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2003 DIGILAW 609 (PAT)

Pushpa Sinha v. Chancellor, Universities Of Bihar

2003-06-25

S.N.JHA

body2003
Judgment S.N.Jha, J. 1. The dispute in these two writ petitions relates to inter se seniority between Dr. (Mrs.) Pushpa Sinha, petitioner in CWJC No. 129/2003, Dr. (Prof.) Arun Kumar Singh, petitioner in CWJC No. 281/2003 and Dr. (Mrs.) Prabha Shukla, respondent no. 5 in CWJC No. 129/2003 and respondent no. 6 in CWJC No. 281/ 2003, as University Professor in the Department of Psychology, Patna University. The dispute being common the cases have been heard together and are disposed of by this common judgement. 2. CWJC No. 129/2003 is directed against the notification of the Patna University dated 31.10.2002 by which Dr. (Mrs.) Pushpa Sinha has been removed from the post of Director, Institute of Psychological Research and Services, (IPRS) and posted in Magadh Mahila College as University, and Dr. (Mrs.) Prabha Shukla has been posted as Director, IPRS in her place. CWJC No. 281/2003 is directed against the order of the Chancellor dated 19.10.2002 communicated under memo dated 23.10.2002 quashing the promotion of Dr. (Prof.) Arun Kumar Singh as University Professor from 24.3.88 and directing the University to take consequential steps. The notification dated 31.10.2002, impugned in CWJC No. 129/2003, was issued purportedly in the light of the said order of the Chancellor. 3. The case of Dr. (Mrs.) Pushpa Sinha is as follows. She was initially appointed on a vacant sanctioned post of lecturer in IPRS on 7.12.68 after due advertisement of the post, on temporary basis in terms of Section 26(5) (b) of the Patna University Act, 1961. Section 26 of the said Act stipulated appointment without consultation with Bihar Public Service Co+mmission for period not exceeding six months. The lecturers could be continued beyond six months with consultation of the Commission. Her appointment was thus continued after every six months in consultation with the Commission. The Bihar Public Service Commission finally recommended her for regular appointment on the post of lecturer in Psychology, Patna University. Her name figured at SI. No. 5 of the list. The University however, did not confirm her and instead appointed two Demonstrators as lecturers. She filed CWJC No. 667/75 in this Court. During the pendency of the case on 16.9.75 notification was issued permitting her to continue as lecturer and she was posted at B. N. College, Patna. On 7.11.75 the writ petition was allowed. The appointment of the Demonstrators who figured respondent nos. She filed CWJC No. 667/75 in this Court. During the pendency of the case on 16.9.75 notification was issued permitting her to continue as lecturer and she was posted at B. N. College, Patna. On 7.11.75 the writ petition was allowed. The appointment of the Demonstrators who figured respondent nos. 7 and 8 in the case was quashed and the University was directed to consider her case and fill the vacancy in accordance with law. In the light of the said judgment on 20.5.76 notification was issued confirming her appointment as lecturer in Psychology on the basis of the Commissions recommendation. She was promoted as Reader under time bound promotion Statute, approved by the Chancellor vide letter no. 5260/GS (1) dated 18.11.80 effective from 14.11.80. The Statute contemplated time bound promotion as Reader on completion of 13 years continuous service as lecturer with a Doctorate degree or 18 years continuous service without Doctorate subject to fulfilling other conditions. Counting her service from 11.12.68 (when she joined the post pursuant to aforesaid appointment dated 7.12.68) she was promoted as Reader with effect from 11.12.81 on completion of 13 years continuous service. According to the petitioner, in terms of Clause 9 of the said Statute the seniority on the post of Reader was to be determined from the date of promotion while inter se seniority of teachers remained intact. She was promoted as University Professor with effect from 1.7.85 by notification dated 31.3.2000 on completion of 16 years of continuous service under another time bound promotion Statute. Being the second seniormost Professor in the Department after Dr. (Mrs.) Savitri Sharma, she was appointed as Director IPRS on 20.5.2002 pursuant to decision of the Syndicate dated 27.4.2002. The respondent i.e. Dr. (Mrs.) Prabha ShuKla on the other hand was appointed as lecturer in Psychology on 14.11.72 i.e. much after her appointment. She was promoted as Reader with effect from 1.2.85 much after her promotion. The respondents promotion as University Professor was also later, effective from 14.11.88 as against her promotion from 1.7.85. Thus she was definitely senior to the respondent and accordingly she was appointed as Director, IPRS. The dispute arose between Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar Singh with respect to inter se seniority and the matter was taken to the Chancellor. The Chancellor issued notice to the petitioner too. Thus she was definitely senior to the respondent and accordingly she was appointed as Director, IPRS. The dispute arose between Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar Singh with respect to inter se seniority and the matter was taken to the Chancellor. The Chancellor issued notice to the petitioner too. She appeared through her lawyer on the date fixed and filed application for copies of the petition preferred by Dr. (Mrs.) Prabha Shukla and other documents to enable her to file reply if necessary. She was told that as the dispute related to inter se seniority between Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar, there was no need to supply copy of the appeal petition and documents to her. The Chancellor heard the parties and passed order on 19.10.2002 holding Dr. (Mrs.) Prabha Shukla senior to Dr. (Prof.) Arun Kumar Singh. Though the decision was confined to inter se seniority between Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar Singh vide paragraph 43 of the order, and seniority of the petitioner vis-a-vis them was not considered, by the impugned notification dated 31.10.2002 she was removed from the post of Director, IPRS purported pursuant to the order of the Chancellor. This was done without giving show cause notice and opportunity of hearing to present her case, thereby violating the rules of natural justice. The case of the petitioner is that as per the settled practice the second seniormost teacher is posted as Director, IPRS. Having thus been appointed on the post of Director pursuant to decision of the Syndicate, she could not be removed from the post without the consent of the syndicate muchless without opportunity of hearing-to accommodate junior. 4. The case of Dr. (Prof) Arun Kumar Singh is as follows. On 31.10.71 a common advertisement was issued inviting applications for appointment of lecturers in different subjects including Psychology. After interview etc. on 22.3.72 he was appointed as temporary lecturer in Psychology in Patna College. The appointment was made for period not exceeding three months against leave vacancy vice Dr. Mani Bhushan Prasad but he was allowed to continue on the post due to dearth of teachers. In fact, all the appointees like him were continued on their respective post. In 1971-72 the Bihar Public Service Commission advertised posts of lecturer in Psychology in Patna University. After interview etc. Mani Bhushan Prasad but he was allowed to continue on the post due to dearth of teachers. In fact, all the appointees like him were continued on their respective post. In 1971-72 the Bihar Public Service Commission advertised posts of lecturer in Psychology in Patna University. After interview etc. it recommended the names of both the petitioner and the respondent i.e. Dr. (Mrs.) Prabha Shukla, amongst others. On 10.11.72 appointment letters were issued. Counting his service from 24.3.72 when he started working as V.Cs. appointee on 31.8.85 he was given time bound promotion as Reader with effect from 1.2.85 and as University Professor with effect from 24.3.88 on 3.3.97 on completion of 13 years and 16 years continuous service respectively in terms of the time bound promotion Statute approved by the Chancellor vide letter no. 4032/GS (1) dated 24.12.86. On 30.11.2000 he was appointed as Director, IPRS. Earlier on 24.4.99 a gradation list of teachers in Psychology, Patna University was circulated in which his name was placed above Dr. (Mrs.) Prabha Shukla at SI. Nos. 4 and 5 respectively. Dr. (Mrs.) Prabha Shukla preferred appeal before the Chancellor for determination of inter se seniority. The appeal was allowed on 19.10.2002. His promotion as University Professor with effect From 24.3.88 was set aside with a direction to the University to take consequential steps counting her service from 14.11.72. The case of the petitioner is that as against him, Dr. (Mrs.) Prabha Shukla was appointed as Lecturer on 14.11.72. On 3.3.97 she too was promoted as University Professor but with effect from 3.12.93. On 31.3.2000 the effective date of her promotion was shifted to 14.11.88 on the basis of date of first registration of Research scholar under her. The shifting however was contrary to the directive of the Chancellor, and though the shifting has been upheld in principle by a learned Single Judge of this Court, letters patent appeals (LPA Nos. 667 and 668 of 2001) preferred by the Chancellor have been admitted and interim order has been passed. The case of the petitioner thus is that being in continuous service from an earlier date by virtue of his initial appointment dated 22.3.72 and his joining dated 24.3.72, and further, by virtue of his prior promotion as University Professor from 24.3.88, he must be treated as senior to Dr. (Mrs.) Prabha Shukla. The case of the petitioner thus is that being in continuous service from an earlier date by virtue of his initial appointment dated 22.3.72 and his joining dated 24.3.72, and further, by virtue of his prior promotion as University Professor from 24.3.88, he must be treated as senior to Dr. (Mrs.) Prabha Shukla. Her revised effective date of promotion is under cloud and subject to result of the aforementioned letters patent appeals. 5. The case of Dr. (Mrs.) Prabha Shukla is as follows. She was initially appointed as Iecturer-as a V.Cs. appointee- on 26.4.71 till commencement of summer vacation against leave vacancy. Her appointment came to an end as the permanent incumbent joined the post unlike Dr. (Prof.) Arun Kumar Singh whose similar appointment against leave vacancy continued as the permanent incumbent namely, Dr. Mani Bhushan Prasad did not come back to the college. Thereafter on 5.1.71 she was appointed as Research Assistant in A. N. Sinha Institute. After the posts of lecturer in Psychology in the Patna University were advertised by the commission, she applied for the post. Dr. (Prof.) Arun Kumar Singh also applied. After interview etc. she was recommended for appointment. In the list of recommended candidates, her name was at SI. No. 1 as against Dr. (Prof.) Arun Kumar Singh at SI. No. 5. Both of them were appointed on the same date i.e. 10.11.72 but curiously, by different orders. Being above in the list she was entitled to seniority over Dr. (Prof.) Arun Kumar Singh. Her seniority remained unaffected at the stage of promotion as Reader as both of them were promoted as Reader from the same date i.e. 1.2.85. Dr. (Prof.) Arun Kumar Singh was given time bound promotion as University professor from an earlier date i.e. 24.3.88. His service has to be counted from 14.11.72 and therefore, under the 16 years time bound promotion statute his promotion as University Professor has to be reckoned from 14.11.88. Initially she was promoted on 3.3.97 as University Professor from 3.12.93 but the mistake was corrected on 31.3.2000 when her effective date of promotion as Professor was shifted to 14.11.88. The shifting back of promotion on the basis of date of first registration of a Research Scholar has been upheld by this Court. In the Letters Patent appeals preferred by the Chancellor, the Division Bench declined to interfere with the promotion and no interim order was passed. The shifting back of promotion on the basis of date of first registration of a Research Scholar has been upheld by this Court. In the Letters Patent appeals preferred by the Chancellor, the Division Bench declined to interfere with the promotion and no interim order was passed. Only monetary benefits of promotion have been put on hold till disposal of the appeals. The case of Dr. (Mrs.) Prabha Shukla further is that as initial appointment of Dr. (Prof.) Arun Kumar Singh was for period not exceeding three months, he is not entitled to count subsequent period. In any case, in view of the provisions of Section 26(5) (b) of the Patna University Act, 1961 appointment could not be continued after a period of six months without consulting the Commission. Thus not being in continuous service he is not entitled to count his service from 24.3.72. His time bound promotion as University Professor with effect from 24.3.88 i.e. on completion of 16 years reckoned from 24.3.72 too is not in accordance with law. The Chancellor in the circumstances rightly quashed the effective date of his promotion and his decision therefore, does not warrant any interference by this Court. 6. I will first consider the inter se dispute between Dr. (Mrs.) Pushpa Sinha and Dr. (Mrs.) Prabha Shukla. The sheet-anchor of the case of Dr. (Mrs.) Pushpa Sinha is her continuance in service since 1968, to be precise, 11.12.68 and her prior promotion as Reader and University Professor under time bound promotion scheme. On the point of inter se seniority, learned counsel Shri Ray Shivaji Nath submitted that in terms of Clause 9 of the Time Bound Promotion Statute dated 18.11.80 seniority of lecturers promoted as Readers on the same date is not affected. Inter se seniority remains the same as in the post of lecturer and therefore she has to be treated as senior. He placed reliance on the observations in paragraph 54 of the judgment in the case of Dr. Devendra Nath Tiwary V/s. Lalit Narayan Mithila University, 1997 (2) PLJR 1022. This submission, in my opinion, has little relevance in the present case inasmuch as the promotion of Dr. (Mrs.) Prabha Shukla or, for that matter, Dr. He placed reliance on the observations in paragraph 54 of the judgment in the case of Dr. Devendra Nath Tiwary V/s. Lalit Narayan Mithila University, 1997 (2) PLJR 1022. This submission, in my opinion, has little relevance in the present case inasmuch as the promotion of Dr. (Mrs.) Prabha Shukla or, for that matter, Dr. (Prof.) Arun Kumar Singh was under a different Statute dated 24.12.86, though it must be pointed out, in fairness to the parties, that in paragraph 9 of the said Statute too there is a similar provision to the effect that inter se seniority of teachers will not be adversely effected by time bound promotion. What stares at the face of Dr. (Mrs.) Pushpa Sinha is the fact that she applied for regular appointment on the post of lecturer in Psychology in 1968 as well as in 1972 but not recommended by the Bihar Public Service Commission. Apparently, she was not found fit, while Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar Singh were found fit and recommended for appointment in the same transaction in 1972. Having, apparently, been found not fit by the Commission, I wonder how her appointment can relate back to 1968 to the detriment of either Dr. (Mrs.) Prabha Shukla or Dr. (Prof.) Arun Kumar Singh. Under section 26 of the Patna University Act, 1961 - which was in force at the relevant time - appointments on the post of teachers and officers in the University were to be made on the recommendation of the Bihar Public Service Commission. Sub-section (1) laid down that the Commission shall in relation to appointments to posts of teachers and officers of the University other than the Vice-Chancellor, the Treasurer and the Dean, discharge, so far as may be, the same functions as have been assigned to it by Article 320 of the Constitution of India in relation to the services of the State. Sub-sections (2) and (3) provided the manner in which recommendations were to be made. Sub-section (4) laid down that Syndicate shall select out of the names recommended by the Public Service Commission, for appointment on the post of teacher or officer of the University. Sub-sections (2) and (3) provided the manner in which recommendations were to be made. Sub-section (4) laid down that Syndicate shall select out of the names recommended by the Public Service Commission, for appointment on the post of teacher or officer of the University. If it did not consider the names recommended by the commission to be suitable it could refer the matter back for reconsideration but "in no case shall the Syndicate appoint a person who is not recommended by the Public Service Commission". Sub-section (5) permitted temporary appointments otherwise than on the recommendation of the Commission but for period not exceeding six months under Clause (b) to which I shall refer again while considering the case of Dr. (Prof.) Arun Kumar Singh. 7. It is thus evident that regular appointment of teachers was to be made only on the recommendation of the Bihar Public Service Commission. As Dr. (Mrs.) Pushpa Sinha was found unfit" not only in 1968 but also in 1972 when she faced the selection along with Dr. (Mrs.) Prabha Shukla and Dr. (Prof.) Arun Kumar Singh, it would be far fetched to count her seniority from 1968 or even 1972 at their cost. As seen above, she was finally recommended by the Bihar Public Service Commission for one of the six posts in the year 1975. After the decision in CWJC No. 667/75 she was appointed as temporary lecturer and allowed seniority "from the date of recommendation of the Bihar Public Service Commission and the order of preference given therein." Apparently, she never challenged that part of the notification. In the circumstances she cannot claim seniority from 1968 or 1972. 8. Indeed, it must be made clear that though the dispute as to inter se seniority came in for consideration at the time of hearing of the case, as indicated at the outset, the writ petition of Dr. (Mrs.) Pushpa Sinha is directed against her removal from the post of Director, IPRS. In this regard it was submitted that impugned order was passed professedly in the light of and pursuant to the decision of the Chancellor dated 19.10.2002 but there is no such direction in the decision of the Chancellor. As a matter of fact, in paragraph 43 of the decision the Chancellor made it clear that the claim of Dr. (Mrs.) Pushpa Sinha and one Dr. As a matter of fact, in paragraph 43 of the decision the Chancellor made it clear that the claim of Dr. (Mrs.) Pushpa Sinha and one Dr. (Mrs.) Geeta Sinha was not considered and the same would be dealt with and determined in pending appeal of Dr. (Mrs.) Geeta Sinha later. In other words, without any hearing and adjudication on the point she was removed from the post of Director, IPRS. It was stated that the prevalent practice is to appoint the seniormost teacher as Director. 9. The submission that the post of Director, IPRS goes by seniority itself provides complete answer to the challenge to removal of Dr. (Mrs.) Pushpa Sinha from the post. If for reasons stated in the foregoing paragraphs, she cannot claim seniority from 1968 or even 1972, and her seniority is to be reckoned from the date of her recommendation by the Bihar Public Service Commission i.e. 1975, it is plain that she could not have been appointed on the post of Director, IPRS. 10. It would not be out of place to mention that the decision of the Syndicate to appoint her on the post was not unanimous with two of the members, namely, Prof. Jitendra Singh and Dr. Amar Nath Singh dissenting. They referred inter alia to the direction of this Court in CWJC No. 667/75 to count seniority of Dr. (Mrs.) Pushpa Sinha as per Commissions recommendation. If her appointment as Director, IPRS is found to be unsustainable on her own argument that appointment on the post is to be made on the basis of seniority, her grievance against removal from the post must be held to be devoid of any substance. In this view of the matter, the fact that no opportunity of hearing was given to her before removing her from the post of Director becomes insignificant. Once the claim is found to be of no substance, it would be an empty formality to ask the University to give an opportunity of hearing and take fresh decision. The writ petition of Dr. (Mrs.) Pushpa Sinha is thus fit to be dismissed. 11. Coming to the case of Dr. (Prof.) Arun Kumar Singh, it was submitted by the learned counsel Shri Rajendra Prasad Singh that petitioners promotion on the post of University Professor was not under challenge before the Chancellor. Dr. The writ petition of Dr. (Mrs.) Pushpa Sinha is thus fit to be dismissed. 11. Coming to the case of Dr. (Prof.) Arun Kumar Singh, it was submitted by the learned counsel Shri Rajendra Prasad Singh that petitioners promotion on the post of University Professor was not under challenge before the Chancellor. Dr. (Mrs.) Prabha Shukla had simply challenged her placement in the gradation list-below Dr. (Prof.) Arun Kumar Singh, and therefore, the Chancellor committed error in quashing the petitioners promotion as University Professor with effect from 14.11.88 muchiess without issuing any notice to that effect. On merit it was submitted that the petitioners entry in service as V.C.s. appointee not being illegal or by back door-made pursuant to advertisement-the validity of which cannot be challenged after 22 years, and the petitioner having continued in service uninterruptedly, he is entitled to count the entire period of service. Counsel placed reliance on the well known decision in Direct Recruit Class-ll Engineering Officers Association and others V/s. State of Maharashtra and Ors., AIR 1990 SC 1607 = (1990)2 SCC 715 . Reliance was also placed on an unreported order of a learned Single Judge of this Court in the case of Prof. Veena Srivastava, CWJC No. 3450/94 decided on 9.5.95. Being a prior appointee since 24.3.72, and remained in continuous service till his regular appointment on 10./14.11.72 he must be held to be senior to Dr. (Mrs.) Prabha Shukla. Not only he was initially appointed as lecturer ahead of Dr. (Mrs.) Prabha Shukla, he was also allowed time bound promotion as University Professor on 3.3.97 with effect from 24.3.88. As against him, Dr. (Mrs.) Prabha Shukla was promoted as University Professor on 3.3.97 with effect from 3.12.93. Though effective date of promotion has been shifted back to 14.11.88 on 31.3.2000, the shifting on the basis of date of first registration of Research scholar was contrary to the directive of the Chancellor and therefore not in accordance with law. In any view, the dispute is subjudice before this Court and hence her promotion with effect from 14.11.88 cannot be said to be final. 12. Dr. Sadanand Jha appearing for Dr. (Mrs.) Prabha Shukla submitted that the appointment of Dr. (Prof.) Arun Kumar Singh was for a particular tenure. Besides, the tenure of service of a V.C.s appointee cannot be counted for the purpose of seniority, he is only entitled to salary and allowances. 12. Dr. Sadanand Jha appearing for Dr. (Mrs.) Prabha Shukla submitted that the appointment of Dr. (Prof.) Arun Kumar Singh was for a particular tenure. Besides, the tenure of service of a V.C.s appointee cannot be counted for the purpose of seniority, he is only entitled to salary and allowances. He referred to the provisions of Section 15(6) (b) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur, Ranchi) Act, 1960, Section 26(5) (b) of the Patna University Act, 1961, Section 57 of the Bihar State University Ordinance 1976 (Bihar Ordinance 208/76) and Bihar State University Act, 1976 (Act 23/76). He submitted that Dr. (Mrs.) Prabha Shukla too had been appointed by the Vice-Chancellor on 26.4.71, but her appointment came to an end as the incumbent against whose leave vacancy she was appointed, joined the post while Dr. (Prof.) Arun Kumar Singh continued on the post as the incumbent against whose vacancy he was appointed did not turn up. The continuance of Dr. (Prof.) Arun Kumar Singh was thus fortuitous and cannot confer any additional advantage on him. In support of the contention that ad hoc/fortuitous/stop-gap appointees are not entitled to seniority for the period of service as such, reliance was placed on Masud Akhtar Khan V/s. State of M. P. (1990)4 SCC 24 , Keshav Chandra Joshi V/s. Union of India, AIR 1991 SC 284 , Union of India V/s. S. K. Sharma (1992)2 SCC 728 and B. Sree Nivasa Reddy V/s. Govt. of A. P. 1995 (supp.)1 SCC 572. On the point that time bound promotion can be taken into consideration for determining inter se seniority reliance was placed on Dr. Suman Agrawal V/s. Vice Chancellor (1996)1 SCC 632 . 13. Shri Azfar Hasan appearing for the University submitted that he did not want to take sides. So far as the notification removing Dr. (Mrs.) Pushpa Sinha is concerned, the same was issued in the light of the decision of the Chancellor holding Dr. (Mrs.) Prabha Shukla to be senior. As regards the dispute relating to inter se seniority, he submitted that part of the service which was legal may be taken into account. Reliance was placed on Dr. Kishore Kumar V/s. State of Bihar 2001 (4) PLJR 776 . (It was stated that LPA against the said order is pending before the Division Bench of this Court). As regards the dispute relating to inter se seniority, he submitted that part of the service which was legal may be taken into account. Reliance was placed on Dr. Kishore Kumar V/s. State of Bihar 2001 (4) PLJR 776 . (It was stated that LPA against the said order is pending before the Division Bench of this Court). According to the counsel, if the Act/order does not contemplate cessation of employment by legal fiction or otherwise then in terms of the Direct Recruits case (supra) the appointee would be entitled to count the entire period for the purpose of seniority. 14. Shri Shivendra Kishore, learned counsel for the Chancellor, placed different parts of the Chancellors order and made submissions in defence of his findings. 15. The decision on the dispute between Dr. (Prof.) Arun Kumar Singh and Dr. (Mrs.) Prabha Shukla as regards their claim of inter se seniority turns on the nature of appointment of Dr. (Prof.) Arun Kumar Singh dated 24.3.72. Both of them, as seen above, were appointed on regular basis on the recommendation of the Commission in the same transaction and on the same day. They also joined on the same day, viz. 14.11.72. Dr. (Mrs.) Prabha Shukla being at SI. No. 1 in the list of recommended candidates there is no difficulty in treating her senior to Dr. (Prof.) Arun Kumar Singh placed at SI. No. 5 in the list. The sheet-anchor of the claim of Dr. (Prof.) Arun Kumar Singh is his prior appointment dated 24.3.72. Though Dr. (Mrs.) Prabha Shukla too held V.C.s. appointment at one point of time in 1971, the appointment came to an end on the onset of summer vacation and joining of the permanent incumbent. There being break in employment, she cannot count the period of service rendered by virtue of the said appointmerit for the purpose of seniority. Her appointment in the A.N. Sinha Institute also is of no avail to her. The said Institute is an autonomous body and affiliated to a different University, namely, the Magadh University. 16. According to Shri Rajendra Prasad Singh, as Dr. (Prof.) Arun Kumar Singh was appointed by the Vice-Chancellor according to rules after advertisement etc., his seniority should be counted from the date of the said appointment. The said Institute is an autonomous body and affiliated to a different University, namely, the Magadh University. 16. According to Shri Rajendra Prasad Singh, as Dr. (Prof.) Arun Kumar Singh was appointed by the Vice-Chancellor according to rules after advertisement etc., his seniority should be counted from the date of the said appointment. According to the counsel, even where appointment is not made in accordance with the procedure laid down by the rules, if the appointee continues on the post uninterruptedly till regularisation of the services, he should be allowed to count the entire period of service. He placed reliance on the following observations/conclusions in the Direct Recruits case (supra). (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. 17. From perusal of the decision in the Direct Recruits case it will appear that the dispute involved therein was as to whether seniority should be counted from the date of appointment or from the date of confirmation. It was in this context that the Court made aforequoted observations amongst others. The decision nevertheless, rendered by a Constitution Bench, has been noticed in almost all the subsequent cases involving dispute as to seniority in service. That seniority is not to be counted from the date of confirmation is now a golden rule. The instant case not being of regularisation or confirmation and no such argument has been advanced on behalf of the parties - the only relevance of the observations of the Supreme Court is that where the initial appointment of a person is only ad hoc or made as stop-gap arrangement, officiation in such post cannot be taken into account for considering his seniority. In the case of Keshav Chandra Joshi vs. Union of India (supra), in the facts and circumstances, the Supreme Court held that the appointment of the person concerned was ad hoc and made as stop-gap arrangement and therefore, he would be deemed to have become member of the Service upon his appointment according to rules, and seniority should be counted only from that date. In Union of India vs. S. K. Sharma (supra), in the facts and circumstances again, appointment of the respondent was found to be ad hoc in nature. The Supreme Court held that his continuance would enure him only benefit of pay and allowance and would not amount to regular appointment. Similar finding was recorded in respect of the appellants in the case of B. Sree Niwasa Reddy vs. Govt. of A.P. (supra). All these cases, and many others, have been decided on their own facts and that is why I observed little earlier that result of the case would depend on the nature of appointment of Dr. (Prof.) Arun Kumar Singh dated 24.3.72. 18. It may be mentioned here that no express provision in the Patna University Act, 1961, which is the relevant Act in force at the material time conferring power on the Vice-Chancellor to make appointment, was brought to my notice. However, it is not necessary to go to that aspect as the authority of the Vice-Chancellor to make temporary appointment was not questioned by the counsel for the parties. Though not expressly provided the power was implicit in Section 15(6) of 1960 Act and Section 26(5) of the 1961 Act. They laid down that notwithstanding anything contained in the preceding sub-sections, but always subject to the other provisions of this Act - (a) where appointment to the post of teacher or officer of the University is made by promotion or transfer from any other service including the service of the University, it shall not be necessary for the University to consult the State Public Service Commission, unless it is proposed, by such promotion or transfer, to fill a permanent post substantively, or a permanent post or a temporary post on an officiating or temporary basis for a period exceeding six months. Appointment without consulting the Public Service Commission was thus permissible if it was proposed to be made for period not exceeding six months - on a permanent or temporary post - on officiating or temporary basis. In other words all permanent appointments could be made only on the recommendation of the Commission as specially provided in sub-section (4) of Section 26 but temporary appointments for period not exceeding six months could be made without such consultation with the Public Service Commission. The Vice-Chancellor thus by necessary implication, was competent to make appointment for period not exceeding six months. 19. The order of appointment in the case of Dr. (Prof.) Arun Kumar Singh dated 22.3.72 reads as under :- "Shri Arun Kumar Singh is appointed to act as temporary Lecturer in Psychology in the Patna College on a pay of Rs. 400/- p.m. in the scale of pay of Rs. 400-40-800-50-950/- for a period not exceeding three months, with effect from the date he joins vice Dr. Mani Bhusan Prasad, on leave." On plain reading of the appointment order it is clear that appointment of Dr. (Prof.) Arun Kumar Singh was to come to an end at any time not exceeding three months. His case however is that in the light of the instruction contained in letter no. 1008 Adm./AR dated 9.6.70 his appointment was continued even beyond summer vacation. Indeed, like him appointment of similarly situate others too was continued. All of them have been allowed to count the entire service for the purpose of seniority and there is no reason why he should be denied similar treatment. 20. On behalf of Dr. (Mrs.) Prabha Shukla it was submitted that the letter dated 9.6.70 (supra) was valid only for the year 1970 and cannot be taken in aid by the petitioner. It was submitted that the fact of the matter is that he continued in service as the permanent incumbent i.e. Dr. Mani Bhushan Prasad did not join the post against whose vacancy Dr. (Mrs.) Prabha Shukla was appointed. The continuance of Dr. (Prof.) Arun Kumar Singh must therefore be held to be fortuitous. In any case, it was submitted, the appointment could not continue beyond six months as ordained in clause (b) of Section 26(5) of the Patna University Act, 1961. 21. (Mrs.) Prabha Shukla was appointed. The continuance of Dr. (Prof.) Arun Kumar Singh must therefore be held to be fortuitous. In any case, it was submitted, the appointment could not continue beyond six months as ordained in clause (b) of Section 26(5) of the Patna University Act, 1961. 21. Clause (b) of Section 26 (5) of the Patna University Act, 1961 was as under- When appointment to a post of teacher or officer of the University is made otherwise than by promotion or transfer from another service including the service of the University, it shall not be necessary to consult the Commission if the appointment is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the college or departments or institutions established and maintained by the University: Provided that if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the service of the University, the Public Service Commission shall be consulted. On prima facie reading of the above provision it would appear that Dr. (Prof.) Arun Kumar Singh could not continue in service beyond 24.9.72. No attempt was made to bring his case within the framework of the proviso. There is no indication that any attempt was made to consult the Commission for extending his appointment. As a matter of fact, it appears that advertisement had already been published for the posts of lecturer in Psychology pursuant to which he had applied. The recommendation came soon thereafter and, finally, on 10.11.72 he was appointed. The question arises as to whether his continuance between 24.9.72 and 14.11.72 entitles him to claim seniorly inter se over Dr. (Mrs.) Prabha Shukla. 22. In the Direct Recruits case, in paragraph 13 of the judgment the Supreme Court observed - "If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority." There is no dispute at the Bar that the case of Dr. (Mrs.) Prabha Shukla was not considered at the time of petitioners V.Cs. appointment in March, 1972 and therefore, in view of the observations of the Supreme Court, his appointment was made without considering the claims of "other eligible available persons". It is doubtful if appointment can be said to be as such as to give benefit of uninterrupted service at the cost of others. I find substance in the contention of the counsel that in such a case the appointee may only be entitled to pay and allowance and not inter se seniority over others. In other words, the continuance cannot be to the detriment and at the cost of others. 23. Question also arises as to whether the appointment dated 24.3.72 was ad hoc or as a stop-gap arrangement. Clearly in view of the decision of the Supreme Court in the Direct Recruits case, if the appointment is found to be ad hoc or as stop-gap arrangement, the officiation cannot be taken into account for considering seniority. The terms ad hoc, fortuitous and stop-gap, often used in the judgments, recently came up for interpretation, by a Constitution Bench of the Supreme Court in the case of Rudra Kumar Sain V/s. Union of India, (2002) 8 SCC 25 = AIR 2000 SC 2808 . Paragraph 19 of the judgment, may usefully be quoted as under: The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in the post as ad hoc appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an ad hoc, fortuitous or stop-gap) appointment can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. 24. From the above observations it is manifest that where from the appointment order itself it appears inter alia that the post is created to meet a particular temporary exigency and for a period specified in the order, the appointment can be regarded as ad hoc from stop-gap. In the instant case, it is not in dispute that the appointment was made to meet the exigency of situation as the incumbent had gone on leave and teaching was likely to suffer. Had Dr. In the instant case, it is not in dispute that the appointment was made to meet the exigency of situation as the incumbent had gone on leave and teaching was likely to suffer. Had Dr. Mani Bhushan Prasad joined the post, the appointment of petitioner would have automatically come to end. His appointment was thus, if ! may say so, precarious in nature. Added to it is the fact that it was "for a period not exceeding three months", I am inclined to think in the facts and circumstances that the appointment dated 24.3.72 was ad hoc and therefore, though made according to rules and not by back door, could not ensure benefit to the appointee at the cost of others. The claim of Dr. (Prof.) Arun Kumar Singh rests on the premise that he rendered continuous uninterrupted service from 24.3.72 to 13.11.72. But if the so called continuous and uninterrupted service was by virtue of an ad hoc appointment and in fortuitous circumstances, he can not count the entire period of service to the prejudice of Dr. (Mrs.) Prabha Shukla. I am accordingly inclined to uphold the claim of Dr. (Mrs.) Prabha Shukla. 25. Shri Rajendra Prasad Singh took the stand that the petitioners seniority can not be challenged at this stage. I find no substance in the submission. Grant of promotion as University Professor (from different dates) was not in the distant past. Gradation list was published on 24.4.99 against which Dr. (Mrs.) Prabha Shukla on or about 6.12.2000 preferred appeal before the Chancellor leading to the impugned decision. 26. Admittedly Dr. (Mrs.) Prabha Shukla was placed at SI. No. 1 in the list of recommended candidates, and so on the post of lecturer there is no difficulty in treating her senior to Dr. (Prof.) Arun Kumar Singh. Both of them were promoted as Reader under the time bound promotion Statute together and from the same day therefore, their inter se seniority apparently remained intact on the post of Reader too. No doubt at the stage of promotion as University Professor, Dr. (Prof.) Arun Kumar Singh initially stole march over her but then date of her effective promotion too stands shifted to 14.11.88. There is dispute about the shifting back of the date of promotion. No doubt at the stage of promotion as University Professor, Dr. (Prof.) Arun Kumar Singh initially stole march over her but then date of her effective promotion too stands shifted to 14.11.88. There is dispute about the shifting back of the date of promotion. The Division Bench in seisin of letters patent appeals has declined to stay the promotion i.e. shifting back making the same subject to result of the appeals. This Court would not like to pre-judge the issue. Thus, as the situation stands at present, Dr. (Mrs.) Prabha Shukla stands promoted as University Professor with effect from 14.11.88. Once Dr. (Prof.) Arun Kumar Singh is held entitled to seniority from 14.11.72 it would follow that his date-of effective promotion as University Professor would be same i.e. 14.11.88 as held by the Chancellor in the impugned order. Dr. (Mrs.) Prabha Shukla being senior as Lecturer - which remained intact at the stage of promotion as Reader the effective dates of promotion as University being the same, she can not be regarded as junior to Dr. (Prof.) Arun Kumar Singh. For the reasons stated above, the findings and conclusions of the Chancellor do not call for any interference. 27. In the result, I find no merit in either of the two writ petitions which are accordingly dismissed but without any order as to costs.