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2006 DIGILAW 770 (JHR)

K. P. Kamal v. State of Jharkhand

2006-06-29

D.K.SINHA, SUDHANSU JYOTI MUKHOPADHAYA

body2006
JUDGMENT S.J. Mukhopadhaya, ACJ.-Both the petitioners, in this writ petition, have challenged the amended sub-section (6)(ii) of Section 26 of the Jharkhand State Universities Act, 2000, as brought through by Section 21 of the Jharkhand State Universities (Amendment) Act, 2002, on the ground that the same ultra vires the Constitution, being completely arbitrary, irrational, discriminatory and creating arbitrary classification. 2. The teachers of Universities of the State of Jharkhand, including Ranchi University, Ranchi, Vinoba Bhave University, Hazaribagh, Sidho Kanhu Murmu University, Dumka, were guided by the Bihar State Universities Act, 1976 (now known as Jharkhand State Universities Act, 2000). The seniormost Professors, University Professors or Readers were used to be appointed as "Head of Department" under sub-sec. (6)(ii) of Sec. 26 of the Bihar State Universities Act, 1976. The aforesaid provisions of law having been amended by Section 21 of the Jharkhand State Universities (Amen dent) Act, 2002, the petitioners have challenged the amended Sub-sec. (6)(ii) of Sec. 26, as brought through by Sec. 21 of the Amendment Act, 2002. 3. The petitioners are the Professors of Chemistry (1st petitioner) and Botany (2nd petitioner) in Vinoba Bhave University, Hazaribagh. According to them, amended sub-sec. (6)(ii) of Sec. 26 is ultra vires to the Constitution and will affect the standard of the University education, as it will not safeguard the interest of the senior teachers of the Universities. 4. The case of the petitioners is that the cadre of Post-Graduate Teachers of Constituent Colleges and University Departments is a common cadre. The teachers of Post-Graduate Department of Universities are transferable. One Post-Graduate Teacher can be transferred from the Constituent College to the University Department and vice versa. There is no difference made amongst the Post-Graduate Teachers, having common cadre, on the basis of their posting in the University Department or Post-Graduate Department of Constituent College. The Heads of Department were used to be appointed from amongst the senior most Professors, University Professors or the Readers of the Department. In case of appointment of any teachers, who is not the senior most Professor or Reader, prior concurrence of the Bihar Public Service Commission was required to be obtained under sub-sec. (6)(ii) of Sec. 26 of the Universities Act, 1976 (Jharkhand State Universities Act, 2000Pre-Amendment), which reads as follows: "26(6)(ii). In case of appointment of any teachers, who is not the senior most Professor or Reader, prior concurrence of the Bihar Public Service Commission was required to be obtained under sub-sec. (6)(ii) of Sec. 26 of the Universities Act, 1976 (Jharkhand State Universities Act, 2000Pre-Amendment), which reads as follows: "26(6)(ii). Where it is proposed to appoint any teacher to be the Head of a department who is not the seniormost Professor, University Professor or Reader of the Department, no such appointment shall be made without the prior concurrence of the Bihar Public Service Commission." 5. By the impugned amendment of Sub-sec.(6)(ii) of Sec. 26, the criteria have been changed and only those University Professors and Readers, posted in the University Department, have been made eligible for appointment as Head of the University Department, excluding the Professors and Readers, including the seniors, who are posted in a Post-Graduate Department of a Constituent College. The amended sub-sec. (6)(ii) of Sec. 26 reads as follows: "26(6)(ii). The Head of University Department shall be appointed for two years by rotation amongst University Professors and those Readers having not less than 8 years experience as Reader posted in the University Department. The rotation shall be made on the basis of seniority among teachers having experience of Post-Graduate teaching and belonging to University Service Cadre." 6. According to the petitioners, there are Universities where Post-Graduate teaching are imparted in Constituent Colleges, though not approved by the State Government or the University Grant Commission. For example; Post-Graduate Department of Sidho Kanhu Murmu University, Dumka, is not approved by the State Government or the University Grant Commission. In Vinoba Shave University, Hazaribagh, there are some Post-Graduate Departments, which have not been approved either by the State Government or by the University Grant Commission. Now in view of the amended sub-sec. (6)(ii) of Sec. 26, according to the petitioners, even those, who are posted in the unapproved Post-Graduate University Department of one or other University, will become eligible for appointment to the post of Head of University Department, ignoring the claim of seniors, who are posted in Post-Graduate Department in a Constituent College, approved by the State Government and/or University Grant Commission. 7. 7. The respondent-University and the State of Jharkhand have not denied this fact and have accepted that the cadre of Professors, University Professors and Readers of Post-Graduate University Department and Post-Graduate Department of a Constituent College is a common cadre. The posting is made under the Act by the order of the Vice-Chancellor. There is nothing on the record to suggest that any criteria has been laid down for transfer and posting of Post-Graduate Professors, Readers of the University Department and those, posted in the Post-Graduate Department of a Constituent College. 8. The only question arises for determination is whether the amended sub-sec. (6)(ii) of Sec. 26, introduced vide Jharkhand State Universities (Amendment) Act, 2002 vide Gazette Notification dated 6th May, 2003 is violative of Article 14 of the Constitution of India and, thus, ultra vires. 9. Article 14 of the Constitution of India aims to strike down hostile discrimination or operation of inequality. As the guarantee applies to all persons similarly situated, though it is open to the Legislature to classify persons and things to achieve a particular legislative object; but such selection or a differentiation must not be arbitrary and should raise upon a rational basis, having regard to the object which the Legislature has in view (reference may be made to Supreme Court's decision in the case of Ram Prasad Narayan vs. State of Bihar, reported in ALR. 1953 SC 215). 10. It is a settled law that the equals cannot be treated unequal. The discrimination, which is prohibited by Article 14 of the Constitution of India, is treated in a manner prejudicial, as compared without another person similarly circumstanced by the dependent on a law, substantive or procedural, different from one applicable to that other person (reference may be made to Supreme Court's decision in the case of Jagannath Prasad Sharma vs. State of Uttar Pradesh, reported in ALA. 1961 SC 1245). 11. The expression "Arbitrary" was defined by the Supreme Court in the case of Sharma Transport vs. Government of Andhra Pradesh, reported in (2002)2 SCC 188 : A.I.R. 2002 SC 322. The Apex Court held that the expression "arbitrary" means; in an unreasonable manner, as fixed or done capriciously or by pleasure, without adequate determining number, not founded in the nature of things, Jon-rational, not done or acting according to reason or judgment, depending on the will alone. 12. The Apex Court held that the expression "arbitrary" means; in an unreasonable manner, as fixed or done capriciously or by pleasure, without adequate determining number, not founded in the nature of things, Jon-rational, not done or acting according to reason or judgment, depending on the will alone. 12. In the case of John Vallamattom & Anr. Vs. Union of India, reported in (2003)6 SCC 611 , the Supreme Court held as follows: "19. The equality clause enshrined in Article 14 of the Constitution' of India is of wide import. It guarantees equality before the law or equal protection of the laws within the territory of India. The restriction imposed by reason of a statute, however, can be upheld in the event it be held that the person to whom the same applies, forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved." 13. In the present case, it has already been pointed out that the cadre of Post Graduate University Professors/Readers, posted in Post-Graduate University Department or in a Post-Graduate Department of Constituent College, is a common cadre. A Post-Graduate Professor/Reader, posted in the Post-Graduate University Department, can be transferred to Post-Graduate Department of a Constituent College and vice versa. Their qualifications are same and are being appointed in the same manner, as prescribed under the Act and Statute. Their scale of pay, irrespective of posting at one or other place, is same, if holding a particular post and having similar experience. The respondents have not disputed that the Post-Graduate Professors/Readers have no choice of posting and it is the University, which post them, as per their administrative need. There is no guideline/ rule prescribed for posting of one or other Post-Graduate Professor/Reader in University Department Constituent College and no selection is made for such posting. 14. Learned counsel for the University suggested that the object of posting is an academic excellence in the Department. But such submission cannot be accepted, as no such fact has been pleaded by the University or the State Government and there is nothing on the record to suggest that the posting of a person is made on the basis of an academic excellence. But such submission cannot be accepted, as no such fact has been pleaded by the University or the State Government and there is nothing on the record to suggest that the posting of a person is made on the basis of an academic excellence. There is also nothing on the record to suggest that one or other person is posted in the University Department or Constituent College on the basis of merit-cum-selection. 15. It is for the State Government to show that the classification is reasonable and based on intelligible differentia, having nexus with the object, sought to be achieved. In the present case, the respondents have failed to show that those, who are covered by the amended sub-sec. (6)(ii) of Sec. 26 i.e. Professors and Readers, posted in the Post-Graduate University Department, form a separate class than those Post-Graduate Professors and Readers, posted in the Post-Graduate Department of Constituent Colleges. Why' two classes have been formed out of the members of a common cadre on the basis of their posting in the University Department or Constituent College. Admittedly, the posting is not dependent on merit and is based on fortuitous circumstances, which is made by the Vice-Chancellor, taking into consideration the administrative exigency. The respondents having failed to show reasonable classification, based on intelligible differentia, having nexus with the object, sought to be achieved, their action cannot be upheld. The amended sub-sec. (6)(ii) of Sec. 26, as introduced vide Section 21 of the Jharkhand State Universities (Amendment) Act, 2002, gazetted on 6th May, 2003, is hereby declared ultra vires, being violative of Article 14 of the Constitution of India. 16. The writ petition is, thus, allowed, but without any order as to costs. D.K. Sinha, J.-I agree.