JUDGMENT
Shiva Kirti Singh, J.
Page 0042
1. Both these writ petitions have been heard together because they have been preferred by the same petitioner and involve common questions of law and facts and are being disposed of by this common order after hearing the parties in detail at the stage of admission itself.
2. The first writ petition was filed in the year 2000 whereby the petitioner has questioned grant of time bound promotion from the post of Lecturer to that of Reader with effect from 18.6.1990 instead of 1.6.1987 and in relation thereto he has prayed for quashing of orders dated 14.10.1995 (Annexure-2) and the order dated 23.2.2000 (Annexure-1). The second writ petition filed in the year 2001 contains a prayer for quashing an order contained in letter dated 5.9.2001 (Annexure-1) passed by the Vice Chancellor of the LN Mithila University by which he has made respondent No. 4 of that as Professor Incharge of MKS College, Chandauna on the ground that it ignores petitioner’s seniority earned on the basis of his date of entry into service as Lecturer. In that case the second order dated 29.7.2001 (Annexure-2) issued by the Principal of the College designating respondent No. 4 as Professor Incharge of the College has also been challenged. In spite of notice to respondent No. 4 in this case, he has not chosen to appear.
3. The relevant facts relating to the service of the petitioner lie within a narrow compass and are not in dispute. Petitioner was appointed on the post of Lecturer in the Department of Sociology in Maha Kavi Kali Das Smarak College (MKS College), Chandauna, Darbhanga by its Governing Body on 25.8.1976 vide Annexure-3. He joined the post on 30.8.1976. Vide Annexure-4 dated 8.12.1978 the College was granted affiliation upto BA (Pass)/ I.Com level under orders of the Government of Bihar initially for two sessions as proposed by the University, beginning from 1977-78. The subjects included inter alia Sociology and the affiliation continued but the Education Department granted approval to the first post in the Page 0043 subject of Chemistry and four other science subjects by order dated 5.2.1979 (Annexure-5) but such approval for creation of posts in Sociology and some other subjects were approved by the Education Department by order dated 18.6.1980 (Annexure-6). The College was made a constituent unit of the LN Mithila University in the year 1981.
4. It is the case of the petitioner that one Dr Kamleshwar Prasad Singh was appointed as Lecturer in Chemistry on 1.9.1978, much after petitioner’s appointment but he was promoted to the post of Reader under time bound promotion scheme, with effect from 1.9.1988 vide notification dated 29.11.1996 (Annexure-10) issued by the University on the recommendation of the Bihar State University (Constituent Colleges) Service Commission (hereinafter referred to as ‘the Commission’).
5. According to learned Counsel for the petitioner, the University has adopted double standards and a latter appointee in the College has been promoted from an earlier date. He has further shown from notification dated 25.2.1988 (Annexcure-9) that subject to concurrence of the Commission, the University promoted the petitioner on the post of Reader in Sociology with effect from 1.6.1987. According to learned Counsel for the petitioner, since the College was granted affiliation in arts subject including Sociology since the session 1977-78, therefore, service of the petitioner although appointed earlier was counted from the session 1977-78 and hence, on completion of 10 years he was promoted with effect from 1.6.1987.
6. According to learned Counsel for the petitioner, the impugned orders have been passed under a wrong legal impression that for grant of time bound promotion to the post of Reader under the Statute approved by the Chancellor vide letter dated 24.12.1986 the date of approval of the post of Lecturer was relevant. According to learned Counsel, the Statute of 1986 under Clause 1(1) lays down only three conditions for such promotion, namely,
(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
(c) that, he has completed at least ten years of continuous service as lecturer in one or more Universities.
He emphasized that the proviso to the aforesaid clause couched in negative terms makes it further clear that only such service shall not be taken into account for the purpose of this Statute which was rendered in a degree college during the period the college was not affiliated in the subject concerned even up to the intermediate standard. Since the proviso is important hence for ready reference it is quoted hereinbelow:
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 rot be taken into account for the purpose of this Statute.
7. Learned Counsel for the petitioner relied upon a judgment of this Court in the case of B.R. Ambedkar Bihar University v. State of Bihar reported in 1998 (2) PLJR 103, to submit that as per finding in paragraph 22 of the said judgment, the period of service rendered by a teacher in an affiliated college is not to be excluded for computing his Page 0044 qualifying service for promotion. On behalf of the petitioner reliance was placed also upon a judgment of a Full Bench of this Court in the case of Braj Kishore Singh v. State of Bihar reported in 1997 (1) PLJR 509, to submit that in view of possibility of absurd situation arising on account of literal construction of Section 35 of the Bihar State Universities Act, 1976 requiring prior approval in the matter of appointment, it has to be read down to include post facto approval. It was submitted that since the subject of Sociology was included amongst the subjects for which approval was granted since the session 1977-78 and petitioner occupied the first post, mere delay in deciding the approval of sanction of first post in that department should not be given any significance otherwise it will lead to an absurd situation where no teaching can be done although the college was affiliated in the concerned subject. Hence, it was submitted that approval of the State Government though came belatedly, should have been treated as post facto approval so as not to affect the rights of the petitioner. Lastly, reliance was placed upon a judgment of this Court in the case of Smt. Sita Sinha The Accountant General, Bihar reported in 2000(2) PLJR 840 to show that in the matter of fixation of pension this Court held that the date of approval of service has no bearing and the pension is to be computed on the basis of date of appointment.
8. Learned Counsel for the Commission and learned Counsel for the University justified the impugned orders on the ground that 10 years qualifying service for promotion under the Statute of 1986 had to be counted only when the first post in Sociology became available to be filled up after permission for creation of the post was granted by the State Government on 18.6.1980 vide Annexure-6 and, therefore, the date of petitioner’s promotion as per recommendation of the Commission was fixed as 18.6.1990 leading to the impugned orders.
9. The only issue arising for determination is whether the date of permission of the State Government for creation of the first post in Sociology is relevant for the purpose of computing qualifying service of the petitioner for promotion to the post of Reader.
10. In the context of aforesaid issue the judgment of this Court in the matter of pensionary rights as indicated in the case of Smt. Sita Sinha (supra) is not relevant. The principles discussed and laid down by the Full Bench in the case of Braj Kishore Singh (supra) were in context of post in class III/IV but they appear to be relevant because the purpose of seeking prior approval of the State Government as required by Section 35 of the Bihar State Universities Act 1976 was discussed and it was held that the purpose is to pre-empt illegal and uncalled for appointments. In that context Section 35 was read down and it was held that object of Section 35 can be achieved even without insistence on “prior approval’ in each and every case and in appropriate cases appointments can be made subject to “post facto” approval of the State Government.
11. When the appointment as in the case of the petitioner relates to first post in a subject in which teaching was required or permitted to commence on account of affiliation in that subject duly granted by the University and the State Government, the purpose of seeking approval of creation of post will be sufficiently achieved by treating subsequent creation of post as post facto sanction at least for the purpose of granting promotion under the time bound promotion scheme as provided by the 1986 Statute.
12. Without meaning to dilute the significance of aforesaid judgment of the Full Bench, in the present case this Court is of the view that the real issue can be easily decided on the basis of provisions in the 1986 time bound promotion Statute…. On a plain reading of Page 0045 the relevant Clause 1 of the Statutes this Court finds that the provisions and particularly, the proviso give clear indication that the period of continuous service rendered by a teacher in an affiliated college is to be counted for computing his qualifying service for promotion without any reference to the date on which the State Government gave permission for creation of post as sought by the University. Any delay in grant of such promotion will not adversely affect the right of the concerned teacher provided he was rendering service continuously in a college affiliated at least up to Intermediate standard. The proviso is also of great significance because in negative terms it provides for excluding the service of a teacher for such promotion only when the collage was not affiliated in the subject concerned even up to the intermediate standard. In the present case admittedly the college was affiliated in the subject concerned up to the degree standard since the session 1977-78 and on that account, by Annexure-9 the University in anticipation of concurrent of the Commission and on the recommendation of the Screening Committee promoted the petitioner to the post of Reader in Sociology with effect from 1.6.1987 i.e. on completing 10 years of continuous teaching experience from 1.6.1977 when the session 1977-78 commenced and the college got affiliation beginning that session in Sociology also.
13. On a proper consideration of the entire matter, the submissions advanced from both the sides and the previsions in the 1986 time bound promotion Statute, this Court is in agreement with the law laid down by this Court in the case of B.R. Ambedkar University v. State of Bihar (supra) and holds that petitioner’s service prior to 18.6.1990 when the college was affiliated in the subject concerned up to the degree standard in Sociology, cannot be excluded for the purpose of computing his qualifying service for promotion under the 1986 time bound promotion Statute. It is further found that the Commission and the University have erred in law in granting time bound promotion to the petitioner on the post of Reader with effect from 18.6.1990 instead of 1.6.1987 as granted earlier vide Annexure-9 in anticipation of concurrence of the Commission.
14. In the result, the impugned orders in both the writ petitions are quashed. The concerned respondents are directed to correct the date of time bound promotion of the petitioner to the post of Reader treating him eligible and qualified for such promotion with effect from 1.6.1987 in place of 18.6.1990. Orders and notifications to that effect should be issued without any delay and preferably within three months. Petitioner is also found entitled for all consequential benefits as a result of this judgment and order. If such benefits have not been paid to him already, it should be made available to him without any delay, preferably within the same period of three months.
15. The issue of designation as Professor Incharge of MKS College is remitted to the Vice Chancellor of the University with a direction that in the light of facts as existing today he should reconsider the matter in accordance with law keeping in view the discussions and findings in this order. If the said issue is still relevant and alive then the same should be redecided by the Vice Chancellor at an early date preferably within three months without being influenced by the impugned orders contained in Annexures 1 and 2 in CWJC No. 12103 of 2001.
16. Both the writ petitions are allowed to the aforesaid extent. There shall be no order as to costs.