IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10761 of 1997 DR.MAMUNUR RASHID AFSAR son of Syed Md. Ali, resident of villa ge West Phulwaria, Police- Station Phulwaria, District- Begusarai, at present Reader-in- Zoology, A. N. College, Patna… petitioner. Versus 1. THE STATE OF BIHAR 2. The Vice Chancellor, T. M. Bhagalpur University, Bhagalpur. 3. the Pro-vice- Chancellor, T. M. Bhagalpur, University, Bhagalpur. 4. The Registrar, T. M. Bhagalpur, University, Bhagalpur. 5. The Principal P. B. College, Banka, District- Banka. 6. the Bihar State (Constituent College), Service, Commission, through its Chairman. 7. The Syndicate of T. M., Bhagalpur University, through the Registrar, Bhaglapur. … Respondents. ----------- 3. 10.08.2010 Heard Mr. Najmul Hoda, learned counsel for the petitioner, learned counsel for the State as also counsel for the Bhagalpur University. Mr. Hoda has initially pressed I. A. No. 835 of 2003 wherein the prayer has been made for addition of as many as 13 respondents. In view of the fact that the relief of the petitioner in this writ petition remains confined to quashing of an order passed by the Vice-Chancellor of the Bhagalpur University, there would be no need to implead the respondents 8 to 20 and therefore the prayer for addition of respondents no. 8 to 20 as made in I. A. No. 835 of 2003 must be and is hereby rejected. 2 Counsel for the petitioner does not want to press I. A. No. 834 of 2003 and accordingly the I. A. No. 834 of 2003 is also dismissed. Coming to the merits of this case, this Court would find that the prayer of the petitioner in this writ petition is very much confined to shifting of date of his time bound promotion inasmuch as the petitioner claims such time bound promotion with effect from 3.10.1989 whereas the respondents have given him such promotion with effect from 1.6.1990 and to that the prayer of the petitioner in fact reads as follows: “1. That this application is for quashing the Notification No. 103/97 dated 19.7.97 (contained in Annexure-8) issued by the Tilka Manjhi Bhagalpur University so far as it relates to the petitioner and for a direction to give time bound promotion to the petitioner with effect from 3.10.1989 in the circumstances set forth below.” Mr. Hoda would submit that this issue as with regard to 3.10.1979 the date of appointment of the petitioner stands settled by an interparte order of this Court in CWJC No. 12311 of 1996 disposed of on 23.9.1997 and therefore the petitioner’s time bound promotion ought to have been made effective from 3rd of October 1989. 3 Mr. Hoda in this context has relied on paragraph 4 of the writ petition for supporting himself that post of Lecturer in the College was sanctioned by order dated 9th August 1982 but with effect from 15.8.1979 and therefore it cannot be said that the petitioner’s appointment made on 3.10.1979 on the post of Lecturer of Zoology was not against a substantive post. Counsel for the University and the State, however, explain that the College in question being an affiliated college for the first time had received afflation only w.e.f. 1.6.1980 whereafter the State Government had sanctioned the post of lecturer in the Department of Zoology w.e.f. 9th August 1982 and therefore the period of service rendered by the petitioner prior to the affiliation of the college cannot be taken into consideration in view of the specific requirement of time bound promotion statutes. It has also been explained by them that the petitioner’s appointment being even in an affiliated college had to fulfil requirement of Section 57 A of the Bihar State Universities Act which itself requires any appointment continuing beyond a period of six months to be either approved, concurred or recommended by the College 4 Service Commission but as the petitioner was never recommended by the Commission by 3rd April 1980 he could not have claimed his services against the sanctioned post with effect from the date of creation of post i.e. 3.10.1979.. In the opinion of this Court, the issue involved in this writ petition is very very limited. If the petitioner has to be given an effective date of time bound promotion, the same has to be in terms of time bound promotion statute relevant portion whereof reads as follows:- "(1) A lecturer, serving in a University department or in a degree college managed and maintained by the University shall, on the recommendation of the Bihar State University (Constituent College) Service Commission, be promoted on the basis of time bound scheme to the post of Reader subject to the following conditions:- (a) That, he hold the qualification as prescribed for the post of Lecturer under the Statute in force at the time of his appointment as lecturer and has fulfilled the conditions, if any, attached there to as laid down in the Statute; (b) That, he holds substantive appointment on the post of lecturer; and. (c) that, he has completed at least ten years of continuous service as lecturer in one or more Universities. Provided that the service rendered in a degree college during the period the College was not affiliated in the subject concerned even up to the Intermediate standard, shall not be taken into account for 5 the purpose of this Statute. Provided further that the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service statute.” From the reading of the aforementioned provisions it becomes clear that the said substantive appointment on the post of Lecturer is condition precedent for earning time bound promotion. The person appointed on the post of a Lecturer in a college which was not affiliated cannot even remotely claim to have been appointed on the substantive post or his appointment being substantive appointment. The fact remains uncontroverted as asserted by the respondents in the counter affidavit that the affiliation of the college by the State Government was given only on 1.6.1980 and therefore when the degree teaching in the College has been recognized by the State and the University w.e.f. 1.6.1980, no earlier date of appointment of the petitioner on the basis of a decision of Governing Body choosing to appoint the petitioner on an unsanctioned post on 3.10.1979 could at least bind the University and the State Government for the purpose of 6 giving him time promotion under the time bound promotion statute. The plea of the counsel for the petitioner that true it is, the College received affiliation from the State Government only w.e.f. 1.6.1980, for 1980-81 session onwards but then the first post was created by the State Government in the year 1982 with retrospective effect i.e. 15.8.1979 has to be treated as mere assumption of the petitioner in absence of any documentary evidence. On the other hand, this Court would find that in the earlier round of litigation the date of creation of post was treated to be 9th August 1982. It is well settled that if a person claims a particular fact capable of being proved with the help of document he being the writ petitioner must annexes it or the respondents if so take such plea they also must annex it in the counter affidavit. Reference in this connection may be given to the judgment of Apex Court in the case of Bharat Singh and others Vs. State of Haryana and others reported in AIR 1988 S.C. 2181, where in it was held as follows.:- "When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioners, must plead and prove such facts by 7 evidence which must appear from the writ petition and if he is the respondents, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition of a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." Thus in view of the fact that the petitioner has not enclosed any such order giving retrospective sanction of post of the Lecturer of Zoology in the College w.e.f. 15.8 .1979, the same cannot be accepted by this Court. As a matter of fact, it would be really impossible to even otherwise accept such submission because if the College was not affiliated there would be no question of sanction of post prior to the date of college being affiliated. Once this aspect becomes clear that affiliation of the college was granted on 1.6.1980, the story of the post being created on 9.8.1982 w.e.f. 15.8.1979 has to be only noted for its being rejected. The other part of submission of counsel for the petitioner that since this Court in an earlier round of 8 litigation had already decided the date of appointment of the petitioner to be 3rd October, 1979 that date has to be taken into consideration for the purpose of time bound promotion is also not acceptable inasmuch as in earlier round of litigation started in the year 1997 when the petitioner’s recommendation was made for the time bound promotion on the post of Reader w.e.f. 1.6.1990 and this Court had only remitted the matter back, as would be apparent from Order dated 13.8.1997 in CWJC No. 3047 of 1997. Thereafter, the petitioner had again filed another writ petition, CWJC No. 12311 of 1996 but the prayer therein was altogether different as would be apparent from first paragraph of the order reading as follows:- “The petitioner, a Reader in the Department of Zoology, has challenged the order dated 8th of June, 1994 issued by the Registrar of the Tilka Manjhi Bhaglapur University ( T. M. Bhagalpur University’ for short) and the order dated 19 th of August 1996 passed by the respondent vice Chancellor of T. M. Bhagalpur University. By the aforesaid orders the pay of the petitioner has been fixed which according to the petitioner is incorrect.” As would be clear the said writ petition was only with regard to fixation of pay and therefore this Court treating the sanction of post given by the State 9 Government on 9th August 1982 had only directed for giving pay fixation benefit to the petitioner w.e.f. the date of his appointment and that too without giving any arrears of salary. In that view of the matter, the said order cannot be made an authority for treating 3.10.1979 as the date of substantive appointment of the petitioner. The substantive post being the condition precedent for reckoning the period of 10 years under time bound promotion statue, this Court would hold that the period of 10 years from the date of affiliation of the college i.e. from 1.6.1980 and therefore the order notifying the promotion of the petitioner w.e.f. 1.6.1990 does not suffer from any error. Counsel for the respondents are correct that this issue in fact is also covered by the earlier judgment of this Court in the case of Ashutosh Prasad vs. Chancellor, University of Bihar & Ors. decided on 7.12.1996 in CWJC No. 2566 of 1996 as also in the case of Dr. (Sushri) Rajni Bala Agrawal vs. Lalit Narain Mithila University, Darbhanga & Ors., reported in 1992 BBCJ Page 182 wherein exactly in a same situation it was held that the 10 person can not count his service period prior to the date of affiliation of the College to the University. That being so, both on fact and in law this Court does not find any error in the impugned order and accordingly, this writ petition must be and is hereby dismissed. There would be, however, no order as to costs. kanchan (Mihir Kumar Jha, J.)