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Judgment
B.P. Singh, J.—In the instant writ petition the Petitioner (since deceased, now represented by his legal representatives) had prayed for a writ in the nature of certiorari setting aside the order dated 12.7.1988 contained in Annexure-21 whereby the Petitioner had been reverted from the post of Reader in the Department of Hindi in Ganga Singh College, Chapra, to the post of Lecturer in the same College and subject. The Petitioner had further prayed for a writ of mandamus commanding the Respondents not to interfere with the services of the Petitioner as Reader in the Department of Hindi in the said College, and to treat the Petitioner as Reader despite the impugned order dated 12.7.1988, and to pay him emoluments and benefits, and extend to him all privileges of a Reader in the" said College, which is a constituent college of the Bihar University. The Petitioner had also prayed for a declaration that for the purpose of calculating teaching experience in the College, the nomenclature/designation of a part-time or full-time teacher is immaterial, when a teacher so designated in fact discharges the duties of a regular teacher. The Petitioner also made a grievance that he had been discriminated against, inasmuch as in similar circumstances one Ram Naresh Singh in the Department of English in the same College was given the benefit of his teaching experience.
The facts of the case are not in dispute, and may be stated thus Ganga Singh College was established at Chapra by a private Managing Committee in the year 1964. Initially, it functioned from Saran Academy, and later from Bharsti Vidya Mandir. The teaching was in one shift, namely, the morning shift in Arts subjects from 6-30 A.M. to 10.30 A.M. It is not in dispute that the Petitioner at the relevant time was an Assistant Teacher in Bisheshwar Seminary, Chapra, He was requested by the management to take Hindi classes in the College without remuneration since the College was in its formative stage, and could not afford to engage many teachers. The College was granted affiliation upto B.A. standard for the session 1965-67. The Petitioner was designated as a part-time Lecturer, and started teaching in the College on part-time basis from 21.7.1965. It is the case of the Petitioner that he had to take full load of teaching the subject Hindi in the College, as there was no other teacher in that subject till the year 1974.
The case of the Petitioner was that on 15.7.1971 he was called by the University Service Commission to appear at an interview for appointment as Lecturer on 16.10.1971. The Petitioner faced the interview conducted by the University Service Commission, and thereafter by its order (Annexure-2) issued on 29.11.1971 the University Service Commission concurred in the appointment of the Petitioner as Lecturer for the period during which the College remained affiliated. The case of the Petitioner is that in view of the concurrence given by the University Service Commission, the Petitioner became full-time lecturer in the college, but this is disputed by the Respondent-University. According to the Petitioner the Managing Committee of the College absorbed him as a full time teacher by resolution passed on 31.3.1974. The facts which shall be noticed hereafter, do not support the case of the Petitioner that he became a full-time Lecturer by reason of concurrence granted to his appointment by the University Service Commission.
Pursuant to the approval granted by the University Service Commission, the Vice Chancellor of the University by order (Annexure-4) dated 10.12.1974 was pleased to approve the services of the Petitioner as a Lecturer in Hindi on part-time basis. Apart from the fact that the Vice-Chancellor approved the appointment of the Petitioner as a Lecturer on part-time basis, the facts on record also establish that the Petitioner continued as a teacher in the Bisheshwar Seminary. The record also establishes that steps for absorption of the Petitioner on full time basis were taken subsequently.
The case of the Petitioner was that he obtained Ph.D. from the Bihar University in the year 1975. The record discloses that it was thereafter that steps were taken to absorb the Petitioner as a Lecturer on full-time basis. The Principal of the College by his letter (Annexure-5) dated 31.3.1975 wrote to the Vice Chancellor to approve the appointment of the Petitioner on full time basis. The letter of the Principal also discloses that the Petitioner was continuing as a part-time Lecturer and that the Governing Body of the College in its meeting held on 31.3.1974 had decided that if the University so approved, the Petitioner may be absorbed as a permanent Lecturer in the College. In response to the letter of the Principal, the Deputy Registrar of the University communicated to the Principal of the College the order of the Vice Chancellor that the College should obtain the concurrence of the University Service Commission for absorption of the Petitioner as full-time Lecturer in Hindi against the post sanctioned by the University. Accordingly, the College referred the matter to the University Service Commission by letter (Annexure-7) dated 27.1.1976. This communication also mentions that the Petitioner had been working on part time basis as Lecturer, and that his part time appointment had the concurrence of the University Service Commission. In these Circumstances, the concurrence of the Commission for absorption of the Petitioner as full time Lecturer was sought. A reminder was sent to the University Service Commission on 20th February 1976, and ultimately the decision of the University Service Commission was communicated to the Governing Body of the College by the Secretary of the Commission-vide letter (Annexure-9) dated 21st April, 1976. The Commission granted its approval to the absorption of the Petitioner, as a full-time Lecturer in the Department. From what has been noticed above, it appears quite apparent that the Petitioner was ultimately absorbed as a full-time Lecturer pursuant to the approval granted by the University Service Commission. In fact, a formal approval of the Vice-Chancellor was also communicated by a letter (Annexure-10) dated 3.8.1976. Apart from the facts above noticed, the Respondent-University has brought on record three documents, which conclusively establish that the Petitioner had continued to teach as an Assistant Teacher in Bisheshwar Seminary, Chapra till 12th August, 1976, and he went on leave without pay with effect from 13th August, 1976, and ultimately resigned his post as an Assistant Teacher in the School. In fact, the Petitioner himself gave his joining report as full-time Lecturer on 13th August, 1976. Annexure R-2/A is a letter written by the Petitioner to the College stating that he had been serving as part-time Lecturer in Hindi since 21st July, 1965, and he had been working as full-time Lecturer since 13th August, 1976, but he was not being paid the salary of a full time Lecturer. A request was made for payment of salary etc. to the Petitioner as full-time Lecturer with effect from 13th August 1976. Annexure R-2/B is the joining report of the Petitioner dated 13th August, 1976, wherein referring to the concurrence of the University Service Commission, and the order of the Vice Chancellor, the Petitioner resumed duties as permanent whole time lecturer on 13th August, 1976. Annexure R- 2/C is a letter written by the Principal of Bisheshwar Seminary, Chapra, where the Petitioner was teaching as an Assistant teacher. The letter is addressed to the Principal of Ganga Singh College, Chapra, and states that the Petitioner had been working as an Assistant Teacher in the School since 4.4.1960 till 12.8.1976. He went on leave without pay from 13.8.1976 to 12.8.1978. Thereafter on 11.8.1978 he resigned his post in the School. He was paid his monthly salary by the School till 12.8.1976. These documents, to my mind, leave no room for doubt that the Petitioner actually worked as part time Lecturer in Hindi in the College till 12.8.1976, and it was only on 13.8.1976 that he joined as full-time Lecturer in Hindi.
After the Petitioner was absorbed as full time Lecturer in Hindi, the Government by its decision dated 16.1.1979, which was communicated to the University on 7.3.1979 granted to the Petitioner the regular pay scale of a Lecturer with effect from 29.11.1971, which was the date on which the earlier concurrence of the University Service Commission was obtained, when the Petitioner was working as a part-time Lecturer. However, according to the original Petitioner, his date of appointment was wrongly shown as 13.8.1966, because it should have been 21.7.1965. On the other hand, the University contends that perhaps the date should have been 13.8.1976, which was the date on which the Petitioner submitted his joining report as a full time lecturer in Hindi. In the year 1980 the College became a constituent College of the Bihar University. The case of the Petitioner is that he applied on 2nd March, 1981 vide Annexure-12 to the Vice Chancellor claiming promotion as a Reader, since he had 13 years experience, and had obtained Ph.D, which entitled him to time bound promotion. Since the Petitioner came to know that some objections were being raised to his promotion on baseless grounds by interested parties, he wrote a letter to the Pro-Vice Chancellor explaining its position. The aforesaid clarification dated 29.5.1981 has been annexed as Annexure-13 to the writ petition. Two years later, the Syndicate of the University of Bihar at its meeting held on 20th April, 1983, considered the question of promotion of Lecturers whose names had been referred to the Bihar Public Service Commission for concurrence, and resolved to promote them to the rank of Reader in their respective subjects in anticipation of the concurrence of the Bihar Public Service Commission, subject to the condition that the promotional benefits with respect to pay should be given to them only on receipt of the recommendation of the Commission. Subsequently, by its decision taken on 18.5.1983 the decision dated 20th April, 1983 was resolved to be implemented. Accordingly, the Petitioner was promoted as a Reader in Ganga Singh College, Chapra. The decision of the Syndicate is with regard to large number of teachers with whom this writ petition has no concern. The Petitioner claims to have joined as a Reader on 4.8.1983. Thereafter on 20th July, 1984 in partial modification of the earlier notification, the Syndicate of the University was pleased to grant personal promotion as a Reader to the Petitioner with retrospective effect from 14.11.1980, in anticipation of the concurrence of the Bihar Public Service Commission, and again subject to the condition that promotional benefits shall be given to him only on receipt of the recommendation of the Commission. Accordingly the pay of the Petitioner was fixed in the scale of a Reader, which was at the relevant time Rs. 1200-1900/-.
It appears that the Chancellor of the University received representations against the promotion of the Petitioner as a Reader. Coming to know that interested parties were conspiring against him, the Petitioner represented to the Pro-Vice Chancellor in support of his promotion. No action was taken thereafter for quite some time. On 9.1.1988 the Petitioner applied for promotion as a Professor in the College.
On 24.2.1988 a show cause notice was issued to the Petitioner to show cause why his promotion to the post of Reader with effect from 14.11.1980 be not cancelled, and the recommendation sent to the Commission be not withdrawn. A perusal of the aforesaid communication discloses that the allegations levelled against the Petitioner in the representation referred to the University by the Chancellor''s Secretariat were scrutinised and prima facie it appeared that the Petitioner had served as an Assistant Teacher in Bisheshwar Seminary, Chapra, till. 12.8.1976, which fact he had cancelled in his application to the University for consideration of his claim for promotion to the post of Reader. Secondly that in the aforesaid application the Petitioner had made misstatement of fact by stating that he was in the regular service of the College since 21.7.1965, and the nature of his appointment was a permanent one. Thirdly, that the Petitioner had concealed the fact that he had submitted his joining report in the College as full time Lecturer with effect from, 13.8.1976, but had falsely claimed to be in the service of the College as a permanent Lecturer with effect from 21.7.1965. Lastly it was alleged that the Petitioner had submitted his application for promotion to the post of Reader on 2.3.1981 without forwarding of the Principal concerned, with the intention of obtaining undue promotion to the post of Reader in violation of the provisions of the relevant statutes.
The Petitioner filed his show cause, which is Annexure-20 on 9th March, 1988, in which he stated that there was no occasion for the Petitioner to mention about the services rendered, as a Teacher in Bisheshwar Seminary, Chapra. He had already informed the Pro-Vice-Chancellor-cum-Chairman, Promotion Committee vide his representation dated 17.10.1987 that he was a school teacher in Bisheshwar Seminary, Chapra. He further explained that in the aforesaid proforma the statement was made on the basis of the concurrence accorded by the Commission, as contained in the letters dated 29.11.1971 and 21.4.1976. It was, therefore, on the record of the University that he was a part-time Lecturer prior to 1976, as is evident from the letters dated 21.1.76 and 3.8.76 (Annexures 7 and 10 respectively). He further explained that he had submitted his application for promotion on 2.3.1981 along with his intimation to the University that the Principal was not forwarding his application. As such, there was no intention of obtaining any undue promotion to the post of Reader. He therefore, requested that the proceeding may be dropped.
The explanation furnished by the Petitioner was not accepted by the Vice-Chancellor, who in exercise of the powers of the Syndicate vested in her, ordered that the Petitioner be reverted to his substantive post of Lecturer with effect from 14.11.1980, as it was found that he did not fulfill the requisite qualification for being promoted to the rank of Reader from the aforesaid .date, as per the provision of the relevant statute. The aforesaid notification issued on 12th July, 1988 is Annexure-21 to the writ petition, which has been impugned by the Petitioner. Having regard to the ground on which the impugned notification proceeds, it is not necessary to enquire as to whether the Petitioner was at fault in making misrepresentation to the University while claiming promotion as a Reader. The order proceeds on the basis that the Petitioner did not fulfill the requisite qualification for being promoted to the rank of Reader from the aforesaid date as per the provisions of the statute. The only enquiry, therefore, which is required to be made is whether the Petitioner had the necessary qualification for promotion as Reader on 14.11.1980.
Dr. Sadanand Jha, Counsel appearing on behalf of the Petitioner did not seriously challenge the fact that the Petitioner had continued as part time Lecturer in Hindi till 12.8.1975, and that he became a full-time Lecturer with effect from 13.8.1976. In view of his own admissions made in several representations, and in view of Annexures R-2/A, R-2/B and R-2/C it would have been futile to contend that the Petitioner had become a full time Lecturer before 13.8.1976. Dr. Jha, however, contends that for considering the qualification of a Lecturer for promotion to the post of a Reader, only his teaching experience, apart from educational qualification, has to be taken into account. The nature of his appointment, whether part time or whole time, is immaterial. He also contended that on the date on which the impugned order was passed, the Petitioner had become entitled to time bound promotion having completed 10 years of service even as whole time Lecturer and, therefore, there was no need to revert him to the post of Lecturer. Thirdly, he submitted that some other teachers of the University had been extended the benefit of teaching experience even when they held the post of Lecturer on part time basis. By not extending to the Petitioner similar benefit of teaching experience, the Petitioner had been discriminated against. Lastly, It was submitted that the Vice-Chancellor of the University had no authority to issue the impugned order, since the power to issue the notification reverting the Petitioner to the post of Lecturer vested in the Syndicate, and in case the Syndicate was not duly constituted, its powers could be exercised by the ex-officio and nominated members, and not by the Vine Chancellor. This submission was urged on the basis of Section 75 Ka of the Bihar State Universities Act, 1976 inserted by Bihar Act 68 of 1982.
Mr. Indu Shekhar Pd. Sinha, Counsel for the University submitted that the requisite teaching experience for promotion to the post of Reader under the statutes was the experience acquired by a teacher working as full time Lecturer in the College, and not as a part time Lecturer. He also submitted that the University had no objection to recognising the Petitioner as a full time Lecturer with effect from 13.8.1976 and granting to him all consequential benefits. He, however, denied the assertion of the Petitioner that any other teacher had been given the benefit of teaching experience while working as a part time Lecturer for the purpose of promotion to a higher post. Lastly, it was submitted that the power exercised by the Vice-Chancellor was u/s 79-A of the Bihar State Universities Act, and Section 75-A of the Bihar State Universities Act, and Section 75-Ka had no application in the facts and circumstances of the case.
In support of his first submission Dr. Jha referred to Section 3 of the Bihar State Universities Act (hereinafter referred to as the ''the Act''). Section 2ss(s) defines a ''Lecturer'' to mean a teacher of a College or University possessing such qualification as may be prescribed by statute. Section 2(b) defines a ''teacher'' to Include Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instructions in any Department, College or Institute maintained by the University. He referred to the statute for promotion of Lecturers to the post of Reader. The statute provides that a Lecturer may be promoted to the post of a Reader, subject to the following conditions: (a) If he holds a Doctorate degree and he has completed at least 13 years of continuous service as a Lecturer in one of more Universities or (b) if does not hold a Doctorate degree, he has completed at least 18 years of continuous service as a Lecturer in one or more Universities. This is subject to the proviso that the period of teaching experience below degree standard shall not be included, and that he holds a substantive appointment on the post of Lecturer. He also referred to the statute for time bound promotion of a Lecturer to the post of a Reader, which provides that a Lecturer serving in an University Department or any degree College managed and maintained by the University shall on the recommendation of the Bihar State Universities (Constituent Colleges) Service Commission be promoted on the basis of the time bound scheme to the post of a Reader, subject to the following conditions.
(a) That he holds the qualification as prescribed for the post of Lecturer under the statute;
(b) That he holds a substantive appointment on the post of Lecturer; and
(c) That he has completed at least 10 years of continuous service as Lecturer in one or more Universities.
He then referred to Chapter XIV of the statutes and submitted that under the said statute relating to classification and recognition as a teacher of the University, "teacher" of an University includes persons appointed by the Syndicate in consultation with the Academic Counsel, as Honorary Professors, Readers or Lecturers or otherwise as teachers of the University. Under sub-statute (4) of Chapter XV of the Statutes the Syndicate has been vested with the power to appoint distinguished schools as teachers and visiting Professors to take part in the teaching work in any subject in the University Department for a particular period in any one session on such terms as it may deem fit. Relying upon these provisions in the Act and the statutes it was submitted that a teacher must include even a Lecturer, who is working on part time basis. The statutes recognise as a teacher Honorary Professors, Readers or Lecturers as also visiting Professors. There is, therefore, no reason why a part time Lecturer should not have the same status as a full time Lecturer. In my view, the submission is not well-founded, because it is not the case that the Petitioner was ever appointed as an Honorary Lecturer by the Syndicate/or that he was ever appointed a visiting Professor by the Syndicate. No, doubt, for certain purposes an Honorary teacher or a visiting Professor may be regarded as teachers, but that is not to say that for the purpose of promotion to a higher post, they must be equated with whole time teachers employed by the University. In fact, there is no provision for promotion of Honorary teachers or visiting Professors. I have already referred to the statutes for promotion of Lecturer to the post of Reader. Apart from educational qualification and teaching experience, the statute insists on the Lecturer holding a substantive appointment on the post of Lecturer. This must obviously mean an appointment on whole time basis, even if it is assumed that it may not necessarily mean confirmation In service, and must be construed so as to include temporary Lecturers regularly appointed against a sanctioned post. The submission, therefore, that a part time Lecturer or an Honorary Lecturer must also be treated as a teacher and must be considered for promotion to the higher post, must be rejected. I have advisedly referred to an honorary teacher, because at one stage it was urged by Dr. Jha that the Petitioner was not being paid any remuneration by the College and, therefore, he should be treated as an honorary teacher. I may also refer to some of the statutes to which counsel for the University has drawn my attention, namely, Chapter XVI, which deals with number grades/ qualification/pay scales and other conditions of service of teachers of admitted colleges and their regulation by the University. The grades mentioned in the said Chapter include that of a Lecturer and part time Lecturer. Pay scale of a Lecturer has been mentioned, which is Rs. 200-340 E.B. 500. For part time Lecturer, the statute provides a fixed pay between Rs. 100 and Rs. 250/-per month according to the nature of work Moreover minimum qualification for a Lecturer has been prescribed by the statute, but no such minimum qualification has been mentioned in the case of part time Lecturer. These provisions, therefore, make it clear that the statutes take notice of the distinction between a Lecturer and a part time Lecturer. Statutes relating to promotion refer to the promotion of a Lecturer to the post of a Reader, and not of part time Lecturer. Obviously, therefore, when the statute relating to promotion refers to Lecturer, it must mean the Lecturer in the regular pay scale and duly qualified to hold that post. Consequently, his experience must be as a Lecturer and not as a part time Lecturer. I am, therefore, inclined to accept the submission urged on behalf of the University that in the context of promotion to the higher post of Reader, the Lecturer referred to in the Statute is a Lecturer employed on whole time basis and not part time Lecturer. There is no provision in the Act or the Statutes for the promotion of a pan time Lecturer.
I may only clarify that in the facts of the instant case it cannot be said that the Petitioner was merely designated as a part time lecturer, though he was in reality a full time teacher of the College. It is an admitted position that the Petitioner was actually teaching as an Assistant Teacher in a school when he joined the College, and the materials on record conclusively establish that he continued as such Assistant Teacher and drew his salary etc. from the school till 12.8.1976. He actually resigned his post as an Assistant Teacher in the School on 11.8.1978, as is evident from Annexure R-2/C. It cannot, therefore, be urged that the Petitioner was really a whole time employee of the College though designated as a part time Lecturer. I, therefore, find no substance in the first submission advanced on behalf of the Petitioner.
The second submission urged on behalf of the Petitioner need not detain us. The Petitioner claimed that at least from 13.8.1976 he was a full time lecturer and, therefore, he was entitled to be considered for time bound promotion on completing 10 years of service. He had actually completed 10 years of service on the date on which the impugned order was passed. His grievance is that he should not have been reverted, and at best he could have been deprived of the monetary benefits which he had received during that period. Counsel for the University fairly stated that the University will treat the Petitioner as a full time Lecturer with effect from 13.8.1976, and on that basis whatever be the benefits to which he is entitled, shall be extended to him. In these circumstances, the only relief that can be granted to the Petitioner in case his writ petition fails on other grounds, is to direct the University to consider the case of the Petitioner for time bound promotion from the due date, and if he is found entitled to such promotion all consequential benefits must be extended to him.
The third submission urged on behalf of the Petitioner was that in at least two other cases the benefit of teaching experience was extended to part time teachers while they were working on part time basis. Apart from the fact that there is not enough material to support the assertion, which in any event has been denied by the University, the mere fact that two teachers might have been given the benefit to which they were not entitled under the law, cannot be a ground for extending such illegal benefit or advantage to the Petitioner. It is well settled that Article 14 of the Constitution of India is not meant to perpetuate an illegality in the garb of equal treatment. No one can claim equality on the basis that illegal advantage or benefit be extended to him as was done in the case of some others. In an appropriate case when brought to the notice of the Court, the illegal action must be struck down rather than to extend the benefit of such action to the Petitioner before the Court. The third submission has, therefore, no merit and must be rejected.
Lastly, it was submitted that by Act 68 of 1982 Section 75-A (75 Ka) was inserted in the Act. Section 75-A provided that in case the Syndicate was not duly constituted, its ex-officio and nominated members should exercise the powers of the Syndicate, and perform its duties to give effect to the provisions of the Act. It was, therefore, submitted that after 1982, even if the Syndicate was not duly constituted, its powers could be exercised only by the ex-officio and nominated members, and not by the Vice-Chancellor. The impugned notification was issued on 12.7.1988 i.e. after the amendment inserting Section 75-A in the Act. The notification was issued under the orders of the Vice-Chancellor and was, therefore, without jurisdiction.
Counsel for the University submitted that the submission ignores the subsequent legislative changes, and that Section 79-A subsequently inserted in the Act vested all the powers of the Syndicate in the Vice-Chancellor. The submission urged to behalf of the University is well founded and must be accepted, for the reasons that follow. Bihar Ordinance No. 39 of 1986 was promulgated on 17.12.1986 with a view to amend certain provisions of the Act. The provisions which were amended by the said Ordinance included Sections 18, 22 and 23 of the Act, which dealt with the constitution of Senate, Syndicate and the powers and duties of the Syndicate respectively. Section 24 which provided for the constitution of the Academic Council was also amended. Certain other amendments were effected in the Act with which we are not concerned. Section 14 of the Ordinance inserted Section 79-A in the Act. The aforesaid Section 14 is quoted below for convenience:
Insertion of new section after Section 79 of Bihar Act 23, 1976. -In the said Act after Section 79 the following new section shall be inserted; namely:
79-A- The present Syndicate and the Senate shall cease to exist with effect from the date of the Bihar State Universities (Third Amendment) Ordinance, 1986 comes into force. The powers and duties of the Senate and Syndicate, as the case may be, shall be discharged by the Vice-Chancellor till the constitution of new Senate and Syndicate, as the case may be, shall be discharged by the Vice Chancellor so long the new Senate/Syndicate is not constituted.
The same provision was repopulated by promulgation of Bihar Ordinance 20 of 1989 which was published in the Bihar Gazette on 5th May, 1989. The impugned order was passed on 12th July 1988 and, therefore, the exercise of power was controlled by the provisions of the Act, as they stood on that day.
It will be seen that by promulgation of the Ordinance the Syndicate and Senate ceased to exist with effect from 17th December, 1986, the date on which the Bihar Ordinance 39 of 1986 came into force. It further provided that the powers and duties of the Senate and Syndicate were to be discharged by the Vice-Chancellor so long the new Senate and Syndicate were not constituted. Dr. Jha submitted that Sections 75-A and 79-A could not co-exist. u/s 75-A the power of Senate and Syndicate was vested in the, ex-officio and nominated members, in case the Syndicate or Senate was not duly constituted. On the other hand, u/s 79-A the powers and duties of the Senate and Syndicate were vested in the Vice-Chancellor and not in the nominated and ex-officio members. The argument appears attractive, but is devoid of merit. Section 75-A proceeds on the assumption that there is a provision for Senate and Syndicate in the Act, but they have not been duly constituted. If the Senate or Syndicate is not duly constituted, with a view to give effect to the provisions of the Act, the nominated and ex-officio members of the Senate or Syndicate, as the case may be shall exercise the powers and perform the duties of the Senate and Syndicate. The provisions presupposes the existence of Senate and Syndicate under the Act.
Section 79-A, on the other hand, provides that the present Syndicate and Senate shall cease to exist with effect from the date on which the Ordinance comes into force, i.e., from 17th December, 1986. Consequently, there was no Senate or Syndicate after the Ordinance came into force and the powers and duties of the Senate and Syndicate were vested in the Vice-Chancellor, and the Vice-Chancellor was required to exercise the powers and discharge the duties till such time as the new Senate/Syndicate under the amended Act was not constituted. There is a reason why it was so provided in the Ordinance. As noticed earlier, the Ordinance brought about amendments to the various sections of the Act which deal with the constitution of the Senate, Syndicate and the powers and duties of the Senate, apart from other University bodies. The ordinance, therefore, provided that till such time as the Senate/Syndicate was not constituted under the amended provisions of the Act, their powers shall be exercised and their duties discharged by the Vice Chancellor. With a view to achieve this, the Section provided that "the present Syndicate and Senate shall cease to exist". Obviously therefore, till a new Senate or Syndicate was constituted under the amended Act there was no Senate or Syndicate in existence and, therefore, there was no question of the nominated or ex-officio members exercising the powers and discharging the duties of the Senate and Syndicate. After dissolving the existing Senate and Syndicate the Ordinance bestowed their powers and duties on the Vice Chancellor till a new Syndicate or Senate was constituted under the amended Act. In my view, there is no inconsistency between Section 75-A and 79-A of the Act. After 79-A was inserted, Section 75-A could have no operation till such time as a new Syndicate/ Senate was constituted under the Act, as amended by the Ordinance of 1986. It is, therefore, not necessary for me to consider the alternative submission urged on behalf of the University that even if there was repugnancy between the two provisions, the later provision should prevail on the principle of implied repeal. Counsel for the University submitted that he was supported in his submission by the decision of the Supreme Court, in Ratan Lal Adukia and Another Vs. Union of India, I do not express any opinion on the alternative submission.
In the result, no relief can be granted to the Petitioner, as prayed for. I have no doubt in my mind that the experience required as a part time Lecturer cannot be taken into consideration while promoting a Lecturer to the post of a Reader. It is only the experience acquired by him as a full time Lecturer which can be taken into consideration while considering his case for promotion to the post of a Reader. However, in view of the fact that the Petitioner became a full time Lecturer with effect from 13.8.1976 and in view of the statement made at the Bar by counsel for the University, that the University will consider his case on the footing that he became a full time Lecturer with effect from 13.8.1976, a direction is issued to the University to consider the case of the Petitioner that he had become a full time Lecturer on 13.8.1976 and became eligible for first time bound promotion after completing 10 years of service. If the University finds him eligible and suitable for promotion to the post of Reader under the time bound promotion scheme, the Petitioner shall be given all consequential benefits. Since the Petitioner died during the tendency of the writ petition, the monetary benefits which may accrue to the Petitioner shall be paid to his widow, who has been brought on record as one of his legal representatives. If the widow of the Petitioner is entitled to any pensionary benefits, such as family pension etc., that shall be calculated on the basis of the emoluments to which the Petitioner is found entitled on the date of his death.
This writ petition is disposed of in the above terms.
Ashish N. Trivedi, J.
I agree.