Sachchidanand Jha, J.

1. The dispute in this case relates to seniority between the petitioner, Jyoti Shekhar and respondent No. 4 Dr. Hira Kant Jha (hereinafter called the respondent). The petitioner seeks quashing of the notification of the Patna University (in short the University), dated 28-5-1987 contained in Annexure-9, by which the respondent was appointed as Lecturer in Commerce on regular basis with effect from 7-2-1975. He also seeks quashing of the notifications, dated 24-6-1987 and 2-6-2000 contained in Annexures 11 and 14 respectively, by which the respondent was promoted as Reader under the time-bound scheme. By the former notification he was accorded provisional promotion in anticipation of the approval of the Bihar State University (Constituent Colleges) Service Commission; by the latter the promotion was confirmed on receipt of the recommendation of the Commission.

2. The case of the petitioner is as follows. On 14-9-1971 the respondent was appointed as Research Associate in Applied Economic and Commerce on temporary basis on a post sanctioned under the IV plan University Grants Commission (UGC) Scheme. The appointment was to continue upto end of the IV plan period. One temporary post of Research Associate in different subjects including Applied Economics and Commerce was made permanent and converted into temporary post of Lecturer. On 1-6-1974 the Registrar of the University communicated the decision of the Vice-Chancellor to this effect and requested the concerned Heads of the Departments to recommend the case of Research Associate(s) who fulfilled the statutory requirement after taking their option. The appointment was to be made on the recommendation of the Bihar Public Service Commission. The said communication has a bearing on the case of the parties and we will advert to it again in this judgment. The case of the petitioner is that the respondent opted for such conversion and accordingly he was appointed as temporary Lecturer on 7-2-1975. However, the Bihar Public Service Commission did not recommended him for such appointment and therefore, on 22-10-1977 he was reverted to the post of Research Associate with effect from 24-3-1977 when the Bihar Bihar Public Service Commission recommended some other candidate for the post. The name of the respondent, however, continued to be shown in the list of Lecturers and included in the Directory of Commonwealth Lecturers. On 28-5-1987 the respondent was appointed as temporary Lecturer with effect from 7-2-1975, the date of his initial appointment on the post. Later, he was allowed promotion under the time-bound promotion scheme on completion of ten years of service with effect from 1-2-1985, subject to approval of the Bihar State University (Constituent Colleges) Service Commission. The promotion was later confirmed on receipt of recommendation of the Commission, as indicated above.

3. The case of the petitioner is that the appointment dated 28-5-1987 was contrary to the terms of the communication dated 1-6-1974 and the notification dated 22-10-1977 by which the respondent was reverted on the post of Research Associate. The respondent having remained on the post of Research Associate all along, the post could not be treated as converted into the post of lecturer. Such conversion could take effect only on appointment on the recommendation of the Commission and as the petitioner was never recommended for the post the conversion did not materials. At later stages also the respondent was found ineligible for his absorption in 1979 vide Annexure-13 and again in 1981 vide Annexure-17 which he did not challenge. His appointment, therefore, must be treated as a back-door appointment and illegal. It was submitted in course of hearing that though the petitioner has challenged the very appointment of the respondent, if the Court is not inclined to annul the same at this stage it should be held that there was no justification to give retrospective effect to the appoint