IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11329 of 2000 1. (a) Iffat Sultana, wife of late Dr. Mamunur Rashid Afsar. 2. (b) Saba Firaz, D/o of late Dr. Mamunur Rashid Afsar. 3. (c) Md. Zeeshan Ali, son of late Dr. Mamunur Rashid Afsar. 4. (d) Farhan Ali, son of late Dr. Mamunur Rashid Afsar. All residents of House of Md. Shahood Alam, near Madarsa Lane, Mohalla Samanpura, P.O. B.V. College, P.S. Shashtrinagar, Dist. Patna. ------------- Petitioners Versus 1. The State of Bihar through the Secretary, Higher Education, Government of Bihar, Patna, Secretariat Building, Patna-1. 2. The Chancellor of the Universities of Bihar, Raj Bhawan, Patna. 3. The Vice Chancellor, T.M. Bhagalpur University, Bhagalpur. 4. The Registrar, T.M. Bhagalpur University, Bhagalpur. 5. The T.M. Bhagalpur University Syndicate, Bhagalpur through the Vice Chancellor. 6. The Finance Officer, T.M. Bhagalpur University, Bhagalpur. 7. The Principal, P.B.S. College, Banka, T.M. Bhagalpur University, Bhagalpur. 8. The Vice Chancellor, Magadh University, Gaya. 9. The Registrar, Magadh University, Gaya. 10. The Magadh University Syndicate, Gaya through the Vice Chancellor. 11. The Finance Officer, Magadh University, Gaya. 12. The Principal, A.N. College, Boring Road, Patna. 13. The Bihar State (Constituent College), Service Commission, Patna through Secretary. --------- Respondents With CWJC No.2149 of 2000 1. (a) Iffat Sultana, wife of late Dr. Mamunur Rashid Afsar. 2. (b) Saba Firaz, D/o of late Dr. Mamunur Rashid Afsar. 3. (c) Md. Zeeshan Ali, son of late Dr. Mamunur Rashid Afsar. 4. (d) Farhan Ali, son of late Dr. Mamunur Rashid Afsar. All residents of House of Md. Shahood Alam, near Madarsa Lane, Mohalla Samanpura, P.O. B.V. College, P.S. Shashtrinagar, Dist. Patna. ------------- Petitioners Versus 1. The State of Bihar. 2. The Chancellor of the Universities of Bihar, Patna. 3. The Vice Chancellor, Bhagalpur University, Bhagalpur. 4. The Registrar, Bhagalpur University, Bhagalpur. 2 5. The Bihar State University (constituent college) Service Commission, Boring Road, Patna. 6. The Bhagalpur University Syndicate, Bhagalpur. 7. Dr. Om Prakash Chaurasia, Reader-in-Zoology, Deoghar College, Deoghar, Dist. Deoghar, at present P.G. Department of Zoology Bhagalpur University, Bhagalpur. 8. Dr. Anil Kumar Sinha, Reader in Post Graduate Department of Zoology, Bhagalpur University, Bhagalpur. 9. Dr. Awadhesh Kr. Mishra, reader in Zoology, Braj Mohan Das College, Dayalpur, Via Biddupur, Dist. Vaishali. 10. The Vice Chancellor, Magadh university, Bodh-Gaya. 11. The Registrar, Magadh University, Bodh-Gaya. 12. The Principal A.N. College, Patna. --------- Respondents ----------- For the Petitioners :- Mr. Najmul Hoda, Adv. For the T.M.B. University :- Mr. Anil Singh, Adv. For the private Respondent No.8 :- Mr. Sanjay Kumar Ghosarvey, Adv. For Magadh University :- Mr. Hans Raj, Adv. For the State :- Mr. Lakmesh Marvind, AC to SC-9 ----------- 10 16.09.2011 Heard learned counsel for the parties. Mr. Najmul Hoda, learned counsel for the petitioners in both the cases, at the outset would submit that though there has been two writ applications by the original petitioner, the sum and substance of both of them are same, inasmuch as, the original petitioner wanted to shift back his date of merit promotion from 1.6.1988 as allowed by the Bihar State University Service (Constituent Colleges) Commission to 3.10.1987. Mr. Hoda in this regard has submitted that from the records specially the order of this Court dated 23.9.1997 in CWJC No. 12311 of 1996, it would become clear that the petitioner was held entitled for fixation of his pay from 3 the date of his initial appointment as Lecturer i.e. 3.10.1979 and, therefore, neither the University nor the Commission, while deciding the claim and case of the original petitioner for grant of promotion under the Merit Promotion Statutes, had any liberty to choose any other date. He has, in fact, to that extent also assailed the order of provisional promotion of the petitioner on the post of Reader with effect from 12.9.1988. Mr. Hoda, therefore, has submitted that after the original petitioner has already died and has been substituted by his legal heirs and representatives, they would be entitled for re-fixation of his pay, emoluments and retirement benefits by restoring his date of promotion on the post of Reader shifting it back from 1.6.1988 to 3.10.1987. Learned counsel for the respondents has, however, submitted that even when the appointment in an unaffiliated college on 3.10.1979 may have enured to the benefit of the original petitioner for payment of salary in view of the earlier order of this Court dated 23.9.1997 in CWJC No. 12311 of 1996, but the question of the date of grant of 4 promotion under the Merit Promotion Statutes, will have to be always reckoned as prescribed in Merit Promotion Statutes requiring the period of eight years service to be counted from the date of substantive appointment of the petitioner in the College. Learned Counsel for the Respondents have also submitted that such substantive appointment cannot be made without sanction of post and since the post was sanctioned only on 9.8.1982. In the considered opinion of this Court the submission of the learned counsel for the Respondents has to be accepted. The substantive appointment of the petitioner for the purpose of merit promotion from the post of Lecturer to the Reader can be counted only from the date of creation and sanction of the post of Lecturer which is 9.8.1982. The Merit Promotion Statutes dated 22.12.1986 infact clearly lays down the requirement of completing at least eight years of continuous service as a Lecturer out of which almost four years should be in the department where he or she is being considered for such assessment and promotion. It further lays down that not more than 1/3rd of the number 5 of permanent promotion posts of Lecturer within a department would qualify for such merit promotion as Readers. It is, therefore, clear that the Statutes dated 22.12.1986 when it talks of grant of merit promotion it also lays down the requirement of continuance of a person in service of eight years as a Lecturer. A person cannot be a Lecturer unless the college is affiliated and, therefore, even by taking a line of least resistance and without giving into the issue of date sanctioned post of lecturer and whether it was or not from retrospective effect, when this fact is admitted even in the earlier order of this Court it has been held that the college in question was affiliated in the year 1980 (1980-81 session), the decision of the Commission in making its recommendation for grant of merit promotion to the petitioner with effect from 1.6.1988 i.e. by treating his service on the post of Lecturer from 1.6.1980 cannot be said to be bad and in fact also does not suffer from any error. As a matter of fact, when the Magadh University had also notified the provisional promotion of the petitioner with effect from 6 12.9.1988 with a clear rider that the date as decided by the Commission would be the final, the original petitioner would be entitled for being promoted on the post of Reader with effect from 1.6.1988 as was recommended by the Commission. Considering all these aspects of the matter, this Court would find no error in the order of the Commission and, accordingly, while upholding the correctness of Annexure- 14, the order of the Commission, this Court would find no merit in this writ applications. It is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)