JUDGMENT
S.N. Jha and P.N. Yadav, JJ.
1. The dispute in this case relates to seniority between the petitioner, Jyoti Shekhar and respondent No. 4 Dr. Hira Kant Jha (hereinafter called ‘the respondent’). The petitioner seeks quashing of the notification of the Patna University (in short ‘the University’), dated 28-5-1987 contained in Annexure-9, by which the respondent was appointed as Lecturer in Commerce on regular basis with effect from 7-2-1975. He also seeks quashing of the notifications, dated 24-6-1987 and 2-6-2000 contained in Annexures 11 and 14 respectively, by which the respondent was promoted as Reader under the time-bound scheme. By the former notification he was accorded provisional promotion in anticipation of the approval of the Bihar State University (Constituent Colleges) Service Commission; by the latter the promotion was confirmed on receipt of the recommendation of the Commission.
2. The case of the petitioner is as follows. On 14-9-1971 the respondent was appointed as Research Associate in Applied Economic and Commerce on temporary basis on a post sanctioned under the IV plan University Grants Commission (UGC) Scheme. The appointment was to continue upto end of the IV plan period. One temporary post of Research Associate in different subjects including Applied Economics and Commerce was made permanent and converted into temporary post of Lecturer. On 1-6-1974 the Registrar of the University communicated the decision of the Vice-Chancellor to this effect and requested the concerned Heads of the Departments to recommend the case of Research Associate(s) who fulfilled the statutory requirement after taking their option. The appointment was to be made on the recommendation of the Bihar Public Service Commission. The said communication has a bearing on the case of the parties and we will advert to it again in this judgment. The case of the petitioner is that the respondent opted for such conversion and accordingly he was appointed as temporary Lecturer on 7-2-1975. However, the Bihar Public Service Commission did not recommended him for such appointment and therefore, on 22-10-1977 he was reverted to the post of Research Associate with effect from 24-3-1977 when the Bihar Bihar Public Service Commission recommended some other candidate for the post. The name of the respondent, however, continued to be shown in the list of Lecturers and included in the Directory of Commonwealth Lecturers. On 28-5-1987 the respondent was appointed as temporary Lecturer with effect from 7-2-1975, the date of his initial appointment on the post. Later, he was allowed promotion under the time-bound promotion scheme on completion of ten years of service with effect from 1-2-1985, subject to approval of the Bihar State University (Constituent Colleges) Service Commission. The promotion was later confirmed on receipt of recommendation of the Commission, as indicated above.
3. The case of the petitioner is that the appointment dated 28-5-1987 was contrary to the terms of the communication dated 1-6-1974 and the notification dated 22-10-1977 by which the respondent was reverted on the post of Research Associate. The respondent having remained on the post of Research Associate all along, the post could not be treated as converted into the post of lecturer. Such conversion could take effect only on appointment on the recommendation of the Commission and as the petitioner was never recommended for the post the conversion did not materials. At later stages also the respondent was found ineligible for his absorption in 1979 vide Annexure-13 and again in 1981 vide Annexure-17 which he did not challenge. His appointment, therefore, must be treated as a ‘back-door’ appointment and illegal. It was submitted in course of hearing that though the petitioner has challenged the very appointment of the respondent, if the Court is not inclined to annul the same at this stage it should be held that there was no justification to give retrospective effect to the appointment at the cost of the petitioner who was appointed as lecturer on 14-2-1978 and had been working ever since. In that case the respondents’ appointment should be made effective from 28-5-1987 i.e. dated of the order.
4. The case of the respondent is that notwithstanding his revision to the post of Research Associates he continued to take classes in the subject. His name was recommended by a University Selection Committee consisting of Experts upon consideration of which the Vice-Chancellor exercising the powers of the syndicate which was not in existence at the relevant time, was pleased to appoint him on the post, and as he had been performing the duties of Lecturer, the appointment was rightly made effective from the date of the initial appointment i.e. 7-2-1975. In response to the petitioner’s attack on the validity of the respondents’ appointment, Counsel submitted that it does not lie in the mouth of the petitioner to challenge the respondent’s appointment inasmuch as the petitioner himself was appointment for a period “not exceeding three months” on 14-1-1978. The appointment was never extened at any time. Being a V.C. appointee the appointment could not continue beyond period of six months in any case. However, though he was not Lecturer in the eye of law, he was Absorbed on the post pursuant to recommendation of the Selection Committee in terms of one of the Absorption Statutes. The birth of the petitioner thus being shrouded in illegality it is not open to him to challenge the validity of the respondent’s appointment. The further case of the respondent is that conversion of the post of Research Associate was for the benefit of the incumbent and, therefore, the University as indeed the Bihar Public Service Commission committed error in considering candidates from open market and on the basis of comparative assessment of merit recommending an outsider for the post. The University rightly did not accept the recommendation and the post of Lecturer thus remained vacation. The case of the respondents is that some of the Research Associates who were likewise not recommended by the Commission were later appointed as Lecturer and, therefore, all that the University did was to give similar treatment to the respondent, Any interference at this stage, even by shifting the date of appointment to 28-5-1987 would result in discrimination.
5. In the counter-affidavit of the University specific instance of the case of one Dr. Ram Udgar Mahto has been cited and it has been stated that the respondent stands on better footing than the’petitioner as he had more than qualifying marks unlike Dr. Mahto. There is some dispute about the similarity of case of said Dr. Ram Udgar Mahto and the petitioner, which we do not propose to go into this proceeding. The University also relies on the recommendation of the Committee of Experts holding the respondent suitable for the post in 1982.
6. To recapitulate the facts the respondent worked on the converted post of Lecturer from 7-2-1975 to 22-10-1977 when he was reverted to his erstwhile post of Reasearch Associate with effect from 24-3-1977. Earlier he was Research Associate from 15-9-1971, prior to his appointment as temporary Lecturer on 7-2-1975. However, though he was relegated to the post of Research Associate he continued to take classes in the subject as a lecturer as before. There is no dispute on this point. It may be clarified that conversion of the post of Research Associate held by the respondent was in anticipation of the recommendation of the Bihar Public Service Commission. The Bihar Public Service Commission did not recommend him and as such the conversion did not take effect. In order to appreciate this point it is necessary to refer to the relevant parts of the letter dated 1-6-1974 (supra). It may be recalled that by the said communication the Registrar communicated the decision of the Vice-Chancellor to make posts of Research Associate in different subjects permanent and convert one such post of Research Associate into temporary post of Lecturer. The conversion, however, was subject to the incumbent Research Associates opting for it. The’letter also laid down the mode of appointment on such converted post of temporary Lecturer. The relevant parts of the letter may usefully be quoted as under:
“3. It may be noted that the post of Research Associates in the Departments where the Head of the Department recommends to be converted into the post of Lecturer and the Research Associate opts for it, will be converted into temporary posts of Lecturers :
5. The posts of Research Associates will be considered converted only with effect from that date the Uqiversity appoints a person as Lecturer in the Department concerned on the recommendation of the Bihar Public Service Commission and if as a result of this conversion there is any case of hardship to any present incumbent, the conversion of the posts will be put in abeyance and the Research Associate concerned would be allowed to continue on the post of Research Associate.”
It is obvious that the conversion of the post of Research Associates put the employment of the incumbent at stake and, therefore, provision was made for exercise of option by them. In other words, only on their giving option, that is, not objecting to the conversion the post could be treated as converted. Besides the conversion could take effect only from the date of appointment and as such appointment was to be made on the recommendation of the Bihar Public Service Commission. This letter thus contemplated three events, namely, option by the incumbent, recommendation by the Bihar Public Service Commission and appointment by the University. It is not in dispute that the respondent was not recommended by the Commission and, therefore, the question of his appointment, strictly speaking, did not arise. The conversion of the post thus did not take effect. The decision to convert one post of Research Associate into temporary post of lecturer however, was not withdrawn and thus the conversion remained in abeyance, as provided in para 5 of the letter.
7. Another aspect which may be clarified at this stage is that in the context of the said letter dated 1-6-1974, the Bihar Public Service Commission was supported to consider only the incumbent Research Associates. It was like screening of their eligibility and suitability for the post. No comparative assessment vis-a-vis the candidates from the open market was to be made. What really happened was that the post was advertised and the respondent’s case was considered along with candidates from open market and upon such comparative inter se evaluation of merit an outsider was recommended for the post. It is apparent that both the University and the respondent and, if I may say so, the Bihar Public Service Commission too, committed mistake. While the post could not have been advertised and applications invited from open market, the respondent should not have subjected himself to any inter se selection with them, and the Commission too should not have interviewed candidates from open market for the post in question. Had the Commission considered the case of the respondent alone as the incumbent Research Associate the result might have been different.
8. As indicated above, notwithstanding his reversion from the post of Research Associate the respondent continued to take classes as Lecturer as he used to do during his stint as a temporary Lecturer between 7-2-1975 and 22-10-1977. Meanwhile, his case was considered by a Selection Committee consisting of Dr. L.S. Singh, Pro-Vice-Chancellor, Prof. Moonis Raza of Delhi University, Prof. F.H. Rizvi of Aligarh Muslim University, Dr. P.L. Malhotra of Delhi University and Dr. S.N. Mehortra of Banaras Hindu University the latter three being expert members. The minute of the Committee runs as under :
“Interviewed Shri Hira Kant Jha, Research Associate in Commerce to consider his suitability for appointment as a Lecturer in Commerce in Patna University Service against the post of Lecturer converted from the post of Research Associate, on the 24th February, 1982 in the University Department of Education in Patna Training College Compound. The Committee observes Sri Hira Kant Jha is suitable to become a lecturer although he does not fulfil the condition.”
The minute was signed by the aforesaid five members on 24-2-1982. On behalf
of the petitioner it was submitted that the obvesaid minute of the Selection Committee
cannot be regarded as the basis of appointment of the respondent on the post of
Lecturer, for even in the opinion of the committee he did not fulfill the condition. It is
true that the addition of words “although he does not fulfil the condition” is not
understandable but it is equally true that the committee found the respondent suitable
to become a Lecturer. It is pertinent to mention here that so far as eligibility of the
respondent is concerned, there is no challenge even by the petitioner, Which ‘condition’
the committee had in its mind, one would wish, should have been made clear. But if
the eligibility of the respondent is not in dispute, having been found suitable for the
post by committee of eminent experts, their opinion holding the respondent to be
suitable for the post cannot be brushed aside. It is well settled in the matter of
appointment in the academic field opinion of the experts has to be given due weightage
and the Court should be loathe to interfere.
9. Section 2(o) of the Patna University Act defines ‘Lecturer’ to mean, “a teacher of a College or the University possession such qualifications as may be prescribed by the Statutes”. The term Teacher’ has been defied in Section 2(r) to include, “Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instructions in any department, or in any College or Institute, maintained by the University”. Section 2(z) defines the term’other equivalent post’, to mean “any other post, the scale of pay of which is equivalent or as the State Government may declare equivalent”.
10. So far as Annexures 13 and 17 are concerned, from bare perusal of the contents of the minutes it would appear that the selection committee considered the case of temporary Lecturers for the purpose of their absorption in terms of the Absorption Statute. In this manner on 18-5-1979, 20 temporary Lecturers and on 24-4-1981, 24 temporary Lecturers were regularised in terms of the Statutes. The respondent not being a temporary Lecturer at the relevant time, he could not be considered for his obsorption within the framework of absorption scheme and therefore, if he was not selected for absorption by the selection committees, the fact cannot be taken into account against him.
11. The case of the respondent stood on a different footing altogether. His initial appointment was on the post of Research Associate. Later he was appointed as temporary Lecturer in anticipation of the Commission’s recommendation. But while considering his case the Commission went astray and recommended an outsider. If the conversion of the post of Research Associate was for the benefit of the incumbent and thus the Commission should have confined itself to the incumbent(s) alone it is obvious that the respondent suffered prejudice on account of the recommendation of an outsider. In other words, his case was not considered as it should have been within the framework of the decision of the Vice-Chancellor vide letter dated 1-6-1974, Annexure-2. Having been found suitable by the committee of experts, his eligibility not being in dispute, if he was not considered for absorption, his so-called non-absorption cannot be a circumstance against him. It is in the above background of the facts that case of the respondent has to be considered.
12. There is another aspect, which we would like to indicate at this stage. It is true that he was not recommended by the Bihar Public Service Commission an aspect which we have already considered or by the Bihar State University (Constituent Colleges) Service Commission in terms of Section 56 of the Patna University Act, 1976, but the Commission has approved his promotion as Reader under the time-bound promotion scheme. Under the time-bound promotion scheme only a duly appointed lecturer could be considered for promotion as Reader/Professor. The Commission’s approval of respondent’s promotion as Reader, in our opinion, must be interpreted as implied and tacit approval of his appointment as a Lecturer. It may be mentioned under the Patna University Act, 1976 the Bihar State University (Constituent Colleges) Service Commission performs the erstwhile functions of the Bihar Public Service Commission in the matter of selection for appointment of lecturers in the Constituent Colleges. On promotion to the post of Reader his earlier appointment as Lecturer must be held to have merged into the former and at this stage it would be too late in the day to question the validity of the respondent’s appointment on the post of Lecturer. It is to be kept in mind that his eligibility for appointment on the post of Lecturer is not in dispute and that a high level committee of experts, had found him suitable for appointment on the post. Besides, he had all along been teaching like other Lecturers and getting salary in the same scale. In the above premises, we.do not think it would be appropriate to interfere with the appointment of the respondent,
13. Lastly, as regard the petitioner’s alternative plea to set aside the retrospective part of the appointment, we may observe that the impugned appointment has held the ground for about 16 years by now. Meanwhile, on the basis of his effective date of appointment he has been allowed time-bound promotion with effect from 1-4-1985 Making the appointment effective from 28-5-1987 would work injustice, particularly when we have found that consideration of the respondent’s case and reversion in 1987 was not in accordance with the decision dated 1-6-1974. It would not be out of place to mention that the petitioner was a pupil of the respondent in the college in the subject concerned. If the respondent has been thus allowed seniority over him he should show grace and accept this seniority.
14. In the result, for reasons indicated above, we do not find any merit in this writ petition, which is accordingly dismissed. There will be no order as to costs.