Dr. Umesh Chandra Das v. The Chancellor, Universities of Bihar (B.R.Ambedkar

Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014

2. The Vice Chancellor, B.R.A.Bihar University, Campus, Muzaffarpur

3. The Selection Committee, B.R.A. Bihar University through Chairman-cum-Vice Chancellor, Muzaffarpur. .... .... Respondents ====================================================== Appearance : (In CWJC No.11565 of 2001) For the Petitioners : M/s Gyanand Roy & Sheo Nandan Mishra, Advocates For the Respondent - : Mr. Rajendra Giri, Advocate Chancellor For the Respondent : Mr. Mrigank Mauli, Advocate University (In CWJC No.2387 of 2008 & CWJC No.11496 of 2008) For the Petitioners : M/s A.B.Ojha, Sr. Advocate, Sriniwas Jha, Bharat Bhushan & Nitesh Kumar, Advocates For the Respondent - : Mr. Rajendra Giri, Advocate Chancellor For the Respondent : Mr. Harendra Kumar Tiwary, Advocate University ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN C.A.V. ORDER 35 23-04-2014 In view of identical issues being involved the writ applications have been considered together and are being disposed of by a common order. The C.W.J.C. No. 11565 of 2001 was filed for direction to the respondent B.R.Ambedkar Bihar University and its Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 authorities to immediately take follow up action on the recommendation made by the Bihar State Universities (Constituent Colleges) Service Commission (hereinafter referred to as “the Commission”) by issuing notification of promotion of the petitioner nos. 2 to 5 from the post of Reader to the post of University Professor fixing their pay in the scale admissible to the University Professor with effect from the respective dates of their promotion and also to grant all the consequential benefits. However, petitioner No. 1 sought relief to immediately fix his pay in the scale of University Professor with effect from

12.12.1989 as per notification of promotion issued by the University vide memo no. B/78 dated 17.1.2000 and memo no. B/1347 dated 12.6.2000 and also for grant all consequential benefits. A declaration was also holding that the staying the process of shifting back the dates of promotion of the Professor under 16 years time bound promotion scheme and follow up action by the Chancellor vide his letter dated 30.8.2000 addressed to all the Vice Chancellor would not be applicable in the case of the petitioners. However, for the reasons mentioned in the order dated 28.11.2013 this application was dismissed as not pressed with respect to the petitioner no. 1. Later on I.A. No. 4175 of 2007 was filed in this writ Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 application for amendment in the relief portion. It stood stated in the aforesaid interlocutory application that during the pendency of this case the University notified the promotion of the petitioner nos. 2 to 5 in the rank of University Professor vide Annexures 15 and 15/1 dated 14.11.2006 and 15.11.2006 respectively. However, the aforesaid notifications were again recalled vide memo no. B/844 dated 5.5.2007 as contained in Annexure 16. As a consequence the petitioners sought liberty to challenge Annexure

16. The interlocutory application was allowed on 28.11.2013. So far the C.W.J.C. No. 2387 of 2008 and C.W.J.C. No. 11496 of 2008 are concerned they have been filed after the recall of the notification of promotion of the petitioners to the post of University Professor vide office order contained in memo no. 13/844 dated 5.5.2007. All the petitioners of the writ applications are claiming promotion to the post of University Professor under time bound promotion scheme. In C.W.J.C. No. 11565 of 2001, it is common case of the petitioners that they are eligible for such promotion under the time bound promotion scheme after completion of 16 years of service as Reader in their respective departments. From the averments made in C.W.J.C. No. 11565 of 2001 it appears that their promotion to the post of University Professor under time Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 bound promotion scheme was recommended by the Commission vide its letters contained in Annexures 6 and 7. It appears that their date of promotion was shifted back by the Commission. The Chancellor vide letter dated 30.8.2000 contained in Annexure 8 had stayed the shifting back of the date of promotion of the University Professors. The aforesaid decision of the Chancellor came to be challenged by filing writ applications which were heard analogous and were allowed vide order dated

19.4.2001 (Annexure 9) holding that the order concerned of the chancellor was not in conformity with the provisions contained in Section 10(4) of the B.S.U. Act, 1976. The order dated

19.4.2001 passed by the Single Bench was challenged by the Chancellor of the Universities of Bihar by preferring L.P.A. Nos. 443, 467 and 468 of 2001 in which the Division Bench had asked the Chancellor to dispose of the pending matter with regard to the shifting of dates by taking a final decision. The Chancellor of the University had taken a decision on 14.1.2005 giving certain direction for consideration of certain conditions at the time of granting time bound promotion as University Professor. The Chancellor has held that the Screening Committee constituted for the purpose should examine every aspect of the matter and then take a decision. It goes without Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 saying that the Chancellor had set aside the earlier notifications with respect to some of the Readers of Patna University granting promotion to the post of University Professor and had directed to rescreen the eligibility, suitability and fitness of Readers. Thereafter, such Screening Committee was constituted and upon its recommendation certain notifications were issued which came to be challenged by some of the teachers of the Patna University in C.W.J.C. No. 9939/2005 and other analogous matters which were allowed and all the impugned notifications were set aside vide order dated 9.8.2006 (Annexure 13). The matter was remitted to the respondent University to reconsider the cases of the petitioners in light of the recommendation of the properly constituted Screening Committee in accordance with the provisions of the Statute after granting opportunity of hearing to the respective parties. It appears that, after aforesaid order having been passed in the batch cases, the B.R.Ambedkar Bihar University, Muzaffarpur came up with the notifications dated 14.11.2006 (Annexure 15) and 15.11.2006 (Annexure 15/1) notifying the promotion of the petitioner and others from the post of Reader to the rank of University Professor under time bound promotion scheme. Similar notifications came up with respect to the Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 petitioners of other writ applications. However, in the meantime L.P.A. No. 607/2006 was preferred against the aforesaid order passed by the Single Bench in which, it appears, that an order was passed stating the operation of order dated 17.1.2007 which had led to recall of orders of promotion. Such documents of the University have been challenged in all the writ applications under consideration. It has been submitted that it would appear from the office order denotifying the earlier promotion granted by the University that same was done in view of interim order having been passed in L.P.A. No. 607 of 2006 on 17.1.2007 as no other reason has been assigned. However, subsequently the L.P.A. itself stood dismissed as not pressed vide order dated 29.6.2010 passed in L.P.A. No. 607 of 2006 and other analogous matters. A copy of the order has been produced at the time of hearing. It stands clearly recorded in the concluding paragraph of the aforesaid order that all the interim orders passed by the Division Bench automatically stood vacated with the disposal of appeals. The Vice Chancellor of Patna University was directed to carry out the direction contained in the order dated 9.8.2006 passed by the learned Single Judge which was under challenged in the Appeal. Thus, it is submitted that the basis of denotification of Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 petitioner’s promotion, i.e. the interim order granted in the aforesaid appeal having been vanished from the scene, the University was duty bound to recall Annexure 16 and the consequential office orders contained in Annexures 17 and 18 and the earlier orders granting promotion after shifting back the dates as contained in Annexues 15 and 15/1 in the C.W.J.C. No. 11565 of 2001 and Annexures 2 and 3 in C.W.J.C. No. 2387/2008 as well as Annexure 8 in C.W.J.C. No. 11496/2008, should be restored back. Counter affidavits have been filed on behalf of University authorities. Learned counsel for the University miserably failed to demonstrate before this Court that there was any other reason, which emanates out of the impugned office order denotifying the earlier notification of promotion, for taking such decision than the interim order having been passed in L.P.A. No. 607/2006 and analogous matters. Further, the appeal having been already dismissed as not pressed and the interim order already having recalled vide the final order passed in the concerned appeal as has been discussed above, how the aforesaid office orders would survive. However, learned counsel drew attention of several orders and passages of the counter affidavit to impress upon this Court that the core issue involved Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 in the writ applications is determination of date on which a Reader would be deemed to have acquired the experience of guiding research at the doctoral level. It has been stated in the counter affidavit that a time bound promotion Statute was framed at the first instance by the Chancellor on 22.12.1986 for the purpose of promotion of Reader to the post of Professor on completion of 25 years of service as lecturer. However that was amended on 20.11.1987 fixing criteria which stands recorded in paragraph 6 of the counter affidavit and is being reproduced for better appreciation. “a. A Reader possessing the qualification of University Professor prescribed by the University Grants Commission serving in a University Department or in a Degree College, managed and maintained by the University and who has completed at least 16 Yrs. of continuous service as Lecturer/Reader in one or more Universities shall or the recommendation of the Bihar State University Constituent Service Commission be promoted to the post of University Professor other conditions being the same.” However, subsequently the University Grant Commission Regulation 1991 came into existence provided qualification for promotion of Readers to the post of University Professor. The relevant passage is quoted as under:- “An eminent scholar with published work of high quality actively engaged on research, about ten years of experience in post graduate teaching and/or research at including the University/National Level experience of guiding research at doctoral level.” Institute Or “An outstanding scholar with established significant contribution reputation who has grade Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 knowledge.” Thereafter, a meeting of Vice Chancellor was held with the State Government on 21.3.1988 and a circular was issued stating that for promotion under time bound promotion scheme, apart from continuous service of 16 years of Lecturer / Reader, the candidates should be holder of Ph.D. degree and must have successfully guided research leading to conferment of Ph.D. degree on at least one person. The aforesaid circular came to be challenged in C.W.J.C. No. 3050 of 1988. A Division Bench of this Court, vide its judgment delivered in the aforesaid writ applications which was heard analogous with other matters, had set aside the circular on the ground that insertion of additional qualification other that what were prescribed by U.G.C. was erroneous. It was further held that in case of any deficiency having been found in the Statute, that could only be rectified by amending the Statute and not coming with a circular etc. Universities were directed to screen the candidates for grant of promotion strictly in accordance with the statute and the qualification laid down by the University Grant Commission. Apart from continuous service of 16 years as Lecturer / Reader the qualification laid down by the University Grant Commission for the said purpose was being followed but a question arose in Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 the meantime as to how to calculate the period of experience of guidance of research at the doctoral level. It has been stated in the counter affidavit that University started treating the date of registration of the candidates under supervision of the teacher concerned mechanically as the date on which such teacher acquired experience of guiding research at the doctoral level. However, that was stayed vide order dated 13.1.2000 which was challenged by filing C.W.J.C. No. 12405 , 11709 both of the year 2000 and C.W.J.C. No. 2969 of 2001. The stay order was quashed by a Single Bench of this Court on 19.4.2001 as it has been discussed above against which L.P.A. Nos. 443, 467 and 468 of 2001 were preferred by the Chancellor. The Division Bench has held that the Chancellor was fully justified in passing the stay orders and advised the Chancellor to dispose of the pending matter with regard to the shifting of dates of promotion of some of the teachers of the Patna University within a period of six weeks upon which the Chancellor had disposed of the matter on 14.1.2005 holding that the date of registration should not be mechanically taken as a cut date for promotion rather the Screening Committee of the University should examine the eligibility, suitability and fitness of a teacher on the basis of gained experience of guiding research during length of time Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 supported by actual research work done by the student and publication of standard research papers and other materials which may really be considered as contribution to the knowledge. It is submitted that the aforesaid direction of the Chancellor holds the field and is still operative. It has further been stated that the Bihar University Service Commission vide its letter no. 299 /BSUC dated 11.6.2005 has opined, in light of direction of the Chancellor that with regard of experience of guiding research at doctoral level the date of submission of Ph.D. thesis under the supervision of the teachers concerned should be treated as date of acquiring experience in guiding research. The aforesaid issue is a creating whole trouble. On earlier occasion a Single Bench of this Court has considered the relevant aspect of the matter in C.W.J.C. No. 2014 of 1997 which was allowed on 30th September, 1997. In that case the Bihar State University Commission was also a party. The relevant passage of the aforesaid order of the Single Judge is reproduced hereinbelow for better appreciation. “8. From the aforesaid regulation, it is clear that a Ph.D. student under the guidance of a Teacher becomes student from the date of registration. Such student is required to present himself for examination not later than four academic years after registration, which is six academic years for a teachers of University undergoing Ph.D. Degree. This can be extended by two years for submission of thesis by the Academic Council in case of hardship. Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 Thus while guiding research at the doctoral level starts from the date of registration of the students fro Ph.D. Degree, it has got nothing to do with publication of result of Ph.D. Degree of such students. It is the experience during the intervening guiding period at the doctoral level, which is the requirement to count experience of a Reader for promotion to the post of University Professor and the same has got nothing to do after the student obtained Ph.D. degree on passing the examination.

9. Accordingly, I hold that the petitioners are entitled to count their experience of guiding research at the doctoral level from the date they guided their respective students and not from the date such student obtains Ph.D. Degree. The interpretation as was initially given by the University for promotion of petitioners to the post of University Professor thus is the correct interpretation and not the interpretation given by the Commission as ell as the impugned notification dated 27th February, 1997 so issued with respect to the petitioners.” It emanates out from the aforesaid passage that the learned Single Judge has held that the experience of guiding research at the doctoral level starts from the date of registration of the students for Ph.D. Degree. It should not be construed with the publication of result of Ph.d. Degree of such students. It is the experience during the intervening guiding period at the doctoral level which would be the requirement to count experience of a Reader from promotion to the post of University Professor. Now, though learned counsel for the University has contended that the B.R.Ambedkar Bihar University was not a party in the aforesaid case but at the same time it is apparent from the order that Bihar State University Commission was of course a party to the aforesaid proceeding and, thus, it has to be seen as to whether Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 under what circumstances the Commission has opined and the University is following the date of submission of thesis for the purpose of completing the experience of guiding research. Though it is stated that the commission has passed such order in the light of direction of the Chancellor but the learned counsel has miserably failed to demonstrate that even the order of Chancellor discloses that the date of submission of thesis would require to be taken as cut the date. The Chancellor has only held that the date of registration of candidate under a teacher should not be mechanically treated as concerned date for the said purpose. The order no where discloses that the submission of thesis would be the cut date rather it has stated that the Screening Committee would have to consider several other aspects for coming to a conclusion. There can be several other reasons for not accepting the procedure in this respect which is being followed by the University at the strength of some direction of the Commission as stated in paragraph 26 of the counter affidavit. A reason for not accepting such procedure being followed by the University would be non adherence to the statutory provision in this respect contained in Section 10 of the Bihar State Universities (Constituent Colleges) Service Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 Commission Act, 1976. Section 10(b) clearly lays down that, for setting out principle which is to be followed for granting promotion, the Universities would be required to consult the Commission. That means that such principle should be set only after consultation with the Commission. This Court had asked the learned counsel for the respondent University to produce the records which shows that there had been any consultation on this aspect between the University and the Commission. Nothing could be shown in this regard to the satisfaction of this Court . The stand taken by the University that the Commission has come up with such provision only in view of the direction of the Chancellor contained in order dated 14.1.2005 would also not be tenable in view of absence of such direction in the aforesaid order. There could be several other reasons also for not accepting the date of submission of thesis as a cut date. A Single Bench of this Court, while considering this aspect in C.W.J.C. No. 2014 of 1997, had examined the regulations framed for the purpose of admitting a candidate for the doctoral research and for award of Ph.D. degree. Though learned counsel for the respondent University has submitted that aforesaid case was with respect to the Magadh University, however, a copy of the regulation framed for such purpose by the B.R.Ambedkar Bihar Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 University having been produced at the time of hearing by the respondents does not disclose any significant difference between two Statutes. The relevant portion of Regulation B.R.Ambedkar Bihar University is quoted as follows : “1. Candidates may be examined for the . Ph.D. degree in Arts, Science, Education, Commerce, Law, Agriculture, Medial Science of Engineering. (a) Any person, who holds the degree of Master of Arts, Science, Education, Commerce, Law, Agriculture (or subject allied to it), Medical Science or Engineering of the University of Bihar and has secured a first or second class award or post-graduate diploma of another University or Institute recognised by this University as equivalent thereto, any apply for registration as a candidate for the Ph.D. degree in Arts, Science, Education, Commerce, Law Agriculture (or subject allied to it), Medical Science or Engineering, the Ph.D. examination at any time, not less than 2 years from the date of his registration. registered offer himself Provided that in case were even a 3rd class degree holder has published some research papers, considers such published research papers of sufficient value, allow such person to supplicate for the degree. X X X X X X X X” It appears that candidate can only appear in Ph.D. examination after minimum research work of a period two years. That would definitely mean that he cannot submit his thesis within a period less than two years from the date of registration and, at the time of making of application for examination, the candidate would be required to submit four copies of printed or typed written thesis as per Regulation 7. In my considered opinion the date of submission of Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 thesis by a candidate may depend upon other factors also apart from his or his guide’s skill. For example, the topic of research may be more complex and as such may require more time for completion of research work. A particular subject may required only two years of research but, in case the topic is complicated one, then it may require a period more than that. That means, in case a candidate takes up a less complex topic for research then he would be able to submit his thesis at an earlier date whereas if the topic is complicated in which much research has not been done as yet then it would definitely required more time for completion of research and submission of thesis. Though the research on complicated issue would be more beneficial for the academic world but that may lead to submission of thesis at the delayed stage and, in that case, the teacher guiding the research would be made to suffer as others who had chosen a less complex topic would be granted promotion at an earlier date. Secondly, if the guide is brilliant but the student is average then in that case, without being any fault of the guide, the research may be delayed. That apart there can be several other factors causing delay in submission which may not be under control of the guide. Thus, in my opinion, the date of submission of thesis also cannot be accepted as cut date in a mechanical manner. Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 There would be another question also. Supposing that a thesis has been submitted and benefit has been granted of research at the doctoral level to a teacher and he became Professor, thereafter, the thesis is finally rejected by the examiners then the question would be as to what would be the value of such research and for what purpose such benefit could be granted to the teacher whose guidance did not result in acceptance of thesis by the examiner. The Chancellor, though has considered almost all the aspect and has come to some conclusion in his order dated 14.1.2005, but it appears that several issues have been mixed up with the issue of the benefit of guidance of research with the publications of standard research papers and other matters which have been laid down as separate qualification set up by the University Grant Commission for granting promotion to the post of professor and which have been upheld even by a Division Bench of this Court, as has been discussed above. Publication of work is another aspect that has to be considered for grant of promotion but is to be considered separately from the experience of guiding of post doctoral research. It has been clearly stated in the UGC guideline that the candidate should be an eminent scholar with published work of high quality activity engaged in research. That would definitely Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 cover the research papers etc. that would be required to be published by such teacher. Ten years of experience in post graduate teaching and/or guiding research at the doctoral level would be a separate criteria or qualification which such candidate should hold in addition to publication of his research work. If a teacher guides a doctoral research which leads to award of Ph.D. degree by the University then the University cannot deny such benefit to him on the ground that during such period he has not come up with the publication of research paper as the award of degree upon such research work would itself be the certification of successful guidance of research. Thus, in my opinion, the meaning of the Chancellor observation that mechanically the date of registration cannot be taken as a cut off date for such promotion would mean and to be understood in following manner for removing all the anomalies and confusion: If a candidate has submitted his thesis or even if he has not submitted his thesis but the requirement of minimum period of research, as has been laid down in Regulation 1 discussed above, has lapsed then the cut date for guiding experience would date back to the date of registration to overcome the anomaly which would otherwise arise if either the date of submission or Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 the date of registration is taken as cut date in a mechanical manner as has been discussed above. Secondly, such promotion granted on aforesaid basis would definitely have to be subject to the final acceptance of the thesis by examiner otherwise if the thesis is rejected then such guidance of research would be of no value. As a result, all the impugned notifications / orders of recall of promotions granted to the petitioners are quashed and set aside but that would not automatically revive the earlier notifications granting promotion as the University is directed to follow the procedure pointed out in the Chancellor’s order dated

14.1.2005 by constituting a proper screening committee which would examine all the aspects for grant of promotion to the petitioners at the post of University Professor. However, while considering and computing the period of experience of doctoral research, the findings and observations of this Court, as discussed above, would be required to be followed. Since the issue concerned has lingered for several years, it is expected that the whole exercise would be completed within a period of three months from the date of receipt / production of a certified copy of this order. Patna High Court CWJC No.11565 of 2001 (35) dt.23-04-2014 Accordingly, these writ petitions are allowed to the extent as indicated above. (Dr. Ravi Ranjan, J) Spd/- A.F.R.