Chandranan Thakur vs State of Bihar and Others

Radha Mohan Prasad, J.—As the facts involved in both the writ application are, more or less, common, they are being disposed of together by this common judgment with the consent of the parties.

For the sake of convenience, C.WJ.C. No. 3814 of 1992 (R) hereinafter is referred to as the first case and C.WJ.C. No. 1977 of 1993 (R) as the second case.

In the first case the Petitioner prays for quashing of the Government notification, contained in annexure 5, whereby Respondent No. 3 has been posted as Director, B.I.T. Sindri until further order as also, by an amendment petition the Petitioner prays for quashing of the notification, contained in Annexure 21 whereby his services as professor is purported to have been returned to M.I.T., Muzaffarpur from B.I.T. Sindri against which post it is alleged that he was promoted vide Government notification dated 20.3.1970. It is also prayed that the Respondents be commanded to allow the seniormost professor to work as acting Director.

In the second case the Petitioner prays for quashing of the final seniority list, as contained in Annexure 5/2 in so far as the inter se position of the Petitioner vis-a-vis Respondents No. 4, 5 and 6 are concerned and, further, to issue a writ in the nature of mandamus commanding the concerned Respondents to treat the Petitioner as senior to the aforesaid Respondents and, accordingly, publish fresh seniority list.

The facts are not much in dispute. The Petitioner of the second case claims to have been appointed as Assistant Professor in the Engineering Faculty on 1.4.1963 in the pay scale of Rs. 350-850, vide Annexure 1, whereas though admittedly Respondent No. 6, who is the Petitioner in the first case and Respondents Nos. 4 and 5 were appointed as Assistant Professor earlier than the Petitioner in the faculty of Humanity and Science respectively but, according to him, in a lower pay scale of Rs. 200-750/ -. The Petitioner of the second case claims to have been promoted in his faculty in the pay scale of Rs. 730-1250/ - on 5.9.1970 and Respondents Nos. 5 and 6 were promoted as Associate Professor in Science and Humanity faculties with effect from 8.11.1970 and 24.3.1970 respectively in the pay scale of Rs. 450-1160/ -.

Further, the case of the Petitioner or the second case is that he was promoted as Professor with effect from 14.8.1974 in the pay scale of Rs. 1340-1870/ - in his faculty whereas Respondent No. 4 was promoted as professor in Science faculty with effect from 1.4.1966 but in the lower pay scale of Rs. 1100-1600/ - It is not disputed that Respondent No. 5 was retrospectively promoted as Professor with effect from 22.9.1971 in the pay scale of Rs. 1500-2500/ - and Respondent No. 6 in Humanity Department with effect from 20.3.1972 in the pay scale of Rs. 1100-1600/ -. The Petitioner in the second case was made Acting Principal of the College of Engineering Bhagalpur with effect from 29.9.1990 and Respondent No. 4 in M.I.T. Muzaffarpur with effect from 1-12.1992 Respondents Nos. 5 and 6 were however, never appointed as Principal or Director which, according to the parties, is equivalent to the post of Principal. The details, as given in paragraph 7(1) of the counter affidavit filed on behalf of the Respondent No. 5 in the second case about the date of appointment, promotion and the scale etc. of the Petitioner and the concerned Respondents of the second case, may usefully be quoted hereunder:

Petitioner Respondent No. 4 Respondent No. 5 Respondent No. 6

Faculty Engg. (Subject Metallurgy) Engg. (Subject Chemistry) Engg. (Subject Physics) Engg. (Subject Humanities)

(i)1 Date of promotion as professor with pay scale 14.8.741340-1870 1.4.66 450-1250 22.2.71 1340-1870 20.3.72 1340-1870

(ii)1 Revised pay scale after Anamoly removal of 3rd pay revision Bihar Govt. in 1.1.1971 1.1.71

(iii)1 Revised 14.8.74 1500-2500 11.73 1500-2500 1.1.73 1500-2500 1.1.73 1500-2500

(iv) 1Date of working as Acting Principal 22.9.90 B.C.E. Bhagalpur. 1.12.92 M.I.T. Muzaffarpur 3.1.93 to 12.3.93 and from 2.1.94 B.C.E. Bhagalpur Case in Ranchi III Court pending

It is not is dispute that no seniority list of teaching staff of the Engineering Colleges were published till 3.12.1985, when for the first time the provisional seniority list was published inviting objections to the said list and in which Respondents No. 3, 4, 5 and 6 were shown senior to the Petitioner. The Petitioner of the second. case filed objection to the seniority list but, according lo him, which considering the same a second provision seniority list was published on 2.7.1992, vide Annexure 5/1, again inviting objection. It claimed by the Petitioner that he filed objections the said provisional seniority list on 1992 and 16.3.1993 (Annexures 6 and 7/1 alternatively) Even while the final seniority list yet to be published, the impugned notification (Annexure 5) was issued on 11.1992 transferring the Petitioner of the and case from the post of Incharge Principal College of Engineering, Bhagalpur and acting him as Director, B.I.T. Sindri until further orders:

Thereafter, a final seniority list dated (sic) 1993 was published on 10.6.1993, the validity of which has been challenged in the and writ application, as in the said list also Petitioner has been shown junior to the rementioned concerned Respondents. It may stated that the first writ application was on 16.12.1992 and the same was admitted order dated 8.4.1993. The case was directed be placed for hearing on 3rd May, 1993 as case subject to part heard, if any. therefore on 28.6.1993, as already stated above, the qualification (Annexure 21) purporting to transfer the Petitioner of the first case from M.I.T., Sindri to M.I.T. Muzaffarpur was issued, the validity of which has been challenged by an amendment petition filed by the Petitioner of first case. By order dated 2.9.93 the said amendment petition was directed to be conserved at the time of final hearing of the in writ application. In the meantime, an inasmuch order was passed on 15.7.1993 staying (sic) operation of the aforesaid notification Annexure 21).

Mr. Sinha, learned Counsel for the Petitioner in the first case, pressed the amendment application which, upon hearing the (sic)ed counsel for the parties and having disordered the contents thereof, is allowed.

Counter-affidavits have been filed on half of Respondent''s Nos. 1 and 2 and also on half of Respondent No. 3 in the first case reply thereto has been filed on behalf of Petitioner, besides supplementary counter affidavits and reply thereto on behalf of the parties. In the second case counter affidavit has been filed on behalf of Respondents No. 6 i.e. the Petitioner of the first case and Respondent No. 5 and the rejoinder to the counter-affidavit of Respondent No. 6 has been filed on behalf of the Petitioner. The substance of the counter-affidavits filed on behalf of the Respondents in the second case is that the seniority list has been published after due consideration of all the objections and the rules. It has been also contended that the Department of Science and Technology is guided by the All India Council for Technology in the matter of leaching as also in the matter of appointment, qualification, job responsibility etc, and rules, policy etc. of the said Council governing the aforementioned has been accepted by the Government of Bihar, vide letter No. 379 dated 16.2.1990. According to the Respondents, the seniority list is based on the established rules and procedures and hence the same is legal and proper. It has been disputed that the concerned Respondents in the second case were in the lower scale than the Petitioner. It is stated that Respondent No. 6. has been given the scale of Rs. 1500-2500 on 1.4.1973 which was later given from 1.1.1973 on which date the Petitioner was in the scale of Rs. 1200-1900 holding the post of Associate Professor and he was given the post of Professor with effect from 14.8.1974 i.e., much after the appointment of the said Respondent. It is also contended that both the Petitioner as well as the concerned Respondents of the second case were teaching the same set of students in the same college, of course, different subjects.

In paragraph 7(1) of the counter-affidavit filed on behalf of Respondent No. 5 it has been contended that the notion of higher pay scale; as claimed by the Petitioner is misconceived inasmuch as the discrepancy in the replacement pay scale has been subsequently removed and has been made equal which is clear from Annexure 4. It-is further stated that there is some missing link in the said Annexure 4 for the reason that prior to 1957 the pay scalar or teachers of subjects in the non-Engineering faculties were equal to the teachers working in Engineering faculties. In 1957, as per the direction of the Central Government, the Government, of Bihar revised the pay scales of the teachers of a few subjects only although the said direction was for all the teachers working in the Engineering Colleges. However, the teachers of oilier subjects represented their case before the State Government and the Anomaly Removal Committee in respect of 3rd pay Revision after due consideration, removed the said anomaly and the pay scales were made equal at every level from 1.1.1971. Hence, according to the Respondents, the claim of the Petitioner that he belongs to a different class of service cannot be sustained. It has also been contended that they all belong to the same class, leaching subjects of their speciality to Engineering students of integrated degree course and have similar teaching responsibilities. Thus, there is no question of differentiation between them.

Learned Counsel for the Respondents in the second case has referred to a Division Bench judgment of this Court in C.W.J.C. No. 1451/88 and analogous cases, in which common prayer was made on behalf of the Petitioners of all the cases to issue an appropriate writ or direction to the Respondents to give similar benefits to the Petitioners in the matter of pay scale and retirement age, which had already been given to the teachers of the Bihar College of Engineering, Patna and that they be paid arrears in U.G.C. scale from 1.1.1973 to 313.1975. A Division Bench of this Court held that the Petitioners of the said case were entitled to first relief. As regards the second relief also the Court held the Petitioners are entitled to the same. However, as no reason had been assigned for nonpayment of the arrears the Court observed that if it is a fact that the grants were received by the State from the University Grant Commission for the period in question it is obliged to pay the arrears and accordingly, allowed the writ applications and further directed the State of Bihar (Respondent No. 1) to bring peremptorily within three months from the date of judgment the age of superannuation on the teachers working in the Engineering Collages other than Bihar College of Engineering Patna at par with those working in the Bihar College of Engineering and to pay them the arrears of salary, if received and give benefits flowing therefrom to the Petitioners of the said case.

Mr. Dash, learned Counsel appearing for the Petitioner in the second case contended that seniority as between the Petitioner and the concerned Respondents of the second case can not be clubbed together and that the same has to be determined separately in view of the fact that the Petitioner of the SCORER case was appointed in the Engineering Facut(sic) whereas, the said concerned Respondents was appointed in the non-Engineering Faculty.

In the alternative Mr. Dash submitted that in view of the fact that the Petitioner the second case was appointed in the higher scale, though later than the concerned Respondents of the said case, he would be entitled rank senior to the concerned Respondents. A cording to him, the educational qualification has been held by numerous decision Supreme Court to a reasonable classifiable and in the instant case as Respondents was given lower scale because of their qualification, which is different from the qualification of the Petitioner, who was given higher see the Respondents would rank junior to the Petitioner of the second case.

On the other hand, Mis. Pal, learned Counsel appearing for the Respondent No. 6 the second case submitted that in the above of any rule the seniority of all the teachers the different Engineering Colleges under Stale" Government has to be determined was reference to the date of appointment in the rank irrespective of the pay scale to which they were appointed. She further submitted that in any case after the removal of the anomaly in the pay scale the Petitioner as well as the concerned Respondents of the second case are in the same scale and the concerned Respondents including Respondent No. 6 having admittedly been appointed as Asst. Professor as well as Professor before the Petitioner the State Government has rightly determined the final seniority between them by annexure 5/2.

Mr. Manjulal, learned Counsel appearing for the Respondent No. 5 adopts the submissions advanced by Mrs. Pal. He also preferred to aforementioned paragraph 7(1) of the counter-affidavit filed on behalf of Respondent No. 5 and contended that before 1971 there was no distinction in the scale of pay Later, some anomaly was created which also finally was removed and the persons who were placed in the same rank, were brought in the same scale of pay, Thus, according to him, none of the contentions advanced by Mr. Dash is sustainable.

I find substance in the submission of learned Counsel appearing for the Respondents. It is well settled, that in the absence of any rule the seniority has to be reckoned with reference to the date of appointment in the particular cadre/rank. It is not in dispute that the Petitioner in the second case was made professor on 14.8.1974, whereas Respondent No. 4 on 1.4.1966, Respondent No. 5 in the year 1983, but with effect on 22.2.1971 vide annexure 2/2 and Respondent No. 6 on 20.3.1972. Respondent No. 4 in 1966 was however, given a lower scale, which after removal of anomaly by the Third Pay Revision, was placed in the revised scale of pay with effect from 1.1.1971, i.e. much before the Respondents 5 and 6. It is also not in dispute that revised scale of Rs. 1500-2500 was paid to the Petitioner with effect from 14.8.1974, whereas the concerned Respondents were given the said scale with effect from 1.1.1973. As regards the appointment as Principal it is admitted by Mr. Dash that the Petitioner was Acting Principal only and was never appointed regular and permanent Principal. I may mention here that it is nobodys case that the Petitioners'' cadre was different from the cadre of the concerned Respondents. Thus, in my opinion, it is difficult to accept the submission of Mr. Dash that seniority between them cannot be clubbed together. The Petitioner as well as the concerned Respondents having been in the same rank and under the same employer and teaching in different Engineering Colleges though, in different subjects, can not claim that his seniority has to be determined separately unless it would have been shown that the cadre of different subjects arc separate from each other. Once it is held that the seniority of the teachers in the particular rank working in different Engineering Colleges has to be determined jointly, then, in view of the facts and circumstances slated above, it is difficult to accept the submission of Mr. Dash that the Petitioner would rank senior to the concerned Respondents, who admittedly were appointed as Asst. Professor earlier than him and given promotion as Professor also with effect from prior date than the Petitioner.

Mr. Dash further ventured to submit that the Petitioner having been appointed in the subject concerning Engineering teaching in the Engineering College has better claim of seniority over the teachers like Respondents 4 and 5 who were working in Science Faculty and Respondent No. 6 in humanity, which were not the subjects concerning the Engineering teachers. I am unable to appreciate this submission. The teacher in a college is a teacher whether teaching X or Y subject will in my opinion have no relevance. The only relevant consideration is the rank and designation of the post held by the teacher. Even in the Statutes of different Universities no differentiation has been made in respect of the scale of teachers in different categories on the basis of the teaching done by them in different subjects. Accordingly, I do not find any merit in the second writ application and the same is dismissed, but without costs.

Now, I take up the first case in which Mr. Sinha appearing for the Petitioner as well as the learned Counsel appearing for the Respondents have submitted that the appointment to the post of Principal/Director in the technical institutions under the Science and Technology Department has to be made in accordance with the qualification etc. mentioned in the Government resolution, as contained in Annexure 3. Thus, according to both the parties, the whole question depends on the interpretation of the said Government resolution.

Mr. Sinha submitted that appointment/posting of the Principal/Director in the Government Engineering Colleges/ Institutions even according to the aforementioned Government resolution (Annexure 3) has to be made on the basis of seniority and in filling up the said post no differentiation has to be made on the basis of the subject or faculty in which a person is working. He alternatively submitted that Respondent No. 3 does not even fulfils the said requisite qualification as he is not Ph D. whereas the Petitioner possesses the same. Thus he submitted that in any view of the matter, the Petitioner being senior to Respondent No. 3 was entitled for posting as Director in B.I.T., Sindri in preference to Respondent No. 3 and that the posting of Respondent No. 3 by the impugned notification in supersession of the legitimate claim of the Petitioner is mala fide, arbitrary and violalive of Articles 14 and 16 of the Constitution of India.

In regard to, the transfer of the Petitioner of the first case by Anncxure 21, Mr. Sinha, inter alia, submitted that the transfer at the fag-end of his service is vindicative and mala fide just with a view to deprive the Petitioner of his legitimate claim for appointment as Director in B.LT., Sindri inasmuch as, even according to the Government policy, the Petitioner, who is to retire in November, 1999 should not have been transferred.

On the other hand, learned Government Pleader No. 1 appearing for the official Respondents, submitted that Respondent No. 3 fulfils the requisite qualification prescribed for appointment to the post of Principal/Director whereas the Petitioner does not possess the same, as he does not have M.Sc. degree with first class in Humanities as required under Clause (1) of the Government resolution, contained in Annexure 3. He also submitted the though the Humanities is a group of subjects which is not a science subject but the Universities confer degree of M.Sc. in Humanity also In this regard he referred to the regulation of Ranchi University to show that the University confers degrees of M.Sc. in a subject in that group of Humanities. The Petitioner though has done the post-graduate in Humanities be got a degree of Master of Arts and not Master of Science and, according to him, as per the Government resolution (Annexure 3) a personal in the concerned branch i.e., Humanities and/or Science must possess a post-graduate degree of M.Sc. in first class for becoming eligible besides the Ph. D. He further submitted that if it is held that the Petitioner ever in the absence of post-graduate degree of M.Sc. is eligible, then that would amount to making an attempt to substitute the requisite qualification as provided under the (sic) which is not permissible and the same would amount to distorting the requisite qualification. In this regard he placed reliance on the decision of the Supreme Court in the case Dr. M.S. Mudhol v. S.K. Halegkar (1993) SCC 591 wherein it Supreme Court held that any attempt to substitute the requisite qualification under Rules would amount to distorting the required qualification. Accordingly, he submitted the Petitioner of the first case did not first the requisite qualification as per the Government resolution (Annexure 3) and thus, he cannot claim any relief from this Court in respect of the appointment on the post of Principal/Director. Learned Government Pleader No. I also ventured to submit that the Petitioner does not possess the essential qualification even for the post of Professor in the Engineering Colleges of the Government of Bihar inasmuch as he is not fit to be continued in that capacity in any Engineering College as there is no teaching of the subject ''Philosophy'' in the group of Humanities in the Engineering Colleges for the last about two decades. According to him, in Engineering Colleges/Institution there are faculties of Mechanical Engineering and Civil Engineering etc. only and this is. the reason why in practice usually teachers working in the faculties of Engineering only are preferred for appointment as Director in Engineering Colleges under the Government of Bihar, including in the reputed institutions, like Indian Institute of Technology. Similar is the case of appointment of the Principal in the Science College, Patna where even though there are teachers in the subjects like Hindi and English but the Principals have always been appointed from amongst the teachers of Science faculty only.

The learned Counsel also submitted that a requisition for filling up the post of principal/Director was sent to the Bihar Public Service Commission vide letter No. 3726 dated 1.10.1986 and 2952 dated 4.12.1989, but no recommendation has still been received to the Government. In that view of the matter, the State Government decided to make suitable arrangement and thus, as per the eligibility, suitability and seniority, the Respondent No. 3 was appointed as such until further orders.

Mr. Sinha, learned Counsel appearing for the Petitioner, referred to the letter dated 10th June, 1993 of All India Council for Technical Education, a statutory body of the Government of India, whereby it has been clarified that in the case of Humanities discipline, the qualification of M.Sc. first class in appropriate branch of study mentioned against the posts of Lecturers and Professors in our norms and standards is meant to be first class master''s degree holder. He submitted that from the perusal of the said letter it would appear that the All India Council for Technical Education also does not now insist for the qualification of M.Sc. first class in the case of Humanities discipline. According to the said clarification, now the only requirement is that a person should be first class Master''s degree holder.

Mr. Banerjee, learned Counsel appearing for Respondent No. 3, besides adopting the submissions of the learned Government Pleader, contended that the Petitioner admittedly is not even a holder of first class Master''s degree. Thus, even assuming that the said clause, referred to above, includes M.A. degree also and not only M.Sc. still the Petitioner cannot be held to be qualified.

Mr. Sinha, in reply, referred to Annexure E, which has been issued by the Science and Technology Department, laying down the requisite qualification for appointment of different posts, including that on the post of Professor and Principal as per the Government policy in different Engineering Colleges and submitted that even according to the said qualification, Ph.D. is a must for appointment to the post of Principal which is equivalent to Director in an Engineering College and as Respondent No. 3 does not have Ph.D., he cannot in any case claim to be qualified for the said post or even for the post of Professor, for which also the qualification required is Ph.D. According to the learned Counsel, the contention" of the Respondents that the Petitioner does not possess the essential or basic qualification for the post of Director is erroneous as even according to the aforementioned clarification of All India Council for Technical Education, a person is required to be Master''s degree holder and not necessarily M.Sc. in the case of Humanities discipline, which qualification the Petitioner possesses. In this regard he referred to the statement made in paragraph 8 of the reply affidavit filed on behalf of the Petitioner wherein it is stated that the State Government vide its notification dated 12.1.1993 promoted several teachers as Professor and Associate Professor in different Government Polytechnics even though they have similar qualification as that of the Petitioner. Thus, according to him, it is erroneous to say that as the Petitioner does not possess M.Sc. degree, he is not entitled for promotion as Professor and/or Director.

The Government Pleader, with reference to the said Government resolution, submitted that for the post of Principal/Director Ph.D. degree is not essential. He referred to Clause (1) of the said Government resolution (Annexure 3) which is quoted hereunder for reference:

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According to him, as per Clause (1), required qualification for the post of Principal/Director is that a person must possess first class Bachelor degree in Engineering/Technology or Post-Graduate degree with Ph.D. The use of the word ''or'' in the said clause is in relation to the alternative qualification prescribed for the said post. Thus, even if a person does not have Ph.D. but has passed the Bachelor Examination in Engineering subject in first class, he would be eligible for the post of Principal/Director.

I am unable to accept the aforesaid submission of the learned Government Pleader. The word ''or'' used in Clause (1) only for the purpose that a person whether have first class degree of Bachelor in Engineering/Technology or a Post Graduate degree, but in either case, he must have Ph.D with the said qualification. This view also finsupport from Annexure E which has been sued by the State Government in the Science and Technology Department on the basis for the qualification laid down by the All India Technical Education Board (Government of India). Thus, in my opinion, Respondent no cannot be held to be qualified for the post Principal/Director.

The case of the Petitioner come under the alternative qualification prescribed under Clause (1) which provides that a person being in the teaching post of Humanities as Science must possess first class M.Sc. degree in the concerned branch with Ph.D. However even assuming that as per the aforementioned clarification issued by the All India Counsel for Technical Education in the case on Humanities discipline, a person is required be a first-class Master''s degree holder and M.Sc., still as it is not in dispute that it Petitioner is not a first class degree-holder M.A., in my opinion, it is difficult to hold him also to be qualified.

Accordingly, I hold that neither Respondent No. 3 nor the Petitioner possess the requisite qualification for the post of Principal/Director. Thus, the impugned notification (Annexure 5) posting Respondent No. 3 Director, B.I.T., Sindri cannot be sustains and the same is, accordingly, quashed. However, if the Government decides to relax it said qualification and bring the Petitioner well as Respondent No. 3 within the constitution zone, then their cases may be consider afresh for appointment as Principal/Direct However, as nothing has been brought on record to show that the said requirement qualification has been relaxed, I fee difficult to give any positive direction to the office Respondents to consider either the case of the Petitioner or the Respondent No. 3 for appointment on the said post.

As regards the challenge to the transfer of the Petitioner from B.I.T., Sindri to B.I.T., Muzaffarpur by impugned notification, contained in Annexure 21, the learned Government Pleader No. I has failed to justify the same as to why it has been done at the fag-end of his service career. In my opinion, Mr. Sinha, learned Counsel for the Petitioner, right in his submission that there cannot be my other reason to transfer the Petitioner then he is to retire in November, 1994 except to accommodate Respondent No. 3. who, being senior to the Petitioner, could not have been made Director at B.I.T., Sindri so long the Petitioner is there. This would further appear from the very impugned notification which states that the Petitioner was promoted, as professor (Humanities), vide notification dated (sic).3.1970 against the post meant for M.I.T. Muzaffarpur but for 24 long years, he was continued in B.I.T., Sindri and towards the fag-end of his service career, he is sought to the transferred in the garb of his service being returned to M.I.T., Muzaffarpur. Accordingly, find that the said transfer of the Petitioner was mala fide made only to accommodate Respondent No. 3 in preference to the Petitioner as Director in B.I.T., Sindri.

In the result, the notification, conserved in Annexure 21, is also quashed. However it is made clear that the authorities concerned will be entitled to consider the case of eligible persons for posting as Director, M.I.T., Sindri afresh. The Government may also, however, consider to relax the requisite qualification, if permissible in law, so that the case of the Petitioner; and Respondent No. 3 also comes within the consideration zone. However, for the interim period i.e., until the appointment is made in terms of the direction aforementioned, if there is no other person senior to the Petitioner available for holding the post in question the Petitioner, who has been held to be senior to Respondent No. 3 shall be allowed to function as Director Incharge of the Institution. In the peculiar facts and circumstances, there shall be no order as to costs.