letter of the Government, mentioning that the Government had nominated the seven persons, as required under Section 15 (5) of Act XIV of 1960, the University and the Commission had to conclude the matter under Section 26 of the 1962 Act, which came into force on the 1st March, 1962. That is to say, it is urged that the Commission had to act under Section 26 (3) of the 1962 Act and the University under Section 26 (4), thereafter.
I may mention here that it was not the contention of the parties, before the Division Bench, that the transferred teachers should have been dealt with under Rules 12 to 14 and the non-transferred teachers under the 1960 and 1962 Acts, separately, but Sri S. N. Dutta has touched upon that point also, urging that, that may also be the true construction of the terms of transfer and the Acts in question. In reply, the learned Government Advocate has shown that it would have been impracticable in this case to take recourse to me rules for the transferred teachers and the Acts for the non-transferred teachers. I do not propose to decide these matters in view of my conclusions given above. It would be anomalous to give my decision on these points, holding, that the petitioner must wait until final action has been taken by the University and then take recourse to Section 9 (4) of the 1962 Act.
9. I should mention that opposite party Nos. 3 and 4 have also opposed this application through their respective counsel, urging more or less similar points for consideration. According to the learned counsel for Dr. R. V. P. Sinha, the terms of transfer should be taken to have modified by Sections 26 and 52 of the 1962 Act, so far as appointments to clinical subjects are concerned. According to the learned counsel for Dr. U. N. Shahi, the seniority between the petitioner and his client had been decided long ago and that point cannot be re-opened within the scope of the present writ application. So far as the Commission Is concerned, the learned Advocate-General has appeared and it has been contended that according to the Commission It was not feasible for it to have sent two names for each of the posts, and reference, has been made to paragraph 7 of the counter-affidavit filed on behalf of the Commission. These matters should also be left out of final consideration by this Court, as, in my opinion, public policy requires that a controversy of this nature should, first be placed before the Chancellor of the University under Section 9 (4) of the 1962 Act, for solution if necessary, rather than that this Court should give its mandate at this stage. If this Court is successfully called upon to decide the matters in controversy at this premature stage, Section 9 (4) of the 1962 Act will be, in my opinion, wiped off the Statute altogether. The petitioner has failed to show what Irreparable injury he will suffer by waiting for the final selection of the University under Section 26 (4) of the 1962 Act and he ought not to be allowed to choose his forum at this stage, according to his own desire.
10. In the result, I am of the opinion that this application must fail and it is dismissed.