Devendra Nath Tiwary v. L. N. Mithila University — 1997 DIGILAW 847 (PAT)

Order This writ petition brings to this Court for its decision a dispute of seniority between a University teacher directly recruited to the post of Reader and another promoted first as Reader and then as University Professor, under the Time Bound Promotion Scheme. Petitioner no. 1 who is direct recruit to the post of Reader in the Department of Philosophy, L.N. Mithila University, Darbhanga claims seniority over respondent no. 7 who was promoted first as Reader and then as University Professor in that department under the Time Bound Promotion Scheme. Similarly, petitioner no. 2 who was directly apr-ointed as Reader in the Hindi Department of the University claims to be senior to respondent no. 6 who is a promotee Reader - University Professor in that Department. 2. It may be stated here that according to the University seniority is to be determined on the basis of length of continuous officiation on the post (of Reader or University Professor) and applying this criterion it recognises respondents 7 and 6 as senior, not only to petitioners 1 and 2 respectively, but as the seniormost teachers in their respective departments and it has accordingly appointed them as Heads of their respective Departments of Philosophy and Hindi. 3. The two petitioners on the other hand maintain relying upon some Supreme Court decisions to which I shall advert a little while later that it is only the direct recruits who constitute the cadre of Reader/University Professor and a teacher promoted to the post under the Time Bound Promotion Scheme never gets entry into the cardre. Hence, in any department of the University, it is always the directly recruited Reader/Professor who would rank senior over the promotees and a promotee can, therefore, never be appointed as the Head of the Department over a directly recruited Reader. 4. The facts of the case are brief and simple and can be stated thus. Petitioner no. 1 was earlier teaching as a lecturer in the Banaras Hindu University pursuant to his appointment there in July, 1981. In 1988, an advertisement was issued for appointment to the post of Reader in the Department of Philosophy in the L.N. Mithila University. Petitioner no. 1 applied for the post and his name was recommended for appointment by the Bihar State Universities (Constituent Colleges) Service Commission following his selection by a selection committee duly constituted by the Commission. In 1988, an advertisement was issued for appointment to the post of Reader in the Department of Philosophy in the L.N. Mithila University. Petitioner no. 1 applied for the post and his name was recommended for appointment by the Bihar State Universities (Constituent Colleges) Service Commission following his selection by a selection committee duly constituted by the Commission. On the basis of the Commission's recommendation, he was appointed to the post of Reader in the Department of Philosophy by a notification, dated 5.7.1988, (Annexure 3) issued by the Vice Chancellor of the University. On the same date he joined the post and since then he is working in the L.N. Mithila University as Reader in the Department of Philosophy. 5. In the writ petition at the time of its filing petitioner no. 1 vied for seniority with a certain Dr. Kameshwar Prasad Verma who was then made the Head of the Department of Philosophy. Dr. Verma was accordingly impleaded as respondent no. 5 in this writ petition. During the pendency of this case, Dr. Verma retired from service and Dr. Chandrika Chaubey whom the University recognised as the seniormost teacher in the department was appointed as .the Head of the Department of Philosophy. Thereupon a petition was filed making a prayer that the name of Dr. Verma be deleted from the record of this case and in his place Dr. Chandrika Chaubey be substituted as a party respondent. By order dated 12.7.1996, the prayer was allowed and Dr. Chaubey was permitted to be impleaded as respondent no. 7 to this writ petition. Thus the dispute of seniority in the Department of Philosophy is now between Petitioner no. 1 and respondent no. 7. 6. Respondent no. 7 was appointed on a substantive post of lecturer in Philosophy in M.S.S.G. College, Areraj on 12.7.1961. The Syndicate of the Bihar University, under which that college was at that time in its meeting held on 24.1.1962, approved his appointment as lecturer w.e.f. 12.7.1961. He was later appointed to the post of lecturer in Philosophy on the recommendation made by the University Service Commission and joined his post at Marwari Mahavidyalya, Darbhanga on 23.9.1966. It is stated that when post graduate teaching in Philosophy was started in the University, respondent no. He was later appointed to the post of lecturer in Philosophy on the recommendation made by the University Service Commission and joined his post at Marwari Mahavidyalya, Darbhanga on 23.9.1966. It is stated that when post graduate teaching in Philosophy was started in the University, respondent no. 7 was 'apportioned' from Marwari Mahavidyalya, a constituent unit of the University to the University Department of Philosophy by an office order dated 30.8.1979 (Annexure A/7). He joined there on 1.11.1979. On 16.12.1981, a notification (Annexure B/7) was issued by which respondent no. 7, along with a number of similarly situated teachers, was promoted to the post of Reader w.e.f. 14.11.1980. The promotion was accorded on the recommendation of the University Selection Committee constituted by the Vice Chancellor in terms of the provisions of the Statutes which was also approved by the University Syndicate in its meeting held on December 12 and 13, 1981. Later, by another notification dated 11.12.1989 (Annexure C/7), respondent no. 7 (along with a number of other teachers), was promoted to the rank of University Professor of Philosophy. The promotion was given w.e.f. 29.8.1985 on completion of 16 years' continuous service as Lecturer/Reader under the Time Bound Promotion Scheme. It was, however, stated in the notification that the promotion was temporary and subject to the concurrence of the Bihar State Universities (Constituent Colleges) Service Commission. By yet another notification dated 13.10.1990 (Annexure D/7), the date of promotion of respondent no. 7 to the post of University Professor of Philosophy was shifted back to 1.2.1985, the date on which the Time Bound Promotion Statutes came into force. However, in this notification also it was reiterated that the promotion was temporary and subject to the concurrence of the Bihar State Universities (Constituent Colleges) Service Commission. Finally, by notification dated 29.6.1996 (Annexure E/7) Dr. Verma who was the Head of the Department of Philosophy at the time of filing of this case, was directed, on the eve of his retirement to hand over the charge of the post graduate department of Philosophy to respondent no. 7, the next seniormost teacher in the department. The notification stated that the arrangement would continue till further orders. 7. The dispute between petitioner no. 2 and respondent no. 6 who are in the Department of Hindi proceeds on similar lines. Petitioner no. 7, the next seniormost teacher in the department. The notification stated that the arrangement would continue till further orders. 7. The dispute between petitioner no. 2 and respondent no. 6 who are in the Department of Hindi proceeds on similar lines. Petitioner no. 2 was appointed as a lecturer in Hindi by the Vice Chancellor of the University on 12.11.1975. On 6.4.1976 he was appointed on a regular basis on a substantive post of lecturer after being duly selected by the Commission. In 1982, an advertisement was issued for appointment to the post of Reader in the post graduate department of Hindi in the University. Petitioner no. 2 applied in response to the advertisement and on his name being recommended by the University Selection Committee, he was appointed to the post of Reader in Hindi by notification dated 17.7.1982 (Annexure 6) and was posted in the post graduate department. It appears from the memorandum dated 9.7.1982 (Annexure 1/7) that the appointment was made after the Chancellor accorded his approval to the selection made by the University Selection Committee. 8. Respondent no. 6 was appointed as a lecturer in Hindi in C.M. College, Darbhanga on 13.12.1963 on the recommendation of the Bihar Public Service Commission, Patna. C.M. College was then a constituent unit of the Bihar University and after the creation of the L.N. Mithila University, it continued to be a constituent college of this University. When post graduate teaching in Hindi was started in the University, respondent no. 6 was 'apportioned' to the post graduate section by office order dated 16.12.1975 (Annexure E/5). By office order dated 10.11.1981 (Annexure F/5) respondent no. 6, along with a number of other teachers, was promoted to the post of Reader, w.e.f. 14.11.1980, on the basis of the recommendation of the University Selection Committee constituted by the Vice Chancellor in terms of the Statutes which was approved by the University Syndicate in its meeting held on 8.11.1981. Later, by notification dated 27.7.1988 (Annexure G/5), issued by the Vice Chancellor, respondent no. 6, along with a number of other teachers, was promoted to the post of University Professor, w.e.f. 5.10.1986, on the recommendation of the screening committee under the provisions of the Time Bound Promotion Scheme. The promotion was on a temporary basis and subject to the concurrence of the Bihar State Universities (Constituent Colleges) Service Commission, Patna. 6, along with a number of other teachers, was promoted to the post of University Professor, w.e.f. 5.10.1986, on the recommendation of the screening committee under the provisions of the Time Bound Promotion Scheme. The promotion was on a temporary basis and subject to the concurrence of the Bihar State Universities (Constituent Colleges) Service Commission, Patna. By yet another notification dated 3.10.1991 (Annexure G/1-5), the date of promotion of respondent no. 6 was shifted back to 1.2.1985 on completion of 16 years of continuous service as Lecturer/Reader. In this notification also, it was reiterated that the promotion was temporary and subject to the concurrence of the Bihar State Universities (Constituent Colleges) Service Commission. By notification dated 23.11.1990 (Annexure H/5), respondent no. 6 was declared as Head of the University Department of Hindi. 8. What transpires from the above is that petitioner no. 1 was directly recruited to the post of Reader in Philosophy on 5.7.1988 whereas respondent no. 7 was promoted as Reader under the Time Bound Promotion Scheme w.e.f. 14.11.1980 and later to the post of University Professor w.e.f. 1.2.1985; similarly petitioner no. 2 was appointed to the post of Reader directly by notification dated 17.7.1982 whereas respondent no. 6 was promoted as Reader under the time bound scheme w.e.f. 14.11.1980 and later to the post of University Professor w.e.f. 1.2.1985. 9. The question that arises for consideration in this case is whether their inter-se seniority would be determined on the basis of length of continuous officiation as Reader or University Professor or whether it is to be held that respondent 6 and 7 never got entry into the cadre of Reader and University Professor and hence, notwithstanding their earlier dates of promotion to the post of Reader, the two petitioners being in the cadre of Reader would rank senior to them. The answer to the question is to be found in a trilogy of Supreme Court decisions and their application to the provisions of the Bihar State Universities Act, 1976 and the statutes framed thereunder. 10. The counsel appearing for the parties in this case referred to three Supreme Court decisions in (i) Dr. Bal Krishna Agrawal vs. State of U.P. and others, (1985) 1 SCC 614,(ii) Dr. Rashmi Srivastava vs. Vikram University and others, (1995) III SCC 653 and (iii) Dr. Suman Agrawal vs. Vice Chancellor and others (1996) I SCC 632. 10. The counsel appearing for the parties in this case referred to three Supreme Court decisions in (i) Dr. Bal Krishna Agrawal vs. State of U.P. and others, (1985) 1 SCC 614,(ii) Dr. Rashmi Srivastava vs. Vikram University and others, (1995) III SCC 653 and (iii) Dr. Suman Agrawal vs. Vice Chancellor and others (1996) I SCC 632. On behalf of the petitioners reliance was placed heavily, almost entirely, on the decision in Dr. Rashmi Srivastava and it was contended that that decision applied with full force to the facts of this case and in the light of that decision it must be held that petitioners 1 and 2 were senior to respondents 7 and 6 respectively. On behalf of the petitioners a reference was also made to the decision by a learned single Judge of this Court in Dr. Ghulam Mujtaba Ansari Vs. Chancellor, 1996 (2) PLJR 488 . This decision, however, does not seem to have any bearing on the dispute which falls for consideration in this case. 11. Mr. Azfar Hasan, counsel for the respondent University and Mr. Ganga Prasad Roy, learned Addl. Advocate General III appearing for the two private respondents, on the other hand, maintained that in the case of Dr. Rashmi Srivastava, the statutory provisions that came up for consideration before the Supreme Court were materially different from the provisions of the Bihar State Universities Act and the Statutes framed thereunder and the decision in Dr. Rashmi Srivastava, therefore, would not apply to this case. According to the counsel for the respondents, the statutory provisions governing the Universities in this State had a greater similarity with those provisions which were considered by the Supreme Court in the case of Dr. Suman Agrawal in which it was held that seniority between a Reader recruited directly and another promoted to the post under the Time Bound Promotion Scheme would be determined on the basis of the length of continuous officiation. It was submitted on behalf of the respondents, therefore, that in the light of the Supreme Court decision in Dr. Suman Agrawal, the University had rightly recognised respondents 7 and 6 as senior to the petitioners 1 and 2 respectively. 12. It was submitted on behalf of the respondents, therefore, that in the light of the Supreme Court decision in Dr. Suman Agrawal, the University had rightly recognised respondents 7 and 6 as senior to the petitioners 1 and 2 respectively. 12. Before examining closely the decisions relied upon by the parties, it would be useful to have a look at some of the relevant provisions of the Act and the two Statutes under which the respondents were promoted first to the post of Reader and then to the post of University Professor. 13. The L.N.M. University is governed by the provisions of the Bihar State Universities Act, 1976 ('The Act', hereinafter). Section 2 of the Act is the definition section; clause (h) defines 'Head of a University Department' and from Section 26(6)(ii) it appears that normally the seniormost University Professor or Reader of the department is to be appointed as the Head of a University Department. 14. Clause (I) of Section 2 defines "Prescribed" as meaning prescribed by this Act or by the Statutes, the ordinances, the Regulations or the Rules framed thereunder. 15. Section 2(r) defines Reader as meaning a teacher of a college or the University possessing such qualifications as may be prescribed by the Statutes; lecturer is defined in Section 2(s) as a teacher of a college or the University possessing such qualifications as may be prescribed by the Statutes and the University Professor is defined in Section 2(w) as a teacher engaged in giving instruction in any department or Institute maintained by the University for imparting instruction to the students of the University in the post graduate standard or for guiding research work or both and possessing such qualifications as may be prescribed by the Statutes. 16. Section 2(u) provides that "Statutes", "Ordinances", "Regulations", and the "Rules" would mean respectively the Statutes, the Ordinances, the. Regulations and the Rules of the University for the time being in force; 'teacher' according to its definition under Section 2 (v) includes University Professor, Reader and lecturer, in addition to other persons with different other designations, imparting instruction in any department, college or Institute maintained by the University. 17. Section 34 enumerates the matters which are to be provided for in the Statutes and Section 34(f) is as follows :- "The Statute. 17. Section 34 enumerates the matters which are to be provided for in the Statutes and Section 34(f) is as follows :- "The Statute. - Subject to the provisions of this Act, Statute may provide for all or any of the following matters, namely : (f) the classification of teachers of the University, the manner of their appointment and their recognition." (emphasis added) 18. Section 36 provides for the manner in which Statutes are to be made and sub-section (6) inserted in the parent Act by Act 62 of 1982 empowers the Chancellor to frame statutes on any subject after obtaining advice of the Inter University Board and in case of any financial implication in the statutes after obtaining the advice also of the State Government. 19. Section 41 provides for consultation with the Bihar Inter University Board in the matter of making of Statutes. 20. Then come the crucial provisions relating to the appointment of teachers and officers. These are contained in Sections 57 and 58 of the Act. The relevant portions of Section 57 of the Act, as it stands at present after its amendment by Act 12 of 1995, are reproduced below:- "57. The appointment of teachers and officers. - (1) Subject to provisions of this Act and the Statutes, the Bihar State University (Constituent Colleges) Service Commission shall, as far as may be, perform, in respect of appointment to the post of teachers and officers (other than Vice Chancellor, Pro Vice Chancellor and the Dean of Faculty) of the University the same functions as are assigned to the State Public Service Commission in respect of the State Service under Article 320 of the Constitution of India." “(2)(a) The Bihar State Universities (Constituent Colleges) Service Commission shall hold every year a qualifying test for appointment of Lecturers in the University/Constituent Colleges/Affiliated Colleges which shall be known as the Bihar Eligibility Test. For this purpose, it shall invite subject-wise applications from only such candidates who fulfil the prescribed qualifications as laid down in the Statute framed in this regard. For this purpose, it shall invite subject-wise applications from only such candidates who fulfil the prescribed qualifications as laid down in the Statute framed in this regard. However, such test shall be conducted having regard to any regulation framed or direction issued by the University Grants Commission in this regard; (b) for appointment of lecturers in the University and the Constituent Colleges the Commission shall invite applications from candidates who have passed the Bihar Eligibility Test and/or have cleared the Eligibility Test for Lecturership/Junior Research Fellow conducted by the University Grants Commission/Council for Scientific and Industrial Research and/or have already been awarded Ph.D. degree in the relevant subject and/or have already submitted Ph.D. thesis upto 31st December, 1993 and/or have already been awarded M. Phil degree by 31st December, 1992 and on the basis of interview shall prepare subject-wish merit list against the vacancies needed by the University/Constituent Colleges and such list shall remain valid for a period of one year from the date of its approval. The subject-wise merit list shall consist of twice the number of vacancies, but the Commission shall send in order of merit only one name at a time to the University for appointment against a single vacancy : Provided . . . . . (c) The vacancies including the likely vacancies in the next calendar year along with the reservation roster shall be intimated to the Commission by the University by 31st of December every year. (4)(a) . . . . . (b) . . . . . (c) . . . . .” 21. The relevant portions of Section 58 of the Act are similarly reproduced below: "58. Vishwa Vidyalaya Ke Sikshakon Ewam Padadhikarion Ki Niyukti. - (i) Is Adhiniyam Aur Is Ke Adhin Bane Pariniyamon Ke Adhin Rahte Huwe Sikshakon Ewam Padadhikarion Ki Niyukti (Bihar Rajya (Angibhoot Maha Vidyalaya) Sewa Ayog Ki Anushansha par Kulpati Dwara Ki Jaigi." (emphasis added) 22. Counsel for the respondents laid great stress on the opening words used in the two sections of the Act (underlined in the quotations above for the sake of convenience) by virtue of which the provisions contained in the two sections are made subject to the other provisions of the Act and also to those contained in the Statutes. Counsel for the respondents laid great stress on the opening words used in the two sections of the Act (underlined in the quotations above for the sake of convenience) by virtue of which the provisions contained in the two sections are made subject to the other provisions of the Act and also to those contained in the Statutes. It was further pointed out that though the provisions of the two sections have undergone a very large number of amendments since the commencement of the Act, the portion relied upon by the respondents in Section 57(1) has remained un-amended every since the Act came into being and Section 57(1) has the opening words "subject to provisions of this Act and Statutes" from the time of its inception. 23. Section 58 in its original form was entirely different and contained provisions mostly relating to the service conditions of the teachers and officers of the University. That section was amended by Act 68 of 1982 which substituted Section 58(1), as quoted above, being with the words (in Hindi) "subject to the provisions of this Act and the Statutes". 24. It was contended on behalf of the respondents that the opening words of both Sections 57(1) and 58(1) read with Section 34(f) clearly indicated that in the case of Universities in this State the Act itself envisaged that the statutes might provide for an alternative mode of recruitment. The relevant provisions in the Bihar Act, according to the respondents was, therefore, quite unlike Section 49 of the Madhya Pradesh Vishwa Vidyalaya Adhiniyam, 1973 (hereinafter referred to as the 'M.P. Act') which came up for consideration before the Supreme Court in the case of Dr. Rashmi Srivastava and which recognised no other mode of recruitment of University teachers, namely, Professors, Readers and Lecturers save and except by way of direct recruitment. According to the respondents, in this regard the Bihar Act was much closer to the U.P. State Universities Act, 1973 (hereinafter referred to as 'the U.P. Act') after the insertion of Section 31A by which the provision was made for giving personal promotion to the post of Reader or Professor. 25. According to the respondents, in this regard the Bihar Act was much closer to the U.P. State Universities Act, 1973 (hereinafter referred to as 'the U.P. Act') after the insertion of Section 31A by which the provision was made for giving personal promotion to the post of Reader or Professor. 25. In order to highlight the differences in the statutory provisions relating to recruitment of teachers under the Bihar Act and the M.P. Act, the counsel for the respondents also invited my attention to the provisions of the Bihar Inter University Board Act which was preceded by Ordinances under the same title. By this Act, an Inter University Board was established with the object to advise the Chancellor/State Government on matter of bringing about coordinated development of higher education and research, raising the standard of the Degrees awarded by the Universities, promoting excellence in the Universities of maintaining uniformity in the Statutes, Ordinances, Regulations and the Rules of the Universities. Strong reliance was placed on Section 5 of the Act which is as follows:- "5. Functions of the Board. - (1) The said Board shall advise the Chancellor/State Government on the following matters :- (a) Development of the Universities of the State and raising the standard of teaching and research specially the Post Graduate teaching and research, (b) Improvement in the standard of different examinations of the Universities and effecting desirable reforms in them, (c) To bring improvement and excellence as far as possible, in the teaching in Universities, (d) Measures for desirable uniformity in the Statutes, Ordinances, Regulations and Rules of different Universities, (e) Arrangement for training of teachers for raising their attainment, (f) Any other academic matter in the interest of strict implementation of the State policies relating to higher education, (g) To review the development schemes approved for the Universities to suggest measures for their implementation, and (h) Implementation of the Board. "(2) Notwithstanding anything contained in the Patna University Act, 1976 (Bihar Act XXIV of 1976) and the Bihar State Universities Act, 1976 Bihar Act XXMH, 1976, the State Government shall consider the advice tendered by the Inter University Board on any of the subjects mentioned in clause (1) and in accordance with the said advice or with such amendment as the State Government may deem fit, shall recommend to the Chancellor for appropriate action in the matter and the Chancellor at his discretion, shall issue such direction on the subject as he deems fit. Such directive shall be binding on the University and the University shall execute the orders within such specified period as the Chancellor may determine." (emphasis added) 26. The reference to Section 5(2) of the Inter University Board Act was called for because one of two statutes under which respondent 6 and 7 were given time bound promotion to the post of University Professors is said to have been issued by the Chancellor under Section 5(2) of the Bihar Inter University Board Act. 27. This brings me to the statutes but before proceeding to examine them it must be indicated that the two statutes in question are quite different from the Merit Promotion Scheme recommended by the University Grants Commission and which after its adoption by the different States was introduced in the different Universities by framing statutes. Counsel for the respondents pointed out that in the case of Dr. Rashmi Srivastava the Statutes coming up for consideration before the Supreme Court were framed to incorporate the Merit Promotion Scheme suggested by the University Grants Commission. 28. Of the two Statutes which are to be examined in this case, the first one was called "Statutes for Promotion of Lecturers to the Post of Readers" (hereinafter referred to as 'the 1980 Statutes'). The Chancellor's approval to the Statutes was communicated by letter no. 5260 GS(1), dated 18.11.1980 and these came into force w.e.f. 14.11.1980. It is to be made clear that in the Chancellor's approval to these Statutes, there is no reference to the provisions of the Inter University Board Act. 29. The Chancellor's approval to the Statutes was communicated by letter no. 5260 GS(1), dated 18.11.1980 and these came into force w.e.f. 14.11.1980. It is to be made clear that in the Chancellor's approval to these Statutes, there is no reference to the provisions of the Inter University Board Act. 29. Clause (1) of the Statutes provided for the promotion of a lecturer to the post of Reader on the recommendation of the University Selection Committee, after 13 years of continuous service as lecturer in case he held a doctorate degree and after 18 years of continuous service as lecturer in case he did not hold a doctorate degree but subject to the condition that he held substantive appointment on the post of lecturer. Any promotion given under the statutes was deemed to be a personal promotion which would lead to the upgradation of the post of lecturer earlier held by the promotee. The promotion, however, would not lead to any vacancy on the post of lecturer and in the event of the promotee's appointment to a higher post or the post falling vacant due to his retirement, resignation, death or otherwise the upgraded post would again be converted into the post of lecturer and it would be the post of lecturer on which the resultant vacancy would arise. The statutes further stipulated that the upgraded post would be deemed to be a substantive post till the promotee held it but in the event of the promotee being on leave or on foreign service or officiating on or holding another post on temporary basis, the temporary vacancy so caused would be on the post of lecturer. The statutes further stated that appointments to the duly created posts of Reader would continue to be made only on the basis of the prescribed qualifications and in the manner prescribed in the Act and the Statutes. Clause 9 of the Statutes dealt with the question of seniority and it was as follows:- Clause 9 : "The seniority on the post of Reader shall be determined from the date of promotion but the inter se-seniority of the lecturers promoted as Readers on the same date shall be the same as they had on their posts as lecturers." 30. It may be noted here that promotion to respondents 6 and 7 from the posts of lecturers to the post of Readers was given under the provisions of the 1980 Statutes. 31. The second set of statutes which is to be examined is called, "Statutes For Time Bound Promotion of Lecturers to the post of Readers And For Readers to the Posts of University Professors" (hereinafter referred to as 'the 1986 Statutes'). The Chancellor's approval to these statutes was communicated by letter no. BSU-27/85-4032/GS(1) dated 24.12.1986. It was indicated at the beginning of the Statutes that the chancellor had been plased to approve the statutes on the recommendations of the Bihar Inter University Board and the State Government as provided under Section 5(2) of the Bihar Inter University Board Act, 1981. These Statutes came into force w.e.f. 1.2.1985 superseding the 1980 Statutes. The supersession however, was subject to the stipulation that all actions taken under the earlier Statutes before the date of the implementation of the 1986 Statutes would be deemed to be valid. 32. Clause 1(3) of the 1986 Statutes is relevant for the present purpose as respondents 6 and 7 were given promotion from the posts of Reader to the posts of University Professor in terms of the provisions contained therein. Clause 1(3) is as follows :- "1 (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 recommendation of the Bihar State University (Constituent Colleges) Service Commission be promoted to the post of University Professor, other conditions remaining the same." 33. It is to be noted here that under the 1980 Statutes promotion was to be given on the recommendation of the University. In the 1986 Statutes, however, the promotion is to be given on the recommendation of the Bihar University (Constituent Colleges) Service Commission which is also the agency for making selection and recommendation for direct recruitment of teachers in terms of Section 57 of the Act. In other material features the 1986 Statutes is quite similar to the 1980 Statutes. Clause 9 dealing with the question of seniority is, however, quite different. In other material features the 1986 Statutes is quite similar to the 1980 Statutes. Clause 9 dealing with the question of seniority is, however, quite different. Clause 9 of the 1986 Statutes is as follows :- C1.9 "The inter-se-seniority of the teachers will not be adversely affected by Time Bound promotion." This completes the examination of the two Statutes for the purpose of this case. 34. The survey of the relevant legal provisions, however, will not be complete unless it is noted that there is no provision for determining inter-se-seniority of the teachers of the University either in the parent Act or in the Statutes framed thereunder laying down the General Conditions of Service of Employees of the Patna, Bihar, Ranchi, Bhagalpur, Magadh, L.N. Mithila and K.S.D. Sanskrit Universities as approved by the Chancellor on 29.9.1980. In the Act a reference is made to seniority in Section 26(6)(ii) and Section 70A, inserted by the amending Act 68/82. Section 26(6)(ii) laid down that a teacher who was not the seniormost Professor or University Professor or Reader of the Department could not be appointed as Head of the Department except with the prior concurrence of the Bihar Public Service Commission. Section 70A provided that if an employee of the University was transferred under orders of the Chancellor from one University to another University he would continue to get the pay and allowance he had been drawing and would carry his seniority based on the date of his regular appointment to the post. Thus it can be said that Section 70A impliedly provided for seniority to be reckoned on the basis of the date of regular appointment to the post. 35. In the Statutes laying down the general conditions of service there is no provision for determining the inter-se seniority of the employees of the university. 36. It is in the back ground of the aforementioned Statutory provisions (or a lack thereof) governing the L.N.M. University (and other Universities in this State) that it is to be examined which of the three Supreme Court's decisions can be applied to this case. 37. The first decision was in the case of Dr. Balkrishna Agrawal (supra). 36. It is in the back ground of the aforementioned Statutory provisions (or a lack thereof) governing the L.N.M. University (and other Universities in this State) that it is to be examined which of the three Supreme Court's decisions can be applied to this case. 37. The first decision was in the case of Dr. Balkrishna Agrawal (supra). In that case the Supreme Court found and held that the two respondents in that case were given promotion to the posts of Reader from a date (9.11.1984) when the Scheme of Time Bound Promotion was yet to be fully incorporated in the Statutes inasmuch as though Section 31-A making provision for Time Bound Promotion was introduced in the U.P. Act (on 10.10.1984) the length of qualifying service for promotion was yet to be prescribed by making appropriate amendments in the University's Statutes. No promotion under the Time Bound Scheme could, therefore, be given till the necessary amendments were introduced in the University's Statutes (which finally came by notification dated 21.2.1985). The Supreme Court accordingly held that the two respondents in that case could only be deemed to have been validly promoted w.e.f. 21.2.1985 when the statutory basis for Time Bound Promotion was fully laid. The appellant in that case was appointed directly on the post of professor in Physics on 9.11.1984. He was, therefore, held to be senior to the two respondents. 38. The facts of the case in hand are quite different. The provisions in the Act, relied upon by the respondents, were there from the inception of the Act and respondents 6 and 7 were given promotion only after the Statutes came into existence and with effect from the dates the two Statutes came into force. The decision in Dr. Balkrishna Agrawal's case, therefore, does not seem to apply to this case. However, what is to be seen is whether the provisions in the Bihar Act and the two Statutes provide sufficient legal basis for validly giving promotion to respondents 6 and 7 and whether those promotions would put them in the cadre of Reader/Professor? To find an answer to this question it will be necessary to closely examine the Supreme Court decision in the case of Dr. Rashmi Srivastava (supra). 39. In the case of Dr. To find an answer to this question it will be necessary to closely examine the Supreme Court decision in the case of Dr. Rashmi Srivastava (supra). 39. In the case of Dr. Rashmi Srivastava the Supreme Court held that Professors and Readers promoted under the Merit Promotion Scheme formed a distinct class of ex-cadre or suprenumerary appointees and it was, therefore, not premissible to fix the interse seniority of directly recruited Professors and Readers and merit promoted Professors and Readers on the yard stick of continuous officiation. 40. As I have been able to follow that decision it was primarily based on the provisions contained in Section 49 of the M.P. Act concerning appointment to teaching posts in the University and the features of the Merit Promotion Scheme. The Supreme Court held that Section 49 of the M.P. Act contemplated only an open market recruitment procedure by way of direct recruitment and the candidates thus selected would have to be appointed in order of merit. It also held that Section 49 did not take in its sweep the departmental promoteess. Further, on an analysis of the salient features of the Merit Promotion Scheme recommended by the University Grants Commission and as adopted by the Vikram University (and several other Universities) the Supreme Court arrived at the finding that the teachers promoted under that scheme did not get entry into the cadre of Reader/ Professor. 41. At this stage it would be useful to take a look at Section 49 of the M.P. Act, the relevant portions of which are as follows: "49 (1) No person shall be appointed. - (i) as a Professor, Reader, Assistant Professor or Lecturer; or (ii) to any other teaching post of the University paid by the University except on the recommendation of a Committee of Selection constituted in accordance with sub-section (2). Provided xx xx xx Provided xx xx xx (2) xx xx xx (3) Omitted (4) xx xx xx (5) Out of the names so recommended under sub-section (4) the Executive Council shall appoint persons in order of merit. (emphasis added) 42. Provided xx xx xx Provided xx xx xx (2) xx xx xx (3) Omitted (4) xx xx xx (5) Out of the names so recommended under sub-section (4) the Executive Council shall appoint persons in order of merit. (emphasis added) 42. It was in view of the definite and unequivocal mandate of Section 49 of the M.P. Act that the Supreme Court held as follows : "It must therefore be held on a conjoint reading of the relevant provisions of the Act that only one Cours of recruitment of University teachers namely, Professors and Readers and even of lecturers is contemplated and that source is by way of direct recruitment. If that is so and if under merit promotion scheme as recommended by the Commission which was adopted by Respondent University, any departmental candidate is to be promoted, he would be so promoted dehors Section 49 and would obviously be an ex-cadre Reader or Professor as the case may be." (emphasis added.) 43. The various submissions advanced on behalf of the appellants/intervenors simply floundered against the provisions contained in Section 49 of the M.P. Act. The submissions made on the basis of the University's Ordinances were considered and rejected in para 37 of the judgment on the ground that Ordinances or Statutes issued without making provisions for an alternative mode of recruitment in the parent Act would render the Ordinances/Statutes ultra vires the Act. Further, submissions made on the basis of statute 16 and on the ground that merit promotions were also made on the recommendation of the same Selection Committee which made recommendations for direct recruitment of Professors and Readers met with a similar fate (see para 48 of the judgment) and were rejected on the ground that Section 49 of the Act envisaged but one mode of appointment, namely, by way of direct recruitment. 44. On an examination of the main features of the Merit Promotion Scheme the Supreme Court further held as follows: "The aforesaid distinguishing features clearly indicate that merit promotion Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are un equals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they held." 45. They are un equals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they held." 45. It is, however, of importance to note that at several points in that judgment it was clearly indicated that the Supreme Court had arrived at its decision on the basis of the provisions contained in Section 49 of the Act and the legal position might have been quite different in case suitable amendments were incorporated in the Act making provisions for an alternative mode of recruitment by promotion. The clearest indication in this regard came where the earlier decision in the case of Dr. Sal Krishna Agrawal was considered. At that stage the following observation was made: "In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such revision. It is therefore to be held that till appropriate amendments are affected in the Universities Act concerned on the same lines as Section 31-A of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre of reader or professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter-se seniority of such ex cadre promotees and the directly recruited Readers or Professors who form the cadre concerned. (emphasis added) 46. Again in paragraph 38 of the judgment it was observed as follows: "If a provision is made then there would be no difficulty in the way of the appellants but in absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Readers or Professors as the case may be. (emphasis added) 47. One can find similar observations repeatedly made in paras 37 to 42 of the judgment. 48. Now is to consider the third decision of the Supreme Court in the case of Dr. Suman Agrawal. (emphasis added) 47. One can find similar observations repeatedly made in paras 37 to 42 of the judgment. 48. Now is to consider the third decision of the Supreme Court in the case of Dr. Suman Agrawal. In that case promotion was given to the appellant under the Time Bound Scheme after the legal foundation for such promotions was duly laid out by making appropriate amendments in the U.P. Act and the Statutes framed thereunder. Provision for time bound promotion was made first by inserting Section 31A in the U.P. Act on 10.10.1984. Section 31-A is as follows: "(1) Notwithstanding anything to the contrary in any other provision of this Act, a Lecturer or Reader in the University substantively appointed under Section 31, who has put in such length of service and possesses such qualifications, as may be prescribed, may he given personal promotion, respectively to the post of Reader or Professor, as the case may be. (2) Such personal promotion shall be given on the recommendation of the Selection Committee, constituted under clause (a) of sub-section (4) of Section 31, in such manner and subject to such conditions as may be prescribed therein and subject to the conditions as specified therein. (3) Nothing contained in this section shall affect the posts of the teachers of the University to be filled by direct appointment in accordance with the provisions of Section 31." 49. Following the insertion of Section 31-A, amendments were also introduced in the Statutes; clause 11(i) in Statute 11.12-B and Statute 17.05 clause (b) deserve to be noticed: "11.(i) The post of Reader or Professor to which personal promotion is made, shall be temporary addition to the cadre of Professor or Reader, as the case may be, and the post shall stand abolished on the incumbent ceasing to occupy it. "In the same cadre, inter-se seniority of teachers, appointed by personal promotion or by direct recruitment shall be determined according to length of continuous service in such cadre." 50. In the light of the aforesaid provisions in the U.P. Act and the Statutes, the Supreme Court held that if a teacher was appointed as a Reader by personal promotion his continuous length of service in the cadre of Reader should be determined' and inter-se seniority should be decided accordingly. In Dr. Suman Agrawal the Supreme Court also. considered its earlier judgment in Dr. In Dr. Suman Agrawal the Supreme Court also. considered its earlier judgment in Dr. Rashmi Srivastava and having noted the salient features of the merit promotion scheme as enumerated in the earlier decision, made the following observations in para 16 of the judgment: "16. In that case, the promotees did not form part of the same cadre. On the other hand, they entered into the service under a different scheme which was personal to the post which ceases with the retirement of the candidate. Though, in this case, the cessation has been provided for, but operation of Section 31-A(i) read with Statute 17.05-8 and Statute 11.12-6, clause (6) makes all the difference in the case. The personal promotees get berth through statutory force under Section 31-A(1) and the post held by the promotee becomes a temporary addition to the sanctioned cadre occupied by direct recruits. Such a provision was absent in the Rashmi Srivastava case. On the other hand, to avoid stagnation, the benefit has been provided for promotion under Section 31-A(1) of the Act and it was termed as the "personal promotion" so long as the candidate holds the post. The post remains with the candidate and the post ceases with the cessation of the service with the retirement of the holder of the post etc. Nonetheless, the post of promotees was made as temporary addition to the cadre strength and the inter-se seniority has been provided between the direct recruits and the promotees. The relative seniority of the candidates form two streams fused into the relevant cadre as Professor or the Reader, as the case may be. In the light of the statutory operation of the provisions referred to hereinabove the conclusion reached by us is inevitable." 51. On a careful consideration of the Supreme Court decisions discussed above, what I find is that in the case of Dr. Rashmi Srivastava the legal foundation for appointment by giving merit based promotion was found to be definitely absent in the M.P Act; on the other hand, in the case of Dr. On a careful consideration of the Supreme Court decisions discussed above, what I find is that in the case of Dr. Rashmi Srivastava the legal foundation for appointment by giving merit based promotion was found to be definitely absent in the M.P Act; on the other hand, in the case of Dr. Suman Agrawal it was found that the provision for giving time bound personal promotion to Lecturer or Reader was not only definitely and specifically spelt out in the Act, it was also provided in the Statue that the time bound promotees would make a temporary addition to the sanctioned cadre of Reader or Professor as case may be and that inter-se seniority of teachers, appointed by personal promotion or by direct recruitment would be determined in accordance with the length of continuous service in such cadre. I further find that the legal position as obtaining under the Bihar Act and the Statutes can be said to be about mid way between the M.P. Act the U.P. Act. It is true that the Bihar Act does not specifically make a provision for appointment by giving time bound promotion to Lecturer or Reader. But it is equally true that the provision of direct recruitment as contained in Section 57 is made subject to the provision of the Statutes and Section 34(6) further provides that Statutes can be framed laying down the manner of appointment of teachers of the University. It can therefore be safely said that though the Act itself does not provide .for time bound promotion as an alternative mode of appointment, it undoubtedly leaves room for an alternative mode of appointment to be provided for in the Statutes framed under the Act. The alternative mode of recruitment by way of time bound promotion, as provided for in the two statutes, therefore, cannot be said to be without the sanction of the Act. This was not the position under the M.P. Act and the Statutes. The promotions given to Respondents 6 and 7 from the post of Lecturer to the post of Reader under the 1980 Statutes thus clearly had a legal sanction. 52. It has been also noted earlier that a provision for determining the seniority was provided, for the first time, in the 1980 Statutes, clause 9 of which was as follows : "9. 52. It has been also noted earlier that a provision for determining the seniority was provided, for the first time, in the 1980 Statutes, clause 9 of which was as follows : "9. The seniority on the post of the Reader shall be determined from the date of promotion but the inter-se seniority of the lecturers promoted as Readers on the same date shall be the same as they had on their posts as lecturers." 53. Therefore, in terms of clause 9, respondents 6 and 7, having been promoted to the post of Reader w.e.f. 14.11.1980 (under the 1980 Statutes would rank senior to petitioners 2 and, respectively who were appointed to the post as direct recruits on 17.7.1982 and 5.7.1988. I, therefore, find no infirmity in the University recognising them as senior 1 to petitioners 2 and 1 respectively. 54. It would be appropriate here to make it clear that the above finding is with 1 regard to the time bound promotions I given under the 1980 Statutes. The position in respect of the promotions given i under the 1986 Statutes may not be the same because clause 9 of the 1986 Statutes was quite different from Clause 9 of the 1980 Statutes. I would leave this matter here because it would not be fair and appropriate to make any observations with regard to the promotion under the 1986 statutes who are not before the Court in this case. 55. The various submissions made by Dr. Sada Nand Jha, learned counsel for the petitioners are fully covered by the discussions made hereinabove and therefore I do not propose to consider them separately. One submission, however, is not covered by the earlier discussions and is therefore required to be noted here. 56. Dr. Jha had submitted that several features of the scheme of time bound promotion as contained in the two Statutes in question were not in accordance with the U.G.C. Scheme of Merit based promotion. He further submitted that the provisions of the two Statutes in so far as those were in conflict with the provisions of the merit based promotion scheme of the U.G.C. must be held to be void and unconstitutional for want of legislative competence. He further submitted that the provisions of the two Statutes in so far as those were in conflict with the provisions of the merit based promotion scheme of the U.G.C. must be held to be void and unconstitutional for want of legislative competence. The submission was based on the fact that after deletion of entry 11 from List II of the 7th Schedule of the Constitution the relevant legislative entry that remained was entry 66 of List I of the Schedule. The submission was obviously aimed at the Bihar Inter University Board Act and was made to counter the respondents in their move to seek a force• in the Statutes overriding the Act on the basis on Section 5(2) of the Bihar Inter University Board Act. As shown above, were is sufficient and adequate legislative sanction for the Statutes in the Bihar State Universities Act itself and it is therefore not needed to go to the provisions of the Inter State Universities Board Act. I, therefore, do not propose to examine this submission made on behalf of the petitioners. 67. For the reasons stated above, I find that the University has rightly deter; mined the question of seniority inter se the petitioners and the two respondents and the petitioners are not entitled to any reliefs. This application is accordingly dismissed but there will not be any order as to costs.