1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5785 of 2010 ----- Subodh Chandra Tiwary, son of Late Kriplal Tiwari, resident of Purana Bazar, P.O:Gomoh, P.S.-Hariharpur, District: Dhanbad (Jharkhand)-828 401 .... Petitioner -Versus- 1.Binoba Bhave University, through its Registrar, Hazaribagh, 825301 2.Vice-Chancellor, Binoba Bhave University, Hazaribagh, Hazaribagh-825301 3.Registrar, Binoba Bhave University, Hazaribagh-825301 4.Jharkhand Public Service Commission through its Secretary, Ranchi, P.O, P.S. & District-Ranchi 5.Special Executive Officer-cum-Examination Controller, Jharkhand Public Service Commission, Ranchi ….... Respondents ------ CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ----- For the Petitioner : Mr. Pandey Neeraj Rai, Advocate For the Respondents : Mrs. I. Sen Choudhary, Advocate Mr. S. Piprawall, Advocate ----- 07/09.11.2016 Grievance of the petitioner is against communication dated 1.2.2010 by which his claim for promotion to the post of Reader has been rejected.
3. Mr. Pandey Neeraj Rai, the learned counsel appearing for the petitioner referring to Clause (1) of Statutes for Time Bound Promotion of the Lecturer to the post of Reader, submits that rejection of the claim of the petitioner for promotion to the post of Reader is arbitrary and the grounds disclosed by the respondent- Jharkhand Public Service Commission (hereinafter to be referred as J.P.S.C.) that minimum 55% marks was necessary for appointment as Lecturer is not sanctioned by any law/regulation/Statute. It is contended that the petitioner with 52% marks in M.A.(History) was appointed on the post of Lecturer and in terms of the aforesaid Statute on completion of 10 years as Lecturer he was entitled for promotion to the post of Reader. 2 4. Mrs. I. Sen Choudhary, the learned counsel appearing for the respondent-Vinoba Bhave University, however, submits that the petitioner's claim for promotion to the post of Reader was considered by J.P.S.C. and in terms of Statutes of 1978, he was required to possess 55% marks in Master's course. Supporting the decision taken by the University considering which J.P.S.C. declined to grant concurrence for promotion of the petitioner to the post of Reader, the learned counsel submits that the instant writ petition suffers from gross delay and laches on the part of the petitioner.
5. The learned counsel appearing for J.P.S.C. also raises similar objection to the prayer in the writ petition.
6. The petitioner, who was appointed on 18.8.1976 in Guru Nanak College, admittedly, was not appointed as Lecturer in the University or any Degree College managed and maintained by the University. Statute governing promotion of such Lecturers is separate. The Statutes of 1992 relying on which the petitioner claims promotion to the post of Reader on completion of 10 years as Lecturer provides that a Lecturer, serving in an affiliated college (which includes colleges established and managed by religious and linguistic minority) shall on the recommendation of the Bihar Colleges Service Commission, be promoted on the basis of Time Bound Scheme to the post of Reader, subject to the conditions laid down thereunder. The foundational facts pleaded by the petitioner in the writ petition do not discloses that on completion of 10 years as Lecturer, the petitioner made a claim for promotion to the post of Reader. Admittedly, there is no recommendation of Bihar Colleges Service Commission for promotion of the petitioner to the post of Reader. At the time when the claim of the petitioner was considered, the concurrence of J.P.S.C. was required. 3 The petitioner superannuated from the service on 31.12.1998, however, it is not known to the Court when he actually raised claim for promotion to the post of Reader. The only document brought on record by the petitioner is letter dated 21.12.1998 vide Annexure-3, which was written by the then Principal of Guru Nanak College. This letter gives an impression that claim of the petitioner for promotion was forwarded recently. There is no other material on record and the writ-petition is completely silent on this issue. Thereafter, the petitioner slept over the matter and for years together did not raise his grievance in respect of grant of promotion to the post of Reader. For the first time, after issuance of communication dated 01.2.2010 by the J.P.S.C., the petitioner rose from slumber and approached this Court by filing this writ petition on 22.11.2010.
7. It is admitted at bar that 1992 Statute will govern the petitioner's claim for promotion to the post of Reader. The relevant portion of 1992 Statute reads as under:
1. Notwithstanding anything to the contrary as contained in the Statutes, it is hereby provided that:- (1) A lecturer, serving in an affiliated College (which includes Colleges established and managed by religious and linguistic minority) managed and maintained by the Governing Body, shall on the recommendation of the Bihar College 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, 4 (b) That, he holds substantive appointment on the post of Lecturer; and (c) That, he has completed atleast ten years of continuous service as Lecturer in one or more Universities within the State of Bihar: 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 Statute. Provided further that the service rendered in more than one University within the State of Bihar 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 Statute”.
8. The “Statutes relating to mode of appointment, pay scales and qualifications for the posts of teachers of affiliated degree colleges in the faculties of arts, science and commerce”, which was approved by the Chancellor on 24.4.1978, lays down minimum qualification for appointment as Lecturer. It provides that a consistently good academic record with 1st or high 2nd class at the Master's Degree in the relevant subject is essential educational qualification for appointment on the post of Lecturer. The learned counsel for the petitioner contends that 1978 Statutes was after the appointment of the petitioner and considering this, this Court issued a direction to the respondents to disclose the relevant existing rule under which minimum qualification for appointment as Lecturer was 55% marks in Master's Course and since this has not been disclosed by the respondents an adverse inference should be drawn and benefit shall be granted to the petitioner. This contention is misconceived. The petitioner has not asserted the qualification which was 5 prescribed as the minimum qualification for appointment on the post of Lecturer at the time when he was appointed on 18.8.1976. The petitioner cannot feign ignorance and say that he has no knowledge of the minimum educational qualification which was required at the time when he was appointed on the post of Lecturer. He has also failed to assert that he possessed the minimum prescribed qualification at the time of his appointment and that it was not Master's degree with 55% marks.
9. The petitioner, who was appointed as temporary Lecturer on 14.08.1976, was confirmed as Lecturer on 10.08.1978 when Bihar University Service Commission granted approval for his appointment. By that time 1978 Statute was in place. Obviously, while considering the claim for promotion under 1992 Statute, eligibility for appointment on the post of Lecturer would be looked into in terms of 1978 Statute. Another argument raised is that how 55% marks has been treated as high 2nd class is not known. The learned counsel for the respondent-University submitted that 50% is the minimum for 2nd class and 60% being the minimum for 1st class, 55% marks has rightly been taken as high 2nd class. I find substance in this submission.
10. Analysing the aforesaid facts, I am of the opinion that instant writ petition is bereft of foundational facts for issuing mandamus besides, suffering from gross delay and laches on the part of the petitioner. Considering the decision taken by the University which has been approved by J.P.S.C, which has declined approval for promotion of the petitioner to the post of Reader, I am not inclined to interfere in the matter. Accordingly, the instant writ petition stands dismissed. (Shree Chandrashekhar, J.) sudhir ,