IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1749 of 2010 1.THE RAJENDRA AGRICULTURE UNIVERSITY, THROUGH ITS REGISTRAR, HAVING ITS OFFICE AT PUSA, SAMASTIPUR. 2.THE VICE-CHANCELLOR, THE RAJENDRA AGRICULTURE, UNIVERSITY, PUSA, SAMASTIPUR. 3.THE DIRECTOR ADMINISTRATION, THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT- SAMASTIPUR. 4.THE REGIONAL DIRECTOR, AGRICULTURAL RESEARCH INSTITUTE, PATNA. .......... RESPONDENTS/APPELLANTS. Versus BINOD BIHARI PRASAD SINHA, S/O SRI CHHOTE NARAIN, RESIDENT OF J. SECTOR-4. QUARTER NO. 28, PEOPLES CO-OPERATIVE COLONY, LOHIA NAGAR, PATNA-800020. .........PETITIONER/RESPONDENT 1ST SET. DR. ARUN KUMAR BHAGAT, S/O SRI RAM KISHUN BHAGAT, JUNIOR SCIENTIST (PLANT PATHOLOGY), IRRIGATION RESEARCH CENTRE, BIKRAMGANJ. ........RESPONDENT/RESPONDENT 2ND SET. with LPA No.1742 of 2010 1.THE RAJENDRA AGRICULTURE UNIVERSITY, THROUGH ITS VICE-CHANCELLOR, BIHAR, PUSA, DISTRICT-SAMASTIPUR. 2.THE VICE-CHANCELLOR, THE RAJENDRA AGRICULTURE,UNIVERSITY,BIHAR,PUSA, DISTRICT-SAMASTIPUR. 3.THE REGISTRAR, THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT- SAMASTIPUR. 4.THE DIRECTOR ADMINISTRATION, THE RAJENDRA AGRICULTURE UNIVERSITY,BIHAR, PUSA, DISTRICT-SAMASTIPUR. ..........RESPONDENTS/APPELLANTS. Versus 1.BHARAT PRASAD, S/O LATE RATAN LAL, RESIDENT OF MOHALLA PIRBAHOR, P.O. MAHENDRA, P.S. PIRBAHORE, DISTRICT PATNA, AT PRESENT POSTED AS JUNIOR SCIENTIST-CUM-ASSISTANT PROFESSOR (SOIL SCIENCE DEPARTMENT), AGRICULTURE RESEARCH INSTITUTE, PATNA-800020, THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT-SAMASTIPUR. 2 2.ARBIND PRATAP SINGH, S/O SRI SURYA NARAIN SINGH, RESIDENT OF VILLAGE DEWAN KE BARKA GAON, P.S. SIKRAUL, DISTRICT-BUXAR AT PRESENT POSTED AS JUNIOR SCIENTIST-CUM-ASSISTANT PROFESSOR, PLANT PATHOLOGY, AGRICULTURE RESEARCH INSTITUTE, PATNA-800020, UNDER THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT-SAMASTIPUR. 3.MADAN MOHAN SHARMA, S/O LATE BANWARI SHARMA, RESIDENT OF VILLAGE-KANSARE BISHUNPUR TITIDHA, P.S. RAJA RAKAR, DISTRICT-VAISHALI AT PRESENT POSTED AS JUNIOR SCIENTIST-CUM- ASSISTANT PROFESSOR (SOIL SCIENCE DEPARTMENT) AGRICULTURE RESEARCH INSTITUTE, PATNA-800020, THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT-SAMASTIPUR. 4.BARBADESHWAR PRASAD, SINGH, S/O SRI RAM KISHUN SINGH, RESIDENT OF GHATEYAN, AURAIYAN, P.S. KUDRA, DISTRICT KAIMUR (BHABHUA), AT PRESENT POSTED AS JUNIOR SCIENTIST-CUM- ASSISTANT PROFESSOR (PLANT BREEDING), AGRICULTURE RESEARCH INSTITUTE, PATNA- 800020, THE RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, DISTRICT-SAMASTIPUR. 5.MITHILESH KUMAR SHRIVASTAVA, S/O LATE J.N. SHRIVASTAVA, JUNIOR SCIENTIST-CUM-ASSISTANT PROFESSOR, (SOIL SCIENCE) AGRICULTURE RESEARCH INSTITUTE, PATNA- 800020. ........PETITIONERS/RESPONDENTS 1ST SET. 6.THE STATE OF BIHAR THROUGH AGRICULTURRE PRODUCTION COMMISSIONER, AGRICULTURE DEPARTMENT, HAVING ITS OFFICE IN VIKAS BHAWAN, NEW SECRETARIAT BUILDING, PATNA, P.S. SACHIVALAYA, DISTRICT-PATNA. .........RESPONDENT/RESPONDENT 2ND SET. For the appellant: 1. Mr. Dr. A.K Upadhayay 2. Chandramohan singh. 3. Samir kumar sinha. For the respondents:1.Mr.GajananArun (in L.P.A NO.1749/10). 2.Mr. A. B. Ojha (in L.P.A NO.1742/10) ----------- 5/ 06.12.2010 These two appeals arise out of a common judgment dated 11.05.2010, in C.W.J.C No. 1251 of 1997 and C.W.J.C No. 105 of 1998, whereby and whereunder, the learned 3 Single Judge has allowed the prayer of the writ petitioners-respondent for grant of senior scale from 01.01.1986 with consequential benefits. The case of the writ petitioners- respondent, as would be apparent from the factual narration given in the memo of appeal filed by the University is that in the year 1961-1966, the respondent-writ petitioners except one Binod Bihari Sinha had been appointed initially as Junior Research Assistant with their qualification as Bachelor in Science. They subsequently came to be promoted on the post of Assistant Research Officer in between 1969 to 1973, whereas Binod Bihari Sinha also having qualification of Bachelor in Science was directly appointed on the post of Field Supervisor an equivalent post of Assistant Research Officer on 07.03.1972. Subsequently an issue arose as with regard to their being granted University Grant Commission (U.G.C) pay scale, which was initially denied to them by the University on a plea that they were not covered within the teaching personnel of the University for whom the UGC 4 was offering assistance. That matter came before this Court and ultimately a Full Bench of this Court in the case of Kamla Kant Roy and others vs The State of Bihar and others, reported in 1985 PLJR 77, had held that the Assistant Research Officer were covered by the expression and ambit of teacher as defined under Section 2(25) of Rajendra Agriculture University Act 1971 (hereinafter referred to as the Act). It appears that, subsequently these writ petitioners-respondents had acquired qualification of Post-Graduation as was sought to be imposed for their earning of increment in the UGC pay scale and here comes the real rub of the issue, inasmuch as, when UGC framed a Career Advancement Scheme, the respondent-writ petitioners claiming to have become teacher in capacity of Assistant Professor had pressed for their promotion on the post of Associate Professor on the ground that they had acquired qualification of Post-graduation in their respective subject, but had completed a period of eight years ever since they had been holding the post of Assistant Research 5 Officer. Their such claim having been not allowed by the University they had filed C.W.J.C No. 1251 of 1997 and C.W.J.C No. 105 of 1998, which have been disposed of by the aforementioned common impugned judgment, being the subject matter of these two appeals. Dr. A.K Upadhayay, learned counsel appearing on behalf of appellant University has submitted that true it is that the respondent-writ petitioners being Assistant Research Officers had become the teachers of the University in view of the judgment of the Full Bench Kamla Kant Roy,(supra) but then whenever an issue would arise as with regard to their being given further promotion in the cadre of teachers, they could not have counted their earlier service from the date on which they were not qualified to hold the post of teacher. To that extent Mr. Upadhayay has concentrated on the issue of expression of “regular service of eight years” as prescribed in the statute and it is his submission that such regular service would not embrace the earlier period during which even before 6 such they were mere Bachelor of Science and had not even the minimum qualification of Master in Science while holding the post of Assistant Research Officer. In other words, according to Dr. Upadhyay the period of eight years of regular service in terms of career advancement scheme of U.G.C could be counted only from the date they had acquired qualification of M.Sc, while holding the post of Assistant Research Officer. Per contra, Mr. Awadh Bihari Ojha and Mr. Gajanan Arun, learned counsels for the respondent-writ petitioners would submit that there does not remain any controversy that the respondent-writ petitioners were teachers of the University and as such when a new Career Advancement Scheme of U.G.C was introduced by the University by framing of a specific statute dated 06.12.1990, its applicability will have to be always adjudged only on the basis of such provisions made in the statutes. To that extent they have also submitted that any clarification issued by the University Grant Commission on 27.11.1990, about which no mention was made in the statute dated 7 06.12.1990 framed by the University, should not be taken into consideration as there was a conscious omission of the same is the statute framed by the University. They have in this regard also heavily relied on observations made by this court in the judgment of the Full Bench in the case of Kamla Kant Roy(supra) to contend that once it had been even held therein that acquiring of qualification was only referable to the issue of grant of their annual increment,the University cannot be allowed to impose anything afresh, so far it relates to their claim for promotion under career advancement scheme and in this context a great emphasis has been also laid on the aspect that they are members of a dying cadre and have got no other parallel instances which could have created administrative problem, by making the same applicable in cases of other teachers of the Universities. In our considered opinion, the only issue therefore to be adjudicated in these two aspects is with regard to date of eligibility for earning promotion in the Senior Scale of pay on the post of Assistant 8 Professor in the University. It is not in doubt that the University has introduced the scheme by way of Career Advancement which is more or less a personal promotion. Such personal promotion, however, can be earned by a person only if he had in the lower rank of the cadre post, the statutory qualification and the period of experience as provided therein. As is well known that all these time bound promotion or personal promotion have only been provided as an alternative to such persons who could not earn regular promotion due to want of vacancy but then the requirement of having basic qualification would always be there even in respect of such time bound promotion. Once this aspect becomes clear the issue as to the date of acquiring qualification for the respondent-writ petitioners would be of utmost importance, inasmuch as, they could not have held the post of Assistant Professor or its equivalent post of Assistant Research Officer as per the statutes of the University without possessing the prescribed qualification of Post-graduation as minimum 9 qualification this aspect of the matter in fact was also noticed by the Full Bench in the following terms:- “13. Equally reference is called for to Statute 17, 1, which is in tabular form showing the qualification, composition of selection committee, appointing authority, etc, for recruitment to technical, non-technical and administrative posts of the University. Reference to Serial No. 10 of the said Statute would show that Assistant Research Officers are bracketed as an equivalent and, indeed, identical to Lecturers and Assistant Lecturers. The prescribed qualification for all the categories is again identical being a high second class Master’s degree or its equivalent in the subject concerned. Equally the constitution of the selection committee for appointment to all these posts is identical as also the appointing authority, which is the Vice- chancellor. This is again a pointer if not a conclusive factor for indicating the Statutes treat Lecturers, Assistant Research Officers on an absolutely equal footing. 10 Once, this aspect becomes clear that the Full Bench while equating the post of Assistant Research Officer to be one of the teacher had essentially gone into the aspect of qualification, the following observation in paragraph no. 15 of the judgment, heavily relied by learned counsel for the writ petitioners. “Now a reference to Appendix IV of Annexure 1 would further indicate that a somewhat liberal view was taken on the grant of these grades and it was even provided that the existing lecturers in Colleges, who did not at the time of their initial recruitment even possess the minimum qualifications prescribed by the University, should be given a period of five years to attain those qualifications from the date of their placement in the revised scale. If they were unable to do so during this period they should not be allowed to earn any future increment. This again seems to make plain the intent that even this class would become entitled to the revised grades forthwith subject to the acquisition of qualifications later.” 11 has to be in fact read in the context, in which the Full Bench was dealing with the issue involved therein. To that extent, we have no doubt in our mind that the Full Bench had been considering only the issue as to whether the Assistant Research Officers are University Teachers within the ambit of section 2(25) and (26) of the Act and if yes whether they are entitled to the University Grants Commission new revised pay scale. As is well known a judgment has to be read as a whole and its ratio has to be culled out from the issues framed therein and any stray observation made therein cannot be held to be the law laid down or the ratio of the case. As noted above, the issue which was gone into by the Full Bench was only as to whether the post of Assistant Research Officer being that of the post of teacher. Once, this aspect becomes clear, in our considered opinion that the judgment of the Full Bench will have little assistance to the issue involved in this case. The issue according to us which has to be answered would be as with regard to the true scope of the notification dated 12 06.12.1990, wherein for earning promotion in the Career Advancement Scheme on the post of Assistant Professor in the Senior Scale, the statutes had provided inter alia that such of the Assistant Professor/Junior Scientists/Others holding the equivalent post in the pay scale of Rs. 2200-4000 would be placed in the senior pay scale of Rs. 3000-5000, if he/she had:- (a) Completed 8 years of service after regular appointment in one or more University (see note i) and (ii) of the end). (b) Participated in two refresher courses/summer institute each of approximately 4 weeks duration or engaged in other appropriate counting education programme of comparable quality as may be specified by the UGC and see note (iii) at the end. (c) Consistently satisfactory performance appraisal reports. Note:- All Assistant professor/junior scientist in the existing scale of Rs. 700- 1600/- who have completed 8 years of service on 1-1-86 will 13 be placed through a process of screening based on regular and systematic appraisal of performance in the scale of Rs. 3000-5000/-.” As the said provision has also a direct reference to the note (i), (ii), (iii), it would be also useful to quote them at this place. “(i) Assistant Professor/Junior scientist in the existing selection grade (pre-revised) of Rs. 1200-1900/- in the college/University will be placed at the appropriate stage in revised selection grade of Rs. 3700-5700/- in accordance with fixation formula under this scheme. Existing Assistant Professor/Junior Scientist of (pre-revised)/Rs. 700-1600/- who have completed or will complete to a total period of 16 years of service on 1.1.86 or thereafter will be eligible for promotion to the post of Associate Professor or placement in the selection grade in accordance with the provisions on para 1 and 3 of B. (ii) Assistant Professor/Junior Scientist(pre-revised)/Rs. 700- 1600 or revised Rs. 2200-4000/- for promotion to Assistant 14 Professor (senior scale) Rs. 3000- 5000/- and/or Assistant professor selection grade Rs. 3700-5700/- will also be entitled to the relaxation in the years of service by a 3 years and one year respectively if they held Ph.D or M.Phil, degree. (iii) The Assistant Professor/Junior Scientist who were in service before 1.1.86 and who are eligible for placement in the senior scale/selection grade in accordance with the above provisions, may be placed accordingly by relaxing provisions under A(b) and B (d) above ensuring that such Assistant Professors participated in the refresher courses latest by December 1991. This relaxation will not be allowed to the Assistant Professors appointed on and after 1.1.1986. From the conjoint reading of the aforementioned provision, it would be clear that the touchstone for grant of such promotion on the post of Assistant Professor in the Senior Scale was only fulfilment of condition of completion of eight years of service after regular appointment and thus an issue would arise as to what status the 15 respondent-writ petitioners were holding when the statute dated 06.12.1990, had come into force. It need not be overemphasized that essentially by virtue of the judgment of the Full Bench equating Assistant Research Officer to be equivalent to the post of teacher, they had occupied the post of Assistant professor in the lowest rank from which they were trying to earn their promotion in the senior scale. The entry to the cadre of Assistant Professor thus was already ensured by the Full Bench judgment and therefore if they had to become a member of the cadre, their counting of eight years of regular service, could not have been at any point of time earlier than the dates on which they had acquired qualification for holding such post. Admittedly as per the statutes no one could have been appointed even as Assistant Research Officer without being a Post-graduate as was noticed by the Full Bench itself. The Writ-Petitioners being earlier appointed at a point of time and that too not the post of Assistant Research Officer but only as a Junior Research Assistant, if they had subsequently 16 earned their promotion on the post of Assistant Research Officer, they could not have claimed further promotion in the teaching cadre, by virtue of becoming the teacher prior to a date when they had not acquired the minimum Post-graduation qualification as laid down in the statute. The curing of their appointment in the cadre of teachers therefore was done when they had acquired Post-graduation qualification and a period of eight years had only to be reckoned from the date they had completed such Post-graduation qualification. This Court has failed to understand as to the reservation of Mr. Ojha to the clarification issued by the University Grants Commission in its letter dated 27.01.1990, or its not being made integral parts of statutes dated 06.12.1990. The UGC in its aforesaid Letter while enclosing the guidelines for lecturer (Assistant Professor) dated 18.10.1989 had clarified that such guidelines to be followed while implementing career advancement scheme for grant of UGC pay scale to a lecturer in senior scale. Obviously, none could have 17 done it better than U.G.C itself, the framer of the policy as the senior scale or the post of Assistant Professor by way of Career Advancement Scheme was laid down by UGC itself. In this context, from the letter dated 27.01.1990, it can be found that the Deputy Secretary of UGC had clarified that the qualification for the promotional post of Assistant Professor ( senior scale) could not be lower than the qualification prescribed by the UGC for the initial feeder post of Assistant Professor inasmuch as in the enclosed guidelines it was clearly mentioned that:- “University Grants Commission Bahadur Shah Zafar Marg New Delhi GUIDELINES FOR CAREER ADVANCEMENT OF LECTURERS IN UNIVERSITIES/COLLEGES. Lecturer ( Senior Scale) Every lecturer in the scale of pay of Rs. 2200-4000 will be placed in the senior scale of Rs. 3000-5000 if he/she has: (a) Completed 8 years of service after regular appointment: (see note (i) and (ii) at the end). (b) Participated in two Refresher Courses/Summer Institutes each of approximately 4 weeks dural 18 or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC and ( see note (iii) at the end). (c) Consistently satisfactory performance appraisal reports. Notes: 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 based on regular and systematic appraisal of performance and other mechanism prescribed by the University concerned in the scale of Rs. 3000- 5000. 1. Every lecturer in the Senior scale of Rs. 3000-5000 will be eligible for promotion to the post of lecturer (selection grade/Reader in the scale of pay of Rs. 3700-5700 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; (see note (i)and (ii) at the end); (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 reference: quality of 19 publication, contribution to educational renovation, design of new courses and curricula, etc.; (d) participated in tow Refresher Courses/Summer Institutes each of approximately 4 weeks’ duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC after placement in the Senior Scale; and (see note (iii) at the end). (e) consistently good performance appraisal reports. 2. promotion to the post of lecturer (Selection Grade)/Reader will be through the process of selection by a Selection Committee to be set up under the Statutes/Ordinances of the university concerned or other similar committees set up by the appointing authorities. Posts corresponding number of posts of lecturers in the universities and colleges. 3. Those lecturers in the Senior Scale who do not have a Ph.D degree or equivalent published work and who do not meet the scholarship and research standards of a Reader but fulfill the other criteria mentioned in para I and have a good record in teaching and/or participation in extension activities, will be placed in the grade of Rs. 3700-5700 20 subject to the recommendations of the committee mentioned in para 2. 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 in hold by them. They could offer themselves for a fresh assessment after obtaining a Ph.D degree and/or fulfilling other requirements for promotion as Reader, and if found suitable could be given the designation of Reader. Note: (i) Lecturers in the existing selection grade (Pre revised) of Rs. 1200-1900 in the Colleges will be placed at the appropriate stage in revised selection grade of Rs. 3700- 5700 in accordance with fixation formula under this scheme. Existing lecturers at (Pre-revised) Rs. 700- 1600, who have completed or complete at total period or/16 years/of service of 1.1.1986 or thereafter will be eligible for promotion grade in accordance with the provisions in paras 1, 2 and 3 of 11. (2) Lecturer (Pre-revised Rs. 700- 1600 or revised Rs. 2200-4000 or promotion to lecturer (Senior Scale) Rs. 3000-5000) and/or Lecturer (Selection grade) Rs. 3700-5700) will also be entitled to the year respectively if they held Ph.D or M. Pull degree. 21 (3) the Lecturers who were in service before 1.1.1986 and who are eligible for placement in the Senior Scale/selection grade in accordance with the above provisions under 1(b) and 11(d) above assuring that such lecturers participate in the refresher courses latest by December, 1992. Thus relaxation will not be allowed to the lecturers appointed on and after 1.1.1986.” From a bare comparison of the aforesaid guidelines issued by U.G.C with the subsequent statutes framed by the University it would become clear that they are in verbatim one and the same. In fact, they could not have extended any help to the petitioner, inasmuch as, whenever a concept of regular appointment is talked in any statutes under the service jurisprudence the possessing of minimum qualification is a condition precedent for such appointment. We therefore find no merit in the submission of Mr. Ojha that regular appointment even on the post of writ petitioners could date back as teachers from 1969, when they were initially appointed as Assistant Research Officers while possessing B.Sc. qualification their services on the post of 22 Assistant Research Officer could have been the beginning point for giving them the benefit of seniority on the post of teacher only from the date they had possessed the qualification of M.Sc. for the purpose of promotion under Career Advancement Scheme. To the last of the submission of Mr. Ojha that the respondent-writ petitioners belonged to dying cadre and have already retired from service in between 31.05.2002 to 30.06.2006 and therefore a compassionate view may be taken for their promotion, this court can only observe that the statutes when they are framed or are to be implemented, they are not meant exclusively for a particular class rather it is meant for all the eligible persons. If the framers of the statutes had to make an exception, specially for the respondent-writ petitioners there could have been an exception made therein as was sought to be carved out for the purposes of giving benefit of promotion to the persons even without having doctorate degree or otherwise. Their being no such provision there we cannot import one to accept the 23 submission of Mr. Ojha. The essence of the Career Advancement Scheme being totally a creation of UGC, based on qualification, this Court cannot accept the submission of Mr. Ojha that they had no relevance for the writ petitioner holding the post of Assistant Research Officer. At this stage Dr. Upadhayay, learned counsel appearing on behalf of University has pointed out that barring Bharat Prasad all others have been granted the benefit of the promotion and the pay scale of Assistant Professor, senior scale of Rs.3000-5000 (pre-revised) and Rs. 10,000-15,200 with effect from the date of completion of