Professor (Dr.) Hari Shankar Pandey vs Ranchi University and Others

S.J. Mukhopadhaya, J.—The case relates to appointment as Head of the Department (H.O.D. for short) of Post Graduate (P.G.), Department of History. By Notification dated 10th April 1991 the 4th Respondent, Professor Jagdhari Singh made H.O.D., P.G. Department, Ranchi University, which is under challenge in the present writ petition.

While the petitioner, Professor (Dr.) Hari Shankar Pandey claims to be senior to the 4th Respondent, the said 4th Respondent claims to be senior to the petitioner as University Professor. Further, according to the petitioner, the 4th Respondent is not qualified for being appointed as University Professor and thereby cannot be made H.O.D., P.G., Department of History.

To decide the question, it is necessary to take into consideration the relevant dates of appointment/promotion of the petitioner and the 4th Respondent, apart from the relevant provisions of law.

On the recommendation of the University Service Commission made on 8th July'' 64, the petitioner was appointed as Lecturer, Lohardaga College, Lohardaga on 18th August'' 64, which was an affiliated college. The petitioner joined the post of Lecturer of the College on 1st September'' 64.

On the recommendation of Selection Committee, the petitioner was promoted as University Reader, vide Notification issued by University on 5th November'' 81 with effect from 14th February'' 81. Subsequently, the petitioner was confirmed as an University Reader with effect from 14th February'' 81, vide Notification dated 29th September'' 93.

The Bihar State University (Constituent Colleges) Service Commission considered the case of the petitioner and others for time bound promotion as University Professor. The petitioner having found fit, his name was recommended by the said Commission on 15th May'' 97 for promotion with effect from 26th September'' 86 and on such recommendation, the petitioner was promoted as University Professor with effect from 26th Sept.'' 86 vide Notification dated 10th June'' 97.

So far as 4th Respondent is concerned, his name was recommended by B.P.S.C. for appointment as Lecturer, Ranchi College on 30th June'' 65. On such recommendation, the said 4th Respondent was appointed as Lecturer, Ranchi College in July'' 65 and joined the post on 27th July'' 65.

In the year 1975, one Notification was issued on 24th June'' 75, whereby the 4th Respondent was promoted as temporary College Professor (equivalent to University Reader) with effect from 8th September'' 74 for six months, but subsequently, he continued and confirmed as College Professor (equivalent to University Reader) with effect from 8th Sept.'' 74, vide Notification dated 27th January'' 95.

In the meantime, the 4th Respondent was granted promotion as University Professor, on merit, but on ad hoc basis, vide University''s Notification dated 9th June'' 85, subject to recommendation of the University Service Commission. It was made clear that if the University Service Commission does not recommend his name or the names of other persons, as shown therein, the persons shall cease to be University Professor immediately thereafter.

Admittedly, no subsequent Notification issued granting merit promotion in favour of 4th Respondent as University Professor on the recommendation of the University Service Commission.

The College Service Commission, vide its letter dated 14th February'' 97 requested the University to send information relating to different teachers including 4th Respondent for merit promotion as University Reader. Similar information was sought for by Bihar State University (Constituent Colleges) Service Commission on 3rd June'' 97 for promotion of 4th Respondent as University Professor.

Subsequently, the name of 4th Respondent was recomended vide Bihar State University (Constituent Colleges) Service Commission for his time bound promotion as University Professor with effect from 22nd July'' 90, vide their letter dated 22nd November'' 97. On the basis of such recommendation, the 4th Respondent was granted time bound promotion to the post of University Professor with effect from 22nd July'' 90, vide University''s Notification dated 2nd December'' 97.

From the aforesaid fact, it will be evident that neither the petitioner nor the 4th Respondent were given merit promotion either as University Reader or as University Professor. The merit promotion as University Professor granted in favour of 4th Respondent on 9th June'' 85 was ad hoc, in nature, having given in anticipation of the recommendation of the College Service Commission, but his case for such merit promotion has not yet been recommended.

Both petitioner and 4th Respondent have been promoted, on the recommendation of Commission as University Reader and University Professor, on time bound basis.

It appears that the petitioner was made Incharge H.O.D., P.G. Department, Ranchi University, vide order dated 15th July'' 98, but it was superseded by subsequent Notification issued on 9th February'' 99, whereby and whereunder, one Dr. A.K. Sen was made regular H.O.D., P.G., Department of History, Ranchi University. It is stated that Dr. A.K. Sen did not choose to join the post and for the said reason, the impugned Notification was issued on 10th April'' 99, whereby and whereunder, the 4th Respondent was made H.O.D., P.G., Department of History, Ranchi University.

At this stage, it is pertinent to mention that the time bound promotion given to Respondent No.4 as University Professor with effect from 22nd July'' 96, vide Notification dated 2nd December'' 97 was kept in abeyance by the University, vide Notification dated 3rd December'' 97. However, the same was again given effect by another Notification dated 10th April 99 and on the name date, the impugned Notification dated 10th April'' 99 was issued appointing the 4th Respondent as H.O.D. P.G. Department of History.

According to the Counsel for the petitioner, an University Professor can be made H.O.D. in terms with section 2(h) read with section 2(w) and section 26(6) (ii) of the Bihar State Universities Act, 1976. Under the aforesaid provisions, an University Professor must possess such qualification as may be prescribed by the Statute. The qualification of University, Professor has been prescribed by U.G.C. under the U.G.C. Act, which stipulates possession of "Doctoral Degree" for appointment as University Professor.

It was submitted that the 4th Respondent being not "Doctorate" or "PH.D.", is not eligible for appointment to the post of University Professor and there by cannot be made H.O.D. in terms with section 26(6) (ii) of the Universities Act.

Further, according to the counsel for the petitioner, there is no approval/concurrence granted by the B.P.S.C. for promotion of 4th Respondent as University Reader and thus in view of stipulation as made in Annexure-14 read with Annexures-17 and 20, the 4th Respondent cannot be made an University Professor nor can be made H.O.D. Malafide was also alleged by the counsel for the petitioner for accommodation of 4th Respondent as H.O.D., but no such malafide has been alleged against any individual.

The counsel for the 4th Respondent relied on Notification dated 27th March'' 95 (Annexure-D) to show that the said Respondent was promoted as College Professor (equivalent to University Reader), on the recommendation of B.P.S.C. and confirmed with effect from 22nd July'' 75. He also relied on the Notification dated 22nd November'' 97 (Annexure-20) to show that he, was promoted as University Professor with effect from 22nd July'' 90 on the recommendation of the Bihar State (Constitutent Colleges) Service Commission. Thereby, the 4th Respondent disputed the allegation that he was not promoted as University Reader and University Professor on the recommendation of the Commission.

The counsel for the 4th Respondent also placed reliance on Statutes and Rules for determination of inter se seniority. It was submitted that in terms with clause (31) of the Statute, seniority is to be determined inter se from the date of promotion, if granted in terms with "Merit Promotion Scheme". However, if such promotion is granted under "Time Bound Promotion Scheme", in terms with Clause (9) of the Statute, inter se seniority of University Teachers cannot be adversely affected on such time bound promotion.

Thus, according to him, promotion of petitioner and 4th Respondent having granted on the basis of time bound scheme, their inter se seniority cannot be affected.

Similar stand has been taken on behalf of the Ranchi University. His (sic) counsel made same and similar submission.

Admittedly, the 4th Respondent has been promoted as University Professor, under time bound scheme, on the recommendation of the Commission, vide Notification dated 22nd November'' 97 with effect from 22nd July'' 90. The said Notification is not under challenge.

In the aforesaid circumstances, while raising the question of seniority, the petitioner cannot raise the question of legality of such promotion on the ground that the 4th Respondent does not hold the qualification of (Ph.D./Doctorate), for appointment as University Professor.

Under Clause (ii) of sub-section (6) to section 26 of the Universities Act, where it is proposed to appoint any Teacher as H.O.D., who is not seniormost Professor of (University Professor/ or Reader of the Department), no such appointment can be made without the prior concurrence of the B.P.S.C.

In the present case, it will be evident that the petitioner was made Incharge H.O.D., vide Notification dated 15th July'' 98. Subsequently, one Dr. A.K. Sen was made regular H.O.D., P.G. Department of History, Ranchi University, vide Notification dated 9th February'' 99. At that stage, on the appointment of Dr. A.K. Sen, there appears to be no objection raised on behalf of the 4th Respondent and the University appears to have treated Dr. A.K. Sen, as the senior most Teacher/University Professor.

In the aforesaid circumstances, if the University wanted to affirm the 4th Respondent as H.O.D. of P.G., Department of History, he having not declared the Seniormost Professor/University Professor, no such appointment could have been made without the prior concurrence of the B.P.S.C.

The petitioner has specifically pleaded and not disputed by the Respondents that the impugned Notification was made on 10th April'' 99 without recommendation/concurrence of B.P.S.C. Thereby, without deciding the question of seniority, vis-a-vis, petitioner and the 4th Respondent, it can be held that the impugned Notification dated 10th April'' 99 as illegal being violative of section 26(6) (ii) of the Universities Act, 1976.

This apart, if the comparative chart, vis-a-vis, petitioner and the 4th Respondent is seen, it will be evident that the petitioner was made College Lecturer on 18th August'' 64, whereas the 4th Respondent was made College Lecturer on 27th July'' 65. Though the 4th Respondent was promoted as University Reader (College Professor) earlier to the petitioner on 8th September'' 74, at the time of subsequent promotion as University Professor, the petitioner was promoted earlier with effect from 26th September'' 86, then the 4th Respondent was promoted as University Professor with effect from 22nd July'' 90. The earlier promotion of the 4th Respondent as University Professor granted on 9th June'' 85, cannot be taken into consideration for determination of seniority being ad hoc, in nature, made without the recommendation of the Commission.

In the aforesaid circumstances, while I do not choose to determine the seniority, vis-a-vis, petitioner and the 4th Respondent, hold that the Respondent University without determination of seniority, should not have come out with impugned Notification dated 10th April'' 99, without prior concurrence of the B.P.S.C.

For the reasons aforesaid, I set aside the impugned Notification dated 10th April'' 99, whereby and whereunder, the 4th Respondent was made H.O.D., P.G., Department of History, Ranchi University and remit the matter to the Ranchi University to issue Notification, in accordance with law. The writ petition is allowed with the aforesaid observations and directions. There shall, however, be no order, as to costs.