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2003 DIGILAW 534 (PAT)

Gopal Krishna Palei v. Chancellor Of Universities

2003-05-06

NAGENDRA RAI, R.S.GARG

body2003
Judgment 1. This appeal is directed against the order dated 11.12.2002 passed by the learned Single Judge dismissing the writ application filed by the appellant challenging the order dated 17th May, 2001 passed by the Chancellor of the Universities (Annexure-1 to the writ application) by which he has quashed the notification dated 25.4.1998 promoting the appellant as Reader in the department of Mathematics with effect from 13.1.1991 and holding that respondent No. 9 (appellant before the Chancellor) was senior to the appellant herein. 2. Admitted facts are that the appellant was appointed in the department of mathematics by the Patna University (hereinafter referred to as the University) vide notification dated 10/12.1.1983 and joined on 3.1.1983 and respondent No. 9 was appointed vide notification dated 2.2.1983 and joined on 2.2.1983. The appellant was posted in the department of Mathematics in B.N. College, Patna and respondent No. 9 was posted in the department of Mathematics in Magadh Mahila College, Patna, both under Patna University. Seven lecturers including the appellant and respondent No. 9 were granted provisional promotion to the post of Reader by the University under the Merit Promotion Scheme in anticipation of the recommendation of the Bihar State Universities (Constitutent Colleges) Service Commission (hereinafter referred to as the Commission). The relevant papers were sent to the Commission vide letter dated 6.12.1996 for consideration of their cases. The Commission invited two experts to evaluate their work and papers and after completion of the evaluation work the expert recommended the names of four persons including respondent No. 9 for promotion as Reader. It did not recommend the names of the appellant and one Dr. Bal Gangadhar Prasad. In pursuance of the recommendation from 8.1.1998, the University granted promotion to the four persons including respondent No. 9 and on 18.3.1998 cancelled the provisional promotion to the post of Reader granted to the appellant with effect from 13.1.1991 and reverted him back to the post of Lecturer. 3. It appears that the appellant and aforesaid Dr. Bal Gangadhar Prasad on 22.12.1997 made an application with a request to the Vice-Chancellor to refer their cases once again to the Commission for assessment and evaluation of their academic achievements. The Registrar on the order of the Vice-Chancellor forwarded their application to the Commission vide its letter dated 3.1.1998. 3. It appears that the appellant and aforesaid Dr. Bal Gangadhar Prasad on 22.12.1997 made an application with a request to the Vice-Chancellor to refer their cases once again to the Commission for assessment and evaluation of their academic achievements. The Registrar on the order of the Vice-Chancellor forwarded their application to the Commission vide its letter dated 3.1.1998. Thereafter the Commission invited two experts and on evaluation of their records recommended for promotion to the post of Reader to both vide recommendation letter dated 18.4.1998. The University by notification dated 25.4.1998 promoted the appellant and Dr. Bal Gangadhar Prasad as Reader with effect from 13.1.1991 and 19.3.1987 respectively. 4. On 9.9.2000 respondent No. 9 filed a petition before the Vice-Chancallor of the University complaining that the case of the appellant and Dr. Bal Gangadhar Prasad were referred to the Commission in violation of Clause (9) of the Merit Promotion Scheme as under the said Statute the matter could not have been referred before the exprity of two years from the earlier consideration. Respondent No. 9 also prayed to reconsider the question regarding inter se seniority between him and the appellant. The Seniority Committee constituted by the University decided the issue and made respondent No. 9 junior to the appellant vide notification dated 5.2.2001. The Commission also recommended the names of Dr. Rabindra Nath Pandey, the appellant and one Dr. Lok Nath Rai as well as respondent No. 9 to the post of University Professor from the post of Reader under Merit Promotion Scheme vide its letter dated 28.7.2000. As respondent No. 9 was shown junior, he approached the Chancellor for deciding the inter se seniority matter as he was senior by virtue of having been promoted under the Merit Promotion Scheme prior to Dr. Gopal Krishna Palei, the appellant. 5. As respondent No. 9 was shown junior, he approached the Chancellor for deciding the inter se seniority matter as he was senior by virtue of having been promoted under the Merit Promotion Scheme prior to Dr. Gopal Krishna Palei, the appellant. 5. The grievance of respondent No. 9 before the Chancellor was that his case as well as the case of the appellant were considered under Merit Promotion Scheme by the expert committee and he was found fit for promotion to the post of Reader whereas the appellant was not found fit for promotion to the post of Reader and under terms of the Statute the case of the appellant should not have been considered before the expiry of two years from the date of earlier consideration and in that view of the matter his consideration of case just few months after the earlier consideration in violation of clause 9 of the Statute was invalid and on that basis the appellant cannot be conferred seniority over him. 6. The stand of the appellant on the other hand is that while making earlier recommendation the Commission did not assign any reason for not recommending the name of the appellant and as the appellant made a representation before the Vice-Chancellor for reconsideration of his case and the matter was sent to the Commission and the Commission recommended his case for promotion and on that basis the University has rightly granted him promotion to the post of Reader from 13.1.1991, a date earlier to the date of promotion to the post of Reader of respondent No. 9. The further case of the appellant is that admittedly he is senior to respondent No. 9 as Lecturer and as such once he was found fit for promotion he should rank senior to respondent No. 9. The further case of the appellant is that the seniority list of the teacher of the University was circulated on 24.4.1999 and objection was invited within 30 days. In the same the appellant was placed at serial No. 24 whereas respondent No. 9 was placed at serial No. 26. He did not challenge the seniority. The further case of the appellant is that the seniority list of the teacher of the University was circulated on 24.4.1999 and objection was invited within 30 days. In the same the appellant was placed at serial No. 24 whereas respondent No. 9 was placed at serial No. 26. He did not challenge the seniority. On the basis of the said seniority the case of the appellant was considered for promotion to the post of University Professor under Merit Promotion Scheme and the Commission had recommended for promotion to four teachers to the post of University Professor against three available vacancies including the name of the appellant whose position in the merit list was shown at serial No. 2 whereas the position of respondent No. 9 was shown at serial No. 4. Respondent No. 9 challenged the aforesaid seniority and the Seniority Committee decided against respondent No. 9 by order dated 5.2.2001 as lecturer as well as Reader. Respondent No. 9 did not challenge the aforesaid decision. Thus, he is senior to respondent No. 9. 7. The only controversy between the appellant and respondent No. 9 as to the promotion to the post of Reader and the seniority between them. 8. Admittedly both were appointed as Lecturer in the department of Mathematics in the University. As a lecturer the appellant has joined earlier to respondent No. 9. The promotion to the post of Reader was not a regular promotion, on the other hand, it was a promotion under the merit promotion scheme and as such the provisions of the said Scheme have to be looked into to find out as to what is basis for promotion under the said Scheme. 9. The Scheme is named as "Statutes Regarding Merit Promotion of Lecturers as Readers" and the same came into effect on 22nd December, 1986. A copy of the said scheme has been annexed as Annexure-3 to the writ application. It provides inter alia that notwithstanding anything to the contrary as contained in the Statutes of the University, Lecturers in the University engaged in advanced teaching and research and whose contribution and achievements are such as to merit recognition; may be considered for merit promotion after completing atleast eight years of continuous service as Lecturer of which at least four years should be in the department where he/she is being "considered for such assessment and promotion. The basic objective of such promotion has been mentioned in Clause 2 of the Statute which provides that the objective of the promotion shall be to recognise outstanding work by the University teachers in the areas of teaching and research, to subject such work to objective evaluation by experts in the subject/areas concerned and to provide for reasonable opportunities for professional advancement to such teachers, who merit academic recognition on a competitive basis. Clause (3) contains the procedure for promotion under this Statutes and Clause 3(b) provides that such promotion shall be deemed to be personal promotion. The main criteria for such promotion would be the merit of work and not the seniority of teachers. Thus, the very object of the Scheme is to give promotion on merit of work and not on the seniority of teachers with a view to recognise the outstanding work and excellence in the teaching. 10. Clause (9) of the Statute reads as follows : "Any teacher who has been considered and not selected for merit promotion in the initial presentation will be eligible to submit this work again only after a lapse of two years." 11. According to clause (9) of the Statutes once case of a teacher has been considered and not selected at the time of initial presentation will be considered only after lapse of two years. The case of the appellant and respondent No. 9 both were considered for promotion to the post of Reader and respondent No. 9 was considered and his case was recommended along with others and whereas the appellant was not found fit for promotion and in terms of the aforesaid clause he was not eligible for promotion before expiry of two years. It is admitted fact that just after five months of the earlier recommendation the appellant requested the Vice Chancellor of the University for reconsideration of the matter which was sent to the Commission and the Commission recommended his case. Thus, the very consideration of the appellant was in breach of the Statutory Rule and on that basis his promotion itself was illegal and impermissible in law. Thus, the very consideration of the appellant was in breach of the Statutory Rule and on that basis his promotion itself was illegal and impermissible in law. Even though the appellant may be senior to respondent No. 9 as Lecturer but while considering the case for promotion to the post of Reader on the basis of merit under the Scheme as indicated above, if the Expert did not found fit the appellant for promotion at that time he cannot have any claim over respondent No. 9 in the matter of seniority. 12. When the appellant was not selected for promotion under the Scheme he did not challenge the same on the ground that no reason was assigned for rejecting his claim, on the other hand, from the application filed by him which has been reproduced in the order of the Chancellor it is clear that he requested for reconsideration of his case on additional grounds mentioned in the letter. Thus, the submission advanced on behalf of the appellant that earlier recommendation made in favour of respondent No. 9 and other is vitiated for not giving reasons for rejection of his case by the Commission does not stand to reason. 13. The appellant was given seniority as well as placed above respondent No. 9 in pursuance of the susbequent recommendation and the University also declared him senior on the basis of the same but as the recommendation itself made in favour of the appellant and the consequent notification dated 25.4.1998 are vitiated for breach of the Statutory provision the subsequent decision by the University declaring him senior becomes invalid. In our view, the learned Single Judge has rightly upheld the order of the Chancellor. 14. Accordingly, there is no merit in this appeal and the same is dismissed.