IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1711 of 2007 ANIRUDH PRASAD son of late Kedar Nath Prasad, resident of Warisaliganj, Police Station Warisaliganj District Nawadah, Lecturer in Hindi S.N. Sinha College, Warisaliganj, P.O. and Police Station Warisaliganj, District Nawadah. Versus 1. THE MAGADH UNIVERSITY through its Registrar, Bodh-Gaya, P.S. Bodhgaya, district Gaya. 2. The Vice Chancellor, Magadh University Bodh Gaya, P.O. Bodh Gaya, Distt. Gaya. 3. The Inspector of College, Arts and Commerce, Magadh University, Bodh Gaya, P.O. and P.S. Bodh Gaya, District Gaya. 4. The Principal S.N. Sinha, College, Warisaliganj P.O. and P.S. Warisaliganj, District Nawadah. 5. Secretary, University Service Commission, Bihar Patna Office Near New Secretariat, Patna. 6. Dr. Rajeshwar Narayan Sinha, son of Shri Deoki Nandan Sinha, resident of village Babhanbigha, Police Station Barbigha, District Monghyr, Lecturer in Hindi, S.N. Sinha College, Warisaliganj, P.O. and P.S. Warisaliganj, District Nawadah. ----------- For the Petitioner : Mr. Sudarshan Sharma, Advocate For the University : Mr. Anil Kumar Sinha, Advocate. -------------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (15.09.2010) Heard counsel for the petitioner and counsel for the Magadh University as with regard to the following relief:- “That, this application is directed under Article 226 of the Constitution of India on behalf of aforesaid petitioner for issuance of appropriate writ, order or direction as the case may be, to quash Notification issued by the order of the Vice- Chancellor Magadh University, Bodh Gaya contained in Annexure-9 purported to have been issued under the signature of the Registrar, Magadh University, Bodh Gaya vide Memo no.208/GIA dated 13.11.2006, by which the petitioner who is competent and entitled for time bound promotion on the post of Reader, his name not included therein with malafide wrong approach of the respondents is fit to be quashed.” 2. Mr. Sudarshan Sharma, learned counsel for the petitioner in support of the aforementioned prayer has submitted 2 that when both the petitioner and respondent no.6 were absorbed by a common notification dated 22.4.1996 on the post of Lecturer in S.N. Sinha College, Warisaliganj, hereinafter referred to as the College, a constituent unit of the Magadh University, and in the service of the College the petitioner was all along senior to the said respondent no.6, the impugned order granting time bound promotion to respondent no.6 in preference to the petitioner cannot be sustained. He would, accordingly, submit that this Court should direct the respondents to also promote the petitioner on the post of Reader either by quashing the impugned order dated 13.11.2006 or in the alternative the petitioner’s promotion should also be notified from the same date on which his junior, respondent no.6, was given such promotion. 3. Per Contra, Mr. Anil Kumar Sinha learned Counsel for the University has submitted that the petitioner does not fulfil the basic requirement of holding substantive appointment on the post of Lecturer and as such he is not entitled for grant of time bound promotion. In this regard he has also refused to averments made in the counter affidavit filed earlier by the University to explain that the plea of discrimination is also no longer available inasmuch as both of appointment and time bound promotion granted to the Respondent no. 6 has been cancelled. 4. Having given anxious considerations to the aforesaid submissions and the materials on record of this case it is found that this College was earlier an affiliated college of the Magadh University and the appointment of the petitioner as also respondent no.6 was made in such affiliated College wherein there 3 were only two sanctioned posts of Lecturer in the department of Hindi. The plea of the petitioner that he got appointed against one of those posts when first person Dr. N.Tiwary holding lien against the first post of Lecturer in Hindi had gone on leave, would not make the petitioner also holder of first sanctioned post. In fact, the two sanctioned posts remained occupied on account of holding lien on the first post by Dr. N. Tiwary and on the second post another by Dr. S.N. Nirala and thereafter the State Government had not sanctioned any further post in the department of Hindi in the College till the College became a constituent unit of Magadh University or even till today. 5. The status of the petitioner therefore in the College was one of a Lecturer working against the 4th sanctioned post and therefore the order of absorption passed by the University on 22.4.1996 in respect of 54 temporary teachers including the petitioner and respondent no. 6 in terms of Chancellor’s statutes dated 29.1.1986 giving him the benefit of absorption on completion of 24 months of continuous service in the College, was itself specific that such absorption of the petitioner would take effect only from the date of his appointment or the date on which the State Government would sanction the post held by the petitioner, whichever was later. 6. In this context, it would be useful to refer to the Chancellor’s statute circulated vide Letter No. BSU-25/85-283-GS (1) dated 29.1.1986 wherein the following criteria were fixed for absorption of a purely temporary lecturer; “ With effect from the date of the order of the Chancellor under Section 5(2) of the 4 Bihar Inter-University Board Act, 1981 the undermentioned criteria shall be followed for absorption of purely temporary lecturers in the regular service of the University or of a College admitted to the University (other than a College managed and maintained by the State Government) 1. A purely temporary lecturer, who is in the service of the University or of as College admitted to it as a lecturer shall be appointed by the Syndicate or the Governing Body as the case may be, in the regular service of the University or the College concerned, if he fulfils the following conditions; (a) that, he had been appointed, as lecturer in the service of the University or the college concerned on purely temporary basis on or before the 28th February, 1982 and has been since then continuing in the service of the University/College as such; (b) That, he possesses at least a Second Class Master’s degree in the subject (c) That, the post on which the lecturer concerned had been appointed was duly sanctioned by the competent authority or the proposal for sanction of the post had been submitted by the University/College to the State Government in the Education Department on or before 28.2.1982 which was subsequently approved by the State Government or the said proposal is still under consideration of the State Government. (d) that, the appointment had been made on the basis of advertisement of the post in the Indian Nation, Searchlight. Aryavarta, Pradeep or in any other daily Newspaper of Bihar State or in a leading newspaper of India and from the panel recommended by a Selection Committee constituted by the University/College for the purposes assisted by an expert or experts. (e) that, his work has been found to be satisfactory; and (f) that, the Chancellor, on the recommendation of a committee constituted by him consisting of (i) the Vice-Chancellor/Pro-Vice-Chancellor of the University, (ii) an Officer nominated by the State Government and (iii) two experts nominated by the Chancellor, is satisfied that the candidate fulfils the conditions laid down above. Provided that the Chancellor may in the case of individual hardship in respect of any lecturer appointed at the time of the starting of the College against the first post in the department, 5 relax any of the conditions prescribed in clause (d) above; N.B.- the conditions prescribed under Clause (d) above shall be deemed to be fulfilled if the name of the lecturer concerned had ever been recommended by Bihar Public/University Service Commission for appointment to the post of lecturer or if his appointment as lecturer had ever been made in the post on the basis of advertisement and selection as required above.” (underlining for emphasis) 7. It would be thus clear from aforesaid underlined portion of paragraph no. 1(C) that one of the essential requirement for absorption was availability of a sanctioned post or at least a proposal duly forwarded by the College and the University to the State Government for sanction of post prior to 28.2.1982 was pending. In the present case, there is nothing on record to show that the post on which the petitioner was continuing was a sanctioned post or that there was even a proposal submitted before 28.2.1982 pending before the State Government for sanction of such post. It was infact for this reason that as against the name of the petitioner in the University notification dated 22.4.1996 issued for absorption of 54 lecturers including that of the petitioner wherein it was specifically recorded against the name of the petitioner, at serial no. 54 of the notification, that “his date of absorption would be the date of appointment or the date of sanction of post by the State Government whichever is later”. It has also to be kept in mind that in the list of 54 lecturers who were absorbed by the common order dated 22.4.1996 such entry of the date of absorption was made not only in respect of the petitioner but also in the case of Smt. Seema Verma, Department of Zoology, Smt. Renu Mauwar , department of Political Science, 6 Smt. Rehana Khatoon, department of Political Science, Smt. Qumar Rizvi department of Zoology, Smt. Manju Singh, Department of Hindi as also Smt. Kumkum Verma, department of Physics, all Lecturers of Nalanda Mahila College, Biharsharif as also in the case of Sri Ramjee Singh in the department of Physics of S.N.Sinha College Tekari, Sri. Shivshankar Dubey in the department of Chemistry of M M. College, Bikram, Smt. Savitri Kumari in the department of Hindi, J. D. Women’s College, Patna and Sri Jitendra Kiumar Singh, S M D College, Poon-poon., Patna. 8. The petitioner has also accepted this order of absorption dated 22.4.1996 without any demur or protest and in fact he had never assailed the same on the ground that he ought to have been treated by the Chancellor against the first post of Lecturer in view of his leave vacancy appointment. The petitioner has not brought on record his initial order of appointment dated 23rd August 1979 which could have itself shown as to whether his appointment was made on against a sanctioned post. In fact he has also not brought on record his subsequent appointment letter on the basis of which he claims to have joined as Lecturer in the College on 1.4.1980 and vagueness on which the petitioner has tried to thrive by producing the order of the Registrar of University dated 26.5.1981 terminating the service of the petitioner on the ground of his appointment not being made on a sanctioned post by the State Government and subsequent order of the University dated 26th November 1982 allowing him to rejoin his post cannot be a proof of the fact of the appointment of the petitioner against the sanctioned post of Lecturer in the College. 7 9. The further case of the petitioner that since the respondent no. 6, despite being not appointed against a sanctioned post, was absorbed on the post of lecturer under the orders of the University dated 22.4.196 w.e.f. 28.2.1982 on the basis of which he was also give time bound promotion w.e.f. 28.2.1992 would automatically make the petitioner entitled for grant of his time bound promotion from 28.2.1992, as the said respondent no. 6 was always junior to him is also wholly misconceived. It has to be noted that when the petitioner was given no firm date of absorption on the post of lecturer in the order of University dated 22.4.1996 and the same was only made referable to the date of sanctioned post by the State Government, even on that date he did not challenge the said order as with regard to date of absorption of respondent no. 6 for whom as noted above the University had passed the order of his absorption w.e.f. 28.2.1982. Once the petitioner had accepted the order of absorption dated 22.4.1996 either for himself or even for respondent no.6, he cannot be allowed to take a plea of so-called seniority for the purpose of earning his time bound promotion by equating his case of seniority over Respondent no. 6, inasmuch as such time bound promotion in terms of the statutes is a personal promotion and has got no nexus with the inter se seniority of the incumbent. In this context, it would be also necessary to extract the relevant portion of statute of time bound promotion of Lecturer to the post of Reader as approved by the Hon’ble Chancellor by letter No. BSU-27/85- 4032/GS( 1 )dated 24.12.1986; “Subject:- Statute for time bound promotion of Lecturers to the posts of University Professors. 8 I am directed to invite a reference on the above subject and to say that the Chancellor on the recommendation of Bihar Inter University Board and the State Government has been pleased to approve the following Statute under Section 50(2) of the Bihar Inter-University Board Act, 1981 for implementation in your University. 1. Notwithstanding anything to the contrary as contained in the Statutes; it is hereby provided that;- (1) A Lecturer, serving in a University Department or in Degree College managed and maintained by the University shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound scheme to the post of Reader, subject to the following conditions;_ (a) That, he holds the qualification as prescribed for the post of Lecturer under the Statute enforced at the time of his appointment as lecturer and has fulfilled the conditions, if any attached thereto as laid down in the Statute; (b) that, he holds substantive appointment on the post of Lecturer; and lecturer in one or more Universities. (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 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. 2. …….. 3………. 4. Where a teacher is promoted to the post of Reader or University Professor, as the case may be, such a promotion shall take effect from the date on which the lecturer entered the 11th year of his qualifying service or the Reader entered the 26th year of his qualifying service, as the case may be, or from the 1st February, 1985, whichever is later. 9 5……. 6. The post held by the Lecturer or Reader who is promoted to the post of Reader or University Professor shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted into the post of Lecturer or Reader, as the case may be in the event of retirement, resignation death or otherwise, provided that if the post of Reader or Lecturer was itself an upgraded post which was further upgraded as that of Reader or University Professor, the same shall be converted into the Lecturer’s post in the event of vacancy. 7……… 8……… 9. The inter-se seniority of the teachers will not be adversely affected by time bound promotion. 10. Appointment to the duly posts of Readers or University Professors as also promotion under the Merit Promotion Scheme for Readers shall continue to be made on the basis of prescribed qualifications and in the manner prescribed in the Act and the Statutes. 11. The Registrar of the University with the approval of the Vice-Chancellor shall place a list of eligible candidates giving all the required information about each of them along with all the relevant papers including service records and C.C. Rolls before the Screening Committee to be appointed by the Vice-Chancellor for Scrutiny. The recommendation of the Screening Committee along with all the relevant papers shall be submitted to the Bihar State University (Constituent Colleges) Service Commission and the recommendation of the said Commission shall be placed before the Syndicate at the next meeting for orders. 12……” (underlining for emphasis) 10. From the bare reading of the aforementioned underlined provision of the time bound promotion statute it would also become clear that one of the requirement for earning time bound promotion was/is holding a substantive appointment on the post of Lecturer. A question would therefore arise what is the date 10 of substantive appointment of the petitioner on the post of Lecturer in the College ? Can it be said that the date on which the petitioner claims to have been appointed against the leave vacancy the first post of Lecturer held by Dr. N. Tiwari the same would amount to his substantive appointment as a Lecturer in the College ? Unfortunately the petitioner had not tried to clear this web of confusion while suppressing his order of substantive appointment, if any. 11. Thus it would be seen that in the case of the Respondent no. 6, since the University had passed his order of absorption dated 22.4.1996 on the post of Lecturer in the College w.e.f. 28.2.1982 it was on that basis that when the Bihar State Universities (Constituent Colleges) Service Commission in terms of section 57 of the Bihar State Universities Act (hereinafter referred to as the Act) it had also made recommendation for promotion of respondent no.6, by taking that very date on 28.2.1982 in to consideration for reckoning the minimum period of 10 years for grant of time bound promotion. It is a different story that subsequently the University had noticed that appointment/absorption of respondent no.6 even as a teaching employee of the college was illegal and that is how his services were terminated about which there has been a clear statement in paragraph 6 of the counter affidavit served on counsel for the petitioner by the earlier counsel of the University which reads as follows:- “That from perusal of the record, it is found that Dr. Rajeshwar Narain Sinha, respondent no.6 was terminated from his service on the charges of falsehood, forgery and cheating 11 the University as to his appointment and joining the college and concealing the fact that he was serving in Gandhi Adarsh Uchcha Vidyalaya, Babhanbigha Monghyr.” 12. As a matter of fact, the moment this Court would find that respondent no.6 is no longer in service the plea of discrimination or quashing of the impugned order so far it relates to respondent no.6 would automatically become redundant, if not infructuous. Respondent no.6 is no longer in service muchless on the promoted post of Reader under the time bound promotion scheme and therefore grievance of the petitioner as against respondent no.6 has automatically been answered by way of termination of his service and in that view of the petitioner now can also not claim parity of an illegal benefit which was not countenanced by the University as this court cannot direct the Respondents to perpetuate illegality. 13. Thus in the considered opinion of this Court the direction sought by the petitioner for grant of his time bound promotion, in absence of a valid date of his substantive appointment/absorption of his service on the post of Lecturer can be allowed in terms of the provisions of Time Bound Promotion Statutes. It has to be kept in mind that period of ten years refused for time bound promotion could be counted from his substantive part of lecturer even in terms of notification issued by the University on 22.4.1996 only w.e.f. 22.4.1996 and no other earlier date. There is however clear averments in paragraph 10 to 13 of the counter affidavit reading as follows:- “10. that the petitioner Anirudh Prasad joined in 1979 and Dr. R. N. Sinha on 1.4.1980, Dr. R. N. Sinha was a teacher till about Ist week 12 of July, 80 at M. G. U. Vidyalaya, Babhanbigha (Monghyr). As per Govt. decision in 1976 appointment in Private colleges was prohibited without approval of the govt. and University. But the private colleges did not obeyes and made appointment. There are two posts sanctioned in Hindi on which Dr. N. Tiwary and Dr. S. N. Nirala were working Dr. Tiwary went on lien and Sri Anirudh Prasad was appointed in 1979 on leave vacancy. 11. that the College converted into constituent Unit w.e.f. 14.9.1980 but in fact the respondent no. 6 Dr. R. N. Sinha was appointed without prior approval of the Govt. and University. 12. That after conversion of the college, Principals was asked to submit list of teachers. The Principal submitted the list showing the respondent no. 6 against Sl. Number 3 in Hindi subject stating his date of joining w.e.f. 1.4.1980 and Sri Anirudh Prasad was shown against 37 serial number stating his date of joining w.e.f. 1.4.80 The University sent University Auditor to verify the list and was informed by the Principal that the petitioner was against the leave vacancy, whereas Sri Anirudh Prasad on unsanctioned post. Hence as per report of the Principal Sr. A. Prasad was terminated. Sri A. Prasad gave his representation to the University. The University found that Sri Anirudh Prasad was working from earlier to the respondent no. 6. Hence the service of A. Prasad was restored by the University. 13. That during enquiry it was found that Dr. R. N. Sinha may not working in the month of April 1980 but still he had drawn pay from the college for his salaries for the month of April Rs.700/- Cheque No.712426. It was also found that he was working in the relevant school. On the ground his termination order issued by the University was observed by the Hon’ble High Court. It was indicated that it casts stigma and on account of the infirmity in the order, it is in violation of the Principles the natural justice. It was submitted by the University that the University will withdraw the order and pass a fresh order in term of conditions of service of the petitioner. The University issued a fresh order of termination in terms and condition of his service.” 13 which by itself clarify the mystery that there were only two sanctioned posts of Lecturer in the Department of Hindi in the College till 28.2.1982 and the petitioner was/is still working on an unsanctioned post. 14. The moment this Court therefore would find from the aforementioned uncontroverted statement of the University that the petitioner was never appointed on a duly sanctioned post and his appointment was only against the post of leave vacancy, it would not be in a position to accept the submission of learned counsel for the petitioner that the petitioner had fulfilled the requirement of the time bound promotion, statutes which in no uncertain terms required competition of a period of ten years against a sanctioned post of Lecturer inasmuch as a substantive appointment can only be made if there is an existing sanctioned post. In fact, that was the reason that the University while considering the case of promotion of the petitioner had specifically called for the information and the order sanctioning the 4th post of Lecturer in Hindi vide letter dated 16.12.2006, wherein for considering the case of the petitioner and its being sent to the Commission the University had directed the Principal to give a copy of the order of approval of 4th post in Hindi by the Bihar Government and confirmation of service of the petitioner on the post of Lecturer. As is well reflected from the pleadings on records neither the petitioner’s 4th post in the department of Hindi was