IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15418 of 2005 Ram Shankar Mehta son of late Jagannath Mehta, resident of Mohalla – Mosallahpur (Saidpur Canal) Road, Patna – 6, P S – Kadamkuan, District – Patna present posted at Magadh Mahila College, Patna - Petitioner Versus 1 Vice Chancellor, Patna University, Patna 2 Principal, Magadh Mahila College, Patna 3 The Registrar, Patna University, Patna - Respondents ----------- 5 05.04.2011 The petitioner is a Class-IV employee of Patna University. It is not in dispute that he is Intermediate Pass. He is working as a Peon in one of the Colleges. He has filed this writ petition aggrieved by the action of the University in not considering him for promotion to Class-III post. University, on the other hand, states that University had issued an advertisement calling for applications from eligible Class-IV employees for being considered for promotion to Class-III post and as petitioner did not apply, there was no question of considering him for promotion. Counter affidavit and supplementary counter affidavit have been filed. With consent of parties, this writ petition has been heard for disposal at this stage itself. As per the counter affidavit, the decision of the University taken as far back as in 1979 with regard to reserving 50% of Class-III post to be filled up by promotion from Class-IV post of eligible persons is not denied. The question is how this 50% selection has to be made. Firstly, for Class-III post, the minimum qualification is Intermediate which changes as per Class-III post requirements. For some, it is Graduate. For some posts, it relates to specialised qualification like Librarian etc. For Assistant or Clerk simpliciter, it is Intermediate. So far there is no 2 problem. The problem arises as to what would be the criteria for promoting to Class-III post an employee who is in Class-IV. No rule or decision has been brought on record in this regard by the University. In absence of any such Rule, the general principles under service jurisprudence will come into play and the selection would be on basis of seniority-cum-suitability. This is so because no person, in order of seniority who is suitable for appointment, can be denied appointment but in 2005 what the University did was, while the Class-IV employees were on strike, a notice was issued calling for applications from eligible Class- IV employees for being promoted and appointed as Class-III employees. Some applied. Some, like the petitioner, could not apply. Upon scrutiny of applications, a test in the shape of interview was held and final selection was made. The grievance of the petitioner is that he having passed Intermediate was duly qualified and suitable for appointment but the procedure having been altered, he could not apply. Even otherwise, it is submitted that the requirement of making an application and then facing an interview is wholly arbitrary and violative of Article-14 of the Constitution. In my view, learned counsel for the petitioner is correct. Firstly, it is not in dispute that 50% of the vacancy in Class-III cadre has to be filled by promotions from Class-IV. Once the concept of appointment by promotion is clear and established then it presupposes that it is to be firstly on basis of seniority and then suitability. In suitability, would be educational eligibility criteria but taking out seniority totally and making it upon application of individual and adding to it the test of interview alone makes it absolutely arbitrary. It is totally dependent on 3 subjective satisfaction of the authorities to make appointment by promotion or not. That is impermissible. Thus, in absence of any Rule, there is no reason why University will not adopt the principle of seniority- cum-suitability for such an appointment by promotion and not adopting that makes the selection process amenable to challenge. Ordinarily, this Court would have set aside the entire selection process which has been challenged but keeping in mind that the selection process was completed in the year 2005, persons have been promoted and have been working for over six years. Now their appointment by promotion should not be now set aside. It would be highly inequitous because they were not at fault. However, injustice cannot be done with the petitioner who has been treated step motherly. I, therefore, direct that in any future vacancy which is required to be filled up by promotion from Class-IV to Class-III post as per the policy decision of the year 1979, the case of the petitioner cannot be considered on the criteria, as indicated above. If there is any existing vacancy falling to the share of Class-IV employee in Class-III post, petitioner’s case would be first considered and, thereafter, any other. If such vacancy does exist, University would be bound to consider the case of the petitioner preferably within three months of production of a copy of this order before Registrar of the University. With these observations and directions, the writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)