IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7232 of 2007 Prof(Dr.)Jagdish Prasad Yadav, son of late Sagam Mukhiya, resident of Mohalla Talhi Tola, P.O. Khutauna, P.S. Babu Babubarhi, Dist. Madhubani. -------- Petitioner Versus 1. The L.N. Mithila University through its Registrar, Kameshwar Nagar, Darbhanga. 2. The Vice Chancellor, L.N. Mithila University, Kameshwar Nagar, Darbhanga. 3. The Registrar, L.N. Mithila University, Kameshwar Nagar, Darbhanga. 4. Prof. (Dr.) Dhaneshwar Prasad Singh, S/o late Shukhdeo Mahto, R/o Mohalla Kutawna, P.S. Khutawna, Dist. Madhubani, presently posted as University Professor, Department of Geography, C.M.J. College, Donwari Hat. --------- Respondents ----------- 2 22.09.2011 Heard learned counsel for the parties. The prayer of the petitioner in this writ application is for quashing of an order of the University dated 7.5.2007, whereby and whereunder, the respondent no.4 has been made Professor Incharge of C.M.J. College, Donwawri Hat Khutawna, a constituent college of L.N. Mithila University (hereinafter to be referred to as ‘the University’). Mr. Yugal Kishore, learned senior counsel for the petitioner, would submit that as per the records and the achievements of the petitioner, he would stands head and shoulder above the respondent no.4, inasmuch 2 as, not only he is elder to the respondent no.4 in age but also has passed the Post Graduate Examination earlier and was also appointed as a Lecturer in the year 1975 as against the respondent no.4 in the year 1978. He would further point out that the petitioner, on the date of passing of the impugned order, was holding the post of Professor with effect from 7.2.1995 whereas the respondent no.4 became Professor only in the year 2005 by virtue of Time Bound Promotion on the post of Professor with effect from 7.2.1995 and as such, the petitioner, holding the post of Professor from an earlier date, would rank senior to Respondent no. 4. He would further submit that the University infact has been wholly unfair to the petitioner, inasmuch as, even when the respondent no.4 was allowed merit promotion on the post of Reader, the case of the petitioner for Merit Promotion on the post of Reader was kept pending and in fact, is still pending and, therefore, the date of notification of the promotion on the post of Reader by itself could not have weighed 3 against the petitioner for being giving prestigious assignment of Principal/Incharge Principal of the college. In this context, he would rely on the judgment of this Court in the case of Jaibir Mishra Vs. L.N. Mithila University reported in 1987 PLJR 838 wherein it has been held that even while filling up the post of Professor Incharge on a temporary basis in absence of regular Principal even if an adhoc appointment is to be made, the senior most must get it unless and there be some pressing administrative exigency, which may deny the senior teacher of the assignment of the post of Professor Incharge/Incharge Principal. Learned counsel for the Universities does not dispute any of the aforementioned facts but, he would only place reliance on the averments made in the counter affidavit to submit that once the respondent no.4 had stolen march by way of getting promotion on the post of Reader under Merit Promotion Scheme, which gave him the post of Reader with effect from 30.7.1987, whereas the petitioner could become Reader under Time 4 Bound Promotion scheme with effect from 7.2.1989, the inter-se seniority of the two in view of holding the post of Professor with effect from the same date i.e. 7.2.1995, had to revert to their earlier seniority to the post of Reader. He would further submit that as the petitioner had been promoted on the post of Reader under the Time Bond Promotion Statute, with a later date than the respondent no. 4, and the case of merit promotion of the petitioner on the post of Reader was still undecided, the Respondent no. 4 being senior was righting assigned the job of Professor Incharge/Principal of the College. Before this Court, there are two issues, namely, the decision of the University making the Respondent no. 4 Professor Incharge/Incharge Principal of the college. On the fact as they stand since the time Bound Promotion Statutes itself lays down that the inter-se seniority of the teachers earning Time Bound Promotion shall not be adversely effected by such promotion, that would mean that if the petitioner and 5 the respondent no.4 had earned their promotion on the post of Professor with effect from 7.2.1995 under Time Bound Statutes, their inter-se seniority had to be decided on the basis of their date of promotion on the post of Reader. Here, however, the respondent no.4 has been promoted rightly or wrongly on the post of Reader from an earlier date i.e. 30.7.1987 and till that is changed or altered either by the promotion of the petitioner under Merit Promotion Scheme on the post of Reader or changing the date of promotion of the respondent no.4 as a Reader for any justifiable reason, the respondent no.4 shall rank senior as a Reader to the petitioner. Therefore, the impugned order holding the respondent no.4 to be senior on the basis of the materials on record as fully explained in paragraph no.5 of the counter affidavit cannot be faulted with either on fact or in law. At the same time, if such promotion on the post of Reader under the Merit Promotion Statute has given advantage to a 6 person like the respondent no.4, who was admittedly junior to the petitioner on the post of Lecturer, the University was required to give equal treatment to both the petitioner and the respondent no.4. In other words, if the University had considered and granted merit promotion to the respondent no.4 on the post of Reader from his due date, the same parameter had to be followed even in the case of the petitioner at least by considering his promotion on the post of Reader under the Merit Promotion Statute. It could have been an entirely different thing that if the case of the petitioner was considered under the Merit Promotion Statute for the promotion on the post of Reader and was found disqualified or ineligible, for such merit promotion. In that case the petitioner had to remain satisfied with his promotion on the post of Reader given to him under the Time Bound Promotion Statute which automatically could have made him junior unless the petitioner could successfully demonstrate before the authorities of the University that the merit promotion given to 7 the respondent no.4 was itself illegal. No such case, however, can be made out in this writ application which is limited only to the issue of seniority for the purpose of making Professor In-charge/Principal of the College. This Court, however, having noticed that the petitioner has been edged out in the race of seniority only on the basis of the respondent no.4 being Reader from an earlier date under Merit Promotion Statute and that the case of the petitioner for promotion on the post of Reader under Merit Promotion Statute is still said to be pending, it would direct the University and its Vice-Chancellor to complete the process of consideration of the case of the petitioner for grant of his promotion on the post of Reader under the Merit Promotion Statute, inasmuch as, it has been admitted by the University in paragraph no.6 & 7 of the counter affidavit that the process of such consideration for the petitioner's promotion on the post of Reader under merit promotion Statute was left midway only on account of his earning promotion on the post of Reader under the Time Bound 8 Promotion Statute. In view of the fact that there was/is no bar for consideration of promotion of a teacher either on the Merit Promotion Statute or Time Bound Promotion Statute on the ground of one being given to the incumbent, the University in law was/is still required to complete the procedure. The University infact should not have abandoned the process of consideration of the case of promotion of the petitioner on the post of Reader under the Merit Promotion Statutes in the midway. Based on the aforementioned considerations and analysis, while this Court for the time being would not interfere with the impugned order designating/making the respondent no.4, the Professor Incharge of the college in question for the present, it would still direct the University to complete the procedure of consideration of the claim of the petitioner for his promotion on the post of Reader under the Merit Promotion Statutes. Such exercise, however, must be completed within a period of six months from 9 the date of receipt/production of a copy of this order and in the event, the petitioner is found fit for promotion under the Merit Promotion Statute on the post of Reader, the arrangement of Professor Incharge/principal, if would still continue till that date, its being filled up must be reconsidered on the basis of the respective date of appointment/ promotion of the petitioner vis-à-vis respondent no.4 on different posts in accordance with law. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)