Prof. Akhtar Jahan Badie v. Ranchi University — 1999 DIGILAW 1100 (PAT)

Judgment A.K.Ganguly, J. 1. In this writ petition the petitioner has prayed for setting aside the appointment of Respondent No.5, namely Dr. Sachidanand Pandey as Reader in 1981 as also setting aside the promotion of respondent no. 5 as the University Professor and the consequent declaration given in Annexure about the seniority of respondent no.5 over the petitioner. The petitioner has prayed for various other reliefs but excepting the aforesaid issues no other issue has been raised before this Court. As such this Court proposes to give its findings on the aforesaid issues. 2. After considering the records of the case and hearing learned counsel tor the parties, this Court finds that there may be some grounds in favour of the petitioner on the basis of which she can urge that the appointment of respondent no.5 as Reader in 1981 is not good in the eye of law but having regard to the fact that the said appointment of respondent no. 5 as Reader having been made in 1981 and the same having been confirmed, this Court cannot permit it to be s questioned by the petitioner after 17 years on the basis of this writ petition filed in 1998. This Court, however, proposes to examine the validity of the appointment of respondent no. 5 to the post of University Professor under time bound promotion scheme. 3. A few facts which are relevant may be noted. The petitioner claims to have been appointed as a Lecturer in Political Science on the recommendation of the Bihar Public Service Commission. Patna on the substantive post of Lecturer and she joined the said post in Ranchi University on 13.9.1965 and she claims to have been confirmed on the said post from that date. Thereafter the petitioner was promoted to the post of Reader under 13/18 years Statute with effect from 14.9.1983. The petitioners case is that she was confirmed on the said post of Reader with effect from 13.9.1983. The petitioners case further is that she was promoted to the post of University Professor on temporary basis on 1.2.1985 vide notification by the Ranchi University dated 1.9.1989. Thereafter a regular notification promoting the petitioner as University Professor with effect from 13.9.1990 has been issued by the University vide its notification dated 20.1.1998. The petitioners case further is that she was promoted to the post of University Professor on temporary basis on 1.2.1985 vide notification by the Ranchi University dated 1.9.1989. Thereafter a regular notification promoting the petitioner as University Professor with effect from 13.9.1990 has been issued by the University vide its notification dated 20.1.1998. It appears from Annexure-3 that the petitioner was promoted to the post of University Professor with effect from 1.2.1985 and respondent no. 5 was so promoted to the post of University Professor with effect from 12.5.1986 which appears from the notification issued by the University authorities on 1.9.1989 (Annexure-3). The aforesaid promotion was on purely provisional basis subject to verification. Thereafter a substantive order was communicated by the Registrar, Ranchi University vide its notification dated 20.1.1998 (Annexure-4). In the said communication the petitioner was informed that the Vice Chancellor has been pleased to promote the petitioner and some other persons to the post of University Professor in the department of Political Science under the Statute for time bound promotion with effect from 13.9.1990. In the said list the name of respondent no.5 is not there. Respondent no.5, however, claims to have been promoted to the post of University Professor in Political Science under 16 years time bound promotion scheme with effect from 12.5.1986. The same is at An-nexure-9. The petitioner has also prayed for quashing of the same. 4. Learned counsel for the petitioner seriously contended that the case of respondent no.5 was not cleared by the Screening Committee and as such the case of respondent no. 5 for promotion could not have been validly considered by the Bihar State University (Constituent Colleges) Service Commission. In other words the learned counsel submitted that consideration and recommendation by the Screening Committee is a condition precedent for the case of a person to be considered by the Bihar State University (Constituent Colleges) Service Commission (hereinafter called the said commission). 4-A. The relevant statutory provision in this connection is the Statutes styled as "Statute for time bound promotion of Lecturers to the posts of Readers and for Readers to the posts of University Professors". This Statute was approved by the Chancellor vide letter dated 24.12.1986. 4-A. The relevant statutory provision in this connection is the Statutes styled as "Statute for time bound promotion of Lecturers to the posts of Readers and for Readers to the posts of University Professors". This Statute was approved by the Chancellor vide letter dated 24.12.1986. In clause 2 of the said Statute it is stated that such promotion shall be deemed to be personal promotion and shall not be automatic but shall be made on the recommendation of the said Commission upon consideration of the experience and character roll of the teacher concerned. It has also been stated that when the character roll has not been maintained before the implementation of the Statute, the cases of teachers who are eligible for promotion as Reader or University Professor on the date of implementation of the Statute shall be considered by the said Commission on the basis of the experience and certificate from the Heads of University Departments or Principals of Colleges concerned in regard to the satisfactory service of the teachers after the same have been screened by a Committee consisting of various officers. From thescheme of the Statute it appears that the case of the eligible candidates must be considered by the Screening Commillee first. In such consideration of the Screening Committee the Character Roll of the teacher concerned is a necessary component and if the Confidential Character Rolls are not maintained, in that case such consideration shall be made on the basis of the experience and certificates from the Head of the Department or the Principal of the College concerned in regard to the satisfactory service of the teachers and these materials must be made available before the Screening Committee consisting of the Vice Chancellor, Dean of the Faculty concerned, the concerned Head of the Department of University and two experts appointed by the Vice Chancellor from the panel prepared by the Bihar Inter University Board and it has been further stated that the report of the Committee which means the Screening Committee in each case shall be referred to the said Commission for its recommendation. 5. In the case of respondent no.5 a question has been raised that there is no valid consideration of his case by the Screening Committee. As such without any valid consideration by the Screening Committee, the said Commission is incompetent to consider the same. 5. In the case of respondent no.5 a question has been raised that there is no valid consideration of his case by the Screening Committee. As such without any valid consideration by the Screening Committee, the said Commission is incompetent to consider the same. In support of the aforesaid contention, the petitioner has referred to the annexure which has been disclosed in the counter affidavit of the respondent University showing purported consideration of the case of respondent no. 5 by the Screening Committee. From the proceedings of the Screening Committee dated 12.7.1995 it appears that the said committee consisted of the Vice Chancellor Dr. K.K.Nag, the Dean of Faculty of Political Science, Head of the Department of Political Science and two experts. It appears that the said Committee considered the case of promotion from Readers for the post of University Professor under 16/25 years time bound promotion scheme of various confirmed Readers. As against the name of respondent no. 5 it appears that the same has been passed through by the then Vice Chancellor who has crossed out the name of respondent no. 5 and signed on the same on 12.7.1995. The original minutes of the Screening Committee dated 12.7.1995 which is signed by all the members of the Screening Committee on 12.7.1995 and which is produced before this Court does not contain the name of respondent no 5 at all but along with the said minute chart has also been produced before Court in original which is signed by all members of the Screening Committee 12.7.1995 and against the name respondent no.5 it appears that the lowing endorsements have been made "pending till C.C.R." and it is signed by the Vice Chancellor on 12.7.1995. There is also an endorsement to the followin effect "who is authorised" which seems to have been written in a different hand. 6. However, the admitted position is that there is no recommendation in lav of respondent no. 5 by the Screening Committee but surprisingly enough the document which has been annexed to the counter affidavit of Ranchi University as minutes of the Screening Committee, an endorsement has been made to the effect that the date of promotion of serial No. 6 of Dr. S. Pandey will be with effect from 11.5.1986 and the said is purportedly signed by one Gupta on 21.8.1997. S. Pandey will be with effect from 11.5.1986 and the said is purportedly signed by one Gupta on 21.8.1997. If the same is compared with the original minutes which have been produced before this Court by the learned lawyer of the Commission, it will be clear that those endorsements have been made at a late point of time and were not part of the original minutes of the Screening Committee when the Screening Committees meeting was held on 12.7.1995 and when the same was signed by all the members* of the Screening Committee. It is no bodys case that the case of respondent no.5 was placed before any other Screening Committee. 7. Learned counsel for the respondent University, however, tried to justify the same by saying that the C.C.R. of respondent no. 5 was not available on the date of the meeting of the screening committee and the same was available at a later point of time and when the same wvas made available tc the Vice Chancellor, who was authorised to send the recommendation. The Vice Chancellor has subsequently sent the recommendation on 21.8.1997 and on the basis of the said recommendation the said Commission has recommended the case of respondent no.5 for promotion to the post of University Professor of Political cience with effect from 12.5.1986. The meeting of the Commission was held on 30.12.1997 and the recommendation of the Commission has been disclosed in the said counter affidavit filed by the University. 8. Learned counsel for the said Commission, who produced the original minutes of the Screening Committee along with the chart, submitted that he is bound by the stand of the Commission that the Commission has made recommendation in favour of respondent no. 5 but the learned counsel stated that pursuant to the direction of the Court, he has produced the original records before the Court so that the Court may look into the record for the purpose of deciding the pints at issue. 9. Learned counsel for respondent no. 5 has not, rather he could not, controverted the challenge of the petitioner about the invalid recommendation in favour of respondent no. 5 about his promotion to the post of University professor by the Screening Committee and the consequential invalid recommendation of the said Commission for such romotion. He controverted the etitioners challenge on a different ound which has been noted later on. 10. 5 about his promotion to the post of University professor by the Screening Committee and the consequential invalid recommendation of the said Commission for such romotion. He controverted the etitioners challenge on a different ound which has been noted later on. 10. This Court has repeatedly asked the learned counsel for the University as also the said Commission to point out that how can a Vice Chancellor be authorised to act on behalf of the Sreen- ing Committee in view of the fact that the Vice Chancellor is merely a member of the Screening Committee. This Court has also failed to understand how the case of a person which has not been considered by the Screening Committee in absence of the C.C.R. can be subsequently recommended for promotion only by the Vice Chancellor. There is no statutory provion permitting the standing committee authorising the Vice Chancellor to act on its behalf. Atleast none was brought to the Courts notice despite repeated queries. 11. Reference in this connection may be made to the judgment of the Supreme Court in the case of Patna University V/s. Awadh Kishore Prasad Yadav and others reported in 1994 (2) PLJR page (SC) 11. In the said judgment the aforesaid Statute relating to time bound promotion has been considered. In the said judgment it has been made very clear in paragraph 7 that where C.C.R. is not available, certificate from the Head of the Department of the University or the Principal of the College concerned along with experience of the person concerned are to be screened by a Committee consisting of the Vice Chancellor, the Dean of the Faculty, Head of the Department and two experts nominated by the Vice Chancellor. Therefore, both on the basis of the Statute and on precedent it is clear that in absence of C.C.R. the matter has to be considered on the basis of certificate either by the Head of the University Department or Principal of the College concerned by a Committee but the procedure adopted here is that in absence of the C.C.R. or certificate in the case of respondent no. 5, the Vice Chancellcr has been authorised to consider. This procedure is not in consonance with the said Statute. As such the same cannot be approved. 5, the Vice Chancellcr has been authorised to consider. This procedure is not in consonance with the said Statute. As such the same cannot be approved. In the said judgment in paragraph 7 the Supreme Court further observed "the Screening Committee is to be properly constituted and has to apply its mind to different cases before sending its opinion to the Commission" and it has been further stated that such application of mind should not be an empty formality." In paragraph 9 of the said judgment it has been stated that the duty entrusted on the Screening Committee is a statutory duty. 12. In view of the aforesaid judgment in the case of Patna University (supra) this court cannot accept that there is a valid recommendation of the screening committee in favour of respondent no.5 for promotion to the post of University Professor and in absence of such recommendation by the Screening Committee the Commission cannot consider the case of respondent no. 5 nor can recommend it for promotion. 13. The recommendation of the said Commission also appears to be very perfunctory and casual. From the disclosure made in the counter affidavit it appears that on a chit of paper two members of the Commission made a purported recommendation in favour of respondent no. 5 for his promotion as University Professor with effect from 12.5.1986. Such recommendation of the Commission has to be made on the basis of the statutory provision, namely, Bihar State University (Constituent Colleges) Service Commission Act, 1987 (hereinafter referred to as the said Act). Under Section 3 of the said Act, the Commission shall have a Chairman and a maximum of six members and they shall be whole timers. From the aforesaid provision of Section 3 of the said Act it appears that the Commission shall have six members and in the instant case the purported: recommendation has been made by the two members and the learned counsel for the petitioner has challenged the same on the ground that two members do not form the quorum in a body of seven members. 14. Learned counsel for the respondent Commission as also respondent no. 14. Learned counsel for the respondent Commission as also respondent no. 5 have controverted it by saying that no quorum is fixed under the said Act and the said Act provides about the maximal member of the Commission but it has nowhere stated that if such recommendation is made by two members it is invalid on that ground. 15. Going strictly by the provisions of the Statute aforesaid, the submission is correct that there is no provision in the said Act as to whether the recommendation will be bad if it is made by only two members. But one thing is clear, as has been stated in the aforesaid judgment Patna University (supra) that such recommendation shall not be a matter o! empty formality but looking at the recommendation in this case the said recommendation seems to be a matter of empty formality. 16. Be that as it may since this Court does not uphold the purported recommendation of the Screening Committee in favour of respondent no. 5 for his promotion to the post of University Professor, it cannot uphold the recommendation of the said Commission in view of the fact that the recommendation of the Screening Committee is a condition precedent to the recommendation of the said Commission. The condition precedent having not been fulfilled in this case, the purported recommendation of the Commission is not tenable in the eye of law and the promotion of respondent no. 5 on the basis ot such purported recommendation to the post of University Professor is set aside as legally untenable. 17. Learned counsel for the petitioner has also urged that the Syndicate of the University itself in its meeting held on 2.5.1997 set aside the appointment of respondent no. 5 as a University Professor and reverted him to the post of Reader with effect from the date of 12.7.1995. Learned counsel submitted that the same is in consonance with the recommendation of the Screening Committee which also took place on 12.7.1995. Learned counsel for the petitioner submitted that since the case of respondent no. 5 for promotion to the post of University Professor under the time bound scheme was not recommended by the Screening Committee, the Syndicate has reverted him to the post of Reader with effect from the said date i.e. 12.7.1995. Learned counsel further submitted that the said order of reversion of respondent no. 5 for promotion to the post of University Professor under the time bound scheme was not recommended by the Screening Committee, the Syndicate has reverted him to the post of Reader with effect from the said date i.e. 12.7.1995. Learned counsel further submitted that the said order of reversion of respondent no. 5 has not been challenged by him. As such there cannot be subsequent promotion of respondent no. 5 to the post of University Professor as long as the said order remains. This has been sought to be answered by the learned counsel for the University as also by the learned counselor respondent no. 5 by stating that such reversion of respondent no. 5 has taken place in view of the provision of sub-section (10) of Section 58 of the Bihar State Universities Act, 1976. The said sub-section (10) of Section 58 of the Bihar State Universities Act, 1976 is to the effect that temporary promotion given to the post of Reader or professor or Officer of the University shall be valid for a period exceeding six nths unless it is recommended by the said Commission. Learned counsel relying on the said sub- section submits that since after the temporary promotion of respondent no. 5 to the post of University Professor, the same was not recommended within six months by the said Commission the Syndicate of the University set aside the same. 18. Be that as it may, since this Court holds that there is no valid recommendation of the said Commission in favour of respondent no. 5 for promotion to the post of University Professor, the provisions of Section 58(10) of the Act applies and the promotion of respondent no. 5 to the post of University Professor does not become legal and valid. 19. Learned counsel for respondent no. 5 has urged that the petitioner has no locus standi in this case to challenge the appointment of respondent no. 5 inasmuch as promotion on time bound scheme is a personal promotion and the same does not effect the inter se seniority. Learned counsel further submitted that the petitioner being admittedly junior to respondent no. 5 as a Reader, she is not affected by the promotion of respondent no. 5 to the post of University Professor in as much as her seniority is not affected. As such the petitioner has no locus standi to challenge the same. 20. Learned counsel further submitted that the petitioner being admittedly junior to respondent no. 5 as a Reader, she is not affected by the promotion of respondent no. 5 to the post of University Professor in as much as her seniority is not affected. As such the petitioner has no locus standi to challenge the same. 20. Learned counsel further submitted that the petitioner does not have the Doctorate degree and the case of the petitioner has not been recommended by the said Commission for the post of University Professor. On factual aspect of the case it is clear that the petitioner has the Doctorate degree and her promotion to the post of University Professor has also been recommended by the said Commission. This Court also finds that the petitioner has the locus standi to challenge the illegal promotion of respondent no. 5 to the post of University Professor. This becomes very prominent when the petitioner made a representation to the authorities for appointing her as the Head of the Department but ignoring the same Dr. K.N.Sinha was appointed the Head of the Department and thereafter the petitioner made a further representation to the Chancellor of the University wherein the matter was referred to the Pay Fixation Committee, who submitted a report to the Chancellor which according to the petitioner accepted her seniority. But thereafter the petitioner is aggrieved by the notification dated 22.5.1998 whereby she has been informed that Dr. K.N. Sinha will continue as the Head of the Post Graduate Department of Political Science and Dr. S.N. Pandey, respondent no. 5 is the senior most teacher in Political Science. In view of the aforesaid declaration the petitioner has definitely a locus standi to challenge the invalid promotion of respondent no. 5 to the post of University Professor. The petitioner has reasons to be aggrieved by both An-nexures 6 and 9. 21. Apart from that when the matter has been brought to the notice of this Court on the basis of the original record that there is no valid recommendation in favour of respondent no. 5 for his promotion to the post of University Professor, this Court cannot just ignore the same and allow the illegality to continue. 22. Therefore, considering all aspects of the matter, this Court declares that the appointment of respondent no. 5 for his promotion to the post of University Professor, this Court cannot just ignore the same and allow the illegality to continue. 22. Therefore, considering all aspects of the matter, this Court declares that the appointment of respondent no. 5 to the Post of University Professor is not valid and legal in view of the statutory provisions referred to above. The said appointment which has been given by the respondent University by Annexure-9 is hereby quashed. The declaration about the seniority of respondent no.5 at An-nexure-6 is also quashed. Since respondent no.5 has not been validly appointed to the post of University Professor, he cannot claim any seniority as a University Professor either over the petitioner or any body else. This Court declares that respondent No. 5 continues as the Reader of the said University. 23. But this Court cannot give the direction, as prayed for by the petitioner upon the respondent University to appoint her as the Head of the Post Graduate Department of Political Science. This Court merely directs that if Dr. K.N. Sinha has retired and there is a vacancy in the post of the Head of the Department of Political Science in the said University, the case of the petitioner for appointment to the said post may be considered in accordance with law as early as possible, preferably within a period of two months from the date of receipt/service of a copy of this order upon the respondent University concerned. 24. For the reasons and the discussions made above, this writ petition is allowed to the extent indicated above There will be no order as to cost.