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2013 DIGILAW 889 (PAT)

Raageeva Bimal v. State of Bihar

2013-07-26

MIHIR KUMAR JHA

body2013
JUDGMENT Mihir Kumar Jha, J. 1. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "1(i) For issuance of an appropriate writ in the nature of mandamus commanding the respondent authorities to quash the notification contained in memo no. 1379 dated 26.6.2000, issued under the signature of the respondent Registrar of University whereby and whereunder respondent no. 7 have been granted promotion to the post of professor under time bound scheme w.e.f. 8.5.1995. (ii) For issuance of an appropriate writ in the nature of mandamus for direction upon the respondent authorities to declare that the petitioner senior most person holding the post of professor w.e.f. 11.1.1996. The petitioner is only senior most person in comparison to respondent no. 7." 3. Learned counsel for the petitioner has submitted that the petitioner’s seniority over the respondent no. 7 on the post of Professor in the department of Botany in Bihar University has to be reckoned only for the purpose that the necessity for seeking declaration of the petitioner being senior to the respondent no. 7 on the post of Professor in the Department of Botany in Bhim Rao Ambedkar Bihar University has arisen only on account of non-implementation of the order of the learned Chancellor dated 14.1.2005, whereby and whereunder, the time bound promotion given on the post of Professor was to be screened afresh on the basis of the qualification laid down by the U.G.C. for the post of Professor. 4. In this regard, it is the case of the petitioner that the respondent no. 7 did not possess the requisite qualification for being promoted on the post of Professor as was laid down in the order of the learned Chancellor dated 14.1.2005 and thus, when the case of respondent no. 7 was turned down by the Selection Committee for merit promotion on the post of Professor while allowing such claim of the petitioner, he cannot be reckoned to be junior only because of an illegal order of time bound promotion was passed in favour of the respondent no. 7 on 26.6.2000 with effect from 8.5.1995 leaving the petitioner to work under Respondent no. 7 even though he was promoted on the post of Professor under merit promotion scheme with effect from 11.1.1996. 5. 7 on 26.6.2000 with effect from 8.5.1995 leaving the petitioner to work under Respondent no. 7 even though he was promoted on the post of Professor under merit promotion scheme with effect from 11.1.1996. 5. In other words, it is the submission of the learned counsel for the petitioner that if the criteria of UGC qualification for the post of Professor is made applicable even for grant of time bound promotion of the petitioner, he having produced only one Ph.D. of one Niva Agarwal registered on 8.4.1993 and was awarded Ph.D. on 8.10.1996, could not have been held to have experience of guiding research on doctoral level as on 8.5.1995, the date from which such time bound promotion was notified in the case of the respondent no. 7. It is on these grounds that the learned counsel for the petitioner has assailed the order of promotion of the respondent no. 7 dated 26.6.2000. 6. Learned counsel for the petitioner in support of the submission has also relied on the judgment of this Court in the case of B.R. Ambedkar Bihar University Teachers Association vs. State of Bihar & other, 1998 (2) PLJR 103 as also in the case of Devendra Narain Singh vs. B.R. Ambedkar Bihar University & other, 2002 (3) PLJR 465 . 7. In this case, the respondent no. 7 has filed his separate counter affidavit wherein he has basically questioned the belated filing of the writ application by the petitioner, inasmuch as, the delay of almost eight years in filing of the writ application for assailing the order of promotion of the respondent no. 7 would be fatal. 7. Mr. Shivendra Kishore, learned counsel for the respondent no. 7 has also highlighted that whatever clarifications were issued by the learned Chancellor in his order dated 14.1.2005 could not have been given retrospective effect in the concluded cases where the promotion were already notified way back in the year 2000 including that of the respondent no. 7. According to him, such promotion was granted in view of the recommendation made by the Screening Committee of the University and approved by the Bihar State Constituent Colleges Services Commission. 8. A plea has also been raised by him that though the date of entry of the petitioner and respondent no. 7 on the post of Lecturer in view of recommendation is same i.e. 11.1.1980 but the respondent no. 8. A plea has also been raised by him that though the date of entry of the petitioner and respondent no. 7 on the post of Lecturer in view of recommendation is same i.e. 11.1.1980 but the respondent no. 7 had earlier also worked as a Lecturer in affiliated college for which continuity of service was granted by the Vice Chancellor of the University vide the order dated 15.12.1993 as contained in Annexure-F to the counter affidavit. According to Mr. Shivendra Kishore, once the respondent no. 7, therefore, was given such seniority on the post of Lecturer with effect from 8.5.1979, he will be deemed to be always senior to the petitioner because he had ultimately been given time bound promotion on the post of Professor with effect from 8.5.1995 whereas the petitioner was given promotion under the merit promotion scheme only with effect from 11.1.1996. 9. Learned counsel for the University having filed counter affidavit has supported the order of promotion of the respondent no. 7 on the post of University Professor and has submitted that since in the rank of Professor, the respondent no. 7 was given promotion with an earlier date i.e. 8.5.1995 as against the petitioner with effect from 11.1.1996, the respondent no. 7 will be deemed to be senior to the petitioner. 10. In a separate counter affidavit, the respondent 1 & 2, the State Government and its officials have chosen to adopt a neutral stand by taking a plea that the seniority between the petitioner and the respondent no. 7 is an internal matter of the Bihar University in which the Government has no role to play. 11. Having regard to the aforementioned submissions of the parties as also the materials on record, this Court had directed the University to produce the original record relating to grant of promotion to the respondent no. 7 on the post of University Professor and such original records have been produced by the learned counsel for the University. 12. From the records, it is more than clear that the appointment of the petitioner and the respondent no.7 on the post of Lecturer in the services of the University was made with effect from same day i.e. 11.1.1980. 7 on the post of University Professor and such original records have been produced by the learned counsel for the University. 12. From the records, it is more than clear that the appointment of the petitioner and the respondent no.7 on the post of Lecturer in the services of the University was made with effect from same day i.e. 11.1.1980. Thus, there would be little to choose between so far it relates to the seniority, inasmuch as, the merit list prepared by the University has not been produced on record to show who among the two had ranked above in course of selection undertaken for the post of Lecturer. This Court, therefore, would proceed for the time being that both the petitioner and the respondent no. 7 were appointed in the University service on the post of Lecturer with effect from 11.1.1990 and, therefore, were at par so far it concern to the inter-se seniority on the post of Lecturer. 13. The position, however, will not remain the same on the post of Reader, inasmuch as, the petitioner had earned his promotion under the merit promotion scheme on the post of Reader with effect from 11.1.1988, whereas, such merit promotion was notified in the case of respondent no. 7 only with effect from 14.11.1990 as would be evident from the University notification dated 12.7.1996 which was again issued in the light of the recommendation of the Bihar State University (Constituent Colleges) Service Commission contained in its letter dated 7.6.1996. 14. In view of the above, the petitioners seniority on the post of Reader is still established and the respondents cannot question the same in any manner. Such inter-se seniority position between the petitioner and the respondent no. 7 had continued at least from 12.7.1996 and, therefore, if the respondent no. 7 had himself given up his claim of the time bound promotion with effect from 11.1.1990 instead of merit promotion on the post of Reader with effect from 14.11.1990, he cannot be heard to say that at any point of time, he was senior to the petitioner while working as a Lecturer or Reader. 15. In this regard, this Court has also taken into account the order which was passed by the Vice Chancellor conferring the continuity of service to the respondent no. 15. In this regard, this Court has also taken into account the order which was passed by the Vice Chancellor conferring the continuity of service to the respondent no. 7 on the post of Lecturer with effect from 8.5.1979 but, then, the notification itself made it clear that the same was not in any manner going to affect the inter-se seniority of other teachers. For the sake of clarity and brevity, the order of the University dated 15.12.1993 is quoted herein-below:- “BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY MUZAFFARPUR OFFICE ORDER In accordance with the provisions made in article 3(4) of Chapter XV-A of the Statutes, the Vice-Chancellor has been pleased to grant continuity of service of Sri Md. Naseem, Reader in Botany, L.S. College, Muzaffarpur with effect from 8.5.1979, the date on which he joined as a temporary lecturer in Botany at B.M.D. College, Dayalpur, Vaishali but this continuity will not affect the interse-seniority of other teachers. Sd/- REGISTRAR Memo No. B/2995 Dated – Muz 15.12.1993” (Underlining for emphasis) 16. In view of the underlined portion of the notification dated 15.12.1993, the respondent no. 7 cannot be heard to say that he was senior to the petitioner on the post of Lecturer specially when the University notification dated 29.9.1999 confirming the services of the petitioner and respondent no. 7 as contained in Annexure 1 & 2 of the writ application would go to show that their services were also reckoned on the post of Lecturer only with effect from 11.1.1980. 17. The things, however, had changed at the stage of Professor, inasmuch as, while the petitioner was granted merit promotion on the post of Professor vide University notification dated 15.11.2000 in the light of the recommendation of the Commission dated 28.9.2000 with effect from 11.1.1996, the promotion of the respondent no. 7 on the post of Professor under time bound promotion scheme was notified on 26.6.2000 with effect from 8.5.1995. It is not in doubt that such promotion of the respondent no. 7 was given in the light of the statutes dated 24.12.1986 as is clearly mentioned in the order as contained in Annexure-6. 7 on the post of Professor under time bound promotion scheme was notified on 26.6.2000 with effect from 8.5.1995. It is not in doubt that such promotion of the respondent no. 7 was given in the light of the statutes dated 24.12.1986 as is clearly mentioned in the order as contained in Annexure-6. The said statute in Clause-9 had clearly provided that the inter-se seniority of the Teachers will not be adversely affected by the time bound promotion and thus it would be essential to reproduce the Statutes dated 24.12.1986 which reads as follows:- “STATUTE FOR TIME BOUND PROMOTION OF LECTURERS TO THE POSTS OF READER AND FOR READERS TO THE POSTS OF UNIVERSITY PROFESSORS. (As approved by the Chancellor vide letter no. (BSU-27/85-4032 GS (1) dated 24.12.1986) Subject – Statute for time bound promotion of Lecturers to the posts of University Professors. I am directed to invite a reference on the above subject and to say that the Chancellor on the recommendation of Bihar Inter University Board and the State Government has been pleased to approve the following Statutes under Section 5(2) of the Bihar Inter University Board Act, 1981 for implementation in your University. 1. Notwithstanding anything to the contrary as contained in 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 enforced 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. (b) That, he holds substantive appointment on the post of a Lecturer. (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: Provided further that the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statutes. “Provided that the qualification prescribed for the appointment of Lecturers mentioned above may be relaxed in case of such teachers who were absorbed in the services of the University under the Statutes inforce from time to time and also in case of Demonstrators promoted to the post of Lecturers under the Statutes framed for that purpose.” Further action in the matter may be taken accordingly. (2) A Reader, serving in a University Department or in a degree college managed and maintained by the University and has completed at least twenty five years of continuous service as teacher not below the rank of lecturer in one or more Universities 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 University Professor subject to the condition given in proviso to clause (1) above. (3) A Reader possessing the qualification of a University Professor prescribed by the University Grants Commission serving in a University Department or in a degree college, managed and maintained by the University and who has completed at least 16 years of continuous service as lecturer/Reader in one or more Universities, shall on recommendation of the Bihar State University (Constituent college) Service Commission be promoted to the post of University Professor, other conditions remaining the same. 2. Such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Colleges) Service Commission on consideration of experience and C.C. Roll of the teacher concerned. 2. Such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Colleges) Service Commission on consideration of experience and C.C. Roll of the teacher concerned. Provided that there where C.C. Rolls have not been maintained before implementation of these statutes, the cases of teachers who are eligible for promotion as Reader or University Professor on the date of implementation of this Statute, shall be considered by the said Commission on the basis of experience and certificates from the Heads of University Departments or Principals of Colleges concerned in regards to the satisfactory service of the teachers after the same have been screened by a committee consisting of the Vice-Chancellor. The Dean of the Faculty concerned, the Head of the University Department concerned and two experts appointed by the Vice-Chancellor from the panel prepared by the Bihar Inter University Board. Provided further that the report of the committee in each case shall be referred to the Bihar State University (Constituent Colleges) Service Commission for its recommendation but where in the opinion of the committee a teacher fulfills the prescribed conditions and is found fit to be promoted, the Syndicate may, on the recommendation of the Vice-Chancellor pass orders for promotion of such a teacher on a temporary basis till final decision is taken on the recommendation of the said Commission, but in case the Commission does not recommend for promotion, the temporary promotion given to such a teacher shall cease to be effective immediately. Also provided that hereafter C.C. Rolls shall be regularly maintained in respect of each teacher according to the procedure and in the form to be approved by the Chancellor for the purpose. 3. Promotion under the above clauses shall be admissible only in the faculties in which the fifth plan U.G.C. scale of pay have been implemented by the University, but a teacher who did not opt for the U.G.C. scale of pay shall also be eligible to be considered for promotion to the post of Reader or University Professor, as the case may be, under this Statute in the old scale of pay. 4. 4. Where a teacher is promoted to the pot of Reader or University Professor, as the case may be, such a promotion shall take effect from the date on which the lecturer entered the 11th year of his qualifying service or the Reader entered the 26th year of this qualifying service as the case may be, or from the 1st February 1985 whichever is later. 5. The case of teacher, who is not recommended by the said Commission for promotion as Reader or University Professor may again be considered for promotion after a period of one year has elapsed since his name was last considered. The promotion in such a case shall effect from the date of the recommendation of the Commission. 6. The post held by the Lecturer or Reader who is promoted to the post of Reader or University Professor shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted in to the post of Lecturer or Reader, as the case may be in the event of retirement, resignation, death or otherwise provided that if the post of Reader or Lecturer was itself an upgraded post which was further upgraded as that of Reader or University Professor, the same shall be converted into the Lecturers post in the event of vacancy. 7. The upgraded post shall be deemed to be a substantive post till the promotee hold it but any temporary vacancy on the post on account of promotee being on leave or on foreign service or officiating in or holding another post on temporary basis shall be that of lecturer or Reader (not being as upgraded post), as the case may be. 8. The lecturer who is promoted as Reader or the Reader who is promoted as University Professor shall from the date of promotion draw his pay in the higher scale which shall be fixed under the relevant provision of the service statute of the University. 9. The inter-se-seniority of the teachers will not be adversely affected by time bound promotion. 10. The lecturer who is promoted as Reader or the Reader who is promoted as University Professor shall from the date of promotion draw his pay in the higher scale which shall be fixed under the relevant provision of the service statute of the University. 9. The inter-se-seniority of the teachers will not be adversely affected by time bound promotion. 10. Appointment to the duly created post of Readers or University Professors as also promotion under the Merit Promotion Scheme for Readers shall continue to be made on the basis of the prescribed qualifications and in the manner prescribed in the Act and the Statutes. 11. The Registrar of the University with the approval of the Vice-Chancellor shall place a list of eligible candidates giving all the required information about each of them along with all the relevant papers including service records and C.C. Rolls before the screening Committee to be appointed by the Vice-Chancellor for scrutiny. The recommendation of the Screening Committee along with all the relevant papers shall be submitted to the Bihar State University (Constituent Colleges) Service Commission and the recommendation of the said Commission shall be placed before the Syndicate at the next meeting for orders. 12. This Statutes shall come into force with effect from the first February, 1985 in super-session of the Statute approved by the Chancellor on 24.10.1981 vide Governors Secretariat letter No. BSU 51/81-2779-GS(1) dated 14.11.81 but all actions taken under the said statute before the date of implementation of this statute shall be deemed to be valid. Note – (1) No teacher shall be allowed more than two such promotions during the entire period of his service. As such a Demonstrator who was promoted as Lecturer may be further promoted as Reader under this statute but no as University Professor. (2) The words Lecturer, Reader, University Professor shall include equivalent posts having different nomenclatures in the various faculties.” (Underlining for emphasis) 18. In view of the underlined Clause-9 of the statutes dated 24.12.1986, the respondent no. 7 irrespective of getting his time bound promotion on the post of Professor with effect from 8.5.1995 as against the petitioner getting his merit promotion with effect from 11.1.1996 would be deemed to be junior to the petitioner because the inter-se seniority on the post of Reader of both the petitioner and the respondent no. 7 irrespective of getting his time bound promotion on the post of Professor with effect from 8.5.1995 as against the petitioner getting his merit promotion with effect from 11.1.1996 would be deemed to be junior to the petitioner because the inter-se seniority on the post of Reader of both the petitioner and the respondent no. 7 had made the petitioner senior, inasmuch as, both of them had been promoted under the merit promotion scheme and the date of such promotion of the petitioner was with effect from 11.1.1988 whereas that of the respondent no. 7 was 14.11.1990. 19. Thus, in the facts of the present case, even if the order of time bound promotion of the respondent no.7 on the post of Professor is not disturbed and/or interfered with, the petitioner will still be held to be senior to the respondent no. 7. 20. This Court, however, would find that the time bound promotion of the respondent no. 7 on the post of Professor was allowed by the University in a most mechanical manner. As noted above, the requirement for promotion on the post of Professor as per the statute dated 24.12.1986 that a Reader who would be possessing the qualification of University Professor prescribed by the University Grant Commission (U.G.C.) alone would be entitled for grant of time bound promotion. The U.G.C. in its Regulation of the year 1991 had laid down the following criteria for promotion on the post of Professor. “An eminent Scholar with published work of high quality actively engaged in research with ten years of experience in postgraduate teaching and/or research at the University/ National level Institutions including experience of guiding research at doctoral level.” “An outstanding Scholar with established reputation who has made significant contribution to knowledge.” (Underlining for emphasis) 21. “An eminent Scholar with published work of high quality actively engaged in research with ten years of experience in postgraduate teaching and/or research at the University/ National level Institutions including experience of guiding research at doctoral level.” “An outstanding Scholar with established reputation who has made significant contribution to knowledge.” (Underlining for emphasis) 21. The expression ‘experience of guiding research at doctoral level was interpreted by the Chancellor on a remand made by this Court in the order dated 14.1.2005 (Annexure-12 to the writ application) wherein he had held as follows:- “So, on the basis of the discussions made above, I hold that the expression “experience of guiding research at doctoral level” cannot be interpreted as the date of registration of the students for Ph.D. Degree under a teacher and also it cannot be said that on the date of registration a teacher acquires sufficient experience of guiding research at doctoral level and fulfils the qualification as laid down in the U.G.C. Regulation for promotion to the post of University Professor. The expression “experience of guiding research at doctoral level” means the experience acquired by a teacher or guide during the intervening period i.e. from the date of registration upto the conclusion of the research. So while recommending for promotion the date of registration should not be mechanically taken as a cut date for promotion. The screening committee of the University should examine the eligibility, suitability and fitness of a teacher on the basis of gained experience of guiding research during length of time supported by actual research work done by the student and publication of standard research papers and other materials which may really be considered as contribution to the knowledge. This may or may not be upto award of Ph.D. Degree but there must be considerable work done during a considerable span of time towards achieving the goal under the same guide.” 22. The aforementioned view of the Chancellor seems to be absolutely correct because on the first date of registration of the candidate for his/her Ph.D., no experience can be said to have acquired by his guide. In fact, learned Chancellor is correct that gaining experience of guiding research would depend on the quality of research work done by the student and, therefore, the view of the Chancellor in the order dated 14.1.2005 also seems to be correct both in fact and in law. In fact, learned Chancellor is correct that gaining experience of guiding research would depend on the quality of research work done by the student and, therefore, the view of the Chancellor in the order dated 14.1.2005 also seems to be correct both in fact and in law. The learned Chancellor in this regard in his order had held as follows:- “The date of registration cannot be treated mechanically as a cut date for fulfillment of the criteria regarding “experience of guiding research at doctoral level.” While giving the liberty to the Commission and the University Professor, some guidelines has to be evolved according to the provisions of the Statute and it cannot be a mechanical process. In para-7 of the judgment of CWJC No. 2014/1997, Hon'ble Judge has observed that – to find out the “experience of guiding research at doctoral level” it is necessary to quote the relevant provisions of the Magadh University Regulation for Ph.D. Degree. It means, while clarifying the expression “experience of guiding research” one has to take the help of the Regulation of different universities as well as Patna University and also the meaning of the word experience. In Regulation for Ph.D. Degree, maximum period has been provided for submission of the thesis, in the same way minimum period has also been provided before which thesis cannot be submitted. In other words, no one can submit thesis within few days from the date of registration. Naturally, between the date of registration and submission of the thesis, a student acquires the experience of doing research work and the teacher or guide acquires the experience of guiding research. Whether, the student has actually done something towards achievement of their goal during this period can be assessed from the publication of research paper and other material and that research work and publication of a standard and contribution of knowledge will be the experience of a teacher towards guiding research.” 23. In view of the aforementioned sound reasoning of the learned Chancellor that a teacher guiding his/her student for research cannot claim experience from the date of registration, if the facts case of the Respondent no. In view of the aforementioned sound reasoning of the learned Chancellor that a teacher guiding his/her student for research cannot claim experience from the date of registration, if the facts case of the Respondent no. 7 is taken into account, it would be found that though the first research scholar was registered under him on 26.11.1991 but he or she was not awarded Ph.D. In act, as on the date the Selection Committee had considered the case of grant of time bound promotion to the respondent no. 7, it was found that the second candidate registered on 8.4.1993 was awarded Ph.D. on 8.10.1996. Annexure-13 to the writ application would bear it out that one Niva Agarwal who was registered under respondent no. 7 on 8.4.1993 and had submitted the thesis on 25.6.1996 whereafter she was awarded Ph.D. on 8.10.1996. 24. The question for consideration, therefore, would be as to whether Niva Agarwal had made publication of research work in between 8.4.1993 to 25.6.1996 because the research experience of the respondent no. 7 would primarily depend on evaluation of these aspects. Unfortunately, nothing has been brought on record by the respondent no. 7 to show that Niva Agarwal had contributed by publication of her research paper under the guidance of respondent no. 7 prior to submission of her thesis on 25.6.1996 and, therefore, in keeping with the time bound promotion statutes and the regulation of the University Grant Commission, this Court will have no difficulty in holding that the respondent no. 7 could not have been given the date of 8.5.1995 for his time bound promotion inasmuch as it is only the date of submission of Ph.D Thesis which can be the proof of acquiring experience of guiding research at doctoral level, an aspect which has been correctly summed up in the order of the learned Chancellor dated 14.1.2005 already quoted above. Judged from this angle the date of promotion of the Respondent no. 7 on the post of Professor under the Time Bound Promotion Statute could have been only 25.6.1996. 25. The simple arithmetical calculation of sixteen years service of Respondent no. Judged from this angle the date of promotion of the Respondent no. 7 on the post of Professor under the Time Bound Promotion Statute could have been only 25.6.1996. 25. The simple arithmetical calculation of sixteen years service of Respondent no. 7 because the Vice Chancellor by his aforesaid order dated 15.12.1993 had been pleased to shift back the date of appointment of the petitioner on the post of Lecturer from 11.1.1980 to 8.5.1979 by taking into account the service period on temporary Lecturer in the Department of Botany at B.M.D. College, Dauyalpur (Vaishali) could not have been made the basis for time bound promotion of the Respondent no. 7 on the post of Professor w.e.f. 8.5.1995 because even if he had completed 16 years service he had not acquired the qualification for the post of Professor. In the considered opinion of this Court, the order of the Vice Chancellor as notified by the Registrar of the University on 15.12.1993 was itself contrary to the settled position in law that seniority on the post will always be reckoned from the date of substantive appointment and the date of substantive appointment of the respondent no. 7 on the post of Lecturer is 11.1.1980. Had this date of 11.1.1980 been made applicable, the sixteen years period of service as required in the time bound promotion on the post of Professor would have been completed by Respondent no. 7 on 11.1.1996 and not on 8.5.1995. 26. In any event, that order dated 15.12.1993, having itself clarified that despite the respondent no. 7 being given continuity of service on the post of Lecturer with effect from 8.5.1979, the same will not affect the inter-se seniority of other teachers, it cannot be to the disadvantage of the petitioner specially when he had earned his both the promotion as Reader and Professor under the merit promotion scheme. This aspect as to the difference between the merit promotion scheme and the time bound promotion has been settled by this Court in the case of Devendra Narain Singh (supra) wherein it has been held as follows:- “14. This aspect as to the difference between the merit promotion scheme and the time bound promotion has been settled by this Court in the case of Devendra Narain Singh (supra) wherein it has been held as follows:- “14. The above provisions would make it clear that merit promotion is granted not on the basis of seniority but on consideration of merit after assessment of the work and performance of the concerned lecturers, firstly by two referees selected by the Vice-Chancellor from a standing panel prepared by the Inter University Board and thereafter by the Commission with the assistance of two external experts. Those who have been granted merit promotion thus cannot be treated at par with their counterparts who have been granted time bound promotion.” 27. That would bring this Court to the issue of delay in filing of this writ application and as to whether such delay is fatal in the facts and circumstances of this case. 28. As noted above, the University at no point of time has circulated any gradation list and at least none has been brought on record and, therefore, if the petitioner having found that the University was not reconsidering the issue relating to grant of time bound promotion of Respondent no. 7 in the light of the order of the Vice Chancellor dated 14.1.2005 he had ultimately chosen to file this writ application seeking basically the seniority over the respondent no.7 and thus the same cannot be held to be belated. 29. As noted above, both the petitioner and the respondent no. 7 had entered on the post of Lecturer on a substantive basis with effect from 11.1.1980 and both of them had earned their merit promotion on the post of Reader with effect from 11.1.1988 and 14.11.1990 respectively. Though the time bound promotion statutes for the post of Professor does not debar the Reader who had earned his promotion from Lecturer under merit promotion scheme for being considered for promotion under the time bound promotion statute the petitioner who has already been reckoned to be senior on the basis of the merit promotion scheme on the post of Reader in any event cannot become junior to Respondent no. 7 specially when his (Respondent no. 7) promotion on the post of Professor under the Merit Promotion Scheme was considered and rejected. 30. 7 specially when his (Respondent no. 7) promotion on the post of Professor under the Merit Promotion Scheme was considered and rejected. 30. In this regard this Court has carefully examined the petitioner's specific averment to this effect in paragraph no. 12 & 13 to the writ application which has been rather vaguely answered by the respondent no.7 by suggesting that the Selection Committee while considering the grant of promotion on the post of Professor under merit promotion scheme had arbitrarily rejected the case of the respondent no. 7. In fact, from paragraph no. 32 and 33 of the counter affidavit of the respondent no. 7, it is more than clear that the respondent no. 7 was also an applicant for promotion on the post of Professor under the merit promotion scheme alike the petitioner but whereas the petitioner was found to be meritorious enough to be given promotion on the post of Professor under the merit promotion scheme, the case of respondent no. 7 was rejected under merit promotion scheme. It is here that the counter affidavit of the University becomes meaningful, inasmuch as, the specific averment made by the petitioner in paragraph no. 12 & 13 of the writ petitioner has not been touched much less answered and thus will be deemed to have admitted. 31. In this regard, in paragraph no. 12 & 13 of the writ petition the petitioner has stated as follows:- “12. That it is reiterated that the case of the respondent no. 7 for promotion to the post of professor under Merit Scheme has not been entertained even by the committee or by the Commission under Merit Promotion Scheme and hence it is said that it has been turned down. 13. That the respondent no. 7 was holding the post of reader w.e.f. 14.11.1990 under Merit Promotion Scheme and under Merit Promotion Scheme the case of the respondent no. 7 for promotion to the post of professor was rejected in the year 2000, when the case for promotion of the petitioner to the post of professor was considered and regular promotion under Merit Promotion Scheme was granted to the petitioner vide notification dated 15.11.2000.” 32. Its reply by the respondent no. 7 also in paragraph no. 32 & 33 reading as follows:- “32. That statements made in Paragraph 11 of the writ petition under reply are not correct. Its reply by the respondent no. 7 also in paragraph no. 32 & 33 reading as follows:- “32. That statements made in Paragraph 11 of the writ petition under reply are not correct. It is true that names of three persons named there under were placed before the committee for consideration for promotion to thereon under Merit Promotion Scheme but it is not true that the writ petitioner was only found fit and granted said promotion rather only the claim of the answering respondent has been rejected arbitrarily and in malafide manner as he possessed better qualification/eligibility that that Dr. P.R. Prasad who even did not possess the requisite qualification at M.Sc. level even required for the post of Lecturer [he possessed 2nd class in M.Sc. with 50.5% whereas required/fixed cut off marks was 52.5%]. However, at this juncture it is to be pointed out that since the answering deponent had already been granted the promotion to the post of Professor from an earlier date [08.05.1995] then promotion granted to Dr. Rajeeva Bimal and Dr. P.R. Prasad. 33. That statements made in Paragraph 12 and 13 of the writ petition under reply need no further comments as all necessary facts in this regard have been set out herein above.” By themselves would be sufficient to hold that the respondent no. 7 though considered in the same transaction with the petitioner was not found fit for promotion on the post of Professor under the merit promotion scheme. 33. This Court, however, having regard to the order of the learned Chancellor dated 14.1.2005 which was to be made applicable in the cases of all the Teachers who were given time bound promotion on the post of Professor under the 16 years time bound promotion could have no difficulty in directing reconsideration of promotion of Respondent no. 7 on the post of Professor in the time bound promotion scheme but keeping in view that a clarification was issued on 5.2.2005 by the Chancellor's Secretariat that cases of the University Professor under 16 years time bound promotion scheme should be screened only after the date of 30.8.2000 would not like to direct for reopening the case of promotion of the Respondent no. 7 on the post of University Professor keeping in view that in his case also the decision to promote him on the post of Professor was notified on 26.6.2000 giving him such promotion w.e.f. 8.5.1995. 34. It is however made clear that the time bound promotion to any Professor can be assailed by the aggrieved person for settling the issue of inter-se seniority specially when the University has also not issued any gradation list and in an appropriate case, the University can be directed by this Court to re-examine the issue of grant of such time bound promotion in the light of U.G.C. Regulation to ensure that such promotion has not been given on the basis of date of registration of a student enrolled for Ph.D. 35. This Court, however, in the facts and circumstances of this case, having held that the petitioner in any event would rank senior to the respondent no. 7 in view of the Clause-9 of the time bound promotion statute dated 24.12.1986, is not required to interfere with the order of promotion of the respondent no. 7 earning his time bound promotion on the post of Professor with effect from 8.5.1995 even though on perusal of the original record produced by the learned counsel for the University containing the proceedings of the Selection Committee recommending the grant of time bound promotion to the respondent no. 7 with effect from 8.5.1995, this Court is satisfied that the grant of time bound promotion on the post of Professor to the respondent no. 7 with effect from 8.5.1995 is contrary to the UGC Regulation and the order of the learned Chancellor dated 14.1.2005 because such time bound promotion to the respondent no. 7 was given on 26.6.2000 with effect from 8.5.1995 whereas the solitary candidate enrolled under him being Niva Agrawal had submitter her Ph.D Thesis on 25.6.1996, the date on which the petitioner could have claimed to possess the requisite qualification under UGC Regulation of experience of guiding research at doctoral level. 36. Thus, for the reasons indicated above, this writ application is allowed and it is hereby declared that the petitioner shall rank senior to the respondent no. 7 both on the post of Reader as also on the post of Professor in the department of Botany in Baba Bhim Rao Ambedkar, Bihar University.