Laxminath Jha v. L. N. M. University, Darbhanga through its Vice-Chancellor
2012-07-31
SHIVA KIRTI SINGH, VIKASH JAIN
body2012
DigiLaw.ai
JUDGMENT SHIVA KIRTI SINGH : - Heard the parties. 2. Since all the three writ petitions involve a common question of law, hence they have been heard together and are being disposed of by this common order. For the purpose of convenience reliance shall be placed generally upon the facts available in the records of C.W.J.C. No. 3127 of 1999 unless otherwise indicated. 3. There is no controversy of facts involved in these cases. In the first case B.M. College, Rahika, District Madhubani had been affiliated up to Intermediate level from 1-6-1974 and had received affiliation up to degree standard on 1-6-1981.Similar is the case with the concerned colleges involved in the other writ petitions. In their cases also affiliation up to degree standard came later and when the time came for implementation of Statute of 1986 for Time Bound Promotion of lecturers to the post of Reader and of Reader to University Professor ( hereinafter referred to as the Statue of 1986), there arose a necessity to take a decision in a large number of cases in different Universities of Bihar including respondent Lalit Narayan Mithila University, whether for reckoning the required 10 years length of service for promotion to the post of Reader the services rendered in degree college alone shall be taken into account or service rendered when the college was affiliated only up to Intermediate level shall also be counted. Initially there was confusion and time bound promotions were granted by counting service rendered even in Intermediate Colleges but by the impugned decision the date of time bound promotion to the individual petitioners were re-determined from later periods by counting ten years of continuous service only after the college became a degree college by grant of necessary affiliation by the University. 4. The learned single Judge while admitting C.W.J.C. No. 3127 of 1999 on 6-7-2000 noticed a Division Bench Judgment of this Court in the case of Ashutosh Prasad Vrs. Chancellor, Universities of Bihar (C.W.J.C. No. 2566/96) dated 7-12-96. The learned single Judge directed for hearing of the matter by a Division Bench in view of an argument that scope of the proviso appended to clause (1) of the Statute of 1986 requires further consideration whether it warrants by implication, taking into account of service rendered during the period the college was affiliated in the concerned subject even up to the Intermediate standard.
The use of the words “ even upto “appears to have persuaded the learned single Judge to admit the matter although the case of the respondent was covered by a Division Bench Judgment noticed above. 5. Learned counsels appearing for the petitioners have placed reliance upon the words in the proviso noticed above. For the sake of convenience it will be useful to extract clause (1) of the Statute dated 24-12-1986 up to the first proviso which is most important and runs as follows : “1. Notwithstanding anything to the contrary as contained in the Statutes, it is hereby provided that :- (1) A lecturer, serving in a University department or in a degree college managed and maintained by the University shall on the recommendation of the Bihar State University ( Constituent Colleges ) Service Commission, be promoted on the basis of time bound scheme; to the post of Reader, subject to the following conditions:- (a)That, he holds the qualification as prescribed for the post of Lecturer under the Statute in force at the time of his appointment as lecturer and has fulfilled the conditions, if any attached thereto as laid down in the Statute, (b) That, he holds substantive appointment on the post of a Lecturer; and (c) That, he has completed at least ten years of continuous Service as lecturer in one or more Universities. Provided that the service rendered in a degree college during the period the college was not affiliated in the subject concerned even up to the Intermediate standard, shall not be taken into account for the purpose of this Statutes: 6. On behalf of petitioners it has been submitted that the provision in clause 1(1) before sub-clause (a) lays down only the eligibility at the time of consideration of the claim for time bound promotion. Only at that time the lecturer must be serving in a University department or in a degree college managed and maintained by the University.
On behalf of petitioners it has been submitted that the provision in clause 1(1) before sub-clause (a) lays down only the eligibility at the time of consideration of the claim for time bound promotion. Only at that time the lecturer must be serving in a University department or in a degree college managed and maintained by the University. According to the submissions, the requirement in clause (c) that he must have completed at least ten years of continuous service as lecturer in one or more Universities does not prohibit counting of service rendered in an Intermediate college and the proviso to clause 1(1) supports the stand of the petitioners that service rendered in any college when in the subject concerned the college had affiliation even up to the Intermediate standard shall be counted for the purpose of time bound promotion. 7. In support of the aforesaid proposition reliance was placed upon the judgment of a learned single Judge in the case of B.R. Ambedkar Bihar University Teachers Association Vrs. State of Bihar, reported in 1998 (2) PLJR 103. Reliance was also placed upon the judgment of a learned single Judge in the case of Budhadeo Prasad Singh Vrs. State of Bihar and others reported in (2007) 1 BLJR 41 . The case of B.R. Ambedkar Bihar University Teachers Association (supra) involved a different issue. In that case the dispute was whether while computing qualifying service for the purpose of promotion Statutes of 1980-81 and Time Bound Promotion Statute of 1986 the period of service rendered by a teacher in an affiliated college is to be excluded or counted as qualifying service for promotion. On examining the relevant provision the learned single judge held that the period of service rendered by a teacher in an affiliated college is not to be excluded for computing his qualifying service for promotion. In the context of 1986 Time Bound Promotion Statute under consideration it was thus observed in paragraph-22: “that the proviso to clause 1 in the 1986 Time Bound Promotion Statutes conversely implies that service rendered in a degree college during the period the college was affiliated in the subject up to Intermediate standard would be taken into account for the purpose of qualifying service under those statutes”. 8.
8. In our considered view this judgment does not help the petitioners, rather it suggests that service, for being counted, should be in a “degree college”. In the case of Budhadeo Prasad Singh (supra) one of us ( Shiva Kirti Singh, J), placed reliance upon judgment in the case of B.R. Ambedkar University Teachers Associaton (supra) for answering a different issue as to whether period of continuous service rendered by a teacher in an affiliated college shall be counted for computing his qualifying service for time bound promotion even if the State Government accorded approval to the post in question on a later date. The Court held that any delay in grant of such approval will not adversely affect the right of the concerned teacher for counting his continuous service actually rendered by him. Although the issue decided in that case was different but paragraph-12 of that judgment discloses that the Court approved the time bound promotion granted to the concerned teacher by counting ten years .of continuous service in the college affiliated in the subject concerned up to the degree standard since the Sessions 1977-78 and on that account the petitioner was promoted to the post of Reader with effect from 1st. June, 1987 i.e. on completing ten years of continuous teaching experience from Ist. June 1977 when the Sessions 1977-78 commenced. This judgment also, in our opinion, does not help the case of the petitioners. 9. On behalf of the University it was shown from the judgment in the case of B.R. Ambedkar, University Teachers Association (supra) that in the other promotion Statutes of 1980-81 also there was provision for counting of service rendered only a degree college and on the basis of interpretation to that effect in respect of Statute of 1986, the Universities of Bihar have counted continuous teaching experience of teachers only in a degree college. Relying upon clause (1) of the Statute of 1986 it was submitted that a plain reading discloses that conditions (a) (b) and (c) have to be read together with clause (1) and that would make it clear that the service of the concerned lecturer has to be in a University department or in the degree college and it is in context of such service that condition no.
(c) requires completion of at least ten years of continuous service and the only concession is that such continuous service as lecturer may be in one or more Universities. It was emphasized that no latitude has been given for counting service in a degree college together with service in any other college not being a degree college. It was further submitted that on a plain reading of the first proviso it is obvious that such exception has been created by using negative language so as to permit counting of service rendered in a degree college even if in the concerned subject the affiliation was up to the Intermediate standard only. It was emphasized that if service rendered in any Intermediate college was to be counted in all cases then the proviso would not have used the words “in a degree college”. 10. Learned counsel for the University has placed reliance upon Division Bench Judgment of this Court in the case of Ashutosh Prasad Vrs. the Chancellor of University of Bihar and another bearing L.P.A. No. 95 of 1997 disposed of on 28-10-1997 That judgment in clear terms held in favour of the case of the University in following words:- “The relevant statute has been quoted in the order of the learned Judge and on a careful reading of the statute we have no doubt in our mind that the service, which has to be counted for the purpose of grant of time bound promotion, is the service of a lecturer serving in a University department or in a degree college managed and maintained by the University, subject to the recommendation of the Bihar State University ( Constituent Colleges ) Service Commission. Before a Lecturer can claim time bound promotion to the post of Reader, he must satisfy the conditions enumerated therein, and the first condition, which he must satisfy is that throughout the period of ten years he had served as Lecturer in a University department or in a degree college managed and maintained by the University. He has, of course, to satisfy other conditions of the statute. In this case we find that the first condition has not been fulfilled by the appellant. The appellant was teaching in a college, which was affiliated only up to Intermediate Standard from 1974-1979.
He has, of course, to satisfy other conditions of the statute. In this case we find that the first condition has not been fulfilled by the appellant. The appellant was teaching in a college, which was affiliated only up to Intermediate Standard from 1974-1979. Service during this period, obviously, cannot be reckoned for the purpose of grant of time bound promotion to the post of Reader.” 11. The aforesaid judgment also considered submission advanced on the basis of relevant proviso and held that it carved out an exception only for the cases of such lecturers who had served in a degree college but in the subject which they were teaching the college was affiliated only up to Intermediate standard. Learned counsel for the university has submitted that such exception was carved out because in many colleges having affiliation up to Intermediate standard in science subjects, the process of seeking affiliation up to degree standard used to take long period on account of requirement of proper laboratory etc but the lecturer in such degree colleges had to be given due consideration for promotion under time bound promotion statute on account of their seniority in the college. 12. Learned counsel for the University has placed reliance upon the principle of contemporanea expositio as elaborated in Maxwel on the interpretation of Statutes, 12th Edition. Chapter 12 thereof was placed before us to support the submission that the language of statute must be understood in the sense in which it was understood when it was passed and the best exposition of a statute or any other document is that which it received from contemporary authorities. In support of this principle reliance was also placed upon judgment of the Supreme Court in the case of Nair Service Society Vrs. Dr. T. Beermasthan (2009) 5 SCC 545 in the context of reservation in State services . In paragraph 32 the Supreme Court has held thus :- “In our opinion an accepted practice which has been followed by PSC for so long a period should not be lightly disturbed, unless there are compelling reasons. If two interpretations of the Rules are possible, the interpretation which favours the practice which was being followed for a long period should ordinarily be preferred unless it is clearly in violation of the Rules.” 13.
If two interpretations of the Rules are possible, the interpretation which favours the practice which was being followed for a long period should ordinarily be preferred unless it is clearly in violation of the Rules.” 13. Having considered the rival submissions, we find merit in the submissions advanced on behalf of the University and find no good reason to take a different view in the matter than what was taken long back in the year 1997 while deciding the issues in L.P.A. No. 95/97 ( Ashutosh Prasad Vrs. State of Bihar and another). That interpretation has held the field for long number of years and rights and obligations have been created on that basis in various Universities of Bihar on the basis of expressions used in clause 1 of 1986 Statue. Following the aforesaid Division Bench judgment, we have no hesitation in holding that the impugned decision of the University suffers from no illegality. The tenure of 10 years continuous service in the case of petitioners has rightly been counted after the colleges had become degree college. 14. In the result, we find no merit in these writ petitions. They are accordingly dismissed. There shall be no order as to costs.