Bihar State University … vs Dr. Braj Kumar Mishra And Anr. … on 28 July, 1998

Patna High Court
Bihar State University … vs Dr. Braj Kumar Mishra And Anr. … on 28 July, 1998
Equivalent citations: 1999 (1) BLJR 436
Author: R Sharma
Bench: R Sharma, B Sharma


JUDGMENT

R.A. Sharma, J.

1. Both these appeals have been filed against the same judgment of the learned single Judge and have been heard together. They are, therefore, being disposed of by this Common Judgment.

2. Respondent No. 1 Dr. Braj Kumar Mishra in both these appeals is the Professor in Psychology in a constituent college of the Ranchi University, Ranchi (hereinafter referred to as’ the University). He filed C.W.J.C. No. 3409 of 1996 (R) before this Court challenging the notification dated 4.10.1996, issued under the signature of the Registrar of the University, whereby the Vice Chancellor of the University has promoted him to the post of Professor under the time bound promotion scheme (hereinafter referred to as ‘the scheme’) with effect from 16.9.1992. The grievance of Respondent No. 1 is that he is entitled to be promoted to the said post under the scheme with effect from 1.2.1985. Accordingly, he had prayed for appropriate direction to the respondents in the writ petition to promote him as the professor with effect from 1.2.1985, instead of 16.9.1992. This writ petition has been allowed by the learned Single Judge, vide judgment dated 29th August, 1997, the operative portion of which is reproduced below-

In the result, this writ petition is allowed and part of the impugned order by which the date of promotion of the petitioner as University Professor with effect from 16.9.1992 is hereby quashed and it shall be deemed that the petitioner has been promoted with effect from 1.2.1985. However, there shall be no order as to costs.

3. By the above judgment the learned Single Judge has issued two directions, namely, (i) he has quashed that part of the impugned order by which Respondent No. 1 was promoted as the University Professor with effect from 16.9.1992 (under 25 years scheme), and (ii) he has declared that the said respondent shall be deemed to have been promoted as the Professor with effect from 1.2.1985 (under 16 years scheme).

4. The learned Advocate General who has appeared on behalf of the appellants in LPA No. 434 of 1997 (R) has confined his challenge only to the second direction of the learned Single Judge contained in the operative portion of the Judgment quoted above, whereby it has been declared that Respondent No. 1 shall be deemed to have been promoted with effect from 1.2.1985. His sole submission is that after setting aside the order impugned in the writ petition as regard the date with effect from which the promotion will take effect, it was not open to the learned Judge to declare that Respondent No. 1 shall be deemed to have been promoted with effect from 1.2.1985 because this is the function of the Bihar State University (Constituent Colleges) service Commission (hereinafter referred to as the Commission) and not of this Court. He has, therefore, prayed for remand of this case to the Commission for determining the date with regard to which the promotion is to be given to Respondent No. 1. The learned Counsel for the appellants in the other connected appeal, being LPA No. 443/97 (R) has adopted the argument of the learned Advocate General.

5. The submission of Mr. V.P. Singh, the learned Counsel for the Respondent No. 1. on the other hand is that the Screening Committee and the Commission had found Respondent No. 1 eligible and fit for promotion as the University Professor, but he has been granted the promotion under 25 years scheme, instead of 16 years scheme, merely on the basis of the additional criteria adopted by the Commission, although this Court has held that such additional criteria cannot be fixed by the Commission. He, therefore, contends that if the non-statutory criteria adopted by the Commission is ignored, the Respondent No. 1 gets the promotion under 16 years scheme with effect from 1.2.1985 automatically.

6. Normally this Court after quashing the impugned order remands the matter to the concerned authority for deciding the dispute afresh in accordance with law. But in the instant case such a course has not been adopted by the learned Single Judge. While allowing the writ petition he has declared that Respondent No. 1 shall be deemed to have been promoted under 16 years scheme with effect from 1.2,1985. Hence the necessity to scrutinize the matter in order to ascertain as to whether such a direction was justified.

7. There are two schemes for time bound promotion to the post of University Professor, viz. (i) 16 years scheme under which a reader can be promoted as the professor on completition of 16 years continuous service as reader/lecturer, and (ii) 25 years scheme whereunder a reader can be promoted as the professor on completition of 25 years of continuous service as teacher not below the rank of lecturer. Rule 1(f) of the statute which has provided criteria for promotion from reader to the post of professor is reproduced below-

(2) A Reader, serving in a University Department or in a Degree College, managed and maintained by the University who has completed at least twenty five years of continuous service as teacher, not below the rank of lecturer in one or more Universities, shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound scheme to the post of University Professor subject to the conditions given in proviso to Clause (1) above.

(3) A reader possessing the qualification of a University Professor prescribed by the University Grants Commission serving in a University Department or in a Degree College, managed and maintained by the University and who has completed at least 16 years of continuous service as Lecturer/Reader in one or more Universities, shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission be promoted to the post of University Professor, other conditions remaining the same.

(4) Such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Colleges) Service Commission on consideration of experience and C.C. Roll of the teacher concerned:

Provided that where C.C. Rolls have not been maintained before Implementation of these statutes, the cases of teachers who are eligible for promotion as Reader or University Professor on the date of implementation of this Statute, shall be considered by the said Commission on the basis of experience and certificate from the Heads of University Department or Principal of Colleges concerned in regard to the satisfactory service of the teachers after the same have been screened by a Committee consisting of the vice Chancellor, the Dean of the Faculty concerned, the Head of the University Department concerned and two experts appointed by the Vice Chancellor from the panel prepared by the Bihar Inter University Board:

Provided further that the report of the Committee in each case shall be referred to the Bihar State University (Connstitutent Colleges) Service Commission for its recommendation but where in the opinion of the Committee a teacher fulfills the prescribed conditions and is found fit to be promoted, the indicate may, on the recommendation of the Vice Chancellor pass orders for promotion of such a teacher on a temporary basis till final decision is taken on the recommendation of the said Commission, but in case the Commission does not recommend for promotion, the temporary promotion given to such a teacher shall cease to be effective immediately. Also provided that hereafter C.C. Rolls shall be regularly maintained in respect of each teacher according to the procedure and in the form to be approved by the Chancellor for the purpose.

8. Respondent No. 1 was appointed in 1967 as the lecturer on substantive basis in the Department of Psychology in a Degree College, which is a constitutent college of the University. He obtained Ph. D. degree in 1974 and was promoted to the post of Reader with effect from 14.11.1980 by a notification dated 2.9.1981. He was also selected by the Screening Committee under 16 years scheme for promotion to the post of professor in 1990 with retrospective effect and vide notification dated 15.4.1990 he was promoted on provisional basis to the post of professor with effect from 1.2.1985 subject to the approval of the Commission. The Commission did not take any decision in the matter for considerable long period and it was only on 6.4.1995 that it asked the University to constitute a new Screening Committee for selection of teachers for promotion to the post of professor on the ground that the Screening Committee which made the selection in 1990 was not properly constituted. Although Respondent No. 1 was working as the professor iv view of his provisional promotion, but in view of the above order of the Commission he applied again for promotion to the post of professor under both the schemes, but he was selected with effect from 16.9.1992 under 25 years scheme. As mentioned above the learned Single Judge has quashed that part of the order, whereby he has been promoted with effect from 16.9.1992 under 25 years scheme and directed that he shall be deemed to have been promoted with effect from 1.2.1985 under 16 years scheme.

9. We directed the University to produce the proceedings of the Screening Committee which selected the Respondent No. 1 for promotion. The University has produced the photostat copy of the proceedings before us. We have also directed the commission to produce its proceedings in which the recommendations of the Committee for promotion under the scheme were accepted by it. As the Commission’s proceedings was not available in the Court on the date of hearing, we reserved the judgment and required the Commission to produce the photostat copy of the said proceedings letter on which the Commission has done.

10. The proceeding of the Screening Committee consists of two sheets of paper, one of which contains the names of 13 teachers, who have been recommended for promotion by the Screening Committee. The name of Respondent No. 1 is at SI. No.’12’ of the said list and he has been shown as eligible under both the schemes of 25 and 16 years. His total length of continuous service has been shown as 27 years 10 months as on the date the Screening Committee considered the matter on 22.7.1995. Against the name of this respondent, only this much has been stated by the Committee-

Recommended w.e.f. 16.8.1992 lower grade.

Similar recommendations have been made with regard to other candidates also, whose cases have been recommended with effect from different dates. The other sheet of paper appears to be a formal recommendation, which is reproduced below-

The Committee met to consider the cases for promotion from Reader to Professor in Psychology under 16/25 years time bound promotion scheme of the following confirmed Readers:

  _______________________________________________________________________
Sl. Name                                          Date of promotion
No.
______________________________________________________________________
1. Dr. Birendra Narain Sinha         -           1.2.1985
2. Dr. Md. Khurshid Hassan           -           1.2.1985
3. Dr. Subodh Kumar Sinha            -           18.9.1987
4. Dr. (Mrs.) Geeta Chakravarty      -           15.11.1988
5. Dr. Enautullah                    -           10.1.1990 (lower scale)
6. Dr. Shiv Prakash Singh            -           10.12.1987
7. Mrs. Indira Shahi                 -           18.9.1986
8. Mrs. Geetali Chatterjee           -          1.2.1985
9. Sri Jaleshwar Bhagat              -          1.6.1989 (lower scale)
10. Sri S.M. Daud Quli               -           23.9.1986
11. Sri Abul Hasmat                  -          9.9.1987
12. Dr. Brai Kumar Mishra            -           16.8.1992 (lower scale)
13. Dr. Tantreshwar Jha              -           24.8.1988 
_______________________________________________________________________
 

The record of the Screening Committee and the resolution passed by it does not disclose any reason as to why Respondent No. 1 was selected for promotion under 25 years scheme, instead of 16 years. The Screening Committee has made non-speaking recommendation regarding the promotion of all the teachers whose cases were placed before it for consideration. That apart, there is no other material on the records produced by the Screening Committee to indicate as to why the promotion of Respondent No. 1 was not made under 16 years scheme and why he was selected under 25 years scheme.

11. The proceeding of the Commission consist of one sheet of paper only. The said sheet of paper contains two small notes placing the recommendation of the Screening Committee before the Commission for approval. The Commission passed the following order/resolution-

The Commission, in accordance with the provision contained in time bound statute, recommends the names of the following teachers for promotion to the post of University Professor (Psychology. Ranchi University) with effect from the date mentioned against their names-

  1. Dr. B.N. Sinha                -          1.2.1985
2. Dr. M.K. Hassan               -          1.2.1985
3. Dr. S.K. Sinha                -         18.9.1987
4. Dr. (Smt) Geeta Chakravarty   -          25.11,1988
5. Dr. Enautullah                -         10.1.1990
6. Dr. S.P. Singh                -          10.12.1987
7. Smt. Indra Sahi               -          18.9.1985
8. Smt. Geetali Chatterjee       -          1.2.1985
9. Sri J. Bhagat                 -          1.6.1989
10. Sri A. Hasnat                -          9.9.1987
11. Dr. B.K. Mishra              -          16.8.1992
12. Sri T. Jha                   -          24.8.1988
 

It must be written in the letter to the University that the dates recommended by the Commission are in accordance with the dates by the Screening Committee.
 

12. Although the record of the Screening Committee as well as that of the Commission do not disclose the basis for selection of Respondent No. 1 for promotion under 25 years scheme instead of 16 years, but the Commission in its counter-affidavit has stated that as the research experience of guiding students at doctorate level is necessary for a reader for promotion as the professor, the Commission in 1992 passed a resolution laying down that such an experience is to be accepted from the date a research scholar under the guidance of the teacher concerned was awarded a doctorate degree. It is also stated that the aforementioned resolution of the Commission has been approved by the Chancellor. The Commission says that as a research scholar working under the guidance of Respondent No. 1 was given a doctorate degree on 27.7.1993, he was liable to be promoted under 16 years scheme with effect from that date. Paragraph No. 14 of the counter-affidavit is reproduced below-

That the first research scholar under the guidance of the petitioner was awarded a Ph.D. Degree on 27.7.1993, thus, as per the resolution of the Commission, his date of promotion would have been 27.7.1993 under the 16 years Time Bound Promotion Scheme.

The Respondent No. 1 was, however, given promotion with effect from 16.9.1992 under 25 years scheme on which date he completed the requisite period.

13. The learned Single Judge has held that the additional criteria laid down by the Commission by its resolution passed in 1992 is ultra vires. In this connection he has placed reliance on a decision of the Division Bench of this Court in Dr. S.W.M. Sabuktagin and Ors. v. The State of Bihar and ors. (CWJC Nos. 3040 and 3059 of 1988). Such a criteria, therefore, cannot be laid down by the Commission and no selection can be made on its basis. The learned Judge has also noted the fact that although the Chancellor approved the additional criteria adopted by the Commission initially, but he withdrew his approval later on when it came to his notice that the Commission has no such power to add any criteria by a non-statutory resolution. It is thus apparent that the Respondent No. 1 was denied promotion under 16 years scheme on account of the illegal additional criteria adopted by the Commission. If the said criteria is ignored he can be promoted under 16 years scheme because there is nothing against him except the aforementioned additional criteria.

14. The question is not about the date with effect from which the Respondent No. 1 is to be promoted. The real issue is whether he should be promoted under 16 years scheme or 25 years scheme. If he is promoted under 16 years scheme, he gets the promotion with effect from 1.2.1985 but if his promotion is under 25 years scheme he will be promoted only with effect from 16.9.1992. It is true that a teacher Is not entitled to be promoted to the post of professor under any scheme merely because he is eligible for it. Merit is an important factor for such promotion. A teacher must not only be eligible for promotion under a scheme, but should also be a deserving candidate on merit for such promotion.

15. As mentioned hereinbefore the Respondent No. 1 was selected by the Screening Committee in 1990 for promotion to the post of professor under 16 years scheme with effect from 1.2.1985 and he was promoted provisionally as professor subject to the approval of the Commission. The Commission slept over the matter for about five years before it asked the University in 1995 to constitute the Screening Committee afresh for consideration of claim of promotion of the teachers. This time the Selection Committee recommended the claim of Respondent No. 1 for promotion under 25 years scheme and the Commission approved the said recommendation solely on the ground of aforesaid additional criteria, which has been declared as illegal/ultra vires and the findings of the learned Single Judge on this issue have not been challenged before us. The Respondent No. 1 was found suitable on merit for such promotion in 1990. He was again found suitable for promotion by the Screening Committee as well as by the Commission but his claim under 16 years scheme was rejected because of the additional criteria. That criteria who more being in existence, he is entitled to be promoted under 16 years scheme because his merit has already been adjudged twice/There was thus hardly anything substantial to be done by the Commission. The remand of the case to the Commission would have been an idle formality. In view of the facts and circumstances of the case, the learned Single Judge was fully justified to issue appropriate direction declaring that the Respondent No. 1 shall be deemed to have been promoted with effect from 1.2.1985 under 16 years scheme.

16. These appeals lack merit and the same are, accordingly, dismissed. No cost.

B.P. Sharma, J.

17. I agree

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