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1995 Supreme(Pat) 173
HIGH COURT OF PATNA
S.J. MUKHOPADHAYAYA, J.
Md. Shamsul Haque Shamsi – Petitioner
Versus
State of Bihar & others – Respondents
CWJC No. 1825 of 1994
Decided on: 23.3.1995
For the Petitioner: M/s. Basudeo Prasad & Anil Kumar.
For the State: M/s. Ashok Kumar Keshri & Ramesh Kumar Sinha.
For the Respondents: M/s. S.S. Asghar Hussain & S.A. Nasar Warsi.
The posts of Professor and Director of the Institute, created in the Bihar Education Service Class-I, were to be filled up by way of promotion from amongst scholars in Arabic and Persian. The petitioner, being a member of the sub-cadre of the faculty of Arabic, was entitled for promotion to the higher post of Professor and Director of the Institute, which were in the Bihar Education Service Class-I.
Headnote:
EDUCATION - APPOINTMENT - SENIORITY - PROMOTION - CADRE - SUB-CADRE - REGULARIZATION OF AD HOC APPOINTMENT - INTERPRETATION OF STATUTES - BIHAR GAZETTED EMPLOYEES AD HOC APPOINTMENT AND REGULATION ACT, 1987 (BIHAR ACT 4 OF 1987) - SECTIONS 3 AND 4 - APPLICABILITY - REGULARIZATION OF AD HOC APPOINTMENT FROM THE DATE OF INITIAL APPOINTMENT - ENTITLEMENT OF REGULAR EMPLOYEES TO REGULAR APPOINTMENT FROM THE DATE OF AD HOC APPOINTMENT - PROMOTION TO HIGHER POST - DETERMINATION OF SENIORITY - COMMON CADRE VS. SUB-CADRE - CONSIDERATION OF SUB-CADRE FOR PROMOTION TO HIGHER POST - ELIGIBILITY FOR PROMOTION TO HIGHER POST BASED ON SUB-CADRE MEMBERSHIP.
Fact of the Case:
The petitioner, a lecturer in Arabic, challenged the Notification dated 9.2.1994, which canceled the earlier Notification dated 6.3.1992. The petitioner was appointed as a regular lecturer in Arabic on 17.6.1978 and was placed on probation for two years. Subsequently, he was confirmed to the post with effect from 17.6.1978. The Notification dated 6.3.1992 shifted the date of regular appointment and probation back to 8.1.1977, the date the petitioner initially joined on an ad hoc basis. The petitioner was made Incharge of the post of Director of the Institute on 3.10.1992, treating him as the senior most lecturer in the Bihar Education Service Class II. Respondent No.5, a lecturer in English, challenged the Notification dated 6.3.1992 and 3.10.1992, claiming that they affected his seniority and right to be appointed as Incharge Director. The court disposed of the writ petition with a direction to the Respondents-State to decide the representation of Respondent No.5 against the Notification dated 6.3.1992. The Respondents-State issued the impugned Notification dated 9.2.1994, canceling the Notification dated 6.3.1992 and appointing Respondent No.5 as I/C. Director of the Institute.
Finding of the Court:
1. The posts of Professor and Director of the Institute, created in the Bihar Education Service Class-I, were to be filled up by way of promotion from amongst scholars in Arabic and Persian. 2. The petitioner, being a member of the sub-cadre of the faculty of Arabic, was entitled for promotion to the higher post of Professor and Director of the Institute, which were in the Bihar Education Service Class-I. 3. Respondent No.5, being a member of the sub-cadre of the faculty of English, was not entitled for promotion to the post of Professor and Director of the Institute, which were in Bihar Education Service Class I. 4. The initial ad hoc appointment of the petitioner to the post of lecturer made on 6.1.1977 was entitled for counting his seniority to the post of lecturer in Arabic with effect from 8.1.1977, the date the petitioner initially joined the post on an ad hoc basis.
Issues: 1. Whether the petitioner was entitled to seniority over Respondent No.5 as a lecturer in Bihar Education Service Class-II, counting the period from 8.1.1977. 2. Whether the petitioner was entitled to be appointed as I/C. Director of the Institute. 3. Whether the impugned Notification dated 9.2.1994 was illegal. 4. Whether the Notification dated 6.3.1992 was in consonance with law.
Ratio Decidendi: 1. The posts of Professor and Director of the Institute, created in the Bihar Education Service Class-I, were to be filled up by way of promotion from amongst scholars in Arabic and Persian. 2. The petitioner, being a member of the sub-cadre of the faculty of Arabic, was entitled for promotion to the higher post of Professor and Director of the Institute, which were in the Bihar Education Service Class-I. 3. Respondent No.5, being a member of the sub-cadre of the faculty of English, was not entitled for promotion to the post of Professor and Director of the Institute, which were in Bihar Education Service Class I. 4. The initial ad hoc appointment of the petitioner to the post of lecturer made on 6.1.1977 was entitled for counting his seniority to the post of lecturer in Arabic with effect from 8.1.1977, the date the petitioner initially joined the post on an ad hoc basis.
Final Decision: The court set aside the impugned Notification dated 9.2.1994 and allowed the writ petition with the following observations and directions: 1. The impugned Notification dated 9.2.1994 was illegal. 2. The Notification dated 6.3.1992 was in consonance with law. 3. The petitioner was entitled to hold the higher post of Director of the Institute, he being eligible for the same.
S.J. MUKHOPADHAYAYA, J.
1. The petitioner, a lecturer in Arabic, has challenged the Notification dated 9.2.1994, as contained in Annexure-8. By the said Notification, dated 9.2.1994 the earlier Notification dated 6.3.1992 (wrongly typed as 6.3.1991), as contained in Annexure-5, has been cancelled. Further by the impugned Notification dated 9.2.1994 (Annexure-3), the Respondent No.5, Shri Quazi Abdul Waris has been made I/C. Director of the Institute of Post Graduate and Research in Arabic and Persian Learning (hereinafter referred to as the Institute), in place of the petitioner.
2. The admitted facts of the case are stated hereunder:–
The Institute is a wing of Human Resources Development Department of the State of Bihar. An advertisement No. 666 dated 13.6.1976 (Annexure-16) was issued for appointment to the post of Lecturer in Arabic, a post in the Bihar Education Service Class-II. Such post of lecturer in Arabic was vacant in the Institute. The petitioner along with others applied and after the interview and selection, name of tile petitioner was recommended by a Selection Committee, vide letter dated 31.8.1976 (Annexure-17). Only thereafter, the petitioner was appointed vide Memo dated 6.1.1977 (Annexure-1) to the post of lecturer in Arabic, in Bihar Education Service Class-II, on ad hoc basis for a period of six months. It was mentioned that such appointment is being made for a period of six months and till a regular appointment is made, whichever is earlier. Subsequently, another Notification dated 3.6.1978 (Annexure-2) was issued extending the ad hoc appointment of the petitioner to the post of lecturer in Arabic from 8.7.1977 to 7.1.1978, again with the stipulation that such appointment will continue till that date or till the date of recommendation of B.P.S.C. for regular appointment, whichever is earlier.
It was after the receipt of the recommendation of the Bihar Public Service Commission, which was in favour of the petitioner, the Notification dated 17.6.1978 (Annexure-3) was issued by the Respondents. The petitioner was appointed as a regular lecturer in Arabic and was placed on probation for a period of two years from the date of Notification dated 17.6.1978. Subsequently, another Notification dated 6.2.1982 (Annexure-4) was issued by the Respondents, by which the petitioner was confirmed to the post of lecturer in Arabic, in Bihar Education Service Class-II, with effect from 17.6.1978 i.e., the date Annexure-3 was issued,
On the representation of the petitioner, a Notification dated 6.3.1992 (wrongly typed as 6.3.1991), as contained in Annexure-5, was issued, by which the Notification dated 17.6.1978 (Annexure-3), under which the petitioner was regularly appointed and placed on probation for two years from 17.6.1978 was modified. The date of regular appointment of the petitioner and probation was shifted back to 8.1.1977 i.e. the date the petitioner joined initially after being appointed on ad hoc basis dated on 6.1.1977. Subsequently, when the higher post of Director of the Institute fell vacant, by one Notification dated 3.10.1992 (Annexure-6), the petitioner was made Incharge of the post of Director of the Institute, treating him senior most lecturer of the Bihar Education Service Class II, available in the Institute.
So far as Respondent No.5, Shri Quazi Abdul Waris is concerned, he was initially appointed to the post of lecturer in English, in Bihar Education Service Class-II, in the said Institute. The appointment of Respondent No.5 to the post of lecturer in English was made vide Notification dated 17.8.1977 (Annexure-F/5). Such appointment was made on regular basis.
As the Respondent No.5 was initially appointed on regular basis to the post of lecturer in English, in Bihar Education Service Class-II on 17.8.1977, on the other hand, the initial regular appointment of the petitioner was made on 17.6.1978. Grievance was made by the Respondent No.5 when Notification dated 6.3.1992 (Annexure-5) was issued.
