MAHABIR SINHA v. STATE OF BIHAR — 1970 DIGILAW 70 (PAT)

JUDGMENT Kanhaiyaji, J. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioner praying that the orders contained in Annexures 11 and 13 of the petition be quashed and for a direction to make the promotion of the petitioner effective from the date he qualified for the same. 2. The petitioner's case is that he passed M.Sc. (Tech.) in Electronics from the University of Calcutta and M.Sc. in Electrical Engineering from the University of Manchester (U.K), and he was appointed as Assistant Professor in the faculty of Electrical and Telecommunication Engineering and posted at the Bihar Institute of Technology (B.I.T.), Sindri, by the order of the State Government. He joined the post on the 6th March, 1959. A copy of the notification making the appointment of the petitioner is enclosed to the petition and marked Annexure 1'. According to the rules laid down by the Government, the Assistant Professors having at least five years teaching experience in a degree institution in Bihar were eligible fall promotion to the post of Associate Professors in Engineering Colleges; and the Assistant Professors having five years teaching experience in a diploma and or degree institution in Bihar were eligible for promotion to the post of Associate Professors in Engineering Schools. A copy of the letter to this effect dated the 14th September, 1960, issued by the State Government is Annexure 5' to this petition. On the 6th March, 1964, three posts of Associate Professors were vacant. Sarvashri P. Baskaran and M.K.P. Misra of the same Engineering faculty and coming through the same Commission were promoted from the posts of Assistant professors to that of Associate Professors; but the petitioner was not promoted although the post was available. In 1965, the petitioner was deputed to the United Kingdom by the State Government for obtaining Ph. D. degree under the Colombo Plan for a period of three years with effect from the 6th January, 1965. A copy of the Government's order for deputation of the petitioner is Annexure 9'. In pursuance of this order, the petitioner executed a bond to serve the State Government for a period of three years. A copy of the bond executed by the petitioner is Annexure 10'. A copy of the Government's order for deputation of the petitioner is Annexure 9'. In pursuance of this order, the petitioner executed a bond to serve the State Government for a period of three years. A copy of the bond executed by the petitioner is Annexure 10'. According to the terms and conditions of this deputation, the petitioner would have enjoyed all the benefits of promotion and other service facilities of the post that he would have held, had he not gone for training. The petitioner's promotion was notified by the Government on the 6th May, 1966, according to which he was to join as Associate Professor at M.I.T. Muzaffarpur, and the promotion was made effective from the date he would have assumed charge of the post. This notification no. 1446 (T.E.) dated the 6th May, 1966, is the impugned order (Annexure 11'). The petitioner was on deputation on the day the notification was issued and hence he could not assume charge of the post. The petitioner came back from the U.K. after completing the deputation period and rejoined his duties as an Assistant Professor at B.I.T., Sindri, on the 6th January, 1968. 3. Respondent no. 7 Shri R.S. Jha, respondent no. 8 Shri Jagdish Mishra and respondent no. 9 Shri S.D. Choubey were also appointed as Assistant Professors in the faculty of Electrical and Tele-communication Engineering. Shri R.S. Jha was appointed on the 27th October, 1960, and Shri Jagdish Mishra was appointed on the 23rd September, 1960, and both were posted at B.I.T., Sindri. Shri S.D. Choubey was appointed on the 27th October, 1960 and was posted at M.I.T., Muzaffarpur. The relevant notifications of their appointments are Annexures 2, 3 and 4. Respondents 7, 8 and 9 were appointed Associate Professors though they were much junior to the petitioner in service and their promotion was made effective from the date of issue of the notification. The impugned notification no. 3523 dated the 20th October, 1967 is Annexure 13'. So, in terms of this notification respondents 7, 8 and 9 on their promotion automatically became senior to the petitioner. On the request of the petitioner on the 25th July, 1968, the State Government issued a corrigendum to the notification contained in Annexure 11 and thereby the petitioner was posted at B.I.T., Sindri, as Associate Professor. So, in terms of this notification respondents 7, 8 and 9 on their promotion automatically became senior to the petitioner. On the request of the petitioner on the 25th July, 1968, the State Government issued a corrigendum to the notification contained in Annexure 11 and thereby the petitioner was posted at B.I.T., Sindri, as Associate Professor. The petitioner joined the same on the 26th July, 1968 but his promotion was made effective from the date of joining as per terms of the notification (Annexure 11) and not from the date he had qualified for the promotion or the date of the notification. The petitioner has referred to several cases of promotion of teachers made effective, either from the date they qualified for the post or from the date of notification. Such instances are contained in Annexures 17, 18, 19 and 20. 4. The petitioner sent an application to the Secretary of the department through proper channel requesting to make the promotion effective at least from the date of issue of the notification. The Principal, M.I.T., strongly recommended his case, but the claim of the petitioner and the recommendation of the principal were completely ignored. 5. In pursuance of the rule issued to the respondents, cause has been shown on behalf of the State of Bihar (respondent no. 1), the Chairman, Bihar Public Service Commission (respondent no. 6) and Shri R.S. Jha (respondent no. 7). 6. In the show cause filed on behalf of respondent no. 1 the State of Bihar, it is stated that the petitioner became eligible for consideration for promotion to the post of Associate Professor after completing five years of teaching experience; but the petitioner was not qualified for promotion when the meeting of the Departmental Promotion Board was held on the 14th November 1963, which decided that Shri P. Baskaran and Sri M.K.P. Mishra were the only two Assistant Professors qualified to be promoted as Associate Professors. With respect to the deputation of the petitioner to the United Kingdom, it is stated that the petitioner returned back to India and resumed his duties as Assistant Professor of Technical Engineering at B.I.T., Sindri and the Government posted the petitioner at B.I.T., Sindri, as Associate Professor at the request of the petitioner. However, it is stated that the representation of the petitioner, recommended by the Principal for promotion, is under consideration of the Government. 7. However, it is stated that the representation of the petitioner, recommended by the Principal for promotion, is under consideration of the Government. 7. A counter affidavit on behalf of respondent no 6, the Chairman. Bihar Public Service Commission, has been filed. In the counter-affidavit, it has been stated that the Commission did not examine the case of the petitioner as it was not referred by the Government to the Commission at the time it concurred in the proposal of the Government in respect of the promotion of both P. Baskaran and Shri M.K.P. Mishra. 8. In fact, the claim of the petitioner has been only resisted by Shri R.S. Jha respondent no. 7. In the show cause petition, it is stated that the petitioner was not promoted before 1966 as his confidential record was not satisfactory. The petitioner was deputed for higher studies for obtaining Ph.D. degree but he failed to comply, and, therefore, he was rightly ignored by the appropriate authority. The petitioner was less qualified on the day respondent no. 7 was promoted as Associate Professor. However, it is admitted that the petitioner is senior to rest respondent no. 7 in the mixed cadre of the Department of Electrical Engineering and Tele-communication Engineering, but he has now become junior to respondent no. 7. 9. The petitioner, in reply to the counter-affidavit filed on behalf of Shri R.S. Jha, respondent no. 7, has controverted all the adverse statements made in the counter-affidavit. The petitioner, in his reply, has stated that the case of the petitioner was duly considered for promotion by the Departmental Promotion Board and the Board after examining everything including confidential character rolls found the petitioner fit and that after having got half way through his Ph.D. work, his supervising Professor died. The University could not find out a suitable substitute for the half finished work. Hence, the petitioner had to change the subject of his Ph.D. work. In 1967, he started working on a new field (Power system), and his previous work was on Computer Design. He required two years to produce Ph.D. thesis on the new subject but the State Government refused extension of his leave. So, he was compelled to return disappointed without securing Ph.D. Degree. In 1967, he started working on a new field (Power system), and his previous work was on Computer Design. He required two years to produce Ph.D. thesis on the new subject but the State Government refused extension of his leave. So, he was compelled to return disappointed without securing Ph.D. Degree. The petitioner has also filed a reply to the counter-affidavit filed on behalf of the State of Bihar; and, in this he has explained as to why he joined as Assistant Professor at B.I.T., Sindri, on return from the United Kingdom. 10. Respondent no. 7, Shri R.S. Jha, has also filed reply to the reply of the counter-affidavit filed by the petitioner, and in this he once more asserted that his promotion could not be delayed indefinitely till the petitioner joined his post. 11. The case of the petitioner is mainly based on the ground that he has been subjected to unreasonable discrimination. The Government has applied different standard in the matter of promotion in similar circumstances. 12. The learned counsel appearing for the petitioner fairly conceded that he will not challenge the promotion of Shri P. Baskaran and Shri M.K.P. Mishra for two reasons; firstly, that they are senior to the petitioner, and, secondly, that they are not party to the writ application. 13. In this, case, learned counsel appearing for the petitioner has based his case on a term of deputation as embodied in the bond executed by him. The bond contains a clause that a Government servant of Bihar sent for training on leave with pay, in case of his joining within a period of not more than one month from the date of the receipt of the report of his arrival in India by the Government, he would join the post that he would have held had he not gone for training, on a salary which he would have ordinarily drawn if he would not have gone abroad. There is much substance in this argument, and it must be accepted. The Government having sent the petitioner on deputation for three years with effect from the 6th January, 1965, for obtaining Ph.D. degree cannot alter his service conditions without assigning cogent reason. There is much substance in this argument, and it must be accepted. The Government having sent the petitioner on deputation for three years with effect from the 6th January, 1965, for obtaining Ph.D. degree cannot alter his service conditions without assigning cogent reason. It is clear that if the petitioner would not have gone on deputation, he would have become Associate Professor by assuming charge in May, 1966 as notified in pursuance of the order contained in Annexure 11. The impugned notification, it appears, purposely provided that the petitioner would become Associate Professor from the date he assumed charge of the post. While the notification contained in Annexure 13 says that respondents 7, 8 and 9 are promoted to the post of Associate Professors with effect from the date of the issue of the notification namely, the 20th October, 1957. This is a pure and simple case of discrimination without justification. In this case there is no substance in the opposition raised by respondent no. 7 that the petitioner was not promoted, because he was not qualified. It is the admitted position that the petitioner is senior to respondents 7, 8 and 9 and was qualified for promotion and was actually appointed as an Associate Professor before the respondents were appointed to the said post but because the order contained in Annexure 11 made the appointment effective from the date the petitioner took charge, it gave unreasonable preference to respondents 7, 8 and 9. Therefore. Annexure 11' is bad not only because it has made discrimination but also because it violates the principle of natural justice. 14. I do not think that the petitioner can validly claim promotion effective from the date he qualified for the same. A person may be qualified, but he acquires no right for promotion. In this situation, Mr. Narayan Singh, appearing for the petitioner, has rightly conceded that in case the Court finds no justification for promotion of the petitioner from the date he qualified for the same, he should be directed to be promoted from the date of the notification for promotion. Moreover, it is difficult to appreciate the vacillating attitude adopted by the State. In the counter-affidavit it has been repeated more than once that the petitioner's representation dated the 30th July 1968 was still under consideration. Moreover, it is difficult to appreciate the vacillating attitude adopted by the State. In the counter-affidavit it has been repeated more than once that the petitioner's representation dated the 30th July 1968 was still under consideration. The only matter adverse to the petitioner mentioned in the counter-affidavit is that after returning to India, the petitioner joined B.I.T. Sindri, as Assistant Professor of Technical Engineering. But the explanation has been given by the petitioner in his reply, which is to the effect that the Deputy Director of Technical Education opposite party no. 4, had given instructions to the petitioner to joint at B.I.T., Sindri, and so the petitioner had no other alternative except to do so. 15. In view of what has been discussed above, it is not necessary to quash Annexure ‘13’ appointing respondents 7, 8 and 9 as Associate Professors, because in case the petitioner is appointed as Associate Professor from the date of the notification of his appointment, namely, the 6th May, 1966, the injustice done to the petitioner will be removed. 16. For the reasons stated above, I hold that the order of the State Government contained in Annexure 11' [Notification No. 1446 (T.E,) dated the 6th May, 1966] 60 far as it stated that the petitioners appointment will be effective from the date he assumes charge must be quashed. A writ of mandamus must issue against the State Government (respondent no. 1) directing them to appoint the petitioner as Associate Professor in the Faculty of Electrical and Tele-communication Engineering from the 6th May, 1966 and give him all advantages of salary etc. and seniority from the date. In the circumstances of the case, the parties will however, bear their own costs. U.N. SINHA, J. I agree.