IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3040 of 2002 DR.MADAN MOHAN PATNAIK, son of Shri T.M.Patnaik, residing at Qr.No. C-7/2, Professor Colony, Saidpur Campus, Rajendra Nagar, Town & District Patna … Petitioner Versus 1. THE PATNA UNIVERSITY, Patna through its Registrar 2. The Vice Chancellor, Patna University, Patna 3. The Bihar State (Constituent College) University Service Commission, Bihar, Patna through its Secretary … Respondents with CWJC No.108 of 2006 DR.MADAN MOHAN PATNAIK, son of Shri T.M.Patnaik, residing at Qr.No. B-2/2, Professor‟s Colony, Saidpur Campus, Rajendra Nagar, P.S. Sultanjganj, Town & District Patna … Petitioner Versus 1. THE PATNA UNIVERSITY, Patna through its Registrar 2. The Vice Chancellor, Patna University, Patna 3. The Bihar State (Constituent College) University Service Commission, Bihar, Patna through its Secretary 4. Dr. (Mrs.) Anchala Kumari, W/o (name not known to petitioner), Department of Statistics, Patna University, Patna 5. Dr. Vinod Kumar, son of Sri Jugeshwar Sharma, resident of Anandpuri, Boring Canal Road, Patna, at present posted in Department of Statistics, Patna University, Patna … Respondents ----------- 13. 23.8.2010 Heard Mr. Pushkar Narain Shahi, learned counsel for the petitioner and Mr. Ajay Kumar Sinha for Patna University in both the cases as also the counsel for the respondents no. 4 and 5 in C.W.J.C.No. 108 of 2006. The prayer of the petitioner in the 2 first writ application C.W.J.C.No. 3040 of 2002 initially when it was filed on 27.2.2002 read as follows: “This is an application for an appropriate writ directing the respondents to consider and pass appropriate orders for promotion of the petitioner to the post of Professor in Statistics under the provisions of and in terms of the Scheme for promotion under the Patna University Statutes approved by the Chancellor vide Memo No. BSU-27/86-4099 dated 20.11.1987.” Subsequently in view of the decision taken by the Patna University (hereinafter referred to as „the University‟) on 3.11.2007 the petitioner by filing an interlocutory application had sought amendment in the relief for also assailing the order of the University dated 3.11.2007 (Annexure 18) whereby and whereunder the claim of time bound promotion to the petitioner on the post of Professor was rejected on the ground that since he had already been given two promotions, from the post of Research Officer to the post of Lecturer and again from the post of Lecturer to the post of Reader, he (the petitioner) 3 would not be entitled for any further time bound promotion on the post of Professor in terms of the Statutes framed by the Chancellor. Such prayer made by the petitioner for amendment in the relief was also allowed and that is how this Court has now mainly heard the parties as with regard to the aforementioned impugned order dated 3.11.2007 (Annexure 18) which would in fact also affect all the future promotional prospect of the petitioner and his claim of inter se seniority which has been raised separately in C.W.J.C.No. 108/2006 assailing the seniority and promotion of Dr. (Mrs.) Anchala Kumari (respondent no.4 of C.W.J.C.No. 108/2006) and Dr. Vinod Kumar (respondent no.5 of C.W.J.C.No. 108/2006) by seeking the following relief: “This is an application for quashing the notification on contained in Memo No. A/c/Accts/1420/05 of the Patna University dated 29th Sept. 2005 so far as it relates to the promotion of respondents no. 4 and 5 to the post Professor in the Department of Statistics with effects from 12.2.1995 without considering the case of the petitioner who is 4 senior to the said respondents no. 4 and 5 and further appropriate writ may be issued directing the respondents to consider the promotion of the petitioner as University Professor in Statistics placing him senior to the said respondents no. 4 and 5 in the post of Professor in the Department of Statistics, in Patna University. A further direction may be issued directing the University to crrect the subject of the petitioner as “Statistics” in stead of “Public Administration” as is shown in the notification of pay fixation of Reader (at serial no. 87) in the notification contained in Memo no. A/c/Actts/1422/05 dated 29th Sept., 2005.” In respect of the aforementioned relief of the petitioner in both the writ petitions, Mr. Shahi has put the case of the petitioner in a very simple and straightforward manner, inasmuch as he has relied on some of the admitted documents to contend that once this fact is beyond controversy that the petitioner‟s initial appointment was made on the post of Research Officer in the University on 3.4.1973 and on 19.12.1978 the University had also issued an 5 order for treating all these post of Research Officer as teachers of the University, the petitioner will be automatically deemed to be a teacher and thus, holding an equivalent post of Lecturer in view of also grant of pay scale of Rs. 400-950/- by a specific notification of the University dated 15th May, 1975 giving him with benefit of such pay scale with effect from first date of his appointment on the post of Research Officer i.e. 3.4.1973. He would in this respect also explain that the pay scale of Rs. 400-950 as given to the petitioner with effect from 3.4.1973 was actually the pay scale of the post of Lecturer in the University and that is how when the petitioner‟s case for promotion on the post of Reader arose, the Bihar University Service (Constituent Colleges) Service Commission having taken into account the order of the University dated 19.12.1978 recognizing the post of Research Officer, equivalent to the post of teacher, had made a recommendation for promotion of the petitioner on the post of Reader with effect from 19.12.1988 i.e. ten years from the date 6 of the order of the University dated 19.12.1978 recognizing him as a teacher. He has also relied on the judgment of this Court in L.P.A. No. 72/1998 (Shatrughana Sharan Singh vs. The Chancellor of Universities) disposed of on 16th March, 2007 to contend that when an issue of similar nature arose as with regard to effect of giving concurrence of the Commission to a person who was not initially appointed on the post of Lecturer but on equivalent post of Director in the Department of Ancient Indian History and Archaeology, his seniority was protected over directly recruited lecturers, subsequently made Readers. He would, therefore, submit that the decision of the University refusing to give promotional benefit on the post of Professor upon completion of 16 years of service of the petitioner on an equivalent post of Lecturer with effect from 19.12.1994 or placing him junior to respondents no. 4 and 5 of C.W.J.C.No. 108 of 2006 cannot be sustained. In this regard he has also submitted that the solitary reason disclosed in the impugned order dated 3.11.2007 7 holding him to be disentitled for grant of promotion on the post of Professor under time bound promotion Statute was wholly unsustainable in absence of any document to show that the petitioner was ever promoted from the post of Research Officer to the post of Lecturer, so as to deprive the petitioner of such promotion on the post of Professor by holding that the petitioner had already been given two promotions. Mr. Ajay Kumar Sinha, learned counsel appearing for the University, however has very fairly submitted that it would be difficult for the University to prove that the petitioner was ever given a promotion from the post of Research Officer to the post of Lecturer, inasmuch as there is no such order or document to prove that the petitioner was given promotion from the post of Research Officer to the post of Lecturer which could be treated as his first promotion. He, however, would contend that since the petitioner is now seeking another promotion on the basis of his earlier order of promotion on the post of Reader in the light of the recommendation made by the 8 Commission, the University will be entitled to go into the past history of the petitioner, especially when the Commission has now been abolished and the job of the Commission has been entrusted to the University itself. In this context he would rely on the Government order dated 13th July, 1982 (Annexure „B‟ to the counter affidavit) to show that those Research Officers, who were given the equivalent pay scale of Lecturer with effect from 1st April, 1981, were not allowed to have counted their earlier period of service spent on the post of Research Officer and that is how at least six of them, namely, Dr. Ranjan Sinha, Dr. Om Prakash Prasad, Sri Awadh Kishore Prasad, Sri B.P.Singh, Sri Pramod Nandan Das and Dr. Nisha Devi, were given the benefit of the post of Lecturer for the purposes of their time bound promotion on the post of Reader/ Professor only with effect from 1st April, 1981. In this context he has also relied on the Government order dated 7th August, 2000 for justifying his aforesaid stand that all such Research Officer of Patna University who had been given equivalent pay scale of 9 the post of Lecturer on specific terms and conditions with an emphasis that the petitioner also initially appointed as Research Officer and later on given the benefit of Lecturer‟s pay scale cannot have a separate case for his being treated as teacher of the University only because he was granted higher pay scale equivalent to the post of Lecturer with effect from 3.4.1973 specially when the University had issued an order dated 18.7.1980 recognizing services of all Research Officers as Lecturers only w.e.f. 18.7.1980 and the State Government had given benefit to them of the post of Lecturer with only the pay scale w.e.f. 1.4.1981. In this context he has also referred to issuance of two separate orders issued by the State Government, one being letter no. 1520 dated 29.8.1981 and the other being letter No. 1160 dated 13.7.1982 and on that basis he has proceeded to make his submissions that since the order dated 13.7.1982 (Annexure „B‟) has been brought on record, the presumption would be that the petitioner also would be entitled for equivalent post 10 of Lecturer only w.e.f. 1.4.1981, the date on which the Government had given its approval to the services of all the Research Officers as Lecturers. In nut shell his contention is that the order dated 19.12.1978 of the University being a general order would be no consequence especially when the University also had made notification on 18th July, 1980 wherein all the Research Associates, Research Officers, Research Assistants and Research Fellows, in the regular cadre of the University, were recognized as teachers of the University only w.e.f. 18.7.1980. He has thus made his alternative submission that the petitioner‟s effective date of holding the post of Lecturer could be either 18.7.1980 or 1.4.1981 and not 19.12.1978 and as such, the date of promotion of the petitioner on the post of Reader would be 18.7.1990 or 1.4.1991 and therefore, the petitioner having completed 16 years services as Lecturer only on 18.7.1996 or 1.4.1997 was not entitled for time bound promotion on the post of Professor in view of the abolition of the Scheme of time bound promotion w.e.f. 11 1.1.1996. Having noted the rival contentions of the parties, it now becomes necessary for this Court to determine the issue on which the parties are at loggerheads. It is not in dispute that the petitioner initially entered in the University on the post of Research Officer which had an inferior pay scale to that of Lecturer being Rs. 325- 925/- as on 6.8.1972 at a point of time when the Lecturer‟s pay scale in the University was Rs. 400-950. The petitioner, however, got the lecturer‟s pay scale by an order dated 15th May, 1975 with effect from 3.4.1973 which is said to be the date of joining of the petitioner on the post of Research Officer pursuant to the advertisement dated 6.8.1972 providing pay scale of the post of Research Officer in Statistics in the Institute of Public Administration in Patna University. If the petitioner was already drawing the lecturer‟s pay scale from the date of his appointment on 3.4.1973 and if the University on 19.12.1978 had with the concurrence of Academic Council taken a 12 decision to recognize all Research Officer as teachers, the issue gets automatically clinched in favour of the petitioner here and now because then on 19.12.1978 the petitioner will be deemed to have become a teacher and thus, protected by last note of the time bound promotion Statutes giving him the post of equivalent post of Lecturer w.e.f. 19.12.1978. The catch, however, would be whether the petitioner was working as on 19.12.1978 on a post of Research Officer in the regular cadre of Patna University because any adhoc or fortuitous appointment on the post of Research Assistants, Research Officers, Research Associates and Research Fellows was not sought to be protected by this order dated 19.12.1978. The over emphasized reliance on the order of the University dated 15.5.1975 giving the petitioner‟s pay scale of Rs. 400-950 may also be of little assistance to him as the same nowhere remotely refers to the petitioner to be given an equivalent pay scale of Lecturer. Mere grant of an equivalent pay scale of Lecturer to a Research Officer may not be a proof of the 13 petitioner holding the equivalent post of Lecturer unless the same was duly notified by the University as has been done subsequently by the order of the University dated 18.7.1980 or by the Government by its order dated 13.7.1982. It is in this light that this Court has also to view the order of the State Government, as contained in Annexure „B‟ dated 13th July, 1982, inasmuch as if those six persons working also as Research Officers were not covered by the ambit of the University‟s decision dated 19.7.1978, it has to be held that the University and the Government was required to issue a separate order also in case of petitioner as has been done in cases of other Research Officers of the University. The difficulty, however, is that there is one more document which has been referred in the Governmental decision dated 7th August, 2000 recognizing the service of the petitioner as Lecturer with fourteen others also working on the post of Research Officer for the purposes of concurrence for promotion on the post of Reader. In the said letter dated 7.8.2000 there is reference of 14 two earlier government decisions in letters dated 29.8.1981 and 13.7.1982 and thus if the petitioner by aforesaid letter no. 1520 dated 29.8.1981 had been given the benefit of Lecturer‟s pay scale with effect from 1.4.1981 on the same terms as in the next order of the Government dated 13th July, 1982 with effect from a particular date which is not 19.12.1978, the petitioner may have difficulty in claiming the tenure of service of 16 years as the Lecturer from 19.12.1978 and in that case the petitioner‟s seniority as Lecturer will be one which has been mentioned in the Government order dated 29.8.1981. Since this vital document dated 29.8.1981 is not on record and may have a resultant bearing on the issue of reckoning the seniority of the petitioner on the post of Lecturer for counting 16 years, this Court would direct the competent authority of the University to go into this aspect to find out as to whether the petitioner can claim equivalent post of Lecturer on 19.12.1978 or from 1.4.1981 as in case of other Research Officers of the University. It goes without saying that if the 15 Government had sanctioned Lecturer‟s pay scale to the petitioner by a specific order dated 29.8.1981 only with effect from 1.4.1981 and has also given its recommendation or approval for the promotion on the post of Reader on 7.8.2000 only on that basis, the earlier concurrence given by the Commission on 9.12.1999 for promotion of the petitioner on the post of Reader w.e.f. 19.12.1988 or its notified by the University on 14.12.1999 in anticipation of approval of Syndicate will not confer any benefit specially when the petitioner did not challenge the order of the State Government dated 29.8.1981. In that event the date of promotion of the petitioner as Reader can be changed or shifted to 1.4.1991 for the purposes of considering the promotion of the petitioner on the post of Professor. If on the other hand the name of the petitoienr is not included even in the letter of the State Government dated 19.8.1981 giving him the benefit of Lecturer‟s pay scale w.e.f. 1.4.1981 in that case his date of lecturer of 19.12.1978 has to be taken into consideration specially when the same has 16 already been recognized by the University Service Commission on 9.12.1999 for the purpose of grant of time bound promotion to the petitioner on the post of Reader and also notified by the University while giving the petitioner such promotion on the post of Reader with effect from 19.12.1988. It must be clarified that since the respondents no. 4 and 5 were already appointed directly on the post of Lecturer on 12.2.1979 and were also promoted on the post of Reader and Professor with effect from 12.2.1987 and 12.2.1995 respectively under the time bound Statutes, the benefit of seniority to the petitioner even if he is promoted to the post of Professor w.e.f. 19.12.1994 will be decided separately in view of the fact that they were already promoted and the time bound promotion Statutes under Clause 9 very specifically lays down that the inter se seniority would not be changed and/or would not affect their inter se seniority despite their having received the personal promotion on the post of Professor on a later date but if the petitioner‟s seniority has to be reckoned as 17 a Lecturer from 19.12.1978 he of course will get all the benefits not only on the post of time bound promotion on the post of Professor after completing 16 years i.e. w.e.f. 19.12.1994. Thus, the relief in both the writ petitions claimed by the petitioner would squarely depend on the determination of the date of petitioner‟s being treated equivalent to the post of Lecturer i.e. whether it would be 19.12.1978 or any other date as may have been prescribed by the State Government in letter No. 1520 dated 29.8.1981 on the basis of which the State Government had given its approval/ concurrence to the promotion of the petitioner and sixteen other Research Officers of the University for the post of Reader vide its letter dated 7.8.2000. The subsequent writ petition of the petitioner in fact being now absolutely dependent on the result of effective date of promotion of the petitioner on the post of Professor, any decision taken in this regard, therefore, will also have to be taken into consideration for deciding the 18 inter se seniority between the petitioner and respondents no. 4 and 5 in C.W.J.C.No. 108/2006. As these two writ petitions have remained pending before this Court for a period of 4 to 8 years, this Court would direct the respondent Patna University to take a final decision in this regard within a period of six months from the date of receipt/ production of a copy of this order. In the result, Annexure 18, the impugned order in C.W.J.C.No. 3040/2002 is hereby quashed and the matter relating to grant of time bound promotion to the petitioner on the post of Professor and determination of inter se seniority between the petitioner and respondents no. 4 and 5 of C.W.J.C.No. 108 of 2006 is remitted back for a fresh decision to be taken by the University in the light of the findings recorded above. With the aforesaid observations and directions, both the writ applications are disposed of. (Mihir Kumar Jha,J.) Surendra/ 19