S.J. Mukhopadhaya, ACJ.-Both the petitioners, in this writ petition, have challenged the amended sub-section (6)(ii) of Section 26 of the Jharkhand State Universities Act, 2000, as brought through by Section 21 of the Jharkhand State Universities (Amendment) Act, 2002, on the ground that the same ultra vires the Constitution, being completely arbitrary, irrational, discriminatory and creating arbitrary classification.

2. The teachers of Universities of the State of Jharkhand, including Ranchi University, Ranchi, Vinoba Bhave University, Hazaribagh, Sidho Kanhu Murmu University, Dumka, were guided by the Bihar State Universities Act, 1976 (now known as Jharkhand State Universities Act, 2000). The seniormost Professors, University Professors or Readers were used to be appointed as "Head of Department" under sub-sec. (6)(ii) of Sec. 26 of the Bihar State Universities Act, 1976.

The aforesaid provisions of law having been amended by Section 21 of the Jharkhand State Universities (Amen dent) Act, 2002, the petitioners have challenged the amended Sub-sec. (6)(ii) of Sec. 26, as brought through by Sec. 21 of the Amendment Act, 2002.

3. The petitioners are the Professors of Chemistry (1st petitioner) and Botany (2nd petitioner) in Vinoba Bhave University, Hazaribagh. According to them, amended sub-sec. (6)(ii) of Sec. 26 is ultra vires to the Constitution and will affect the standard of the University education, as it will not safeguard the interest of the senior teachers of the Universities.

4. The case of the petitioners is that the cadre of Post-Graduate Teachers of Constituent Colleges and University Departments is a common cadre. The teachers of Post-Graduate Department of Universities are transferable. One Post-Graduate Teacher can be transferred from the Constituent College to the University Department and vice versa. There is no difference made amongst the Post-Graduate Teachers, having common cadre, on the basis of their posting in the University Department or Post-Graduate Department of Constituent College. The Heads of Department were used to be appointed from amongst the senior most Professors, University Professors or the Readers of the Department. In case of appointment of any teachers, who is not the senior most Professor or Reader, prior concurrence of the Bihar Public Service Commission was required to be obtained under sub-sec. (6)(ii) of Sec. 26 of the Universities Act, 1976 (Jharkhand State Universities Act, 2000Pre-Amendment), which reads as follows:

"26(6)(ii). Where it is proposed to appoint any teacher to be the Head of a department who is not the seniormost Professor, University Professor or Reader of the Department, no such appointment shall be made without the prior concurrence of the Bihar Public Service Commission."

5. By the impugned amendment of Sub-sec.(6)(ii) of Sec. 26, the criteria have been changed and only those University Professors and Readers, posted in the University Department, have been made eligible for appointment as Head of the University Department, excluding the Professors and Readers, including the seniors, who are posted in a Post-Graduate Department of a Constituent College. The amended sub-sec. (6)(ii) of Sec. 26 reads as follows:

"26(6)(ii). The Head of University Department shall be appointed for two years by rotation amongst University Professors and those Readers having not less than 8 years experience as Reader posted in the University Department. The rotation shall be made on the basis of seniority among teachers having experience of Post-Graduate teaching and belonging to University Service Cadre."

6. According to the petitioners, there are Universities where Post-Graduate teaching are imparted in Constituent Colleges, though not approved by the State Government or the University Grant Commission. For example; Post-Graduate Department of Sidho Kanhu Murmu University, Dumka, is not approved by the State Government or the University Grant Commission. In Vinoba Shave University,