IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13478 of 2005 DR.GIRIJA PRASAD SHARMA, S/O LATE ALAKH PRASAD SHARMA, R/O VILLAGE SAGARPUR, P.S. GOH IN THE DISTRICT OF AURANGABAD. ............PETITIONER. Versus 1.THE STATE OF BIHAR. 2.TILKA MANJHI BHAGALPUR UNIVERSITY, BHAGALPUR THROUGH ITS REGISTRAR. 3.THE BIHAR STATE UNIVERSITIES (CONSTITUENT COLLEGES) SERVICE COMMISSION,9 JAWAHARLAL NEHRU MARG(BAILEY ROAD), PATNA-15 THROUGH ITS SECRETARY. 4.THE SECRETARY, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 5.THE VICE CHANCELLOR, TILKA MANJHI BHAGALPUR UNIVERSITY, BHAGALPUR. 6.THE REGISTRAR, TILKA MANJHI BHAGALPUR UNIVERSITY, BHAGALPUR. ..............RESPONDENTS. For the Petitioner: Mr. Purushottam Kumar Jha. For the University: Mr. Ashok Kumar Keshri, Advocate and Ms. Shilpi Keshri. For the State : Aditya Nath Pandey, A.C to G.A 5. ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (21.06.2011) Mihir Kumar Jha, J. Heard Mr. Purushottam Kumar Jha, learned counsel for the petitioner, Mr. Ashok Kumar Kesri, learned counsel for Tilka Manjhi University, Bhagalpur assisted by junior counsel Mrs. Shilpi Keshri and learned counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ in the nature of certiorari to quash the Memo No. 473 dated 25th August 2005 issued under the signature of the respondent Secretary, Bihar State Universities (Constituent 2 Colleges) Service Commission whereby and whereunder it has been held that the petitioner is entitled for only two promotions which have already been granted to him as Lecturer and Reader and no proposal for any other promotion was permissible and, as such, it gave its concurrence only to the promotion granted to the petitioner on the post of Reader under Time Bound Scheme with effect from 11th February 1985 and further for issuance of a consequential writ in the nature of mandamus directing and commanding the respondent-authorities to shift the date of merit promotion of the petitioner in the rank of Reader with effect from 22nd December 1986 and thereafter to grant him promotion under the merit scheme on the post of Professor and fix his pension in the scale of Professor as was earlier being paid to the petitioner and/or for issuance of any other appropriate writ/writs, order/orders and/or direction/directions which seem just and equitable in the facts and circumstances stated hereinafter.” 3. Facts which are not in dispute and would be sufficient for disposal of this writ application lies in a very narrow compass. The petitioner was initially appointed as a Demonstrator in the department of Geography in Tilka Manjhi University, Bhagalpur on 25.09.1961 and was posted in the T.N.B College, Bhagalpur. 4. Subsequently by an order dated 11.02.1975 he was promoted on the post of Lecturer in the department of Geography as would be evident from Annexure-21 to the rejoinder affidavit filed by the petitioner. The petitioner thereafter had two options for earning his higher promotion on the post of Reader one under the Time Bound Promotion statute/scheme and the other under the Merit 3 Promotion statute/scheme. The petitioner initially opted for his Time Bound Promotion and got his promotion as a Reader w.e.f. 11.2.1985 under the Time Bound Promotion statute/scheme vide notification no. 25/95 dated 26.04.1995, wherein, he alongwith sixty one other Lecturers were granted Time Bound Promotion on the post of Reader from various dates on which they had completed their ten years of service as a Lecturer. As a matter of fact the petitioner's such promotion on the post of Reader w.e.f. 11.2.1985 having been notified by the University on 26.4.1995 under the Time Bound Promotion statute/scheme with the prior approval and recommendation of the Bihar State University (constituent colleges) Commission (hereinafter referred to as the Commission). Therefore, the date of his promotion as a Reader w.e.f. 11.02.1985 became fate accompli so far his promotion on the post of Reader was concerned. 5. It however, appears that the petitioner having noted the restriction imposed under the Time Bound Promotion statute dated 24.12.1986, under which he had earned his promotion on the post of Reader w.e.f 11.02.1985, envisaging no further promotion and thereby eclipsing his prospect for promotion on the post of Professor for ever had once again applied for his promotion on the same post of Reader, now under Merit Promotion statute/scheme. 4 Curiously the University also had considered the case of the petitioner for promotion under the Merit Promotion statute/scheme and had notified such promotion of the petitioner on 25.4.1997 on the post of Reader w.e.f 22.12.1987 vide Annexure-6, when he had already been promoted on the same post of Reader under Time Bound Promotion statute w.e.f from 11.02.1985. 6. Such promotion of the petitioner under the Merit Promotion statute/scheme notified by the University on 25.04.1997, w.e.f. 22.12.1987 was made in anticipation of the recommendation of the Commission and the University's subsequent notification dated 19.08.1998 would go to show that even without receiving the specific approval of the Commission with regard to shifting of the date of promotion under the Merit Promotion statute/scheme, the University on its own had shifted the date of Merit Promotion statute of the petitioner from 21.12.1987 to 22.12.1986. 7. Based on this shifting made on 19.08.1998 the University also had notified the promotion of the petitioner on the post of Professor under the Merit Promotion statute w.e.f 11.02.1983 by taking into account that he had completed eight years of service as a Reader in the Merit Promotion scheme i.e. w.e.f. 22.12.1986. Surprisingly, the University 5 however in its notification dated 31.12.1998 did not take into account the effective date of promotion of the petitioner under the Merit Promotion statute/scheme but had taken into account the date of promotion of the petitioner under the Time Bound Promotion statute/scheme for calculating eight years and the date of promotion of the petitioner on the post of Professor under the Merit Promotion scheme was notified as 11.02.1993. 8. In the considered opinion of this Court promotion on the post of Professor was wholly impermissible, inasmuch as, the Commission's recommendation under the Merit Promotion statute for promotion of the petitioner on the post of Reader was already notified by the University while giving him promotion on the post of Professor under the Merit Promotion statute/scheme on 25.04.1997, under which his effective date of promotion on the post of Reader under the Merit Promotion statute/scheme was 22.12.1987. Thus if any promotion was to be earned by the petitioner on the post of Professor in the merit promotion scheme, he had to complete eight years of service as a Reader under the Merit Promotion scheme/scheme which could have been completed only on 22.12.1995. 9. At this place it is also significant to note here that the petitioner in fact having found 6 that unless his date of promotion on the post of Lecturer on 11.02.1975 was shifted back to 28.02.1974, he could not have got the benefit of being considered for promotion on the post of Professor, even under the Merit Promotion statute/scheme, had moved this Court in C.W.J.C No. 1445 of 1991, wherein, his specific prayer was that the University should be directed to shift his effective date of promotion on the post of Reader from 11.02.1975 to 28.02.1974. In the said writ application, he had also sought a direction for considering his case for Time Bound Promotion w.e.f. 28.02.1990 on completion of 16 years of service under the Time Bound Promotion scheme. A Division Bench of this Court by a judgment dated 31.03.2003, however had rejected such prayer and had refused to date back the date of promotion of the petitioner from 11.02.1975 to 28.02.1974. This Court had also considered his claim for promotion under the Time Bound Promotion statute and in the judgment of the Division Bench it was also clearly held that the petitioner was not entitled for grant of promotion on the post of Professor under the Time Bound Promotion statute. The Division Bench thereafter had merely observed that the petitioner would be entitled of being considered for promotion on the post of Professor under the Merit Promotion statute/scheme by 7 taking the date of his promotion on the post of Reader under the Merit Promotion statute. To that extent the following finding of the Division Bench have attained finality between the parties would settle the issue as with regard to the claim of the petitioner for his promotion on the post of Professor which is quoted hereinbelow:- “5. In view of the aforequoted provisions of the Statute and the decisions Shir Ganesh Pd. Singh did not press the claim for the time bound promotion as professor. He however, submitted that as a matter of fact the petitioner was allowed merit promotion as Professor under the Merit Promotion Scheme during the pendency of this case though the effective date of such promotion does not appear to have been correctly fixed and the petitioner may be given opportunity to challenge the effective part of promotion by filing representation before the University. Shri Yugal Kishore submitted that the petitioner was allowed merit promotion as Reader under the Merit Promotion Scheme with effect from 22.12.1986 vide notification no. GA 162/98 dated 19/22.08.98 and accordingly, the effective date of his promotion as Professor was fixed as 22.12.1994 when he completed eight years of service vide notification no. 180/99 dated 18.12.1999. Earlier on 31.01.1998 and 02.11.1998 vide memo no. 193/98 the petitioner was allowed promotion under the merit promotion scheme on temporary basis with effect from 11.2.93 subject to concurrence of the Bihar State Universities (constitutent college0 Service Commission with a stipulation that the promotion shall stand automatically cancelled in the event of non- receipt/refusal of concurrence by the Commission. The submission of Shir Ganesh Pd. Singh in this regard was that the petitioner having been allowed time bound promotion as Reader with effect from 11.2.85, on completion of eight years of service as Lecturer, he was entitled to promotion under the Merit Promotion Scheme with effect from 11.02.93. Shri Yugal Kishore submitted, in reply, that the considerations for grant of time bound promotion and merit promotion are entirely different. 8 Where two channels and types of promotion are available, the person cannot claim advantage of both. In the instant case if the petitioner was granted time bound promotion with effect from 11.2.85 it cannot be treated as basis for merit promotion under a different Statute and scheme. Having also been allowed merit promotion under a different statute and scheme. Having also been allowed merit promotion under the Merit Promotion Scheme, his further promotion as Professor-under the Merit Promotion Scheme-has to be considered on the basis of the effective date of merit promotion and not time bound promotion as Reader. The time bound promotion as Reader did not qualify him for his time bound promotion as Professor against which the petitioner cannot have any grievance. He has thus to content himself with the merit promotion under the Merit Promotion Scheme. 6. These submissions have been noticed for the sake of record. There being no decision of the University on the point, I do not feel inclined to express any opinion on the point. Unless a decision is arrived at-one way or the other-by the authorities there may not be any occasion for exercise of the power of judicial review under Article 226 of the Constitution. In the above premises, without deciding the point as to the effective date of merit promotion under the Merit Promotion Scheme, the petition is disposed of with liberty to the petitioner to make representation in respect of his claim. If such representation is filed the same shall be considered and decided by a reasoned order in accordance with law“. 10. It has to be kept in mind that the said Division Bench judgment was delivered on 31.03.2003 at a point of time when the petitioner had already retired from service w.e.f 31.10.2000. Obviously the representation filed by the petitioner after disposal of his case by the division bench for earning of his promotion even under the Merit Promotion scheme on the post of Professor was only for getting financial benefit and/or the enhanced retirement benefits. Thus 9 when the petitioner had represented his case pursuant to the observations made by this Court, the Vice Chancellor had passed a reasoned order on 24.05.2004, wherein, it was held that the petitioner could not have drawn attention of both the claims i.e. Time Bound Promotion statute/scheme and Merit Promotion statute/scheme and he had to confine his case to either of the stream. In that regard, the Vice- Chancellor had also held that as the petitioner's promotion on the post of Professor under Time Bound Promotion statute/scheme was not permissible, and his shifting of date even for the promotion on the post of Reader under the Merit Promotion statute from 22.12.1987 to 22.12.1986 was made by the University without prior approval of the Commission, the effective date of the petitioner's earning on the post of Reader would be 22.12.1987 and not 22.12.1986 and therefore, eight years period for earning the promotion on the post of Professor under the Merit Promotion statute could be complied by him only on 22.12.1995 and as such his promotion was notified as Professor in the year 1999 vide notification no. 180/99 dated 18.12.1999 was based on an incorrect order of shifting of his date of promotion on the post of Reader under the Merit Promotion statute from 22.12.1987 to 22.12.1986. 11. The representation of the petitioner, 10 therefore, had been rejected by the University whereafter the petitioner again moved this Court in C.W.J.C No. 9023 of 2004 claiming that the Vice- Chancellor had passed an illegal order by holding that the petitioner's Merit Promotion on the post of Professor was illegal which also denied him fixation and payment of pension and other retirement benefits on the basis that he had retired from service as a Professor. This Court having analysed the facts as noted above including the earlier judgment of the Division Bench had held that the petitioner had surrendered to his fate by accepting his promotion on the post of Professor w.e.f 22.12.1994. In fact this Court having noted the discrepancy that had become obvious on account of petitioner's promotion on the post of Professor under the Merit Promotion scheme/scheme w.e.f 22.12.1994 without completing eight years of service on the post of Reader under the Merit Promotion statute/scheme, it had gone to held as follows:- “In the present matter the University granted merit promotion to the petitioner with effect from 22.12.1987 and concurrence was given by the Commission. If that is taken to be the final date then the petitioner would complete eight years on 22.12.1995 and that would certainly be much beyond the cut off date of promotion that is 22.09.94. If the recommendation made by the University to the Commission are accepted and his date is shifted to 22.12.1986 then the petitioner's promotion would become effective with effect from 22.12.1994 and that would be much before the cut off date of the promotion.” 11 12. Having held so this Court in its judgment dated 31.12.2004 had directed the University to refer the recommendation of shifting the date of the petitioner's promotion on the post of Reader from 22.12.1987 to 22.12.1986, and the Commission was directed to decide the matter within a period of four months. It was also made clear that if the Commission would give its concurrence to shifting of the date of promotion of the petitioner under Merit Promotion statute on the post of Reader from 22.12.1987 to 22.12.1986, the University shall consider the matter afresh and refix the pension and other retirement benefits, but if the Commission would not concede to date back the recommendation of promotion of the petitioner on the post of Reader from 22.12.1987 to 22.12.1986, it would be required to pass a speaking order. 13. The present writ application in fact is a fall out of the aforesaid direction given by this Court in the order dated 13.12.2004 in C.W.J.C NO. 9023 of 2004. In the impugned order passed by the Commission, it has refused to date back the recommendation of the petitioner's promotion on the post of Reader from 22.12.1987 and while doing so it has altogether also ignored its earlier recommendation for giving promotion to the petitioner 12 under the Merit Promotion statute/scheme. 14. In the considered opinion of this Court, while the approach of the Commission in the peculiar facts of the case of the petitioner, whether he had already earned promotion under the Time Bound Promotion statute/scheme as a Reader w.e.f 11.02.1985 cannot be faulted in law but then the inter parte finding between the petitioner and the University in the earlier Division Bench judgment to the following effect:- “In the instant case if the petitioner was granted time bound promotion with effect from 11.02.85 it cannot be treated as basis for merit promotion under a different statute and scheme. Having also been allowed merit promotion under the Merit Promotion Scheme his further promotion as Professor-under the Merit promotion scheme-has to be considered on the basis of the effective date of merit promotion and not time bound promotion as Reader. The time bound promotion as Reader did not qualify him for his time bound promotion as Professor against which the petitioner cannot have any grievance. He has thus to content himself with the merit promotion under the merit Promotion Scheme.” would bind all the parties. 15. Specially when the Division Bench of this Court had already chosen to ignore the inadmissibility of the petitioner to have been given promotion under both Time Bound Promotion statute/scheme and Merit Promotion statute/scheme. Thus his right of being considered for promotion on the post of Professor under the Merit Promotion statute/scheme could not have been taken away by the 13 Commission which at one point of time had already given concurrence to both the promotion of the petitioner on the post of Reader and Professor under Merit Promotion statute/scheme. 16. The crux of the matter therefore, would be that the petitioner's earlier promotion under the Time Bound Promotion statute/scheme on the post of Reader and all the benefits drawn thereunder will have to be refunded by the petitioner if not already done so. In other words, the petitioner will not be entitled for any financial benefit of the post of Reader from 11.02.1985 to 22.12.1987 and as the learned counsel for the petitioner has voluntarily made an offer that the petitioner will not be entitled to claim promotion under both the schemes and he has to give up his claim for promotion under the Time Bound Promotion statute/scheme in order to be considered for promotion on the post of Professor under the Merit Promotion statute/scheme, this Court would direct the Registrar of the University to calculate the amount which was drawn by the petitioner in the relevant period towards the salary on the post of Reader for the period from 11.02.1985 to 22.12.1987 including all future benefits extended to him on the basis of such promotion on the post of Reader w.e.f. 11.2.1985 and for all purposes his promotion on the post of Reader would be 22.12.1987 14 as approved by the Commission under the Merit Promotions Statutes and deduct the same from any other admissible amount payable to him. 17. Having done so the University will also consider the case of the petitioner for his promotion on the post of Professor under the Merit Promotion statute/scheme by taking his effective date of promotion as a Reader under the Merit Promotion statute/scheme to be 22.12.1987 and completing eight years of service on 22.12.1995. If the petitioner is found eligible for promotion on the post of Professor under the Merit Promotion statute/scheme as was in vogue on the date of the promotion of the petitioner would complete his eight years of service on 22.12.1995 and if the petitioner also fulfills the requirements of the subsequent statutes which came into force after repealing of the earlier Time Bound Promotion statute/scheme dated 24.12.1986, the University and its selection committee will reconsider his claim for promotion under the Merit Promotion statute/scheme but if the petitioner's promotion on account of the alleged cut of date as recorded in the order of the Vice-Chancellor of the University and approved by this Court in the earlier order is found to be an obstacle in the way of promotion of the petitioner on the post of Professor under Merit Promotion statute/scheme, it will only 15 pass a reasoned order communicating the circumstances and reasons in which the petitioner would not be eligible and entitled for promotion on the post of Professor under the Merit Promotion statute. 18. At this stage, this Court must also note the submission of Mr. Ashok Kumar Kesri, learned counsel for Tilka Manjhi University, Bhagalpur that the case of the promotion of the petitioner was already considered by the selection committee and the matter was placed before the Syndicate. This Court however in view of its findings as recorded above would direct that such consideration of the selection committee and the University be made afresh in the light of directions given above and the fresh recommendation of Selection committee be placed before Syndicate of the University for a final decision as with regard to admissibility of the promotion of the petitioner under the Merit Promotion statute/scheme only w.e.f. 22.12.1995 or any date thereafter. 19. With the aforementioned observations and direction, this application is disposed of. (Mihir Kumar Jha, J) Patna High Court Dated the 21st June 2011 A.F.R./Ranjan