IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11565 of 2001 ====================================================== 1. Dr. Umesh Chandra Das son of Late Hem Narayan Das, resident of Mohalla – Shantipuri, P.S. Motihari, District East Champaran (Motihari), at present posted as Professor of Chemistry, Sri Narayan Singh College, Motihari 2. Dr. Bijay Bhushan Prasad son of Late Krishna Kumar Prasad, resident of Mohalla – Azadnagar, Baluatal, P.S. – Motihari, District –East Champaran (Motihari) at present posted as Reader, Department of Zoology, Sri Narayan Singh College, Motihari. 3. Dr. Nand Kumar Prasad (N.K.Prasad) son of Late Ram Krishna Sinha, resident of Mohalla – Shantipuri, P.S. Motihari, District - East Champaran (Motihari) presently posted as Reader, Department of Hindi Sri Narayan Singh College, Motihari. 4. Dr. Narayan Prasad son of Late Ganesh Prasad, resident of Sonapatti, P.S. Motihari District –East Champaran (Motihari) at present posted as Reader, Department of Zoology, Sri Narayan Singh College, Motihari. 5. Dr. Amarendra Kumar son of Late Bishwanath Prasad, resident of Mohalla Satpura, Ramna, P.S. and District Muzaffarpur, at present posted as Reader, Department of Zoology, Lalit Narayan Tirhut College, Muzaffarpur. .... .... Petitioners Versus 1. The Chancellor, Universities of Bihar (B.R.Ambedkar Bihar University), Raj Bhawan, Patna 2. The B.R.Ambedkar Bihar University, Muzaffarpur through its Registrar Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 2/22 3. The Vice-Chancellor, B.R.Ambedkar Bihar University, Muzaffarpur. 4. The Registrar, B.R.Ambedkar Bihar University, Muzaffarpur. 5. The Officer-on –Special Duty (University) Governor’s Secretariat, Raj Bhawan, Patna ... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.2387 of 2008 ====================================================== Dr.Krishna Mohan, S/o late Jagdish Sharan, a resident of Mohalla – Kalambagh Road, Opp. Reliance Petrol Pump, P.O. Ramna, P.S. Kazi Mohammadpur, District Muzaffarpur. .... .... Petitioner Versus 1. The B.R.A.Bihar University through its Registrar having office at University Campus, Muzaffarpur. 2. The Vice-Chancellor, B.R.Ambedkar Bihar University, Muzaffarpur 3. The Selection Committee through Chairman cum Vice- Chancellor, BRA Bihar University, Muzaffarpur 4. The Syndicate, BRA Bihar University, through the Vice- Chancellor having office at Muzaffarpur. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11496 of 2008 ====================================================== Dinesh Chandra Baluni, son of Late Pandit Durga Prasad Baluni, a resident of Mohalla – Atardah, Hajipur Road, Badrinath Bhavan, Post Office – Ramana, Police Station – Ramana, P.S. Sadar in the Town and District of Muzaffarpur .... .... Petitioner Versus 1. The B.R.A.Bihar University through its Registrar University Campus, Muzaffarpur. Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 3/22 2. The Vice Chancellor, B.R.A.Bihar University, Campus, Muzaffarpur 3. The Selection Committee, B.R.A. Bihar University through Chairman-cum-Vice Chancellor, Muzaffarpur. .... .... Respondents ====================================================== Appearance : (In CWJC No.11565 of 2001) For the Petitioners : M/s Gyanand Roy & Sheo Nandan Mishra, Advocates For the Respondent - : Mr. Rajendra Giri, Advocate Chancellor For the Respondent : Mr. Mrigank Mauli, Advocate University (In CWJC No.2387 of 2008 & CWJC No.11496 of 2008) For the Petitioners : M/s A.B.Ojha, Sr. Advocate, Sriniwas Jha, Bharat Bhushan & Nitesh Kumar, Advocates For the Respondent - : Mr. Rajendra Giri, Advocate Chancellor For the Respondent : Mr. Harendra Kumar Tiwary, Advocate University ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN C.A.V. ORDER 35 23-04-2014 In view of identical issues being involved the writ applications have been considered together and are being disposed of by a common order. The C.W.J.C. No. 11565 of 2001 was filed for direction to the respondent B.R.Ambedkar Bihar University and its Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 4/22 authorities to immediately take follow up action on the recommendation made by the Bihar State Universities (Constituent Colleges) Service Commission (hereinafter referred to as “the Commission”) by issuing notification of promotion of the petitioner nos. 2 to 5 from the post of Reader to the post of University Professor fixing their pay in the scale admissible to the University Professor with effect from the respective dates of their promotion and also to grant all the consequential benefits. However, petitioner No. 1 sought relief to immediately fix his pay in the scale of University Professor with effect from 12.12.1989 as per notification of promotion issued by the University vide memo no. B/78 dated 17.1.2000 and memo no. B/1347 dated 12.6.2000 and also for grant all consequential benefits. A declaration was also holding that the staying the process of shifting back the dates of promotion of the Professor under 16 years time bound promotion scheme and follow up action by the Chancellor vide his letter dated 30.8.2000 addressed to all the Vice Chancellor would not be applicable in the case of the petitioners. However, for the reasons mentioned in the order dated 28.11.2013 this application was dismissed as not pressed with respect to the petitioner no. 1. Later on I.A. No. 4175 of 2007 was filed in this writ Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 5/22 application for amendment in the relief portion. It stood stated in the aforesaid interlocutory application that during the pendency of this case the University notified the promotion of the petitioner nos. 2 to 5 in the rank of University Professor vide Annexures 15 and 15/1 dated 14.11.2006 and 15.11.2006 respectively. However, the aforesaid notifications were again recalled vide memo no. B/844 dated 5.5.2007 as contained in Annexure 16. As a consequence the petitioners sought liberty to challenge Annexure 16. The interlocutory application was allowed on 28.11.2013. So far the C.W.J.C. No. 2387 of 2008 and C.W.J.C. No. 11496 of 2008 are concerned they have been filed after the recall of the notification of promotion of the petitioners to the post of University Professor vide office order contained in memo no. 13/844 dated 5.5.2007. All the petitioners of the writ applications are claiming promotion to the post of University Professor under time bound promotion scheme. In C.W.J.C. No. 11565 of 2001, it is common case of the petitioners that they are eligible for such promotion under the time bound promotion scheme after completion of 16 years of service as Reader in their respective departments. From the averments made in C.W.J.C. No. 11565 of 2001 it appears that their promotion to the post of University Professor under time Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 6/22 bound promotion scheme was recommended by the Commission vide its letters contained in Annexures 6 and 7. It appears that their date of promotion was shifted back by the Commission. The Chancellor vide letter dated 30.8.2000 contained in Annexure 8 had stayed the shifting back of the date of promotion of the University Professors. The aforesaid decision of the Chancellor came to be challenged by filing writ applications which were heard analogous and were allowed vide order dated 19.4.2001 (Annexure 9) holding that the order concerned of the chancellor was not in conformity with the provisions contained in Section 10(4) of the B.S.U. Act, 1976. The order dated 19.4.2001 passed by the Single Bench was challenged by the Chancellor of the Universities of Bihar by preferring L.P.A. Nos. 443, 467 and 468 of 2001 in which the Division Bench had asked the Chancellor to dispose of the pending matter with regard to the shifting of dates by taking a final decision. The Chancellor of the University had taken a decision on 14.1.2005 giving certain direction for consideration of certain conditions at the time of granting time bound promotion as University Professor. The Chancellor has held that the Screening Committee constituted for the purpose should examine every aspect of the matter and then take a decision. It goes without Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 7/22 saying that the Chancellor had set aside the earlier notifications with respect to some of the Readers of Patna University granting promotion to the post of University Professor and had directed to rescreen the eligibility, suitability and fitness of Readers. Thereafter, such Screening Committee was constituted and upon its recommendation certain notifications were issued which came to be challenged by some of the teachers of the Patna University in C.W.J.C. No. 9939/2005 and other analogous matters which were allowed and all the impugned notifications were set aside vide order dated 9.8.2006 (Annexure 13). The matter was remitted to the respondent University to reconsider the cases of the petitioners in light of the recommendation of the properly constituted Screening Committee in accordance with the provisions of the Statute after granting opportunity of hearing to the respective parties. It appears that, after aforesaid order having been passed in the batch cases, the B.R.Ambedkar Bihar University, Muzaffarpur came up with the notifications dated 14.11.2006 (Annexure 15) and 15.11.2006 (Annexure 15/1) notifying the promotion of the petitioner and others from the post of Reader to the rank of University Professor under time bound promotion scheme. Similar notifications came up with respect to the Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 8/22 petitioners of other writ applications. However, in the meantime L.P.A. No. 607/2006 was preferred against the aforesaid order passed by the Single Bench in which, it appears, that an order was passed stating the operation of order dated 17.1.2007 which had led to recall of orders of promotion. Such documents of the University have been challenged in all the writ applications under consideration. It has been submitted that it would appear from the office order denotifying the earlier promotion granted by the University that same was done in view of interim order having been passed in L.P.A. No. 607 of 2006 on 17.1.2007 as no other reason has been assigned. However, subsequently the L.P.A. itself stood dismissed as not pressed vide order dated 29.6.2010 passed in L.P.A. No. 607 of 2006 and other analogous matters. A copy of the order has been produced at the time of hearing. It stands clearly recorded in the concluding paragraph of the aforesaid order that all the interim orders passed by the Division Bench automatically stood vacated with the disposal of appeals. The Vice Chancellor of Patna University was directed to carry out the direction contained in the order dated 9.8.2006 passed by the learned Single Judge which was under challenged in the Appeal. Thus, it is submitted that the basis of denotification of Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 9/22 petitioner’s promotion, i.e. the interim order granted in the aforesaid appeal having been vanished from the scene, the University was duty bound to recall Annexure 16 and the consequential office orders contained in Annexures 17 and 18 and the earlier orders granting promotion after shifting back the dates as contained in Annexues 15 and 15/1 in the C.W.J.C. No. 11565 of 2001 and Annexures 2 and 3 in C.W.J.C. No. 2387/2008 as well as Annexure 8 in C.W.J.C. No. 11496/2008, should be restored back. Counter affidavits have been filed on behalf of University authorities. Learned counsel for the University miserably failed to demonstrate before this Court that there was any other reason, which emanates out of the impugned office order denotifying the earlier notification of promotion, for taking such decision than the interim order having been passed in L.P.A. No. 607/2006 and analogous matters. Further, the appeal having been already dismissed as not pressed and the interim order already having recalled vide the final order passed in the concerned appeal as has been discussed above, how the aforesaid office orders would survive. However, learned counsel drew attention of several orders and passages of the counter affidavit to impress upon this Court that the core issue involved Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 10/22 in the writ applications is determination of date on which a Reader would be deemed to have acquired the experience of guiding research at the doctoral level. It has been stated in the counter affidavit that a time bound promotion Statute was framed at the first instance by the Chancellor on 22.12.1986 for the purpose of promotion of Reader to the post of Professor on completion of 25 years of service as lecturer. However that was amended on 20.11.1987 fixing criteria which stands recorded in paragraph 6 of the counter affidavit and is being reproduced for better appreciation. “a. A Reader possessing the qualification of University Professor prescribed by the University Grants Commission serving in a University Department or in a Degree College, managed and maintained by the University and who has completed at least 16 Yrs. of continuous service as Lecturer/Reader in one or more Universities shall or the recommendation of the Bihar State University Constituent Service Commission be promoted to the post of University Professor other conditions being the same.” However, subsequently the University Grant Commission Regulation 1991 came into existence which provided qualification for promotion of Readers to the post of University Professor. The relevant passage is quoted as under:- “An eminent scholar with published work of high quality actively engaged on research, about ten years of experience in post graduate teaching and/or research at the University/National Level Institute including experience of guiding research at doctoral level.” Or “An outstanding scholar with established reputation who has grade significant contribution Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 11/22 knowledge.” Thereafter, a meeting of Vice Chancellor was held with the State Government on 21.3.1988 and a circular was issued stating that for promotion under time bound promotion scheme, apart from continuous service of 16 years of Lecturer / Reader, the candidates should be holder of Ph.D. degree and must have successfully guided research leading to conferment of Ph.D. degree on at least one person. The aforesaid circular came to be challenged in C.W.J.C. No. 3050 of 1988. A Division Bench of this Court, vide its judgment delivered in the aforesaid writ applications which was heard analogous with other matters, had set aside the circular on the ground that insertion of additional qualification other that what were prescribed by U.G.C. was erroneous. It was further held that in case of any deficiency having been found in the Statute, that could only be rectified by amending the Statute and not coming with a circular etc. Universities were directed to screen the candidates for grant of promotion strictly in accordance with the statute and the qualification laid down by the University Grant Commission. Apart from continuous service of 16 years as Lecturer / Reader the qualification laid down by the University Grant Commission for the said purpose was being followed but a question arose in Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 12/22 the meantime as to how to calculate the period of experience of guidance of research at the doctoral level. It has been stated in the counter affidavit that University started treating the date of registration of the candidates under supervision of the teacher concerned mechanically as the date on which such teacher acquired experience of guiding research at the doctoral level. However, that was stayed vide order dated 13.1.2000 which was challenged by filing C.W.J.C. No. 12405 , 11709 both of the year 2000 and C.W.J.C. No. 2969 of 2001. The stay order was quashed by a Single Bench of this Court on 19.4.2001 as it has been discussed above against which L.P.A. Nos. 443, 467 and 468 of 2001 were preferred by the Chancellor. The Division Bench has held that the Chancellor was fully justified in passing the stay orders and advised the Chancellor to dispose of the pending matter with regard to the shifting of dates of promotion of some of the teachers of the Patna University within a period of six weeks upon which the Chancellor had disposed of the matter on 14.1.2005 holding that the date of registration should not be mechanically taken as a cut date for promotion rather the Screening Committee of the University should examine the eligibility, suitability and fitness of a teacher on the basis of gained experience of guiding research during length of time Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 13/22 supported by actual research work done by the student and publication of standard research papers and other materials which may really be considered as contribution to the knowledge. It is submitted that the aforesaid direction of the Chancellor holds the field and is still operative. It has further been stated that the Bihar University Service Commission vide its letter no. 299 /BSUC dated 11.6.2005 has opined, in light of direction of the Chancellor that with regard of experience of guiding research at doctoral level the date of submission of Ph.D. thesis under the supervision of the teachers concerned should be treated as date of acquiring experience in guiding research. The aforesaid issue is a creating whole trouble. On earlier occasion a Single Bench of this Court has considered the relevant aspect of the matter in C.W.J.C. No. 2014 of 1997 which was allowed on 30th September, 1997. In that case the Bihar State University Commission was also a party. The relevant passage of the aforesaid order of the Single Judge is reproduced hereinbelow for better appreciation. “8. From the aforesaid regulation, it is clear that a Ph.D. student under the guidance of a Teacher becomes student from the date of registration. Such student is required to present himself for examination not later than four academic years after registration, which is six academic years for a teachers of University undergoing Ph.D. Degree. This can be extended by two years for submission of thesis by the Academic Council in case of hardship. Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 14/22 Thus while guiding research at the doctoral level starts from the date of registration of the students fro Ph.D. Degree, it has got nothing to do with publication of result of Ph.D. Degree of such students. It is the experience during the intervening guiding period at the doctoral level, which is the requirement to count experience of a Reader for promotion to the post of University Professor and the same has got nothing to do after the student obtained Ph.D. degree on passing the examination. 9. Accordingly, I hold that the petitioners are entitled to count their experience of guiding research at the doctoral level from the date they guided their respective students and not from the date such student obtains Ph.D. Degree. The interpretation as was initially given by the University for promotion of petitioners to the post of University Professor thus is the correct interpretation and not the interpretation given by the Commission as ell as the impugned notification dated 27th February, 1997 so issued with respect to the petitioners.” It emanates out from the aforesaid passage that the learned Single Judge has held that the experience of guiding research at the doctoral level starts from the date of registration of the students for Ph.D. Degree. It should not be construed with the publication of result of Ph.d. Degree of such students. It is the experience during the intervening guiding period at the doctoral level which would be the requirement to count experience of a Reader from promotion to the post of University Professor. Now, though learned counsel for the University has contended that the B.R.Ambedkar Bihar University was not a party in the aforesaid case but at the same time it is apparent from the order that Bihar State University Commission was of course a party to the aforesaid proceeding and, thus, it has to be seen as to whether Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 15/22 under what circumstances the Commission has opined and the University is following the date of submission of thesis for the purpose of completing the experience of guiding research. Though it is stated that the commission has passed such order in the light of direction of the Chancellor but the learned counsel has miserably failed to demonstrate that even the order of Chancellor discloses that the date of submission of thesis would require to be taken as cut the date. The Chancellor has only held that the date of registration of candidate under a teacher should not be mechanically treated as concerned date for the said purpose. The order no where discloses that the submission of thesis would be the cut date rather it has stated that the Screening Committee would have to consider several other aspects for coming to a conclusion. There can be several other reasons for not accepting the procedure in this respect which is being followed by the University at the strength of some direction of the Commission as stated in paragraph 26 of the counter affidavit. A reason for not accepting such procedure being followed by the University would be non adherence to the statutory provision in this respect contained in Section 10 of the Bihar State Universities (Constituent Colleges) Service Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 16/22 Commission Act, 1976. Section 10(b) clearly lays down that, for setting out principle which is to be followed for granting promotion, the Universities would be required to consult the Commission. That means that such principle should be set only after consultation with the Commission. This Court had asked the learned counsel for the respondent University to produce the records which shows that there had been any consultation on this aspect between the University and the Commission. Nothing could be shown in this regard to the satisfaction of this Court . The stand taken by the University that the Commission has come up with such provision only in view of the direction of the Chancellor contained in order dated 14.1.2005 would also not be tenable in view of absence of such direction in the aforesaid order. There could be several other reasons also for not accepting the date of submission of thesis as a cut date. A Single Bench of this Court, while considering this aspect in C.W.J.C. No. 2014 of 1997, had examined the regulations framed for the purpose of admitting a candidate for the doctoral research and for award of Ph.D. degree. Though learned counsel for the respondent University has submitted that aforesaid case was with respect to the Magadh University, however, a copy of the regulation framed for such purpose by the B.R.Ambedkar Bihar Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 17/22 University having been produced at the time of hearing by the respondents does not disclose any significant difference between two Statutes. The relevant portion of Regulation of B.R.Ambedkar Bihar University is quoted as follows : “1. Candidates may be examined for the . Ph.D. degree in Arts, Science, Education, Commerce, Law, Agriculture, Medial Science of Engineering. (a) Any person, who holds the degree of Master of Arts, Science, Education, Commerce, Law, Agriculture (or subject allied to it), Medical Science or Engineering of the University of Bihar and has secured a first or second class award or post-graduate diploma of another University or Institute recognised by this University as equivalent thereto, any apply for registration as a candidate for the Ph.D. degree in Arts, Science, Education, Commerce, Law Agriculture (or subject allied to it), Medical Science or Engineering, and if registered offer himself for the Ph.D. examination at any time, not less than 2 years from the date of his registration. Provided that in case were even a 3rd class degree holder has published some research papers, considers such published research papers of sufficient value, allow such person to supplicate for the degree. X X X X X X X X” It appears that candidate can only appear in Ph.D. examination after minimum research work of a period two years. That would definitely mean that he cannot submit his thesis within a period less than two years from the date of registration and, at the time of making of application for examination, the candidate would be required to submit four copies of printed or typed written thesis as per Regulation 7. In my considered opinion the date of submission of Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 18/22 thesis by a candidate may depend upon other factors also apart from his or his guide’s skill. For example, the topic of research may be more complex