Patna High Court - Orders
Mahendra Pd.Singh vs Magadh University & Ors on 23 February, 2012
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18712 of 2011
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Mahendra Pd. Singh S/O Late Jagdish Singh, working as a Lecturer in the
Department of Chemistry, S. Sinha College, Aurangabad, P.O. + P.S.-
Aurangabad, Distt.- Aurangabad
.... .... Petitioner/s
Versus
1. Magadh University, Bodh Gaya, through the Registrar of the University,
Bodh Gaya.
2. The Vice Chancellor, Magadh University, Bodh Gaya.
3. The Registrar, Magadh University, Bodh Gaya.
4. The State of Bihar through the Secretary, Higher Education, HRD Deptt.,
Govt. of Bihar, Patna.
5. The Chancellor, Universities of Bihar, Raj Bhavan, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : M/s. Raghav Prasad No.-1 & Manoj Kumar
Yadav
For the University : Mr. Hans Raj
For the State : Mr. J S Arora, SC-6
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR
TRIPATHI
(C.A.V.)
6 23-02-2012The basic issue which merits consideration in the present writ application filed by the petitioner is whether he has a right of promotion from the post of a Lecturer to the rank of a Reader under time-bound promotion scheme in terms of the Statute dated 24.12.1986 or whether the right of the petitioner for consideration of time-bound promotion became extinguished by virtue of a new Statute brought into place on 23.9.1995. The respective Statutes are Annexure-4 and Anneuxre-6 to the writ application.
Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 2
2. Yet another issue which is required to be answered by this Court on the submission so made is whether the repeal or supersession of 1986 Statute by the 1995 Statute will have retrospectivity and or it can extinguish the right created in favour of the petitioner under time-bound promotion scheme i.e. 1986 scheme.
3. The facts leading to the present writ application are not an issue of dispute. However, they are required to be noticed for proper appreciation of the question of law which has been urged at the bar in assertion of the right of the petitioner for time bound promotion from the post of a Lecturer to a Reader.
4. Petitioner started his career as a Demonstrator in the Department of Chemistry in what is known as A. N. S. College, Navinagar, Aurangabad. That was way back in the year 1975. He was subsequently transferred to S Sinha College, Aurangabad where he was granted promotion on the post of a Lecturer on the recommendation of the Bihar State University Commission vide notification dated 5.8.1999. Promotion on the post of Lecturer was made effective from 22.12.1989. Petitioner has rendered 28 years of continuous service and 22 years as a Lecturer but promotion on the post of Reader or Senior Lecturer still alludes him despite a time-bound promotion scheme being in Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 3 place for major portion of the period of service.
5. The State of Bihar introduced the concept of time- bound promotion of Lecturers to the post of Readers. Statute in this regard was notified on 24.12.1986. It provided inter alia that all those Lecturers who had completed 10 years of continuous satisfactory service were entitled to the benefit of promotion to the rank of Readers. Many a persons became beneficiaries of such time-bound promotion scheme. Petitioner too was hopeful to be promoted to the rank of a Reader on completing 10 years of service on 22.12.1999. The eligibility of the petitioner would have been achieved after completion of 10 years of service on the rank of a Lecturer on 22.12.1999.
6. To the misfortune of the petitioner as is urged at the bar in a totally arbitrary and discriminatory manner, the State changed its policy by bringing into effect yet another Statute notified on 23.9.1995. This scheme has been termed as Career Advancement Scheme. The Career Advancement Scheme notified on 23.9.1995 (Annexure-6) had the effect of supersession of time-bound promotion scheme (Annexure-4). It is the case of the petitioner that due to the 1995 Career Advancement Scheme all those persons including the present petitioner, who was anticipating promotions in the next 2-3 years, were left in the Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 4 lurch and their legitimate expectation for time bound promotion was put to naught due to 1995 scheme. The Career Advancement Scheme had the effect of taking away the anticipated promotion which the petitioner was looking forward to under the time-bound promotion scheme.
7. It is the further case of the petitioner that this issue became the subject matter of agitation which led to some kind of understanding between the Government and the various representatives of the teaching community to extend the time bound promotion scheme at least till 10.7.2001 but nothing came to be done. Petitioner has been left with no option but to approach the Court to protect his right by seeking a direction upon the respondents to grant him promotion under the time-bound promotion scheme.
8. Some of the submissions which have been made in support of the claim of the petitioner for such a direction is that the 1995 scheme i.e. Career Advancement Scheme, is not in supersession of 1986 time bound promotion scheme but is an additional channel for promotion. There is an obligation upon the State to provide at least two avenues of promotions and the time bound promotion scheme was in furtherance to such an objective. Repealing or replacing the same by Career Advancement Scheme Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 5 violates that obligation and takes away right of an employee to beget such promotion. Yet another contention is that similar scheme exists for affiliated and minority colleges but this scheme of time bound promotion has been taken away ffrom teachers who are in University service or a constituent college. It is also contended that the time-bound promotion scheme was a beneficial legislation and it cannot be taken away or repealed to the detriment of the interest of those persons who were direct beneficiaries of such a beneficial legislation.
9. There is serious resistance to the writ application filed by the petitioner on behalf of the University and the State primarily on the ground that none of the questions which have been urged at the bar in support of the relief can stand the legal scrutiny by the Court. One of the primary contention on behalf of the respondents is that claim for promotion to an employee, including the present petitioner, is subject matter of rule or statute, from where the right flows. There is no inherent or fundamental right to demand or beget promotion. This is a right which is based on a set of rules and if the rule provides for a particular mode or manner of promotion then the intervention of the Court would be warranted only when there are deviations or breach.
10. The State Government with due approval of the Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 6 Chancellor as a matter of policy decided to bring in the time- bound promotion scheme in the year 1986. It remained in operation for almost a decade when based on inputs and its working further change was envisaged in public interest, by replacing the earlier time-bound promotion scheme with Career Advancement Scheme w.e.f. 23rd of September, 1995. The 1995 scheme was in supersession of the earlier scheme which has the effect of repeal of the earlier scheme. In view of the same the petitioner cannot demand benefit of promotion under the scheme which is no longer in existence.
11. Petitioner only had a chance of promotion to be made a Reader after 22.12.1999 under 1986 Statute on completion of 10 years of service as a Lecturer. If the rule or the law underwent a change before the petitioner could complete 10 years of service, his claim for promotion would be considered under the new Statute and not under the repealed Statute. Mere chance of promotion is not a right bestowed upon the citizen to claim or beget a mandamus upon the respondents.
12. Coming to the first contention of the petitioner that the 1995 Scheme was not in supersession of 1986 Scheme but was an additional channel of promotion, does not find support from any quarter. Merely because the 1995 Scheme does not use Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 7 the expression "repeal" and the word "supersession" has been used, it does not mean that the earlier scheme or the statute still remains in force. If there was intent on the part of the framers of the rules to continue with the old scheme of time bound promotion, the 1995 Statute would have surely protected the earlier scheme from repeal. It is the stand of the respondents that merely because the word "repeal" has not been used in 1995 Statute, the word "supersession" will have the same effect as the word "repeal". In this regard, reliance has been placed on an earlier decision of the Apex Court, which is the case of State of Orissa and others v. Titaghur Paper Mills Company Limited and another, 1985 (Supp) Supreme Court Cases 280. A part of the observation of the Apex Court of paragraph 66 has been relied upon and is being reproduced hereinbelow:
"66. .................................................. ...................................................... In the notifications dated December 29, 1977, the word „supersession‟ is used in the same sense as the word „repeal‟ or rather the words "repeal and replacement". The Shorter Oxford English Dictionary, third edition, at page 2084, defines the word „supersession‟ as Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 8 meaning "The action of superseding or condition of being superseded". Some of the meanings given to the word „supersede‟ on the same page in that dictionary which are relevant for our purpose are "to put a stop to; to render superfluous or unnecessary; to make of no effect; to annul; to take the place of (something set aside or abandoned); to succeed to the place occupied by; to supply the place of a thing". Webster‟s Third New International Dictionary at page 2296 defines the word „supersession‟ as "the state of being superseded: removal and replacement". Thus, by using in the notifications dated December 29, 1977, the expression "in supersession of all previous notifications" all that was done was to repeal and replace the previous notifications by new notifications. By repealing or replacing the previous notifications by other nitrifications, the result was not to wipe out any liability accrued under the previous notifications. If this contention of the respondents were to be Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 9 accepted, the result would be startling. It would mean, for example, that when a notifications has been issued under Section 5(1) prescribing a rate of tax, and that notification is later superseded by another notification further enhancing the rate of tax, all tax liability under the earlier notification is wiped out and no tax can be collected by the State Government in respect of any transaction effected during the period when the earlier notification was in force."
13. The opinion expressed by the Apex Court in Titaghur Paper Mills Company Limited (supra) has also found favour in a recent decision of the Supreme Court rendered in the case of Union of India vs. Glaxo India Limited and another, (2011) 6 SCC 668. Para 41 which has reproduced some of the observation of the Apex Court in the earlier decision, is quoted hereinbelow:
"41. The position here is somewhat analogous to the one considered in State of Orissa v.
Titaghur Paper Mills Co. Ltd. In the said decision, the effect of supersession of Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 10 notifications under the Orissa Sales Tax Act came up for consideration. Referring to the effect of supersession of the notification, this Court observed : ( SCC p. 374, para 127)) "127. (6) The word „supersession‟ in the Notification dated 29.12.1977, is used in the same sense as the words „repeal and replacement‟ and, therefore, does not have the effect of wiping out the tax liability under the previous notifications. All that was done by using the words „in supersession of all previous notifications‟ in the Notification dated 29.12.1977, was to repeal and replace previous notifications and not to wipe out any liability incurred under the previous notifications."
14. Reliance has also been placed on a decision rendered by a learned Single Judge of Gauhati High Court which is the case of T. Phungjathang vs. State of Manipur and others, AIR 1999 Gauhati 75. Since para 18 has significance and relevance to the present case, the same is also being quoted with approval.
"18. Now let us see whether the term Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 11 "Supersession" amounts to "Removal".
The Shorter Oxford Dictionary, 1936 Ed.
Vol.11, page 2084, assigns to the word „supersede‟ in the following terms.
(1) to make of no effect; to render void, nugatory or useless; to annul, to override;
(2) to be set aside as useless or obsolete; to be replaced by something regarded as superior; (3) take the place of (something set aside or abandoned); to succeed to the place occupied by; to serve, be adopted or accepted instead of; (4) to supply the place of ( a person deprived of or removed from an office or position) by another;
(5) of a person; to take the place of (someone removed from an office or promoted), to succeed and supplant (a person) in a position of any kind."
Therefore, according to the Dictionary meaning, the term "Supersede" amounts to removal. If that is so, the procedure prescribed u/S. 16 of the Act must be followed before any Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 12 action is taken removing any member from the post. In the instant case, giving a reasonable opportunity of hearing has been embodied in the statute itself. There is no denying the fact that the impugned notification dated 23rd December, 1977 has been issued replacing the petitioner as Chairman by the respondent No.2 during the validity of the term of the petitioner as Chairman of the Authority. The impugned notification dated 23rd December, 1977 therefore is clearly in violation of the statutory provision of Section 16 of the Act. In the instant case, it appears that the appropriate authority applied the backdoor method in the guise of superseding of the earlier order appointing the petitioner as Chairman of the Authority. What cannot be done from the front door cannot be done from the back door as well."
15. At the cost of repetition, respondents further urge that the petitioner has no vested right to demand or beget promotion under the superseded statute but was a mere chance of Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 13 promotion under the old scheme or statute. Once a new statute came into force, claim of the petitioner for promotion to the next higher rank or post will have to be judged or decided strictly within the scheme which is currently in operation i.e. 1995 Scheme of Career Advancement.
16. If the Court takes into consideration the ratio of the decisions which have been cited above that there is no distinction between the word "supersession" or "repeal" and supersession amounts to annulment of the earlier statute, then the contention of the petitioner that the 1995 Scheme was an additional channel of promotion without affecting the right created under 1986 scheme seems to be basically flawed. If there was any intent of the legislature or framers of the rules to continue with the old time bound scheme, they would have supplemented the said scheme by incorporating or amending the said scheme and not superseding it by bringing yet another scheme in the year 1995.
17. As to the claim of the petitioner that every employee is entitled to at least two avenues of promotions, the decision relied by him in this regard, which is 2004 (2) PLJR 8 (SC) or 2001 PLJR 493, has no applicability to the case of the present petitioner because Courts have talked about providing at Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 14 least two avenues of promotions in matter of such employees who by very nature of their engagement and employment in service are engaged at a particular rank and also retire at the same post or position. Such analogy cannot be utilized for the case of the present petitioner who has already got promotion from the post of a Demonstrator to a Lecturer and still has avenues of promotion to the post of a Reader or a Professor but not under a definitive time frame but by virtue of fulfillment of requirement under the scheme in operation since time bound scheme is no longer in operation. Mere chance of promotion arising from the earlier scheme will not entitle the petitioner to draw advantage of a repealed or superseded scheme.
18. So far as allegation of violation of Article 14 of the Constitution of India is concerned, since similar scheme still exists for affiliated or minority colleges, with due respect to the counsel for the petitioner, teachers of University and constituent Colleges form a class by themselves and they cannot be equated with affiliated and minority colleges, which are governed by a separate set of rules altogether.
19. Submission has also been made by the petitioner that law prohibits divesting of a right which has already accrued in favour of a person from retrospective date. One of the Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 15 decisions which has been relied upon by the petitioner in support of such case is Food Corporation of India and others v. Om Prakash Sharma and others (1998) 7 SCC 676.
20. The Court fails to understand the applicability of the facts and the decision rendered by the Apex Court so far as its applicability to the present case is concerned because the so- called vested right of the petitioner to claim time bound promotion remained vested so long as the statute was in place. If amendments and changes came about to the said statute, the same cannot remain the foundation or the touchstone to claim benefit out of it, even if it stood repealed or superseded. The right of the petitioner to beget time bound promotion existed so long as that scheme was in place. If a new rule or the statute has come into play and put into effect before the petitioner became eligible for a time bound promotion, the scheme for promotion of the petitioner would be guided by the statute in operation and no benefit can accrue to him on the basis of a repealed statute.
21. In totality therefore, the claim of the petitioner for a direction upon the respondents to grant him benefit of promotion to the post of a Reader under time-bound promotion scheme, which is no longer in existence, is unreasonable kind of prayer, not worthy of consideration for the reasons indicated in Patna High Court CWJC No.18712 of 2011 (6) dt.23 -02-2012 16 the earlier part of the order.
Writ has no merit and is being dismissed accordingly.
(Ajay Kumar Tripathi, J) R.K.Pathak/-