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2004 DIGILAW 413 (JHR)

Debabrata Dasgupta v. State Of Bihar

2004-04-16

TAPEN SEN

body2004
JUDGMENT Tapen Sen, J. 1. Heard the parties. 2. The petitioner, an Assistant Professor, having been promoted on 5.7.1983, is aggrieved by the inaction on the part of the respondents in not confirming the status of Associate Professor upon him with effect from 4.9.1983. 3. The petitioner was appointed as a Tutor in Bio-chemistry on 3.9.1977, in the Mahatma Gandhi Memorial Medical College, Jamshedpur (commonly referred as the M.G.M. College). At the time of his appointment he was a Post Graduate Degree holder in Bio-Chemistry. On 23.1.1979, the Department of Health, Government of Bihar, by Annexure I took a decision to truncate the post of lecturer into two, the first of which became known as Assistant Professor (Junior Grade) and the second came to be known Associate Professor (Senior Grade). At paragraphs 6 and 7, the petitioner has stated that at the relevant time, the requisite criteria for being promoted on the Junior Grade of Assistant Professor was that the candidate should have at least 6 (six) points--(i.e. 3 points for a Post Graduate Degree and 3 points for 3 years experience as a Tutor --One point for each year). For being promoted to the Senior Grade of Association Professor, 9 (nine) points were required (3 points for Post Graduate Degree and 6 points for six years experience as Tutor--I point for each years experience). The petitioner was already a Tutor and therefore, he had the 3 (three) required points with him. He required 6 (six) more points on completion of 6 (six) years so as to claim the post of Associate Professor (Senior Grade). He completed 6 (six) years on 3.9.1983, and therefore, according to the petitioner he became eligible, with 9 (nine) points in hand, for claiming promotion to the post of Associate Professor with effect from 4.9.1983. 4. It would be relevant to note that the petitioner was promoted as an Assistant Professor on 5.7.1983. 5. Although he became eligible as claimed by him to be promoted to the post of Associate Professor (Senior Grade) on 4.9.1983, the respondents took 7 (seven) years time to act and for the first time on 26.2.1990, by Annexure 4, asked the petitioner to face an interview, but by this time the petitioner had about 15 (fifteen) points at hand, 6. On 6.3.1990, the petitioner was interviewed, but the respondents did not grant him the necessary promotion. On 6.3.1990, the petitioner was interviewed, but the respondents did not grant him the necessary promotion. How-ever, by Annexure 6, i.e. on 9.10.1991 the petitioner was informed to produce necessary documents to show he had a Ph.D Degree in Bio-Chemistry. The last sentence of that letter says that for promotion to the post of Associate Professor, this degree was necessary. 7. Paragraphs 6 and 7 of the writ petition have not been denied in the counter affidavit. In fact, there is no denial from the respondents on the issue that at the relevant time 6 (six) points and 9 (nine) points were required in the manner set out above for purposes of promotion to the two respective posts. However, the stand of the respondents is that the minimum qualification required was set out in the "Teachers Eligibility Qualifications, 1998" which made it mandatory that in the Departments inter alia of Bio-Chemistry, a non-medical may be promoted subject to the condition that he had a Ph.D Degree in the subject concerned and any appointment could be made with the prior approval of the Medical Council of India. 8. According to the respondents the petitioner is a non-medical lecturer in the Department of Bio-Chemistry and his qualification is mere Post Graduate, but he does not have Ph.D Degree. 9. Thus, what the respondents have attempted to state and which is summarised at paragraph 9 of the counter affidavit is that since the petitioner did not pass the Ph.D in Bio-Chemistry, he is therefore, not entitled to be promoted to the higher post and even in the case of paucity of teachers, the Department cannot take any decision unless the Medical Council of India first approves. Upon perusal of the aforementioned Eligibility Qualification, 1998, which has been brought on record by Annexure A it is evident that it is prospective and not retrospective, inasmuch as Regulation 1(2) reads as follows : "They shall come into force on the date of their publication in the official gazette." The date of publication in the official gazette as disclosed at the top is "5th December 1998". In other words, this became effective and functional with effect from 5.12.1998, but in the year 1983, when the petitioner became eligible, these regulations were not even in existence and the criteria which governed at the time were the 6 (six) points and 9 (nine) points referred to specifically at paragraphs 6 and 7 respectively of the writ petition and which have been noted above. 10. It is now well settled that a Regulation or a Statute coming later in the day cannot take away accrued/vested rights. The qualification of 1998 being specific to the effect that it will come into force on and from 1998 cannot be allowed to be given retrospective operation and to that extent now in the year 2004 or any day after 1983, the respondents cannot be allowed to say that the petitioner in not eligible because he does not have Ph.D qualification. This Ph.D qualification was not the criteria at the time when the petitioner became eligible. For the foregoing reasons, this Court is satisfied that a prima facie case for promotion of the petitioner to the post of Associate Professor (Senior Grade) with effect from 4.9.1983, has been made out. 11. Mrs. Indrani Sen Choudhary learned counsel appearing for the respondents states that by a notification dated 8.4.2004 a Committee has been created for purposes of looking into such matters. She has brought on record the aforementioned notification vide Annexure C to the counter affidavit. 12. That being the position, the matter is therefore, remanded to the said Committee as envisaged by Notification dated 8.4.2004, for purposes of giving effect with the observations made in this order. The writ petition is accordingly allowed. For the convenience of the Committee, it will be desirable if the petitioner files a short representation bringing on record all the documents that have been appended to his writ petition together with a copy of this order. The action should be taken by the Committee within four months from the date of receipt of a copy of the representation Indicate above. If however the Committee is of the opinion that for the one reason or the other, the petitioner is not entitled, then in that event, they will be required to pass a reasoned order in accordance with law within the same period. The writ petition stands disposed off There shall be no order as to costs.