THE STATE OF BIHAR ETC.versusDR. BRAJ KUMAR MISHRA AND ORS.

                      THE ST ATE OF BIHAR ETC.                               A
                                     11.
               DR. BRAJ KUMAR MISHRA AND ORS.

                          NOVEMBER 2, 1999

              (S. SAGHIR AHMAD AND R.P. SETHI, JJ.]                          B

     Constitution of India.
        •
       Articles 2261227-Practice and procedure-Court quashing order of
promotion under longer time bound promotion scheme from later date and       c
 directing promotion with effect from earlier date under shorter scheme-
 Order challenged-Held, under the peculiar facts and circumstances, there
 was no illegality or error of jurisdiction in the impugned order-Service
·Law-Promotion.

      Respondent No.I was selected by the Screening Committee under 16 D
years time bound promotion scheme for promotion to the post of Professor in
1990 with retrospective effect from 1.2.1985 and was promoted on provisional
basis subject to approval of the Bihar State University (Constituent Colleges)
Services Commission. The Commission did not take any decision in the matter
upto 6.4.1995 when it asked the University to constitute new Screening E
Committee on the ground that the Screening Committee of 1990 was not
properly constituted. Respondent No.I despite working as Professor in view
of the provisional promotion applied again under both the 16 years and 25
years time bound Promotion schemes but was selected only under the 25 years
scheme and was promoted to the post of Professor vide notification dated
4.10.1996.                                                                     F
      Respondent No.I filed Writ Petition challenging the notification d11.ted
4.10.1996 on the ground that he was eligible for promotion under the 16 years
scheme Single Judge quashed the said notification and held the respondent
No. 1 to have been promoted with effect from 1.2.1985 under the 16 years
scheme. Appeal filed by the appellants against the order of the Single Judge G
was dismissed by the Division Bench. Hence these appeals.

      The appellants contended that the Single Judge after quashing the
impugned order should not have promoted respondent No. 1 with effect from
1.2.1985 and should have remitted the matter to the Commission for H
                                  333
      334                      SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

  A   consider.ation of the case of respondent No.I.

            Dismissing the appeals, the Court

            HELD: 1. Respondent No.1 was found suitable for promotion by the
      Screening committee as well as by the Commission but his claim under 16
  B   years scheme was rejected only on account of the additional criteria laid down
      by the Commission by its resolution in 1992 which was declared ultra vires
      and ultimately withdrawn. In the absence of the criteria there was no reason
      to withhold the promotion ofrespondent no. 1 with effect from the date when
      he became eligible. (338-G]                                       •

  C          2. Normally the Court, in exercise of its power under Article 226/227
      of the Constitution oflndia, after quashing the impugned order should remand
      the matter to the concerned authority particularly when such authority consists
      of experts for deciding the issue afresh in accordance with the directions
      issued and the law laid down by it but in specified cases, as the instant case,
.D    nothing prevented the Court to issue directions when all the facts were
      admitted regarding the eligibility of respondent No.1 and his possessing the
      requisi!e qualifications. [338-G]

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6246 of
      1999. Etc.
 E
           From the Judgment and Order dated 28.7.98 of the Patna High Court in
      L.P.A. No. 443of1997.

            P.S. Mishra, B.B. Singh, C. Shekhar, Ms. Ritu Singh, R.P. Singh, Ms.
      Sunita R. Singh, Vishnu Sharma, Anip Sachthey, A.L. Das, Ms. Sandhya
• F   Rajpal, Himanshu Shekhar, A. Sharan, Ms. Madho Sharan, S.P. Sinha and
      Anjani K. Jha for the appearing parties.

            The Judgment of the Court was delivered by

            SETHI, J. Leave granted.
 G
            Finding him eligible for promotion to the post of Professor under the
      time bound promotion scheme and being satisfied that the respondent No. I
      possessed the requisite qualification, the learned Single Judge of the High
      Court of Patna quashed the impugned notification dated 4.10.1996 and held
      the respondent No. I to have been promoted with effect from 1.2.1985 and
 H    not with effect from 1.6.1992. The Letters Patent Appeals filed were dismissed
                    ST ATE v. DR. B. K. MISHRA [SETHI, J.]                     335
 vide the impugned judgment in these appeals. The Appellants, the University           A
and the State of Bihar are mainly aggrieved by the findings of the High Court
 in so far as it, after quashing the order of the Registrar, declared the respondent
No. I to have been promoted with effect from 1.2.1985. It is urged that after
setting aside the impugned notification in the writ petition, the matter should
havt:. been remifted to the authorities of the University for consideration of         B
the caS'e of the respondent No. 1 for promotion to the post of Professor.
      It is not disputed that respondent No. I was appointed as Lecturer in
the Department of Psychology in Doranda College on 16.8.1967 and he
obtained the Ph. D degree on 14.2.1974. He was promoted to the post of
Reader on 2.8.1991 with effect from 14.11.1980. On 15.4.1990 the respondent
No. I was promoted to the post of the University Professor from the year               C
1985 and his name was recommended to the Bihar State University
(Constituent Colleges) Services Commission (hereinafter referred to as "the
Commission"). Vide notification dated 14.10.1996 the Vice Chancellor of
the University directed the promotion of the respondent to the post of
Professor under the time bound promotion scheme with effect from 16.9.1992.            D
The grievance of the respondent No. I was that he was eligible for promotion
to the post of Professor with effect from 1.2.1985, after completion of 16
years of continuous service and not with effect from 16.9.1992 on the basis
of completion of 25 years of continuous service.

       It is conceded before us that there are two schemes for time bound              E
promotion to the post of University Professor, viz., (i) 15 years scheme under
which a Reader can be promoted as Professor on completion of 16 years
continuous service as Reader/Lecturer and (ii) 25 years scheme whereunder
a Reader can be promoted as Professor on completion of 25 years of continuous
service as teacher not below the rank of Lecturer. Admittedly, the respondent
No. 1 had been promoted to the Post of Reader with effect from 14.11. 1980             F
and was selected by the Screening Committee under 16 years scheme for
promotion to the post of Professor in 1990 with retrospective effect. Vide
notification dated 15.4.1990 he was promoted on provisional basis to the
post of Professor with effect from 1.2.1985 subject to the approval of the
Commission. The Commission is stated to have not taken any decision in                 G
the matter upto 6.4.1995 when it asked the University to constitute new
Screening Committee for. selection of teachers for promotion to the post of
Professor on the ground that the Screening Committee which made the
selection in 1990, was not properly constituted. Despite the fact that
respondent No. I was working as Professor in view of his provisional
promotion, he was compelled to apply again for promotion to the post of                H
    336                     SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A Professor under both the schemes but he was selected only under the latter
    scheme of 25 years.

           Learned counsel appearing on behalf of the- appellants have submitted
    that as the recommendation by the Screening Committee and consequent
    promotion was subject to the concurrence of the Commission and the
B   Commission had not approved the promotion, the same had lapsed under
    Sub-Section (10) of Section 58 of the Bihar State Universities Act which,
    inter alia, provide :

            "Notwithstanding to the contrary contained in this Act or Statute,
            Rules or Regulations made thereunder promotion given on the post
c           of Reader or Professor or officer of the University shall not be valid
            for a period exceeding six months unless recommended by the Bihar
            State University (Constituent Colleges) Service Commission."

    The submission has to be noted only to be rejected inasmuch as the
    amendment came into force when the respondent No. 1 stood recommended
D   for promotion and the effect of the amendment had not been made
    retrospectively. For the negligence of the Commission, the respondent No.
    1 could not be penalised.

          It has not been disputed before us that the respondent No. 1 was
E   eligible for consideration to promotion under 16 years time bound scheme.
    The only objection raised before us, as it was canvassed before the High
    Court, is that the learned Single Judge was not justified in declaring the
    respondent No. 1 to have been promoted with effect from 1.i.1985. It is
    contended, as earlier noted, that after setting aside the order impugned in the
    petition, the matter should have been referred to the Commission for
F   consideration to ascertain as to whether the respondent No. 1 possessed the
    requisite qualifications or not. Technically speaking the submission is correct
    but when examined in the context of the peculiar circumstances of this case
    it cannot be sustained. The requisite qualifications for the post of University
    Professor are :

G           '-'(1) University Professor : Qualification -an eminent scholar with
            published work of high quality engaged in research, about I 0 years
            experience of teaching and research, experience of guiding research
            at doctoral level;

                                             OR
H
                       STATE v. DR. B.K. MISHRA [SETHI, J.]                   337

            An outstanding scholar with established reputation who has made A
            significant contribution to the knowledge."


-·   Despite our repeated queries the· learned counsel appearing for the appellants
     could not satisfy us that the respondent did not possess the requisite
     qualifications. It is worth noticing that the Division Bench of the High Court
     examined the record of the Screening"Committee which was produced before B
     it and found :

            "The proceeding of the Screening Committee consists of two sheets
;           of paper, one of which contains the names of 13 teachers, who have
            been recommended for promotion by the screening committee. The          C
            name of respondent No. 1 is at SI. No. 12 of the said list and he has
            been shown as eligible under both the schemes of 25 and 16 years.
            His total length of continuous service has been shown as 27 years 10
            months as on the date of screening committee considered the matter
            on 27.7.1995. Against the name of this respondent, only this much
            has been stated by the Committee:                                       D
                "Recommended w.e. f. 16. 8.1992 lower grade."

            Similar recommendations have been made with regard to other
            candidates also, whose cases have been recommended with effect
            from different dates. The other sheet of paper appears to be a formal E
            recommendation, which is reproduced below :

                 "The Committee met to consider the cases for promotion from
                 Reader tp Professor in Psychology under 16/25 yrs. time bound
                 promotion scheme of the following confirmed Readers:
                                                                                    F
           SI. No. Name                                   Date of Promotion
            l. Dr. Birendra Narain Sinha                  01.02.85
           2    Dr. Md. Khurshid Hassan                   01.02.85


-
           3.   Dr. Subodh Kumar Sinha                    18.09.87                  G
           4.   Dr. (Mrs.) Geeta Chakravarty              25.11.88
           5. Dr. Enautulla                               10.01.90 (Lower Scale)
           6. Dr. Shiv Prakash Singh                      10.12.87
           7. Mrs. Indira Shahi                           18.09.86                  H
    338                      SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A




B




            The record of the screening committee and the resolution passed by
c           it does not disclose any reason as to why respondent No. I was
            selected for promotion under 25 years scheme, instead of 16 years.
            The screening committee· has made non~speaking recommendation
            regarding the promotion of all the teachers whose cases were placed
            before it for consideration. That apart, there is no other material on
D           the records produced by the screening committee to indicate as to
            why the promotion of respondent No. 1 was not made under 16 years
            scheme and why he was selected under 25 years scheme."

    The Court .also perused the proceedings of the Commission and noted its
    contents in para 11 of its judgment. From the records it appeared that the only
E   ineligibility attributed to the respondent No. I was the non-fulfilment of the
    additional criteria laid down by the Commission by its resolution in 1992. It
    is worth noticing that the said additional criteria, when challenged in a court
    of law, was declared ultra vires and the Chancellor withdrew the same. The
    Court also found that the respondent No. 1 had been .found suitable on merit
F   for promotion to the post of Professor in 1990. He was again found suitable
    for promotion by the Screening Committee as well as by the Commission but
    his claim under 16 years scheme was rejected only on account of the additional
    criteria. In the absence of the criteria there was no reason to withhold the
    promotion of the respondent with effect from the date when he became
    eligible.
G
          It is true that normally the Court, in exercise of its power under Article
    226/227 of the Constitution of India, after quashing the impugned order
    should remand the matter to the concerned authority particularly when such
                                                                                       -
    authority consists of experts for deciding the issue afresh in accordance with
    the directions issued and the law laid down by it but in specified cases, as
H   the instant case, nothing prevented the Court to issue directions when all the
                       ST ATE v. DR. B.K. MISHRA [SETHI, J. J                339
     facts were admitted regarding the eligibility of the respondent. No. I and his A
    possessing of the requisite qualifications. Remand to the authorities would
    have been merely a ritual and .ceremonial. Keeping in mind the lapses
    attributable to the Commission which had failed to take appropriate action
    despite recommendation made in favour of the respondent No. l, the learned
    Single Judge as also the Division Bench of the High Court felt it necessary
    to declare the respondent No. 1-promotor with effect from L2.1985. We do not. B
    find any illegality or error of jurisdiction. Learned counsel appearing for the
    appellants were apprehensive that if the impugned judgment js not set aside,
    it may become precedent and in other cases 'pertaining to the University, such
    directions may be issued in future also preventing the authorities and ~he
    State Government from exercising their statutory powers. The apprehension C
    is misconceived and without any· substance. To allay even such apprehension
    we deem it appropriate to clarify that the impugned judgment has been passed
                                                 is
    under peculiar circumstances of the case and no precedent with respect to
    the subject regarding which the appellants have conceived an apprehensio!l.

         There is no merit in these appeals which are accordingly dismissed but    D
    without any order as to costs.

    A.K.T.                                                  Appeals .dismissed.




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