Md. Shamsul Haque Shamsi vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—The Petitioner, a lecturer in Arabic, has challenged the Notification dated 9th February, 1994, as contained in Annexure-8. By the said Notification, dated 9th February, 94, the earlier Notification dated 6th March, 1992 (wrongly typed as 6th March, 1991), as contained in Annexure-5, has been cancelled. Further by the impugned Notification dated 9th February, 1994 (Annexure-3), the Respondent No. 5, Shri Quazi Abdul Waris has been made I/C. Director of the Institute of Post Graduate and Research in Arabic and Persian Learning (hereinafter referred to as the ''Institute''), in place of the Petitioner.

The admitted facts of the case are stated hereunder:

The Institute is a wing of Human Resources Development Department of the State of Bihar. An advertisement No. 666 dated 13th June, 1976 (Annexure-16) was issued for appointment to the post of Lecturer in Arabic, a post in the Bihar Education Service Class-II. Such post of lecturer in Arabic was vacant in the Institute. The Petitioner along with Ors. applied and after the interview and selection, name of the Petitioner was recommended by a Selection Committee, vide letter dated 31st August, 1976 (Annexure-17). Only thereafter, the Petitioner was appointed vide Memo dated 6th January, 1977 (Annexure-1) to the post of lecturer in Arabic, in Bihar Education Service Class-II, on ad hoc basis for a period of six months. It was mentioned that such appointment is being made for a period of six months and/or till a regular appointment is made, whichever is earlier. Subsequently, Anr. Notification dated 3rd June, 1978 (Annexure-2) was issued extending the ad hoc appointment of the Petitioner to the post of lecturer in Arabic from 8th July, 1977 to 7th January, 1978, again with the stipulation that such appointment will continue till that date or till the date of recommendation of B.P.S.C. for regular appointment, whichever is earlier.

It was after the receipt of the recommendation of the Bihar Public Service Commission, which was in favour of the Petitioner, the Notification dated 17th June, 1978 (Annexure-3) was issued by the Respondents. The Petitioner was appointed as a regular lecturer in Arabic and was placed on probation for a period of two years from the date of Notification (17th June, 1978). Subsequently, Anr. Notification dated 6th February, 1982 (Annexure-4) was issued by the Respondents, by which the Petitioner was confirmed to the post of lecturer in Arabic, in Bihar Education Service Class-II, with effect from 17th June, 1978 i.e. the date Annexure-3 was issued.

On the representation of the Petitioner, a Notification dated 6th March, 1992 (wrongly typed as 6th March, 1991), as contained in Annexure-5, was issued, by which the Notification dated 17th June, 1978 (Annexure-3), under which the Petitioner was regularly appointed and placed on probation for two years from 17th June, 1978, was modified. The date of regular appointment of the Petitioner and probation was shifted back to 8th January, 1977 i.e. the date, the Petitioner joined initially after being appointed on ad hoc basis (6th January, 1977). Subsequently, when the higher post of Director of the Institute fell vacant, by one Notification dated 3rd October, 1992 (Annexure-6), the Petitioner was made in charge of the post of Director of the Institute, treating him senior most lecturer of the Bihar Education Service Class-II, available in the Institute.

So far as Respondent No. 5, Shri Quazi Abdul Waris is concerned, he was initially appointed to the post of lecturer in English, in Bihar Education Service Class-II, in the said Institute. The appointment of Respondent No. 5 to the post of lecturer in English was made, vide Notification dated 17th August, 1977 (Annexure-F/5). Such appointment was made on regular basis.

As the Respondent No. 5 was initially appointed on regular basis to the post of lecturer in English, in Bihar Education Service Class-II on 17th August, 1977, on the other hand, the initial regular appointment of the Petitioner was made on 17th June, 1978. Grievance was made by the Respondent No. 5 when Notification dated 6th March, 1992 (Annexure-5) was issued. According to the Respondent No. 5, such Notification dated 6th March, 1992 (Annexure-5), appointing the Petitioner from a retrospective date i.e. 8th January, 1977, had affected the right of the Respondent No. 5, in the matter of seniority in Bihar Education Service Class-II. Further grievance was made by Respondent No. 5 that he being the senior most regularly appointed lecturer in the Bihar Education Service Class-II, in the Institute, he should have been appointed as Incharge Director of the Institute, in place of the Petitioner, and that the Notification dated 3rd October, 1992 (Annexure-6) was issued illegally.

In the aforesaid background, a writ petition bearing C.W.J.C. No. 7219/92 was filed by the Respondent No. 5, challenging the Notification dated 6th March, 1992 (Annexure-5) as well as Notification dated 3rd October, 1992 (Annexure-6). The Petitioner intervened in the said writ petition. The Respondents-State also filed counter affidavit. After hearing the parties, the said writ petition (C.W.J.C. No. 7219/92) was disposed of by a Bench of this Court, by order dated 22nd January, 1993 (Annexure-7), with direction to the Respondents State to decide the representation of the Respondent No. 5, which he filed against the Notification dated 6th March, 1992 (Annexure-5).

It was only thereafter, on the representation of the Respondent No. 5, the Respondents-State has come out with the impugned Notification dated 9th February, 1994 (Annexure-8), canceling the earlier Notification dated 6th March, 1992 (Annexure-5), by which earlier the Petitioner''s regular appointment to the post of lecturer in Arabic was shifted back to 8th January, 1977 from 17th June, 1978. In effect, the Petitioner is being treated to be junior to Respondent No. 5 as a lecturer in Bihar Education Service Class-II, and for that by the impugned Notification dated 9th February, 1994 (Annexure-8), it has been further ordered that the Respondent No. 5 will function as a I/C. Director of the Institute.

Counsel appearing on behalf of the Petitioner submitted that by the impugned Notification dated 9th February, 1994 (Annexure-8), the Respondents-State has illegally cancelled the earlier Notification dated 6th March, 1992 (Annexure-5). According to the Petitioner, the date of regular appointment of the Petitioner to the post of lecturer in Arabic was rightly shifted back to his original date of joining on ad hoc appointment (8th January, 1977). Further according to the Petitioner, he was entitled for seniority to the post of lecturer in Arabic, in Bihar Education Service Class-II with effect from 8th January, 1977, as initial ad hoc appointment of the Petitioner was made after following all the procedures for appointment. It was further contended on behalf of the Petitioner that in terms of (The Bihar Gazetted Employees ad hoc Appointment and Regulation Act, 1987) (Bihar Act 4/87), as contained in Annexure-10, the Petitioner having been appointed on ad hoc basis in January, 1977, his services stood automatically regularised with effect from 8th January, 1977. It was submitted that the Notification dated 6th March, 1992 (Annexure-5) was a mere consequential declaration in terms with the aforesaid Act 4 of 1987.

Counsel for the Petitioner further submitted that as the Petitioner is entitled for seniority to the post of lecturer in Arabic, in Bihar Education Service Class-II, counting the period from 8th January, 1977, the Petitioner for all purposes is senior to the Respondent No. 5, as Respondent No. 5 was appointed on regular basis to the post of lecturer in English, in Bihar Education Service Class-II on 17th August, 1977. It is in this background, the Petitioner, while claiming seniority over Respondent No. 5 as a lecturer in Bihar Education Service Class-II, submitted that the Notification dated 3rd October, 1992 (Annexure-6) was issued rightly by the Respondent-State, appointing the Petitioner as I/C. Director of the Institute.

Counsel appearing on behalf of the Respondent No. 5, on the other hand, contended that the Petitioner was appointed on regular basis to the post of lecturer in Arabic, in Bihar Education Service Class-II by Notification dated 17th June, 1978 (Annexure-3). Prior to the same, the Respondent No. 5 had already been appointed to the post of lecturer in English, in Bihar Education Service Class-II, on 17th August, 1977, vide Annexure-F/5. It was contended that the Respondent No. 5 having been appointed on regular basis prior to the Petitioner, as lecturer in Bihar Education Service Class-II, the Respondent-State could not have shifted the date of regular appointment of the Petitioner to the post of lecturer to that of 8th January, 1977. According to him Notification dated 6th March, 1992 (Annexure-5) having illegally issued, affecting the right of the Respondent No. 5, the same was rightly cancelled by the impugned order dated 9th February, 1994 (Annexure-8).

So far as the Act 4 of 1987 is concerned, Counsel for the Respondent No. 5 contended that the said Act is not applicable so far as the Petitioner is concerned. According to him, Act 4/87, as contained in Annexure-10, is applicable with respect to such persons, who were initially appointed on ad hoc basis and were continuing on ad hoc basis even on 30th June, 1986. The Petitioner being not an ad hoc employee, as on 30th June, 1986, in terms with Section 3 of the said Act 4/87, the services of the Petitioner could not have been regularised from the date of initial ad hoc appointment. It was further contended on behalf of Respondent No. 5 that in terms with the said Act 4/87, even when the services of an ad hoc employee is to be regularised in terms with the said Act, they are to rank junior to the persons, who had already been appointed on a regular basis. He has drawn my attention towards different sections of Act 4/87. Similar argument has been advanced by the Counsel appearing on behalf of the Respondent-State.

Counsel appearing on behalf of the Petitioner, while giving reply, submitted that Section 4 of the Act 4/87 (Annexure-10) is independent to that of Section 3 of the said Act 4/87. It was contended that if the argument advanced by Respondents that ad hoc employees as on 30th June, 1986 are only to be regularised from the date of ad hoc appointment, and the persons who have already been regularly appointed, are not to be given such benefit of regular appointment from the date of ad hoc appointment, then the Act 4/87 will itself become ultra virus. Thereby, it was submitted that to uphold the Act 4/87, it is to be construed that in terms with Section 4 of the said Act, even a regular employee is entitled for regular appointment from the date he was initially appointed on ad hoc basis.

Having heard the Counsel for the parties, I feel that there is no necessity of discussing any of the aforesaid argument advanced by the parties, for the reasons stated below.

The Institute, in question, is a wing of the Respondents-State, established in the year 1955 by Memo dated 25th July, 1955 (Annexure-A/5). It will be evident from the said Memo dated 25th July, 1955 that while establishing the Institute, a number of posts in different grades, including the post of Professors and Director of the Institute were created, both in the Bihar Education Service Class-I. Two posts of Professors were also created in the Bihar Education Service Class-II, in the said Institute. With respect to the following posts, namely (a) one post of Professor and (b) Anr. post of Director of the Institute, it Was mentioned that those posts are being created in the Bihar Education Service Class-I. Further it was mentioned that the aforesaid two posts of Professor and Director are meant for scholars in Arabic and Persian. After the recommendation of the 4th Pay Revision Committee vide Memo dated 13th February 1992, as contained in Annexure-L/5, the Respondents-State shown the aforesaid one post of Professor and the other post of Director, both of the Institute, as posts in the Bihar Education Service Class-I. The post of the Director of the Institute was placed in the senior selection grade of Bihar Education Service Class-I. On the other hand, the other post of Professor was placed in the junior selection grade scale of the said Bihar Education Service Class-I. Further it was decided by the Respondent-State that the post of Director will be filled up from amongst the persons working on the next below post of Professor, by way of promotion. It is only when the persons in the lower rank are not available then the post of Director is to be filled up by way of direct recruitment.

From the aforesaid two notifications of the State Government dated 25th July, 1955 (Annexure-A/5) and 13th February, 1992 (Annexure-L/4), it will be evident that the one post of Professor in Bihar Education Service Class-I, as well as the other post of Director in the Bihar Education Service Class-I, are to be filled up by way of promotion.

So far as seniority is concerned, according to me, there is no clash of interest of seniority, vis-a-vis, the Petitioner and the Respondent No. 5. Both the Petitioner as well as Respondents No. 5 have been appointed as lecturers, but in two different faculties. While the Petitioner has been appointed to the post of lecturer in Arabic, Respondent No. 5 has been so appointed as a lecturer in English. It has been accepted by all the parties that the next higher post to that of the lecturer is the post of Professor and the post of Director. Further it has been accepted by the parties that a person who is a lecturer in English cannot be promoted to higher post of Professor of other faculty like Professor in Arabic.

In this background, it is evident and clear that for the purpose of promotion to the post of Professor, the only thing which is to be seen as to which faculty such post of Professor belongs. The seniority does not come into play for the purpose of promotion to the post of Professor of one or other faculty as the Petitioner and the Respondent No. 5 are lecturers of two different faculties i.e. Arabic and English respectively.

Counsel appearing on behalf of the Respondent No. 5 submitted that the cadre of lecturer of different faculties, as belong to Bihar Education Service Class-II, have a common cadre. Thereby, it was contended on behalf of Respondent No. 5 that the seniority of lecturer like the Petitioner and the Respondent No. 5 are to be determined for the purpose of promotion to the higher post of Professor, as well as the Director.

I do not accept the aforesaid contention advanced on behalf of Respondent No. 5. The report of the 5th Pay Revision Committee, as accepted by the State Government, is annexed as Annexure-U/5. In the Bihar Education Service Class-II, a number of posts have been shown therein. For example, the post of lecturer of Sanskrit College has been shown to be a post in the Bihar Education Service Class-II. Similarly, the post of lecturer in Arabic and Persian of the present Institute has also been shown as the posts in the Bihar Education Service Class-II. Both the aforesaid posts of lecturer in Sanskrit and Arabic having been shown as posts belonging to Bihar Education Service Class-II, do not mean that those posts belong to a joint cadre of lecturer. A person who is functioning as a lecturer in Sanskrit cannot be transferred to the other post of lecturer in Arabic, that too from the Sanskrit College, to the present Institute. This clearly shows that though the posts of lecturers of different faculties like Arabic, English, Sanskrit etc. have been shown in the Bihar Education Service Class-II, but that do not belong to one common Cadre. The posts belonging to common service do not mean that they belong to the same cadre. In terms with the definition of cadre as given in the Bihar Service Code, it is not necessary that if the posts are in one service, they form a single cadre. There can be different cadres even in one common service, according to the said definition.

From the discussions made above, it is manifest and clear that in Bihar Education Service, there are different Sub-cadres, and the cadres of lecturer in one or other faculties are different, for the purpose of promotion to higher post of a particular faculty.

It is in the aforesaid background, I hold that there is no clash of seniority, vis-a-vis the Petitioner and the Respondent No. 5, as both of them belong to two different Sub-cadres. Apart from the aforesaid fact, as mentioned above, it will be evident from the bye-laws attached to the Memo dated 25th July, 1955 (Annexure-A/5), that the posts of Professor and the Director, which were created in the Bihar Education Service Class-I, they are to be filled up from amongst the scholars in Arabic and/or Persian. The relevant portion of the bye-laws reads as follows:

III. Staff:-The staff will consist of the following Officers. One Director in Class I of the Bihar Education Service with special pay of Rs. 100/- per month for performing administration duties and of institution besides teaching work. The work is of arduous.

One Professor in Class I of B.E.S.

Two Professors in Class-II of B.E.S. one of whom may be trained and Anr. modern scholar.

One Accountant-cum-Typist In the scale of Rs. 80-4-100 EB-5-2.

One Librarian in the scale of Rs. 100-5-125-EB-5-150.

One Daftary in the scale of Rs. 22 1/2 - 1/2 - 27 1/2.

One peon in the scale of Rs.

One ward servant in the scale of Rs. 17 1/2 - 1/2 - 25.

One orderly peon to the Director of Institute in the time scale of Rs. 22 1/2 - 1/2 - 27 1/2.

Of the two Class I post one will be meant for a scholar in Arabic and Anr. for a scholar in Persian.

Further in accordance with the decision of the State Government dated 13th February, 1992 (Annexure-L/5), the post of Professor and the post of Director, which are in Bihar Education Service Class-I, are to be filled up by way of promotion. In this background, as the posts of Professor and the Director are to be filled up by way of promotion, from amongst the persons, who are scholars in Arabic and/or Persian, I hold that such promotion can be given only from amongst the persons who belong to the sub-cadre of the faculty of Arabic and/or Persian. For the said reason, the Respondent No. 5 being not a member of the sub-cadre of the faculty of Arabic and/or Persian, and being a member of the sub-cadre of the faculty of English, he is not entitled for promotion to the post of Professor and/or Director of the Institute, which are in Bihar Education Service Class-I. For the same reason, I hold that the Petitioner being a member of the Sub-cadre of the faculty of Arabic, he is entitled for promotion to the higher post of Professor and/or Director of the Institute, which are in the Bihar Education Service Class-I.

Apart from the aforesaid finding, I further hold that in terms of the decision of the Supreme Court given in the case of the The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, , the initial ad hoc appointment of the Petitioner to the post of lecturer made on 6th January, 1977 (vide Annexure-1), having been made after following the procedure of appointment, including advertisement and selection through a Selection Committee, the Petitioner is entitled for counting his seniority to the post of lecturer in Arabic with effect from 8th January, 1977, i.e. the date the Petitioner initially joined the post on ad hoc basis.

For the reasons stated above, I hold that the impugned Notification dated 9th February, 1994 (Annexure-8) is illegal. I further hold that the Notification dated 6th March, 1992 (Annexure-5) was in consonance with law. Apart from the aforesaid fact for the reasons stated above, I declare that the Petitioner is entitled to hold the higher post of Director of the Institute, he being eligible for the same.

Accordingly, I set aside the impugned Notification dated 9th February, 1994 (Annexure-8) and allow the writ petition with aforementioned observations and directions. There shall, however, be no order as to costs.