Dr. Upendra Prasad Singh vs The State of Bihar and Others

Barin Ghosh and A.K. Tripathi, JJ.—The admitted facts are that the petitioner was appointed as Assistant Professor by notification, dated 16th of December, 1977; whereas respondent No. 4 was appointed as Assistant Professor by notification dated 28th August,, 1978. A Bench of this Court in the case of Dr. Hare Ram Singh held that the seniority in the cadre of Assistant Professor is to be determined on the basis of the date of entry of the candidate concerned as Assistant Professor. Despite the said judgment of this Court, the directions contained therein were not being followed as was noticed in a subsequent judgment of this Court in the case of Dr. Shashi Bhusan Pandey Vs. The State of Bihar and others, which declared that the law so pronounced in the case of Dr. Hare Ram Singh shall become effective on or from the date 6f pronouncement of the Dr. Hare Ram Singh. The matter was then taken up for consideration by the State, who by a resolution dated 15th May, 1977 acceded to the pronouncement of Dr. Shashi Bhushan Pandey and agreed to implement the decision rendered in the case of Dr. Hare Ram Singh on or from the date of the said judgment.

In such view of the matter in order to be promoted to the post of Associate Professor, the petitioner, as Assistant Professor, was admittedly senior to respondent No. 4. While respondent No. 4 was given promotion to the post of Associate Professor with effect from 9th November, 1987 by a notification dated 5th September, 1989 similar promotion was given to the petitioner with effect from 26th February, 1992:

|n the writ petition filed in 1997 the petitioner-appellant sought his promotion with effect from 5th September, 1989 principally for the purpose of determining his seniority as. Associate Professor to be counted from 9th November, 1987 so as to claim, seniority over respondent No. 4.

This writ petition has been dismissed on the ground that the petitioner was seeking to be promoted to the post of Associate Professor with effect from 9th November, 1987 after lapse of eight years from the date of grant of promotion to the respondent no, 4 and that it is not known whether on 9th November, 1987 yet another post of Associate Professor was available for promoting the petitioner.

If the rules provide that in the matter of promotion seniority has to be considered then it was obligatory on the part of the authority concerned to at least consider the case of promotion of the petitioner while considering the case of promotion of respondent No. 4. There is no dispute that the main consideration for promotion in the instant case was seniority. The petitioner not only had a right on the basis of conditions of service but also had a right under the Constitution to be considered alongwith the respondent No. 4 while the case of respondent No. 4 was considered for promotion. Infringement of this right can be questioned by the petitioner at any time while he is in service.

From the records before us it does not appear that the case of promotion of the petitioner was considered while the case of promotion of respondent No. 4 was considered. In any event the petitioner, who had been subsequently promoted and thereby had been acknowledged to be fit to be promoted, could not be ignored while considering the case of promotion of respondent No. 4, inasmuch as admittedly the petitioner was senior to respondent No. 4. In a situation of this nature delay of eight years did not stand in the way of the petitioner establishing his right of being considered in the manner as directed by constitutional mechanism in addition to conditions of service.

Whether there was or was not a post available for accommodating the petitioner in the promoted post on 9th November, 1987 was not a matter of which the petitioner could have knowledge. It was not urged that on 9th November, 1987 a post was not available where the petitioner could be accommodated after his promotion. In any event the question here was not of granting of effective promotion to the petitioner from 9th November, 1987 for the purpose of making available to him of the benefits of such promotion. The question was whether a person who was senior to respondent No. 4 could be denied of his seniority by not considering his case for promotion with his juniors. In the event for non-availability of a post, the petitioner could not be given actual promotion with effect from 9th November, 1987, the law required to declare that the seniority of the petitioner on the promoted post shall hold good at least since 9th November, 1987 above the respondent No. 4. In those circumstances we set aside the order under appeal and declare that the petitioner is deemed to have been promoted to the post of Associate Professor for the purpose of seniority with effect from 9th November, 1987 and shall be treated to be above respondent No. 4 in the post of Associate Professor.