BIMAL CHANDRA KAR v. STATE OF ORISSA — 1979 DIGILAW 77 (ORI)

JUDGMENT : J.K. Mohanty, J. - Petitioner and opposite party No. 2 Dr. Puma Chandra Satpathy, are Associate Professor and Professor of Medicine respectively In the V.S.S. Medical College, Burla. In this writ application Petitioner has prayed for the following reliefs, viz., (1) for quashing the promotion of opposite party No. 2 as Professor; and (2) for a direction to opposite party No. 1, the State at Orissa, to treat him as Associate Professor with effect from 27-9-1968 and as Professor with effect from 24-7-1970, to finalise the gradation list fixing his seniority according to above due dates and to give him the consequential benefits. 2. Petitioner passed M.B.B.S. examination in 1958 and joined as a Junior Teacher In Medicine on 9-12-1961. In the same year, i.e. 1961 he registered himself for a Post-Graduate Degree (M.D.) in Medicine and obtained the Degree on 2-12-1963. On 17-12-1964 he was promoted as Assistant Professor of Medicine. Opposite party No. 2 obtained the Post-Graduate Degree in Medicine on 18-4-1964, i.e. subsequent to the Petitioner and was appointed as Assistant Professor on 2-11-1964. As Dr. A. Sarangi and Dr. S.C. Misra were promoted as Readers superseding the Petitioner, he filed a writ (O.J.C. 1360/68) in this Court challenging -the promotions of Dr. A. Sarangi and Dr. S.C. Misra. In that case it was decided that the Petitioner's seniority shall be determined on the basis of his date of appointment as Assistant Professor on a provisional basis pending framing of statutory rules to regulate seniority. It may be mentioned here that opposite party No. 2 had also filed O.J.C. 1382/68 on similar grounds and that was disposed of by this Court by a common judgment along with O.J.C. No. 1360 of 1968. However, rules were framed in 1970 known as "the Orissa Medical and Health Service (Promotion to Senior Teaching Posts in Medical College) Rules 1970" under Article 309 of the Constitution, applying the aforesaid rules, Petitioner's seniority was again interfered with and opposite party No. 2 and some other persons were promoted to the rank of Reader superseding the Petitioner. The Rules of 1970 which were framed on May 30, 1970 was superseded by another set of Rules in August, 1970. So the Petitioner filed O.J.C. 921/70 challenging the promotion of opposite party No. 2 and others as Readers. The Rules of 1970 which were framed on May 30, 1970 was superseded by another set of Rules in August, 1970. So the Petitioner filed O.J.C. 921/70 challenging the promotion of opposite party No. 2 and others as Readers. During the pendency of that writ application; opposite party No. 2 was further promoted as Professor on 19-10-1970, While the case was being heard, the 1970 Rules were superseded by another set of Rules framed in 1973 known as "The Orissa Medical & Health Services (Recruitment and Promotion to Teaching Posts in the Medical Colleges) Rules. 1973 (hereinafter caned the "1973 Rules"). In these Rules a new basis for fixing seniority for persons promoted as Assistant Professors and to higher ranks was provided. In O.J.C. 921/70 disposed of on 17-12-1973 (copy of judgment is Annexure- 1) this Court directed that the Petitioner be promoted to the higher rank of a Reader (without disturbing others who have already been promoted as Readers). However, it was made clear that the promotion of the Petitioner as ordered would be subject to adjustment after matters enumerated in Rule 11 of the 1973 Rules were finalised and that the judgment in O.J.C. No. 921/70 would not stand in the way of Government to give effect to the consequence arising out of final fixation of such seniority under the new Rules of 1973. In obedience to the dereliction of this Court, Petitioner was promoted as Associate Professor on 6-3-1974. Petitioner contends that without giving him due promotion as Professor in accordance with the principles decided by this Court, a gradation list was circulated on 16-3-1974 inviting objections from the persons concerned. In the gradation list, Petitioner was shown senior to opposite party No. 2 in the rank of Assistant Professor, but his name was not shown in the rank of Associate Professor or Professor. Another gradation list was again circulated on 12-8-1974 after an amendment made in Rule 9(2) of the 1973 Rules, in which the position of the Petitioner vis-a-vis opposite party No. 2 as Assistant Professor was maintained. However, Petitioner was also not shown in the gradation list of Associate Professor or Professor. Copy of the gradation lists circulated on both occasions are Annexures 4 and 5 respectively to this petition. 3. However, Petitioner was also not shown in the gradation list of Associate Professor or Professor. Copy of the gradation lists circulated on both occasions are Annexures 4 and 5 respectively to this petition. 3. As would be evident from Annexures 4 and 5, Petitioner was eligible for the post of Assistant Professor on 2-12-1966 whereas opposite party No. 2 became eligible as such on 5-12-1966 and the position assigned in the gradation list to the Petitioner was at serial 11 and to opposite party No. 2 was at serial 12. However, Petitioner has not been shown in the gradation lists of Associate Professors or Professors apparently for the reason that Rule 10(2) of the 1973 Rules provided only for determination of seniority of Readers and Professors appointed on or after 1-12-1960 till the commencement of the Rules, i.e. on 22-9-1973, it is averred that opposite party No. 1 due to their own laches did not promote the Petitioner in due time to the ranks of Associate Professor and Professor in the vacancies which arose on 27-9-1968 and 24-7-1970 respectively. The Petitioner in accordance with his position to the seniority list determined under 1973 Rules would have been the first person to have been promoted to such posts since merits of the candidates were equal and persons were to be promoted to higher rank only on the basis of seniority. As the Petitioner was entitled to be promoted to the rank of Associate Professor with effect from 27-9-1968 and to the rank of Professor with effect from 24-7-1970, he should have been shown in the gradation lists prepared by Government, in accordance with Rule 11 in the ranks of Associate Professors and Professors. According to the Petitioner, his seniority can only be reckoned from the date of his appointment as Assistant Professor as has also been decided by this Court. On these allegations the Petitioner claims that he is entitled to be appointed as Professor retrospectively from 24-7-1970, i.e. when the opposite party No. 2 was promoted as Professor and is to be treated as Reader from 27-9-1968 when the vacancy for the post arose and that the gradation lists in the rank of Associate Professor or Professor are to be prepared accordingly. 4. Opposite party No. 2 Dr. 4. Opposite party No. 2 Dr. Puma Chandra Satapathy in his counter, inter alia, has stated as follows: Petitioner has been appointed as Associate Professor with effect from 6-3-1974 as per the direction given in the judgment of this Court in O.J.C. 921/70, but not in accordance with either 1970 or 1973 Rules. Petitioner was not eligible for appointment to the post of Assistant Professor on 17-2-1964, nut would have been eligible on 9-12-1966 under the then existing instructions while he (opposite party No. 2) would have been eligible on 4-7-1965. The Orissa Public Service Commission gave higher position to the Petitioner disregarding the Government instructions and so the recommendation of the Orissa Public Service Commission was not accepted by the Government. While correspondence in the matter was going on, 1970 Rules came into force and Government acted as per the said statutory rules and the said position has been discussed by this Court in O.J.C. 1360 of 1968. Thereafter opposite party No. 2, got promotions to the rank of Associate Professor and then to the rank of Professor strictly in accordance with the statutory rules framed in May and August 1970. The respective positions were worked out as per the statutory rules vide annexure-B for giving promotion to next higher rank and the position of opposite party No. 2 was at serial 2 and that of the Petitioner was at serial 10. It is averred that the decisions in O.J.C. 1360 of 1968 and O.J.C. 921 of 1970 have been misconstrued by the Petitioner to his advantage. In the judgment in O.J.C. 921/70 it was made very clear by this Court that officers who had secured their promotion to higher cadre should (not suffer and should not be disturbed. The very fact that this Court directed reversion of last promotee to the rank of Reader not opposite party No. 2) in order to adjust the Petitioner would go to show that this Court desired some stop-gap arrangement till the finalisation of the gradation list as per Rule 11 of the 1973 Rules. Therefore, the Petitioner should wait until the said finalisation of the gradation list which is yet to be done. Opposite party No. 2 got further promotion to the rank of Professor on 19-10-1970. The Petitioner filed this writ petition after an unusual delay of a bout 4 years. Therefore, the Petitioner should wait until the said finalisation of the gradation list which is yet to be done. Opposite party No. 2 got further promotion to the rank of Professor on 19-10-1970. The Petitioner filed this writ petition after an unusual delay of a bout 4 years. Though opposite party No. 2 got promotion to the rank of Professor during the pendency of the writ petition vide O.J.C. 921 of 1970, Petitioner did not make any grievance against opposite party No. 2. Statutory rules can be brought into force retrospectively, but the law is well settled that retrospectively cannot take away a right already acquired under the earlier statutory rules. As per Rule 10(2) of 1973 Rules inter se seniority of persons appointed as Associate Professors or Professors between 1-12-1960 and 22-9-1973 has to be fixed retrospectively. Since the Petitioner was not appointed to the said posts during the said period, the question of his seniority over opp. party No. 2 does not arise at all. The provisional gradation list has been prepaid accordingly and the Petitioner's name has been rightly omitted from the ranks of Associate Professors or Professors. Opp. party No. 2 averred that Petitioner was not entitled to be promoted earlier and was not entitled to any consequential benefits as claimed by him. Opp. party No. 2 got promotion to the rank of Professor on 19-10-1970 but not on 24-7-1970 as stated by the Petitioner in the writ petition. One Dr. Sarangi was appointed as Reader on 27-9-1968 and as Professor on 24-7-1970. He has not been made a party to this case. Petitioner was student in the Medical College under opp. party No. 2 and at present opp. party No. 2 is Professor and Head of the Department of Medicine and the Petitioner is working under him as an Associate Professor on adhoc basis only from 6-3-1974. Opp. party No. 2 has been officiating as Professor since 19-10-1970 and his appointment as Associate Professor has received the concurrence of P.S.C. The writ petition is there fore liable to be dismissed. 5. The State of Orissa opp. party No. 1, in their counter have stated as follows: The Petitioner filed two writ petitions one in the year 1968 and another in 1970 (O.J.C. 1360/68) and (O.J.C. 921/70). In O.J.C. 921/70 disposed of on 12-12-1973 Petitioner was directed to be promoted as a Reader. 5. The State of Orissa opp. party No. 1, in their counter have stated as follows: The Petitioner filed two writ petitions one in the year 1968 and another in 1970 (O.J.C. 1360/68) and (O.J.C. 921/70). In O.J.C. 921/70 disposed of on 12-12-1973 Petitioner was directed to be promoted as a Reader. The relevant portion of the judgment is as follows: We would, however, make it clear that promotion of the Petitioner now ordered, would be subject to adjustment after matters enumerated in Rule 11 of Annexure-6 are finalised and this judgment would not stand in the way of Government to give effect to the consequences arising out of final fixation of such seniority. Prior to 1970, there was no statutory rules governing the service conditions and regulating the appointment to the senior Teaching posts of the Medical Colleges. For the first time on 30th May, 1970 the Rules came into operation which was subsequently superseded by another set of rules framed under Article 309 on 8-8-1970. This 1970 rules notified on 8-8-1970 was again superseded by the Government on 22-9-1973. This rule was again amended to some extent by notification dated 15-4-1974. Thus the 1973 Rules as amended by notification dated 15.4.1974 is the rule now in force which covers the field of appointment, promotion and seniority etc. of the Junior and Senior Teachers. In accordance with the provisions of 1973 Rules, a provisional gradation list of Junior and Senior Teachers of the Department of Medicine was prepared and circulated among the concerned teachers, and a month's time was given for filing objections to the said gradation list. Several objections were received and after consideration of the objections and giving personal hearing to those who filed objections the gradation list has been approved by the Government and steps are being taken to send the list to the P.S.C. for its concurrence as required under Rule 11 of 1973 Rules. According to the provisional gradation list, Petitioner is junior to opp. party No. 2 the deemed date of eligibility of the Petitioner being 9-12-1966 and of opp. party No. 2 being 5-12-1966. In accordance with the earlier rules of 1970, Petitioner was also junior to opp. party No. 2. In O.J.C. 921 of 1970 this Court directed opp. party No. 1 to appoint the Petitioner as Associate Professor and the said direction has been duly complied with. party No. 2 being 5-12-1966. In accordance with the earlier rules of 1970, Petitioner was also junior to opp. party No. 2. In O.J.C. 921 of 1970 this Court directed opp. party No. 1 to appoint the Petitioner as Associate Professor and the said direction has been duly complied with. By the date of disposal of O.J.C. 921/70 i.e. on 17-12-1973, opp. party No. 2 had already served as Professor for three years. There was no prayer in that writ petition to quash the appointment of opp party No. 2 as Professor nor any relief has been given in that writ application so far as the Professorship is concerned to the Petitioner vis- a-vis opp. party No. 2. In this view of the matter, the appointment of opp. party No. 2 as Professor in Medicine made on 19-10-1970 cannot be quashed by this Court now after a long lapse of 4 years. The Petitioner did not even challenge the same in the earlier writ petition nor did this Court has in any way held the appointment of opp. party No. 2 as Professor of Medicine to be illegal. Be that as it may, in view of 1973 Rules, opp. party No. 2 is admittedly senior to the Petitioner. As such the question of giving appointment to the Petitioner as Professor at Medicine and the question of quashing the appointment of opp. party No. 2 as Professor of Medicine does not arise. The Petitioner has misconstrued the judgment of this Court in O.J.C. 921/70 The direction in that writ application was that the Petitioner should be appointed as an Associate Professor till the finalisation of seniority list in accordance with 1973 Rules and the said direction of this Court having been complied with the Petitioner is not entitled to any further relief on the basis of the aforesaid direction of this Court specially w hen in enforcing the provisions of 1973 Rules, Petitioner was found to be junior to opp party No. 2 in the provisional gradation list so far approved by the Government. The promotion to the post of Professor is not a matter of right: and in that view of the matter, the prayer that the Petitioner should be promoted to the post of Professor with effect from 1970 is untenable. 6. The promotion to the post of Professor is not a matter of right: and in that view of the matter, the prayer that the Petitioner should be promoted to the post of Professor with effect from 1970 is untenable. 6. Petitioner has filed a rejoinder to the counter affidavit filed on behalf of the opposite parties wherein it has been stated that it is not correct that the Petitioner did not bring to the notice of the Court in O.J.C. 921/70 the promotion of opposite party No. 2 as Professor. However, such promotion cannot have any relevancy so far as determination of the question of inter se rights of the patties are concerned and such rights are to be worked out on their own basis. According to the Petitioner so far as the gradation list prepared under the existing Rules 1973 is concerned, it has not been made final and has not been communicated to the parties including the Petitioner and has also not been sent to the Orissa Public Service Commission. The so called personal hearing to the Teachers concerned (as stated in the counter of opposite party No. 1) was never given to the Petitioner since by the time such personal hearing was made, he was on leave at Bombay for the treatment of his father and on coming back he requested to the Government on 14.5.1975 fur giving him an opportunity of personal hearing, but no reply has been received by him. Petitioner has been agitating against the appointment of opposite party No. 2 as Professor and against his supersession from time to time before opposite party No. 1, but opposite party No. 1 arbitrarily has not yet given any relief to the Petitioner. The State of Orissa, opposite party No. 1, has filed an additional affidavit to the rejoinder of the Petitioner in which it has been stated that opposite party No. 2 has been applied as Professor on 19-10-1970 and there is no illegally in it as opp. party No. 2 is senior and his seniority cannot be questioned. Regarding the gradation list, it is stated that the gradation list has been finalised by the Government after considering the objections of persons concerned including the Petitioner. party No. 2 is senior and his seniority cannot be questioned. Regarding the gradation list, it is stated that the gradation list has been finalised by the Government after considering the objections of persons concerned including the Petitioner. Under the Rules now in force, the gradation list has to be concurred by the Orissa Public Service Commission and the Public Service Commission has already been moved in this regard. The Petitioner though was requested to appear before the Minister of Health Department on 8-7-1975 for personal hearing in connection with the finalisation of the gradation list, he did not appear though others appeared on 7/8-5-1975. In that view of the matter, the question of giving a further hearing to the Petitioner, who was absent on 7/8-5-1975, does not arise. The provisional gradation list has been sent to the Orissa Public Service Commission for finalisation after considering all objections filed by the persons concerned including the Petitioner. Opposite party No. 2 has also filed another counter to the rejoinder filed by the Petitioner wherein it has been stated that as the Petitioner did not challenge the appointment of opposite party No. 2 as Professor in the earlier writ petition (O.J.C. 921/70), the present petition is hopelessly time barred and is also barred by res judicata. The Petitioner has been rightly excluded from the seniority list of Associate Professors and Professors as he was not appointed under Rule 10(2) of the 1973 Rules. By mistake Petitioner has been shown senior to opposite party No. 2 in the rank of Assistant Professor by taking his date of joining as Junior Teacher to be 4-7-1960 instead of 24-5-1969. As per Rule 8(1) and (2) of the 1973 Rules, the date of appointment shall be deemed to be the date on which the notification relating to the appointment is issued, as the notification appointing opposite party No. 2 as Junior Teacher was issued on 24-5-1960, the deemed date of appointment of opposite party No. 2 shall 25-10-1966 in stead of 5-12-1966, as mentioned in Annexure-5. Copy of notification No. 8689 H dated 24-5-1960 is Annexure-C to this petition. 7. Mr. Dora, learned Counsel appearing for opposite party No. 2, raised a preliminary objection that this writ petition should be dismissed on the ground of delay and laches. Copy of notification No. 8689 H dated 24-5-1960 is Annexure-C to this petition. 7. Mr. Dora, learned Counsel appearing for opposite party No. 2, raised a preliminary objection that this writ petition should be dismissed on the ground of delay and laches. His contention is that when O.J.C. 921/70 tiled by the Petitioner was pending before this Court, opposite party No. 2 was promoted as Professor on 19-10-1970. Petitioner did not amend his writ application challenging the aforesaid promotion of opposite party No. 2 and hence the writ petition should be dismissed on that ground and the Petitioner should not be permitted to raise that question again in this writ petition and this petition should not be entertained. The same objection has also been taken by the State. Mr. Dora cited decisions reported in Jagtar Singh and Ors. v. The State of Punjab and Ors. 1976 S.L.R. 52, State of Madhya Pradesh Vs. Bhailal Bhai and Others Jagdish Narain Maltiar Vs. The State of Bihar and Others, and Bishnu Charan Mohanty Vs. State of Orissa and Others, in support his argument. In reply Mr. Rath, learned Counsel appearing for the Petitioner, submitted that there is no delay or laches on the part of the Petitioner and the above decisions have no a application to the facts and circumstances of the present case. He submitted that in O.J.C. 921/70 decided on 17-12-1973 this Court did not decide the matter finally and their Lordships in that case being satisfied about the merit of the Petitioner's case held as follows: Having regard, however, to the confusing state of affairs, prevailing in the department as a result of inaction on the part of the Government to lay down rigid principles regarding fixation of inter se seniority and the frequent changes made in the principles once enunciated, officers who have secured their promotion to higher cadres should not suffer, provided the Petitioner, who apparently has a just cause for grievance, bur the consideration of the validity of which has necessarily to be postponed till matters dealt with in Rule 11 are finalised, can be promoted to the higher rank of Reader without disturbing those who have already been promoted as Readers. xx xx xx xx We would, however, make it clear that promotion of the Petitioner now ordered, would be subject to adjustment after matters enumerated in Rule 11 of Annexure-6 are finalised and this judgment would not stand in the way of Government to give effect to the consequences arising out of final fixation of such seniority. In view of the above observation of the Court, then in the gradation list of Associate Professors and Professors of Medicine (Annexure-5) circulated on 16-3-1974, Petitioner did not find his name, he has come up with this writ application, for appropriate reliefs. There is considerable force in the aforesaid contention of Mr. Rath and we hold that there is no laches or delay in filing the writ application in the facts and circumstances of the case. 8. According to the Petitioner, under the 1973 Rules he is senior to opposite patty No. 2 in the rank of Associate Professor and this has been acknowledged in Annexure-5. In Annexure-5 the deemed date of appointment of the Petitioner as Assistant Professor in the speciality has been shown as 2-12-1966 and that of opposite party No. 2 as 5-12-1966 and the respective positions in order of seniority in the rank of Assistant Professor in the speciality as per Rule 9(2) of the Petitioner and opposite party No. 2 are at serials 11 and 12. Subsequently, however, it was stated that the deemed date of appointment of the Petitioner as Assistant Professor is not 2-12-1966 but 9-12-1966 whereas the deemed date of appointment of opp. party No. 2 is 5-12-1966. For appointment as Assistant Professor under the 1973 Rules, the requirements are provided under Rule 5(2)(i) and (ii). They are that a candidate must have P.G. Degree and 3 years teaching experience of which one year shall be after P.G. Clause (v) of Sub-rule (2) of Rule 5 provides that in calculating the period of teaching experience, the period taken by a person holding a junior teaching post for obtaining the post-graduate degree or diploma shall be deducted. But after the proviso to Rule 5(2)(v) a new proviso has been added which provides that in calculating the period to be deducted under this clause, the Government may, in suitable cases, grant such relation as they think fit in order to remove any hardship on account of circumstance not in the control of the persons concerned. But after the proviso to Rule 5(2)(v) a new proviso has been added which provides that in calculating the period to be deducted under this clause, the Government may, in suitable cases, grant such relation as they think fit in order to remove any hardship on account of circumstance not in the control of the persons concerned. The Explanation (after the above proviso) says that period taken by a person for obtaining the post-graduate degree or diploma shall commence on the date of registration and on the date of publication of the results. Similarly, Rule 6 deals with the appointments of Associate Professors and Professors and Rules 9 and 10 deal with inter se seniority of Assistant Professors and Associate Professors and Professors respectively. Rule 11 provides that a provisional gradation list of junior teachers and senior teachers shall be prepared duly reflecting the seniority determined in accordance with these rules. After inviting objections from the persons concerned, by giving them a month's notice and after considering the objections, if any, the gradation list shall be finalised by the Government in consultation with the Commission. The respective positions of the Petitioner and opposite party No. 2 in the provisional gradation list of Assistant Professors of Medicine who were appointed between 1-12-1960 and 22-9-1973 is extracted below for reference. Name Date of Date of Date of Date of Order of joining as registra- obtain- eligibility seniority Jr. Teacher tion for ing P.G. and deemed in the rank in P.G. Study degree. date of of Medicine in appoint. Asst. Prof. Medicine ment as Assistant Professor. 1 Dr. P.C. Satpathy (O.P. 2) 24-5-1960 17-11-1960 18-4-1964 5-12-1966 12 Dr. B.C. Kar (Petnr.) 8-12-1961 13-2-1962 2-12-1963 2-12-1906 11 The position of the Petitioner and opposite party No. 2 as has been finalised by Government after considering the objections under Rule 11 is given below for reference. Dr. P.C. Satpathy (O.P. 2) 4-7-1960 17-11-1960 18-4-1964 5-12-1966 11 Dr. B.C. Kar (Petnr.) 9-12-1961 13-2-1962 29-11-1963 9-12-1906 12. The argument advanced by the State as also opposite party No. 2 is that the minimum period of 2 years should be deducted from the total teaching experience of the Petitioner in determining his eligibility for the post of Assistant Professor as provided under Rule 5(2)(v) of the 1973 Rules, the relevant portion of which is quoted hereafter for reference. 5(2)(v). 5(2)(v). In calculating the period of teaching experience, the period taken by a person holding junior teaching post for obtaining the post-graduate degree or diploma shall be deducted, Provided that the said period shall not be less than two years in the case of a post-graduate degree and one year in the case of a post-graduate diploma. xx xx xx Provided further that in calculating the period to be deducted under this clause the Government may, in suitable cases, grant such relation as they think fit in order to remove any hardship on account of circumstances not in the control of the persons concerned. It is argued by the opposite parties that if the above rules is correctly applied, Petitioner will be eligible to hold the post of Assistant Professor on 9-12-1966 as now determined by the State. On behalf of the Petitioner, it is submitted that the argument that the period of two years is to be deducted uniformly in all cases does not arise out of the above provisions and also will otherwise lead to anomalous position. By adopting such construction it would mean that even where a person has acquired the requite teaching experience after P.G. Degree i.e. for three years or more and would have been otherwise fit for direct recruitment as an Assistant Professor, yet merely because he has been a junior teacher previously, the date of his eligibility for promotion to the post of Assistant Professor is to be determined to his prejudice. It Rule 5(2)(v) merely provides as to how the teaching experience is to be calculated in case of persons who want to take advantage of their teaching experience, prior to obtaining P.G. Degree and to have the same added to their teaching experience. There appears to be considerable force in the above contention of Mr. Rath. 9. Petitioner joined as junior teacher in Medicine on 9-12-1961 and obtained P.G. Degree on 2-12-1963. If the period of two years is to be deducted from 2-12-1963 according to Rule 5(2)(v), it will be 2-12-1961 by which date the Petitioner had not joined as junior teacher in Medicine, the date of joining being 9-12-l961. Rath. 9. Petitioner joined as junior teacher in Medicine on 9-12-1961 and obtained P.G. Degree on 2-12-1963. If the period of two years is to be deducted from 2-12-1963 according to Rule 5(2)(v), it will be 2-12-1961 by which date the Petitioner had not joined as junior teacher in Medicine, the date of joining being 9-12-l961. Similarly if period of two years is added to 9-12-1961, which is the date of joining of the Petitioner, it will be 9-12-1963 which should be taken as the date of obtaining P.G. degree by the Petitioner though he obtained P.G. degree on 2-12-1963. So this will lead to anomalies and to an obsurd position. What Rule 5(2)(v) provides is that in calculating the period of teaching experience, the period taken by a person holding a junior teaching post for obtaining the post-graduate degree on diploma shall be deducted and it shall not be less than two years in case of P.G. Degree. According to this rule, a person, holding a junior teaching post if he wants to obtain P.G. Degree while holding such post and yet wants to take advantage of his teaching experience the actual period so taken for obtaining P.G. Degree is to be deducted from his teaching experience or a minimum period of two years shall be deducted. This situation wait only arise where less than two years have been taken to obtain P.G. Degree while holding a junior teaching post and two years of teaching experience is there to the credit of the person as junior teacher. In the case of opposite party No. 2 he has taken more than two years for obtaining P.G. Degree. The date of registration of opposite party No. 2 for the P.G. Degree is 7-11-1960 and the date of obtaining P.G. Degree is 18-11-1964. He was holding a teaching post during that time and so the period taken for obtaining P.G. Degree being excluded, the deemed date of his appointment has been correctly determined as 5-12-1966. Opposite party No. 2 has obtained advantage of his teaching experience prior to obtaining P.G. Degree which experience has been added to his total teaching experience, otherwise his deemed date of appointment would have been 18-4-1967. But in the case of Petitioner, he was not a junior teacher prior to 9-12-1961 and between 9-12-1961 and 2-12-1963, he obtained P.G. Degree. Opposite party No. 2 has obtained advantage of his teaching experience prior to obtaining P.G. Degree which experience has been added to his total teaching experience, otherwise his deemed date of appointment would have been 18-4-1967. But in the case of Petitioner, he was not a junior teacher prior to 9-12-1961 and between 9-12-1961 and 2-12-1963, he obtained P.G. Degree. He had not completed two years of teaching experience as junior teacher when he obtained P.G. Degree. So, in his case deduction of two years does not arise. What has been due in the case of Petitioner is that in order to arrive at 9-12-1966 as the deemed date of eligibility and deemed date of appointment as Assistant Professor, five years has been added to 9-12-1961 i.e. of which two years have been added to 9-12-1961 (which is the date of joining) under Rule 5(2)(v) proviso and then another three years have been added Rule 5(2)(ii), which is absolutely arbitrary, illegal and is not in compliance with the Rules. The matter can be best illustrated by an example. 'A' is appointed as Junior Teacher on 5-4-1975. Prior to his appointment he registered himself for the P.G. Degree and obtained P.G. Degree on 10-4-1975. If the interpretation of opposite parties of the rules is accepted, five years shall be added to 5-4-1975 and his date of eligibility will be 5-4-1980 i.e. by adding two years as Junior Teacher (though he has served as Junior Teacher only for 5 years prior to obtaining P.G. degree, and three years after obtaining P.G. degree, though in fact, he becomes eligible on 10-4-1978 on which date he completes three years of teaching experience after obtaining P.G. degree as per Rule 5(2)(ii). This will lead to an absurd position, if the interpretation of opposite parties is accepted. The Petitioner after obtaining P. G. degree on 2-12-1963, became eligible to be appointed as Assistant Professor on 2-12-1966 under Rule 5(2)(ii) which was correctly determined in Annexure-5 In view of this, the date of eligibility and the deemed date of appointment as Assistant Professor of the Petitioner will be 2-12-1966 as mentioned under Annexure-S not 9-12-1966 as now determined by opposite party No. 1. Let it be made clear that we have not taken into consideration the date of obtaining P.G. degree by Petitioner as 29.11-1963 as now stated by the opposite party No. 1, the State, which will undoubtedly give further advantage to the Petitioner, but have taken the date as 2-12-1963 as the Petitioner. In view of the above, Petitioner will be claimed by senior to opposite party No. 2, the date of eligibility and the deemed date of appointment as Assistant Professor being 2-12-1966 in case of the Petitioner and 5-12-1966 in case of opposite party No. 2. 10. The next question for consideration is whether Petitioner is eligible for the post of Associate Professor and Professor earlier than opposite party No. 2 in accordance with the provisions of Rule 6(2) & (3) of the 1973 Rules and whether the determination of seniority in the rank of Assistant Professor will enure to his benefit in determining his eligibility as Associate Professor and Professor. According to the provisions of Rule 6(2) & (3) no person shall be eligible to be appointed as Associate Professor of a particular speciality unless he has acquired teaching experience of at least five years as Assistant Professor and as Professor of a particular speciality unless he has acquired teaching experiences of at least Seven years as a Senior Teacher respectively. The post of Assistant Professor is a senior teaching post as Rule 3(h). Opposite party No. 2 acquired five years teaching experience on 5-12-1971 and seven years teaching experience on 5-12-1973, i.e. subsequent to Petitioner. Even if five years is calculated from the date of appointment as Assistant Professor i.e. 18-2-1964, the Petitioner becomes eligible for promotion as Associate Professor on 18-2-1969 and as a Professor on 18-2-1971, whereas the opposite party No. 2 becomes eligible on 22-11-1969 for appointment as Associate Professor and on 22-11-1971 for appointment as Professor. These dates are subsequent to the dates of eligibility for appointment as Associate Professor and Professor in the case of the Petitioner, the date of appointment of opposite party No. 2 as Assistant Professor being 22-11-1964. 11. On behalf of opposite parties 1 and 2, it is contended that the 1973 Rules which deal with inter se seniority of Assistant Professors, Associate Professors and Professors respectively. 11. On behalf of opposite parties 1 and 2, it is contended that the 1973 Rules which deal with inter se seniority of Assistant Professors, Associate Professors and Professors respectively. It is contended that the opposite party No. 2 was promoted to the rank of Associate Professor on 21-10-1970 and to the rank of Professor on 19-10-1970 strictly in accordance with the 1970 Rules then in force. So the Petitioner acquired a vested right under the statutory rules (1970 Rules) and by the new Rules (1973) the right already acquired under previous statutory rules cannot be taken away. Opposite party No. 2 was promoted to the rank of Professor when the Petitioner was an Assistant Professor and at the time of coming into force the 1973 Rules i.e. on 22-9-1973, the Petitioner was Assistant Professor. So the question of determination of his seniority under the said rules in the rank of Associate Professor did not arise at all. It is also contended by the opposite parties that the gradation list has been finalised by the Government after hearing the objections of the parties and is now pending before the Public Service Commission under Rule 11 of 1973 Rules and hence this writ Petitioner is premature. Mr. Dora, learned Counsel appearing for opposite party No. 2 drew our attention to a recent decision of the Court in O.J.C. 2172/75 disposed of on 9-2-1978 and contended that even in absence of fixation of seniority in the rank of Professor, before the grievance of the Petitioner against the promotion of opposite party No. 2 as Professor is examined, the merit of the grievance is required to be examined -with reference to statutory rules which came into force on 8-8-1970 as per the judgment of this Court in O.J.C. 2172/75. Mr. Rath on behalf of the Petitioner submitted that in O.J.C. 921/70 (Annexure-1) the present Petitioner challenged the promotion of opposite party No. 2 (who was opposite party No. 4 in that writ petition) to the higher rank which was governed by the Rules of 1970 (8-8-1970). This Court did not consider the question of fixation of inter se seniority under the 1970 Rules and decided that the matter would be dealt with in accordance with Rule 11 of the 1973 Rules which had come into force by the time of disposal of that writ application. This Court did not consider the question of fixation of inter se seniority under the 1970 Rules and decided that the matter would be dealt with in accordance with Rule 11 of the 1973 Rules which had come into force by the time of disposal of that writ application. The relevant portion of the judgment has already been quoted in paragraph 7 of this judgment. Mr. Rath also contends that even according to 1970 (8-8-1970) Rules, Petitioner is senior to opposite party No. 2 He further contends that in view of the above decision, it does not lie in the months of opposite parties 1 and 2 now to say that opposite party No. 2's vested right under 1970 Rules cannot be taken away. We have also carefully perused the decision of this Court in O.J.C. 2172/75 In that case the Court observed: The main question for consideration is whether the appointment of opposite party No. 4 as Assistant Professor is governed by the 1970 Rules or the 1973 Rules. As already mentioned, the 1973 Rules came into force on 22-9-1973. Prior to that the 1970 Rules was in force. The Petitioner's contention is that the 1973 Rules are retrospective in operation and are applicable to the cases which though referred to the Public Service Commission prior to the enforcement of the Rules had not been finally disposed of. In support of this contention reliance has been placed on Rule 9(2) of the 1973 Rules. The contention of the opposite parties on the other hand is that the 1973 Rules are prospective so far as recruitment and promotions are concerned. It is well settled that no statute shall be construed to have retrospective operation unless such construction appears very clearly in the terms of the statute or arises by necessary and distinct implication. The 1973 Rules were published by Government Notification dated 22-9-1973 and Rule 2 thereof provides that the Rules shall come into force at once. A plain reading of the Rules shows that they are prospective in operation and that they have retrospective effect only for the limited purpose of fixation of inter se seniority. Rule 9(2) deals with inter se seniority of Assistant Professors appointed on or after the 1st December. 1960 till the date of commencement of the Rules. A plain reading of the Rules shows that they are prospective in operation and that they have retrospective effect only for the limited purpose of fixation of inter se seniority. Rule 9(2) deals with inter se seniority of Assistant Professors appointed on or after the 1st December. 1960 till the date of commencement of the Rules. This clearly indicates that wherever' the rule making authority intended the rule to have retrospective operation it has expressly made so. Save and except Rule 9, there is no other provision to indicate that the Rules were made retrospective for the purpose of recruitment and promotion. It is common ground that the vacancy to which opposite party No. 4 was appointed occurred and the reference to the Public Service Commission was made at a time when the 1970 Rules were in force. The opposite party No. 4 was appointed on ad hoc basis on 19-7-1972 and the reference to the Public Service Commission was made on 7-4-1973. The matter was pending with the Commission when the 1973 Rules came into force. It is true that concurrence of the Commission was communicated to the State Government after enforcement of the 1973 Rules. But the fact remains that the Commission was required to consider the eligibility of the candidates on the date when the vacancy arose and the ad hoc appointment was made. By the subsequent Government Order in Annexure-8 the appointment already made on 19-7-1972 was regularised and the regular appointment took effect from that date. We accordingly hold that the appointment of opposite party No. 4 as Assistant Professor of T.B. & Chest Diseases was made under the provisions of 1970 Rules and not the 1973 Rules. xx xx xx Be that as it may, the legal position as discussed above leaves no doubt that the 1970 Rules held the field when the opposite party No. 4 was first appointed as Assistant Professor on 19-7-1972 and that the 1973 Rules are reprospective only for the limited purpose of fixation of seniority. We have given our anxious consideration to the above principles laid down in the above case decided by this Court. But with respect we could not persuade ourself to subscribe to the view expressed in the aforesaid decision. We have given our anxious consideration to the above principles laid down in the above case decided by this Court. But with respect we could not persuade ourself to subscribe to the view expressed in the aforesaid decision. If the above decision is accepted, the position would be that even though this Petitioner will be senior to opposite party No. 2 in the rank of Assistant Professor, that will not enure to his benefit in determining his illegibility for promotion to higher posts of Associate Professor and Professor. This position, it appears, is also not in conformity with the decision in O.J.C. 921/75. In our view, this cannot be the intention of the rule making authority and there is nothing in 1973 Rules that the promotion already made prior to the coming into force of 1973 Rules cannot be disturbed. The purpose of making provision for re-fixation of seniority under the new rules will be wholly defeated to the result of re-fixation is not give effect to. The earlier Division Bench case referred to above appears to hold a contrary view that one who becomes senior after re-fixation of seniority will Dot have the benefit of it because the rules do not specifically provide to have retrospective effect. According to us the only object of the rule making authority in making provision for re-fixation of seniority is to give the benefits of such re-fixation to one who is found to be entitled to it. 12. Since we are unable to agree with the view expressed in the aforesaid Division Bench decision, the present case be placed before the Honourable the Chief Justice for constituting a larger Bench for the disposal of the same. B.K. Ray, J. 13. I agree.