Mithila Prasad Singh & Ors. vs State Of Jharkhand & Ors.

“14/10^th July 2024

1.

Learned counsel for the parties are present.

2.

W.P. (S) No. 1850 of 2021 has been filed for the following reliefs: -

“a)

For issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the claim of the petitioners for promotion to the post of University Professor from the post of Reader not considering the validity of time bound promotion came to an end w.e.f. 22.9.1995 and promote the petitioners under the Statute of Time Bound Promotion as the Time Bound Promotion has not been annulled nor cancelled till to-day which is also clear from the fact that no other statute has been framed till date providing provisions for promotions of Readers to University Professor who were promoted under 10 years Time Bound Promotion Statute prior to 23.09.1995;

AND;

b)

for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of certiorari for quashing of part of the Notification dated 14.12.2018 (ANNEXURE-6) passed in terms of Order passed in WP(S) No.3375/2016 (Dukhuram Kohri Vs. State) by which the claim of the petitioners for promotion from the post of Reader to University Professor has not been considered only in view of the opinion of the Learned Advocate General that the High level Committee decided not to extend the period of time bound promotion without assigning any reason which is condition precedent but simply says in Clause (2) could not be extend in view of opinion of the Learned Advocate General which is against the Judgment passed by the Hon'ble Patna High Court though not binding but the issue involved in the present case squarely covered the case of the petitioners without considering the fact that the Statute of Time Bound Promotion and Merit-cum time bound promotion of Reader to the post of University professor as approved by letter No. BSU-27/85-4032/GS(1) dated 24.12.1986 as amended by letter No. BSU-27/85-4099/GS(1) dated 20.11.1987 and corrigendum dated 20.11.1987 has not been superseded by the career advancement scheme implemented by letter No. BSU 20/95- 2132/GS(1) dated 23.9.1995, hence the readers are entitled to be promoted to the post of University Professor in terms of Statute of the Time Bound Promotion,

AND

c)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the case of the petitioners for promotion after scrutinizing the suitability and qualification for being promoted as University Professor under the Statute approved on 24.12.1986 as amended on 20.11.1987 which has not been repealed till date and give all benefits thereafter with effect from the date on which the petitioners are entitled;

AND;

d)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to give all monetary benefits alongwith arrear to the petitioners;

AND/OR

Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.”

3.

W.P. (S) No. 3093 of 2022 has been filed for the following reliefs: -

“a)

for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of certiorari for quashing of part of the Notification dated 14.12.2018 (ANNEXURE-5) passed in terms of Order passed in WP(S) No.3375/2016 (Dukhuram Kuiry Vs. State) by which the claim of the petitioner for promotion from the post of Reader to University Professor has not been considered only in view of the opinion of the Learned Advocate General that the High level Committee decided not to extend the period of time bound promotion without assigning any reason which is condition precedent but simply says in Clause (2) could not be extend in view of opinion of the Learned Advocate General which is against the Judgment passed by the Hon'ble Patna High Court though not binding but the issue involved in the present case squarely covered the case of the petitioner without considering the fact that the Statute of Time Bound Promotion and Merit-cum time bound promotion of Reader to the post of University professor as approved by letter No. BSU- 27/85-4032/GS(1) dated 24.12.1986 as amended by letter No. BSU-27/85-4099/GS(1) dated 20.11.1987 and corrigendum dated 20.11.1987 has not been superseded by the career advancement scheme implemented by letter No. BSU 20/95-2132/GS(1) dated 23.9.1995, hence the readers are entitled to be promoted to the post of University Professor in terms of Statute of the Time Bound Promotion,

b)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus respondents commanding upon the respondents to consider the case of the petitioner for promotion after scrutinizing the suitability and qualification for being promoted as University Professor under the Statute approved on 24.12.1986 as amended on 20.11.1987 which has not been repealed till date and give all benefits thereafter with effect from the date on which the petitioner is entitled;

AND;

c)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to give all monetary benefits along with arrear to the petitioners;

AND/OR

Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.”

4.

It is not in dispute during the course of hearing that the issues involved in these cases are covered by judgment passed in L.P.A. No. 658/2018 decided on 28.09.2022. However, the learned counsel for the petitioners has submitted that the matters be referred to the Hon’ble Division Bench in view of the fact that certain statutory provisions of Jharkhand State University Act particularly Sections, 22, 23, 34, 35 and 36 have not been considered while recording a finding that there was implied repeal of statute. The learned counsel has submitted that the aforesaid provisions deal not only with amendment of statute but also deal with a procedure for repealing of statute.

5.

The learned counsel for the petitioners has relied upon the judgment passed by the Hon’ble Supreme Court reported in 2016 (1) JLJR (SC) 240 to submit that in the said case, it has been held that where there is a repealing clause in a particular Act, it is a case of express repeal, but in a case where doctrine of implied repeal is to be applied, the matter will have to be determined by taking into account the exact meaning and scope of the words used in the repealing clause. The learned counsel submits that the repealing clause having not been placed before the Hon’ble Division, the aforesaid sections have not been considered.

6.

He has further submitted that on account of non-consideration of the said provision, the matter is required to be considered again by the Hon’ble Division Bench and no useful purpose will be served by proceeding further in the writ proceedings before this Bench.

7.

The learned counsel appearing on behalf of the respondents has submitted that though the aforesaid sections have not been quoted but the contents of those sections has also been considered. He has placed the judgment but admittedly no reference has been made to the aforesaid sections which has been referred to by the learned counsel for the petitioners during the course of hearing.

8.

After hearing the learned counsel for the parties, considering the aforesaid facts and circumstances and upon going through the judgment passed in L.P.A. No. 658 of 2018, this Court finds that no reference has been made to the Sections 22, 23, 34, 35 and 36 of the Act, interalia, dealing with repeal of statute and it appears that the said sections have not been placed before the Hon’ble Division Bench while deciding L.P.A. No. 658 of 2018.

9.

In view of the submissions, this court is of the considered view that the matters be considered by the Hon'ble Division Bench.

10.

Accordingly, these matters be placed before the Hon’ble the Chief Justice in his administrative side for appropriate order.”

W.P.(S) No. 1850 of 2021:

“a)

For issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the claim of the petitioners for promotion to the post of University Professor from the post of Reader not considering the validity of time bound promotion came to an end w.e.f. 22.9.1995 and promote the petitioners under the Statute of Time Bound Promotion as the Time Bound Promotion has not been annulled nor cancelled till to-day which is also clear from the fact that no other statute has been framed till date providing provisions for promotions of Readers to University Professor who were promoted under 10 years Time Bound Promotion Statute prior to 23.09.1995;

AND;

b)

for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of certiorari for quashing of part of the Notification dated 14.12.2018 (ANNEXURE-6) passed in terms of Order passed in WP(S) No.3375/2016 (Dukhuram Kohri Vs. State) by which the claim of the petitioners for promotion from the post of Reader to University Professor has not been considered only in view of the opinion of the Learned Advocate General that the High level Committee decided not to extend the period of time bound promotion without assigning any reason which is condition precedent but simply says in Clause (2) could not be extend in view of opinion of the Learned Advocate General which is against the Judgment passed by the Hon'ble Patna High Court though not binding but the issue involved in the present case squarely covered the case of the petitioners without considering the fact that the Statute of Time Bound Promotion and Merit-cum time bound promotion of Reader to the post of University professor as approved by letter No. BSU-27/85-4032/GS(1) dated 24.12.1986 as amended by letter No. BSU-27/85-4099/GS(1) dated 20.11.1987 and corrigendum dated 20.11.1987 has not been superseded by the career advancement scheme implemented by letter No. BSU 20/95- 2132/GS(1) dated 23.9.1995, hence the readers are entitled to be promoted to the post of University Professor in terms of Statute of the Time Bound Promotion,

AND

c)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the case of the petitioners for promotion after scrutinizing the suitability and qualification for being promoted as University Professor under the Statute approved on 24.12.1986 as amended on 20.11.1987 which has not been repealed till date and give all benefits thereafter with effect from the date on which the petitioners are entitled;

AND;

d)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to give all monetary benefits alongwith arrear to the petitioners;

AND/OR

Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.”

W.P.(S) No. 3093 of 2021:

“a)

for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of certiorari for quashing of part of the Notification dated 14.12.2018 (ANNEXURE-5) passed in terms of Order passed in WP(S) No.3375/2016 (Dukhuram Kuiry Vs. State) by which the claim of the petitioner for promotion from the post of Reader to University Professor has not been considered only in view of the opinion of the Learned Advocate General that the High level Committee decided not to extend the period of time bound promotion without assigning any reason which is condition precedent but simply says in Clause (2) could not be extend in view of opinion of the Learned Advocate General which is against the Judgment passed by the Hon'ble Patna High Court though not binding but the issue involved in the present case squarely covered the case of the petitioner without considering the fact that the Statute of Time Bound Promotion and Merit-cum time bound promotion of Reader to the post of University professor as approved by letter No. BSU- 27/85-4032/GS(1) dated 24.12.1986 as amended by letter No. BSU-27/85-4099/GS(1) dated 20.11.1987 and corrigendum dated 20.11.1987 has not been superseded by the career advancement scheme implemented by letter No. BSU 20/95- 2132/GS(1) dated 23.9.1995, hence the readers are entitled to be promoted to the post of University Professor in terms of Statute of the Time Bound Promotion,

b)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus respondents commanding upon the respondents to consider the case of the petitioner for promotion after scrutinizing the suitability and qualification for being promoted as University Professor under the Statute approved on 24.12.1986 as amended on 20.11.1987 which has not been repealed till date and give all benefits thereafter with effect from the date on which the petitioner is entitled;

AND;

c)

for issuance of an appropriate writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to give all monetary benefits along with arrear to the petitioners;

AND/OR

Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.”

Factual Matrix

Submission of the learned counsel for the petitioners:

Submission of the learned counsel for the respondents:

Response of the learned Counsel for petitioners:

Analysis:

“The brief facts of the case which require to be enumerated reads as hereunder:

The writ petitioner was appointed as Lecturer in Mathematics on the recommendation of Selection Committee of Ranchi University, Ranchi vide notification as contained in Memo No.RU/C/178-273/82 dated 07.01.1982 in which the name of the writ petitioner appears at serial no.14 and his place of posting has been shown as P.G. Centre, Chaibasa.

The writ petitioner, in terms of the aforesaid notification dated 07.01.1982, was appointed as Lecturer in Mathematics at the P.G. Centre, Chaibasa and started rendering his services. His services was confirmed vide notification as contained in Memo No.B/20131-20830 dated 29.05.1997 w.e.f. 28.01.1982 against the sanctioned post of Lecturer in Mathematics.

It is the case of the writ petitioner that as per the statute for time bound promotion for granting such benefit from Lecturer to the post of Reader under the 10 Years Time Bound Promotion Scheme in Mathematics was available and the writ petitioner fulfilled all the requisite conditions for being promoted as Reader under the said statute, therefore, the writ petitioner had applied for his promotion and on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, (hereinafter referred to as the Commission) he was promoted to the post of Reader in Mathematics w.e.f. 28.01.1992 by the order passed by the Ranchi University as contained in Memo No.B/871-916/98 dated 05.02.1998.

The writ petitioner, in the meanwhile, completed his Doctorate Degree and was awarded Ph.D. from the University of Bihar, Muzaffarpur on 28.01.1990.

The statute for time bound promotion of Lecturers to the post of Readers and for Readers to the post of University Professors was approved by the Chancellor vide letter no.BSU-27/85 4032/GS(1) dated 24.12.1986 and subsequently added and amended by letter no.BSU-26/85-4099/GS(1) dated 20.11.1987. Article 3 of the said Statute provides that a Reader possessing qualification of a University Department or in a Degree College, managed and maintained by the University and who has completed at least 16 years of continuous service as Lecturer/Reader in one or more Universities shall, on recommendation of the Commission, be promoted to the post of University Professor, other conditions remaining the same.

The qualification of the teachers of University/Colleges has been approved by the Chancellor vide letter no.BSU-25- 33/2377-GS(1) dated 12.12.1983 under which the qualification of the University Professor has been laid down. The same has since been amended by letter no.BSU-25/83-3038-GS(1) dated 09.09.1988 and the letter no.BSU-11-89/3748/GS(1) dated 15.12.1990.

For the purpose of University Professor, the qualification is prescribed to be eminent scholar with published work of high quality actively engaged in research, about 10 years of experience of teaching and/or research. Experience of guiding research at Doctoral level OR an outstanding scholar with established reputation who has made significant contribution to the knowledge.

The writ petitioner, since has completed 16 years of continuous service on 27.01.1998, became eligible for promotion to the post of Professor from the post of Reader. However, the University had not considered the case for promotion of Readers to the post of Professors who have completed 16 years of service as Lecturers/Readers after 22.09.1995.

According to the writ petitioner, the time bound promotion was substituted and replaced by another Statute for placement of Lecturers to the post of Lectures in the Senior Pay Scale and Statute for promotion of Lecturers in the Senior Pay Scale to the post of Readers and for placement of Lecturers in Senior Pay Scale to the post of Lecturers in Selection Grade under the Career Advancement Scheme (CAS). This scheme of CAS was approved by the Chancellor vide his letter no.BSU-20/95-2132/GS(1) dated 23.09.1995.

The aforesaid statute of CAS, however, formulated for substituting the time bound promotion scheme by a new scheme of promotion under the Career Advancement Scheme which refers only to the substitution of the scheme of time bound promotions of Lecturers to the posts of Readers. It does not refer to the substitution of the Scheme of time bound promotion of Readers to the post of Professors either under 25 years scheme or 16 years scheme as envisaged under the time bound promotion statute. Thus, according to the learned counsel, the statute does not refer to supersession of the provisions of time bound promotion of the Readers to the posts of Professors after 23.09.1995. Therefore, the time bound promotion scheme of Readers to the post of Professors as envisaged by the Statute of 1986 continues to remain in force even after 23.09.1995.

The writ petitioner‟s further case is that on 26.06.2008, the Human Resources Development Department, Government of Jharkhand published a notification in the Jharkhand Gazette, dated 02.07.2008 by which the statute for placement of Lecturers to the post of Lectures in the Senior Scale, for promotion of Lecturers in the Senior Scale to the posts of Lecturers in Selection Grade/Reader and promotion of Readers to the posts of University Professors of University Departments, Constituent Colleges, Affiliated Colleges including Religious and Linguistic Minority Colleges bearing no.5/Pro 3-01/04-277 as assented to by the Chancellor on 13.06.2008. The aforesaid statute has substituted and replaced all the other earlier statutes with respect to the promotion of Lecturers to the posts of Readers and that of Readers to the posts of Professors.

The aforesaid statute came into force w.e.f. 27.07.1998. The writ petitioner, in the aforesaid background has raised his grievance to extend the benefit of time bound promotion from the post of Reader to University Professor but it was communicated to the writ petitioner that the CAS Statute, which came into force w.e.f. 23.09.1995, does provide for any scheme for promotion from the post of Reader to the post of University Professor as it relates to the promotion from the post of Lecturer to the post of Reader only and therefore, the Statute/Scheme of 16 years time bound promotion has not been repealed and it still exists and therefore, the time bound promotion statute is still applicable in Bihar.

The respondent authorities have not considered by taking final decision has led the writ petitioner to approach this Court by filing writ petition being W.P.(S) No.3375 of 2016 by taking the ground that he is entitled to get the benefit of promotion in view of the notification dated 24.12.1986 which will have its effect up to 26.07.1998, as such, he is entitled to be promoted to the post of Professor as he has completed 16 years of continuous service as Lecturer.

3.

The State has appeared and filed counter affidavit and contested the case by taking the plea that after coming into effect of the notification dated 23.09.1995, the benefit which is now being sought for in view of the notification dated 24.12.1986 will not be held to be applicable since the notification dated 23.09.1995 has impliedly repealed the notification issued on 24.12.1986 basis upon which the writ petitioner is seeking a direction for consideration of his case for time bound promotion.

The learned Single Judge, after taking into consideration the rival submissions advanced on behalf of the parties, has allowed the writ petition by passing a direction for constituting a committee as also other directions contained therein as referred above.

5.

It has been stated at bar that in pursuance to the order passed by the learned Single Judge, the competent authority upon whom the direction was issued, had constituted a committee. But, the State appellant has assailed the order passed by the learned Single Judge only to the effect wherein the finding has been arrived about the applicability of the notification issued on 24.12.1986 till 26.07.1998 while according to the State appellant, the day when the statute was issued on 23.09.1995, the statute issued on 24.12.1986 will have its effect till 26.07.1998 is absolutely incorrect finding, therefore, the same is not sustainable in the eye of law.

6.

Learned Advocate General, referring to the statutes issued on 24.12.1986 and 23.09.1995, has submitted that in the statute issued on 23.09.1995 there is no repealing clause but after coming into effect of the statute on 23.09.1995, the statute issued on 24.12.1986 will be said to have been impliedly repealed.

He, in order to strengthen his argument, has relied upon the order passed by the Division Bench of the Patna High Court rendered in Letters Patent Appeal No.1551 of 2018 arising out of C.W.J.C. No.4164 of 2015 [D. Raghu Bans Prasad Singh vs. The State of Bihar and Ors.].

7.

Mr. Rahul Kumar, learned counsel for the writ petitioner, has submitted that the statute issued on 24.12.1986 has correctly been held to be applicable by the learned Single Judge because of the reason that the statute issued on 23.09.1995 cannot be construed to be in supersession to the statute issued on 24.12.1986. Further, in the statute issued on 23.09.1995 there is no stipulation to consider the case of the persons holding the post of Lecturer to get the time bound promotion and to get the post of Reader under time bound promotion scheme rather it speaks about grant of selection grade and senior selection grade attached to the post of Reader, therefore, the statute issued on 24.12.1986 will have to be made applicable with respect to the consideration of the case of the writ petitioner and taking into consideration the aforesaid aspect of the matter, the learned Single Judge if held the statute issued on 24.12.1986 to be applicable, the same cannot be said to suffer from an error.

Such argument is being made on the basis of the fact that in the year 2008, the Statute for Career Advancement Scheme to be implemented w.e.f. 27.07.1998 has been approved by the Chancellor in supersession of the Statute of promotion as assented by the Chancellor and notified vide Letter No. BSU 20/95 2132/GS(1) dated 23.09.1995 and BSU 20/95-2133/GS(1) dated 23.09.1995.

7.

We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

8.

The undisputed fact in this case is that the writ petitioner was appointed as Lecturer in Mathematics on the recommendation of the Selection Committee of the Ranchi University vide notification dated 07.01.1982. He claims to be entitled for time bound promotion from the post of Lecturer to the post of Reader under the 10 years‟ time bound promotion scheme under Mathematics as per the statute dated 24.12.1986 to be applicable at least up to 26.07.1998.

The learned Single Judge came to the finding about the applicability of the statute dated 24.12.1986 to be applicable w.e.f. 27.06.1998 by recording reason in the impugned order that the contention of the State appellant about supersession of the statute dated 24.12.1986 by virtue of the statute dated 23.09.1995 held to be incorrect.

The learned Single Judge came to such conclusive finding by taking into consideration the non-availability of the rules to consider for promotion from Lecturer to Reader under the time bound promotion scheme having not been referred in the statute dated 23.09.1995. The State has preferred the instant appeal on that limited ground, i.e., the finding recorded by the learned Single Judge to the effect about applicability of the statute dated 24.12.1986 up to 26.07.1998 is bad in the eye of law.

According to the State-appellant, the moment the statute dated 23.09.1995 came, the statute dated 24.12.1986 will stand impliedly superseded.

9.

This Court, in view of such ground is required to answer : As to whether the statute dated 23.09.1995 will impliedly repeal the statute issued on 24.12.1986?

11.

This Court, before answering the aforesaid issue, deems it fit and proper to refer about the principle of implied repealment by taking into consideration the provision of Section 6 of the General Clauses Act. Section 6 of the General Clauses Act provides for the provision of repeal and the stipulation in the new Act if contains repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other law will be there and the same will further strengthen on the principle of intention of one person or thing is the exclusion of another. Since there is a presumption against repeal by implication and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation------

12.

--------

13.

This Court, on the basis of the aforesaid settled position of law and in order to scrutinize the terms for consideration of the true meaning and effect of the earlier Act, thinks it proper to refer the provision of the Statute for time bound promotion of Lecturers to the post of Readers and for Readers to the post of University Professors as approved by the Chancellor vide Letter No.BSU-27/85-4032/GS(1) dated 24.12.1986. It is evident from the aforesaid statute that the Chancellor on the recommendation of the Bihar Inter University Board and the State Government, has approved the statute in exercise of power conferred under Section 5(2) of the Bihar Inter University Board Act, 1981 for implementation of in the University. The aforesaid statute contains a provision as under Statute No.1 wherein it has been provided that the Lecturer, serving in a University department or in a degree college managed and maintained by the University shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound Scheme; to the post of Reader, subject to the following conditions:

(a)

That, he holds the qualification as prescribed for the post of Lecturer under the Statute inforced at the time of his appointment as lecturer and has fulfilled the conditions, if any attached thereto as laid down in the Statute:

(b)

That, he holds substantive appointment on the post of a Lecturer;

and (c) That, he has completed at least ten years of continuous Service as lecturer in one or more Universities:

Provided that the service rendered in a degree college during the period the college was not affiliated in the subject concerned even up to the Intermediate standard, shall not be taken into account for the purpose of this Statute:

Provided further that the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statute.

Provided that the qualifications prescribed for the appointment of Lecturers mentioned above may be relaxed in case of such teachers who were absorbed in the services of the University under the Statutes inforce from time to time and also in case of Demonstrators promoted to the post of Lecturers under the Statute framed for that purpose.

13.

It is evident from the other statute that the Reader, serving in a University Department or in a degree college, managed and maintained by the University and has completed at least twenty five years of continuous service as teacher not below the rank of lecturer in one or more Universities shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound scheme to the post of University Professor subject to the condition given in the provisos to clause (I) above. Further, a Reader possessing the qualification of a 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 years of continuous service as lecturer/reader in one or more Universities, shall on recommendation of the Bihar State University (Constituent Colleges) Service Commission be promoted to the post of University Professor, other conditions remaining the same.

14.

It appears from the Statute No.2, wherein stipulation has been made that such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Colleges) Service Commission on consideration of experience and C.C. Roll of the teacher concerned.

15.

It appears from the Statute No.3 that the promotion under the above clauses shall be admissible only in the faculties in which the fifth plan U.G.C. scale of pay have been implemented by the University, but a teacher who did not opt for the U.G.C. scale of pay shall also be eligible to be considered for promotion to the post of Reader or University Professor, as the case may be, under this Statute in the old scale of pay.

16.

It appears from Statute No.6 wherein it has been stipulated that the post held by the Lecturer or Reader who is promoted to the post of Reader or University Professor shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted in to the post of Lecturer or Reader, as the case may be in the event of retirement, resignation, death or otherwise provided that if the post of Reader or Lecturer was itself an upgraded post which was further upgraded as that of Reader or University Professor, the same shall be converted into the Lecturer‟s post in the event of vacancy.

17.

It appears from Statute No.7 that the upgraded post shall be deemed to be a substantive post till the promotee hold it but any temporary vacancy on the post on account of promotee being on leave or on foreign service or officiating in or holding another post on temporary basis shall be that of lecturer or Reader (not being as upgraded post), as the case may be.

18.

The inter-se seniority has been provided to be maintained at Statute No.9 of the teachers which will not be adversely affected by the time bound promotion.

19.

It appears from the Statute No.10 appointment to the duly created post of Readers or University Professors as also promotion under the Merit Promotion Scheme for Readers shall continue to be made on the basis of the prescribed qualifications and in the manner prescribed in the Act and the Statute.

20.

The relevant provisions, as referred above, are being reproduced

as under: “1. Notwithstanding anything to the contrary as contained in the Statutes, it is hereby provided that :- (1) A Lecturer, serving in a University department or in a degree college managed and maintained by the University shall on the recommendation of the Bihar State University (Constituent\ Colleges) Service Commission, be promoted on the basis of time bound Scheme; to the post of Reader, subject to the following conditions (a) That, he holds the qualification as prescribed for the post of Lecturer under the Statute inforced at the time of his appointment as lecturer and has fulfilled the conditions, if any attached thereto as laid down in the Statute: (b) That, he holds substantive appointment on the post of a Lecturer; and (c) That, he has completed at least ten years of continuous Service as lecturer in one or more Universities: Provided that the service rendered in a degree college during the period the college was not affiliated in the subject concerned even up to the Intermediate standard, shall not be taken into account for the purpose of this Statute: Provided further that the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statute. Provided that the qualifications prescribed for the appointment of Lecturers mentioned above may be relaxed in case of such teachers who were absorbed in the services of the University under the Statutes inforce from time to time and also in case of Demonstrators promoted to the post of Lecturers under the Statute framed for that purpose. (2) A Reader, serving in a University Department or in a degree college, managed and maintained by the University and has completed at least twenty five years of continuous service as teacher not below the rank of lecturer in one or more Universities shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound scheme to the post of University Professor subject to the condition given in the provisos to clause (I) above. (3) A Reader possessing the qualification of a 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 years of continuous service as lecturer/reader in one or more Universities, shall on recommendation of the Bihar State University (Constituent Colleges) Service Commission be promoted to the post of University Professor, other conditions remaining the same. 2. Such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Colleges) Service Commission on consideration of experience and C.C. Roll of the teacher concerned. Provided that where C.C. Rolls have not been maintained before implementation of these statutes, the cases of teachers who are eligible for promotion as Reader or University Professor on the date of implementation of this Statute, shall be considered by the said Commission on the basis of experience and certificates from the Heads of University Departments or Principals of Colleges concerned in regards to the satisfactory service of the teachers after the same have been screened by a committee consisting of the Vice Chancellor. The Dean of the Faculty concerned, the Head of the University Department concerned and two experts appointed by the Vice-Chancellor from the panel prepared by the Bihar Inter University Board. Provided further that the report of the committee in each case shall be referred to the Bihar State University (Constituent Colleges) Service Commission for its recommendation but where in the opinion of the committee a teacher fulfills the prescribed conditions and is found fit to be promoted, the Syndicate may, on the recommendation of the Vice-Chancellor pass orders for promotion of such a teacher on a temporary basis till final decision is taken on the recommendation of the said Commission, but in case the Commission does not recommend for promotion, the temporary promotion given to such a teacher shall cease to be effective immediately. Also provided that hereafter C.C. Rolls shall be regularly maintained in respect of each teacher according to the procedure and in the form to be approved by the Chancellor for the purpose. 3. Promotion under the above clauses shall be admissible only in the faculties in which the fifth plan U.G.C. scale of pay have been implemented by the University, but a teacher who did not opt for the U.G.C. scale of pay shall also be eligible to be considered for promotion to the post of Reader or University Professor, as the case may be, under this Statute in the old scale of pay. 6. The Post held by the Lecturer or Reader who is promoted to the post of Reader or University Professor shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted in to the post of Lecturer or Reader, as the case may be in the event of retirement, resignation, death or otherwise provided that if the post of Reader or Lecturer was itself an upgraded post which was further upgraded as that of Reader or University Professor, the same shall be converted into the Lecturer’s post in the event of vacancy. 7. The upgraded post shall be deemed to be a substantive post till the promote hold it but any temporary vacancy on the post on account of promote being on leave or on foreign service or officiating in or holding another post on temporary basis shall be that of lecturer or Reader (not being as upgraded post), as the case may be. 9. The inter-se seniority of the teachers will not be adversely affected by the time bound promotion. 10. Appointment to the duly created post of Readers or University Professors as also promotion under the Merit Promotion Scheme for Readers shall continue to be made on the basis of the prescribed qualifications and in the manner prescribed in the Act and the Statute.”

21.

It is evident after going across the aforesaid provision as referred and quoted above that a person holding the post of Lecturer has been decided to be considered to be promoted as Reader under the time bound promotion scheme. The Statute further suggests that such promotion granted to the post of Lecturer under the time bound promotion scheme will not be considered to be the promotion on the substantive post as would be evident from the stipulation made under Statute No.7.

22.

It further appears from Statute No.9 that the inter-se seniority of the teachers will not be adversely affected by the time bound promotion, meaning thereby, if the promotion granted under the aforesaid scheme will be treated to be promotion granted in the substantive post, in that circumstances, there would not have been such stipulation of fixation of inter-se seniority about not adversely affecting the inter-se seniority of the teachers on the basis of grant of such promotion under the time bound promotion scheme.

23.

The writ petitioner claims that he is fulfilling the eligibility criteria as stipulated under the statute notified on 24.12.1986 which will be applicable up to 26.07.1998.

24.

It is evident from the material available on record that the State came out with a Statute regarding merit promotion of Lecturers as Readers approved by the Chancellor on 24.12.1986. It is evident from the bare perusal of the aforesaid statute that the provision has been made for consideration of candidature of one or the other candidates for merit promotion after completing at least eight years of continuous service as Lecturer of which at least four years should be in the department where he/she is being considered for assessment and promotion. As such, it is evident that the statute approved by the Chancellor on 24.12.1986 provides for consideration of candidature of one or the other Lecturer to be upgraded in the pay scale under the time bound promotion scheme while the statute approved by the Chancellor on 23.09.1995 provides for promotion on merit from the post of Lecturer to the higher posts depending upon the eligibility criteria fulfilled by one or the other candidate.

25.

Thereafter, another Statute was approved by the Chancellor on 24.11.1986 regarding merit promotion of Readers as University Professors who have completed eight years of continuous service as Readers.

26.

The Statute approved by the Chancellor on 23.09.1995 is for placement of Lecturer to the post of Lecturers in the senior pay scale and statute for promotion of Lecturers in the senior pay scale to the post of Readers and for placement of the Lecturers in the senior pay scale to the post of Lecturers in the Selection Grade under Career Advancement Scheme.

27.

It is evident that the aforesaid statute has been enacted for placement of Lecturers in the senior pay scale under Career Advancement Scheme providing therein that a Lecturer serving in a University department or in a degree college managed and maintained by the University shall, on the recommendation of the Bihar State University (Constituent Colleges) Service Commission will be placed in a senior scale of Rs.3000-5000 under Revised Pay Scale of University and degree college teachers introduced by the State Government subject to the condition stipulated therein. Thus, it is evident that the Statute approved by the Chancellor on 24.12.1986 is for the purpose of consideration of candidature of a person holding the post of Lecturer to be upgraded as Lecturer in the senior pay scale and in the senior pay scale to the post of Readers.

28.

The main thrust of argument of the learned counsel for the parties about implied repealment of the statute approved by the Chancellor on 24.12.1986 is the statute approved by the Chancellor on 23.09.1995.

29.

In the background of these three statutes, this Court, is now proceeding to consider the effectiveness of the statute approved by the Chancellor on 24.12.1986 as to whether it is up to 27.07.1998 or will stand impliedly repealed the day when the Statute approved by the Chancellor on 23.09.1995, has come.

30.

This Court, after making comparative scrutiny of both the statutes has found that the provision of upgradation in the pay scale provided to be granted under the time bound promotion scheme while the statute approved on 23.09.1995 speaks about upgradation in pay scale under the Career Advancement Scheme. It appears from the comparative assessment of both the provisions that prior to implementation of grant of upgradation by way of career advancement scheme, the time bound promotion scheme was prevalent.

31.

There is no dispute about the fact that the time bound promotion scheme or the career advancement scheme provides for grant of upgradation in pay scale as would be evident from the specific stipulation under both the statutes, i.e., 24.12.1986 and 23.09.1995. If the upgradation in pay scale, either under the time bound promotion scheme or career advancement scheme, would have been to grant promotion in the substantive post, there would not have been stipulation made in both the statutes using the word „personal promotion‟ and after the post having been relinquished either by resignation or in case of any eventuality, the post will remain on substantive post of Lecturer as also while granting upgradation either under the time bound promotion scheme or career advancement scheme, specific stipulation has been made that the inter-se seniority of the person holding the post of Lecturer will not be adversely affected, meaning thereby, the upgradation granted either under the time bound promotion scheme or career advancement scheme is upgradation in pay scale.

32.

The contention as has been raised by the learned counsel for the writ petitioner about applicability of the time bound promotion scheme in pursuance of the statute approved by the Chancellor on 24.12.1986 which contains a different eligibility criteria in comparison to that of statute approved by the Chancellor on 23.09.1995 wherein the upgradation has been granted in the pay scale under Career Advancement Scheme which is having the different eligibility criteria. Therefore, in view of the fact that in both the statutes the different eligibility criteria has been fixed for consideration of candidature of one or the other candidates for granting benefit of upgradation and if in such circumstances, the statute which was approved by the Chancellor on 24.12.1986 will be allowed to be continued even after coming into effect of the statute approved by the Chancellor on 23.09.1995, the result of the same will be that after 23.09.1995 up to 26.07.1998, the benefit of the upgradation would be fixed on the basis of the eligibility criteria based upon which eligibility criteria contained in the statute approved on 24.12.1986 which is not permissible, reason being that for getting the benefit of upgradation in the pay scale, there cannot be two different criteria. Therefore, according to the considered view of this Court, the contention as has been raised about applicability of the statute approved 24.12.1986 held to be applicable up to the effectiveness of the statute notified in the year 2008 making it applicable w.e.f. 27.07.1998 cannot be gathered that till 26.07.1998 statute approved by the Chancellor on 24.12.1986 will be applicable since in the meanwhile, another statute has been enacted after having been approved by the Chancellor on 23.09.1995, reason being that on scrutiny of the scope and object of both the Statutes, i.e., 24.12.1986 and 23.09.1995 and after examining the true meaning and effect of the earlier Statute, it cannot be said that there is any inconsistency in between the two enactments. The area of operation in question are not different rather it is operative to achieve the same aim and object, i.e., to provide upgradation in pay scale in identical nature. Since both the enactments are to achieve similar object of giving upgradation in pay scale, hence, it would not be proper for their existence side by side, as such, as per the doctrine of the implied repeal, will not be applicable since the two enactments are not repugnant to each other rather they are for the purpose of achieving the same object, hence, the former statute, i.e., 24.12.1986 will be impliedly repealed immediately after coming into effect the new statute after having been approved by the

Chancellor on 23.09.1995. 33. This Court also deems it fit and proper to discuss the judgment, relied upon by the learned Advocate General appearing for the State of Jharkhand, rendered by the Division Bench of the Patna High Court in Letters Patent Appeal No.1551 of 2018 arising out of C.W.J.C. No.4164 of 2015 (supra). We have considered the aforesaid judgment and has found therefrom that the Division Bench of the Patna High Court after taking into consideration the statute approved by the Chancellor on 24.12.1996 as also the statute approved by the Chancellor on 23.09.1995 has answered the issue about applicability of the statute of the year 1986 even after 23.09.1995. The aforesaid issue has been answered by considering Clause-8 of the statute approved on 23.09.1995 by making an observation to the effect that the promotion of Lecturers in the senior pay scale to the post of Readers and placement of Lecturers in the senior pay scale to the post of Lecturers in the senior selection grade has come into force by superseding the time bound promotion including the amendment of the time bound promotion statute approved on 20.11.1987, whereby Clause 1(3) was introduced. It has further been held that after repealment of time bound promotion w.e.f. 23.09.1995, the appellant cannot be deprived of the avenues of promotion from the post of Readers to University Professors and thus would be entitled for consideration of promotion either under the merit promotion scheme till it remained in operation up to 20.07.2001 or under the career advancement scheme.

34.

It requires to refer herein that although the judgment passed by the High Court is not having binding precedence but it has got persuasive value. The law is settled that although the judgment passed by different High Court is not applicable but if it has got persuasive value, -----

35.

Herein, the aforesaid statute were approved by the Chancellor during the period of undivided State of Bihar and if the aforesaid statutes has been considered by the Patna High Court even in the year 2019 holding the applicability of the statute approved by the Chancellor on 24.12.1986 which stands impliedly repealed after coming into force of the statue approved on 23.09.1995, there is no reason not to follow the finding recorded therein.

36.

This Court, after having discussed the facts in entirety and having gone through the finding of the learned Single Judge to the effect about applicability of the statute approved by the Chancellor on 24.12.1986 even after the statute approved on 23.09.1995 and the career advancement scheme, 2008 having been declared to be applicable up 26.07.1998, just before the day of effectiveness of the career advancement scheme, 2008, finding has been arrived at in complete ignorance of the fact that the statute of the year 1995 since is in the same field as was the statute of the year 1986, therefore, holding the applicability of the statute 1986 up to 26.07.1998 cannot be said to be a justified finding.

37.

Therefore, according to our considered view, the finding recorded by the learned Single Judge to the effect that the statute approved by the Chancellor on 24.12.1986 will be effective till 26.07.1998 is held to be incorrect, as such, the same is quashed and set aside. The writ petitioner or similarly situated employees could be considered for upgradation in pay scale either on the basis of statute approved on 23.09.1995 or under the Career Advancement Scheme, 2008.

38.

This Court, after having to the conclusion about non-availability of the Statute approved on 24.12.1986 till 26.07.1998, now deems it fit and proper to deal: “As to whether the writ petitioner is entitled to get any benefit on the basis of the repealed Act.” In the context of the given facts and circumstances of the case, it is required to consider the implication of repealment after coming into effect of the new statute having been approved by the Chancellor on 23.09.1995. Section 6 of the General Clauses Act provides provision of repeal and saving which

reads as under: “6 Effect of repeal. —Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not— (a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b)

affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”

The above provision stipulates that if by virtue of the act which has been repealed, the benefit is given to the person concerned, shall not be effected. -------

39.

In the light of the above legal position, the factual aspect of the instant case is that, admittedly the writ petitioner is claiming to get the benefit on the basis of the Statute approved on 24.12.1986 but, since we have already arrived at a conclusive finding as above that the Statute approved on 24.12.1986 has impliedly been repealed, therefore, the writ petitioner is not entitled to get any benefit on the basis of the repealed Statute, i.e., 24.12.1986.

40.

In the result, the instant appeal is allowed, accordingly, stands disposed of.

41.

In consequence thereof, I.A. No.10172 of 2018 also stands disposed of.”

17. STATUTE FOR TIME BOUND PROMOTION OF LECTURERS TO THE POSTS OF READERS AND FOR

READERS TO THE POSTS OF UNIVERSITY PROFESSORS. (As approved by the Chancellor vide letter no. (BSU-27/85-4032GS(1) dated 24.12.1986)

Subject: -Statute for time bound promotion of Lecturers to the posts of University Professors.

I am directed to invite a reference on the above subject and to say that the Chancellor on the recommendation of Bihar Inter University Board and the State Government has been pleased to approve the following Statutes under section 5 (2) of the Bihar Inter University Board Act, 1981 for implementation in your University.

1.

Notwithstanding anything to the contrary as contained in the Statutes, it is hereby provided that :-

(1)

A lecturer, serving in a University department or in a degree college managed and maintained by the University shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound Scheme; to the post of Reader, subject to the following conditions:-

(a)

That, he holds the qualification as prescribed for the post of Lec-turer under the Statute inforced at the time of his appointment as lecturer and has fulfilled the conditions, if any attached thereto a5 laid down in the Statute:

(b)

That, he holds substantive appointment on the post of a Lecturer; and

(c)

That, he has completed at least ten years of continuous Service as lecturer in one or more Universities:

Provided that the service rendered in a degree college during the period the college was not affiliated in the subject concerned even up to the Intermediate standard, shall not be taken into account for the purpose of this Statutes:

Provided further that the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statute.

2["Provided that the qualifications prescribed for the appointment of Lectur-ers mentioned above may be relaxed in case of such teachers who were ab-sorbed in the services of the University under the Statutes inforce from time to time and also in case of Demonstrators promoted to the post of Lecturers under the Statute framed for that purpose."

Further action in the matter may be taken accordingly.

(2)

A Reader, serving in a University Department or in a degree college, managed and maintained by the University and has completed at least twenty five years of continuous service as teacher not below the rank of lecturer in one or more Universities shall on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, be promoted on the basis of time bound scheme to the post of University Professor subject to the condition given in provisos to clause (1) above.

(3)

[A Reader possessing the qualification of a University Professor pre-scribed 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 years of continuous service as lecturer/Reader in one or more. Universities, shall on recommendation of the Bihar State University (Con-stituent colleges) Service Commission be promoted to the post of University Professor, other conditions remaining the same.

2.

Such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of the Bihar State Uni-versity (Constituent Colleges) Service Commission on consideration of experi-ence and C.C.Roll of the teacher concerned.

Provided that where C.C. Rolls have not been maintained before imple-mentation of these statutes, the cases of teachers who are eligible for promotion-as Reader or University Professor on the date of implementation of this Statute, shall be considered by the said Commission on the basis of experience and cer-tificates from the Heads of University Departments or Principals of Colleges concerned in regards to the satisfactory service of the teachers after the same have been screened by a committee consisting of the Vice-Chancellor. The Dean of the Faculty concerned, the Head of the University Department concerned and two experts appointed by the Vice-Chancellor from the panel prepared by the Bihar Inter University Board.

Provided further that the report of the committee in each case shall be referred to the Bihar State University (Constituent Colleges) Service Commission for its rec-ommendation but where in the opinion of the committee a teacher fulfills the pre-scribed conditions and is found fit to be promoted, the Syndicate may, on the reco-mendation of the Vice-Chancellor pass orders for promotion of such a teacher on a. temporary basis till final decision is taken on the recommendation of the said Com-mission, but in case the Commission does not recommend for promotion, the tempo-rary promotion given to such a teacher shall cease to be effective immediately.

Also provided that hereafter C.C.Rcils shall be regularly maintained in re-spect of each teacher according to the procedure and in the form to be approved by the Chancellor for the purpose.

3.

Promotion under the above clauses shall be admissible only in the factual-ties in which the fifth plan U.G.C. scale of pay have been implemented by the University, but a teacher who did not opt for the U.G.C. scale of pay shall also be eligible to be considered for promotion to the post of Reader or University Profess- sor, as the case may be, under this Statute in the old scale of pay.

4.

Where a teacher is promoted to the post of leader or University Profess-sor, as the case may be, such a promotion shall take effect from the date on which the lecturer entered the 11th year of his qualifying service or the Reader entered the 26th year of this qualifying service as the case may be, or from the Ist February 1985 whichever is later.

5.

The case of teacher, who is not recommended by the said Commission for promotion as Reader or University Professor may again be considered for promotion after a period of one year has elapsed since his name was last considered. The promotion in such a case shall effect from the date of the recommendation of the Commission. The Post held by the Lecturer or Reader who is promoted to the post of Reader or University Professor shall be deemed to be upgraded with effect from the date of such promotion and shall remain upgraded as such till the incumbent continues to hold the post, but the same shall be converted in to the post of Lecturer or Reader, as the case may be in the event of retirement, resignation, death or otherwise provided that if the post of Reader or Lecturer was itself an upgraded post which was further upgraded as that of Reader or University Professor, the same shall be converted into the Lecturer's post in the event of vacancy.

7.

The upgraded post shall be deemed to be a substantive post till the promotee hold it but any temporary vacancy on the post on account of promotee being on leave or on foreign service or officiating in or holding another post on temporary basis shall be that of lecturer or Reader (not being as upgraded post), as the case may be.

8.

The lecturer who is promoted as Reader or the Reader who is promoted as University Professor shali from the date of promotion draw his pay in the higher scale which shall be fixed under the relevant provision of the service stat-ute of the University.

9.

The inter-se-seniority of the teachers will not be adversely affected by time bound promotion.

10.

Appointment to the duly created post of Readers or University Profes-sors as also promotion under the Merit Promotion Scheme for Readers shall con-tinue to be made on the basis of the prescribed qualifications and in the manner prescribed in the Act and the Statutes

11.

The Registrar of the University with the approval of the Vice-Chancellor shall place a list of eligible candidates giving all the required information about each of them along with all the relevant papers including service records and C.C.Rolls before the screening Committee to be appointed by the Vice-Chancel-lor for scrutiny. The recommendation of the Screening Committee along with all the relevani papers shall be submitted to the Bihar State University (Constituent Colleges) Service Commission and the recommendation of the said Commission shall be placed before the Syndicate at the next meeting for orders.

12.

This Statute shall come into force with effect from the first February, 1985 in supersession of the Statute approved by the Chancellor on 24.10.81 vide Governor's Secretariat letter No. BSU 51/81-2779-GS(1) dated 14.11.81 but all actions taken under the said statute before the date of implementation of this statute shall be deemed to be valid.

"Note" deleted vide No. BSU-25/89-3128 (1) dated 12.10.90. 1.

2.

Ins. by ibid.

3.

Added by BSU-26/85-4099/G.S. (1) dated 20.11.1987.

“33. STATUTES FOR PLACEMENT OF LECTURERS TO THE POST OF LECTURERS IN THE SENIOR PAY SCALE AND

STATUTE FOR PROMOTION OF LECTURERS IN THE SENIOR PAY SCALE TO THE POST OF READERS AND FOR PLACEMENT OF THE LECTURERS IN THE SENIOR PAY SCALE TO THE POST OF LECTURERS IN THE SELECTION GRADE UNDER CAREER ADVANCEMENT SCHEME. (As approved by the Chancellor vide letter No.BSU 20/95-2132/GS(1) dated, the 23 September, 1995.)

I am directed to invite a reference on the above subject and to say that the Chancellor on the recommendation of the Bihar Inter University Board and the State Government has been pleased to approve the following Statutes under Sec-tion 5(2) of the Bihar Inter University Board Act, 1981 for implementation in your Statute for placement of lecturers in the senior pay scale (Rs. 3000-5000) under career advancement scheme.

1.

Notwithstanding anything to the contrary as contained in the Statutes, it is hereby provided that:

A Lecturer, serving in a University Department or in a Degree College man-aged and maintained by the University shall, on the recommendation of the Bihar State University (Constitutent College) Service Commission will be placed in a senior scale of Rs.3000-5000 under revised pay scale of University and Degree College teachers introduced by the State Government (vide No. 14/P2-05/87 HRD 1044 dated 7.8.1989) subject to the following conditions:

(a)

That he holds the qualification as prescribed for the post of Lec-turer under the Statute enforced at the time of his appointment as Lecturer and has fulfilled the conditions, if any attached thereto, as laid down in the Statute.

(b)

That, he holds substantive appointment on the post of Lecturer and his appointment has been made as per provisions of the Act and Statutes existing at that time. (c) That, he has completed eight years of continuous service after regular appointment against a sanctioned post with the relaxation that a candidate who, at the time of his recruitment as Lecturer, possesses Ph.D. or M.Phil degree will be sanctioned three and one advance increments respectively in the scale of Rs.2200-4000 along with the benefit of corresponding years of service for the purposes of this placement and further promotion. The existing Lecturers without research degree, and those similarly situated and recruited in future will be eligible for a similar benefit in service for the pur-pose of subsequent promotion as and when they acquire research degree, but will not be eligible for advance increments. Existing Lec-turers with research degrees will also be eligible for a similar benefit.

Provided that, in case of a Degree College, the service rendered during the period the College was not affiliated in the subject concerned shall not be taken into account for the purpose of this Statute; provided further that, the service rendered in more than one University shall be deemed to be continuous if the period elapsed between leaving the service of a University and joining the service of another University does not exceed the normal joining time as prescribed in the service Statute.

Provided further that if a teacher appointed by the University as per proper procedure through open advertisement but placed in a Degree College even not imparting teaching in the subject concerned upto Degree level will be eligible for the above benefits.

Provided further, that the total period of experience in a Degree College managed and maintained by the University shall be taken into account but only 2/3rd of the total period in an affiliated Degree College prior to its conversion into a Constitutent Unit shall be considered.

(d)

That he has participated in two Refresher Courses/Summer Insti-tutes, each of approximately 4 weeks' duration or engaged in other appropriate continuing education programmes of comparable qual-ity as may be specified by the U.G.C.

(e)

That, he possesses satisfactory performance appraisal reports.

2.

The placement in the Senior pay Scale shall not be automatic but shall be made on the recommendation of the Bihar State University (Constituent Col-leges) Service Commission on consideration of experience and performance ap-praisal reports.

3.

The Registrar of the University with the approval of the Vice-Chancellor, shall place a list of eligible candidates giving all the required information about each of them alongwith all the relevant papers including service and performance appraisal records before the Screening Committee to be appointed by the Vice-Chancellor for scrutiny.

The Screening Committee shall consist of the Vice-Chancellor, the Dean of the Faculty concerned, the Head of the University Department concerned as In-ternal Expert and two External Experts in the subject concerned appointed by the Vice-Chancellor from the panel prepared by the Bihar Inter University Board. Provided that the recommendation of the Screening Committee shall be-come invalid if any one of the two External Experts appointed by the Vice-Chan-cellor is from outside the panel prepared by the Bihar Inter University Board. Provided further that the report of the Screening Committee in each case shall be referred to the Bihar State University (Constituent Colleges) Service Com-mission within a period of one month for its recommendations.

Provided that the Bihar State University (Constituent Colleges) Service Com-mission shall send its recommendation within six months.

4.

The recommendation of the Bihar State University (Constituent Colleges) Service Commission shall be placed before the Syndicate at the next meeting for orders.

5.

Also provided that hereafter performance appraisal records shall be regularly maintained in respect of each teacher according to the procedure and in the form to be approved by the Chancellor for the purpose.

6.

The seniority of teachers promoted under this Statute shall be deter-mined from the date of promotion, but the inter-se-seniority of teachers promoted from the same date shall be the same as they had on their lower post.

7.

Placement under the above clauses shall be admissible only in the facul-ties in which U.G.C. scale of pay effective from 1.1.1986 have been implemented by the University.

8.

The case of the teacher, who is not recommended by the said Commis-sion for placement in the senior pay scale may again be considered after one year has elapsed since his name was last considered. The placement in such a case shall take effect from the date of the recommendation of the Commission.

9.

The Inter-se seniority of the teachers will not be adversely affected by placement in the senior pay scale.

“8.

The Statute for placement of Lecturers in the senior pay scale and also the Statute for promotion of Lecturers in the senior pay scale to the post of Reader and placement of lecturers in the senior pay scale to the post of Lecturers in the selection Grade shall come into force in supersession of the Statutes approved by the Chancellor on 24.12.1986 (BSU-27/85-4032-GS (1) and amended on 20.11.1987 (BSU-27/85-4099-GS (1) and 28.11.1987 (BSU-27/85-4213-GS(1).

“6 Effect of repeal. —Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

(a)

revive anything not in force or existing at the time at which the repeal takes effect; or

(b)

affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c)

affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d)

affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e)

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”

“22.

It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal (vide Dagi Ram Pindi Lall v. Trilok Chand Jain [(1992) 2 SCC 13 : AIR 1992 SC 990] ; Gajraj Singh v. STAT [(1997) 1 SCC 650 : AIR 1997 SC 412] ; Property Owners' Assn. v. State of Maharashtra [(2001) 4 SCC 455 : AIR 2001 SC 1668] and Mohan Raj v. Dimbeswari Saikia [(2007) 15 SCC 115 : (2010) 2 SCC (Cri) 782 : AIR 2007 SC 232] ).

24.

Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance.”

“43.

Shri Sundaram's submission is also not in consonance with the law laid down in some of our judgments. The approach to statutes, which amend a statute by way of repeal, was put most felicitously by B.K. Mukherjea, J. in State of Punjab v. Mohar Singh [State of Punjab v. Mohar Singh, (1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 Cri LJ 254] , SCR at pp. 899-900, thus : (AIR p. 88, para 8)

“8.

In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case.””

6.

In Watson v. Winch [(1916) 1 KB 688 : (1916-17) All ER Rep 972] , Lord Reading, C.J., said:

“It would follow that any bye-law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye-law notwithstanding the repeal.” Sankey, J., concurring, said:

“When a statute is repealed any bye-law made thereunder ceases to be operative unless there is a saving clause in the new statute preserving the old bye-law. There appear to be two reasons for this: … Secondly, because the usual practice is to insert in the later statute a section expressly preserving previously made bye-laws if it is intended that they shall remain in force.” (emphasis supplied)

7.

Bennion on Statutory Interpretation, 2nd Edn., at pp. 494 and 495 states that a “saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation”. It adds, “Very often a saving is unnecessary, but is put in ex abundanti cautela to quieten doubts.” The updated text of the Interpretation Act, 1978, (set out in Bennion's book at p. 897) puts into statutory form in Section 15 what is otherwise recognised in law, namely, that the repeal of an enactment does not, unless the contrary intention appears, affect any right or privilege accrued under that enactment.

8.

In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.

“105.

In Harnek Singh [(2002) 3 SCC 481 : 2002 SCC (Cri) 659] this Court held: (SCC p. 490, para 16)

“16.

The words ‘anything duly done or suffered thereunder’ used in clause (b) of Section 6 are often used by the legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered thereunder. This Court in Hasan Nurani Malak v. S.M. Ismail, Asstt. Charity Commr. [AIR 1967 SC 1742] has held that the object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect...”

106.

.. It has been so held by this Court, while construing Section 6 of the General Clauses Act, in Gurcharan Singh Baldev Singh v. Yashwant Singh [(1992) 1 SCC 428] in the following terms: (SCC p. 432, para 3)

“The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.”

“34.

The Statutes.- Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely;

(a)

the institution of Fellowship, Scholarships, exhibitions, medals and prizes:

(b)

the designations and powers of the officers of the University:

(c)

the constitution, powers, functions and duties of the authorities of the University;

(d)

the admission of educational institutions as colleges and the with. drawal of privileges from Colleges so admitted:

(e)

the institution of Colleges and hostels and their maintenance and management:

(1)

the classification of teachers of the University, the manner of their appointment and their recognition;

(g)

the constitution of pension, insurance or provident fund for benefit of the officers, teachers and other servants of the University, and the teacher of Colleges:

(h)

the maintenance of the register of registered graduates; (i) the number, qualification, grade, pay, reservation of posts for 1[scheduled castes, scheduled tribes, Backward Classes, women and economically weaker sections) and conditions of service of teach-ers, officers and other servants of the University including the crea-tion of new posts after considering, as the case may be, the recom-mendations of the Academic Council and the Syndicate, in the case of creation of other posts, and the recommendation of the Syndi-cate, in the case of posts of officers and servants of the University;

(j)

the maintenance of accounts of the income and expenditure of the University including the income and expenditure of Colleges and the forms and registers in which such accounts shall be kept;

(k)

the maintenance of a register of teachers; (1) the conferment of honorary degrees and distinctions;

(m)

all other matters which are or may be prescribed by the Ordinance or the Statutes.”

[22. The Syndicate.-(1) The Syndicate shall be the Executive Council of the of the University and it shall consist of the following members

(a)

Vice-Chancellor;

(b)

Pro-Vice-Chancellor;

(c)

Commissioner-cum-Secretary · of Higher Education or his representative not below the rank of the Joint Secretary

(d)

Director Higher Education;

(e)

Dean, Students Welfare and Proctor;

(f)

Two Heads of the University Departments to be nominated by rotation as prescribed by the Statutes, whose term of office shall be for one year from the date of nomination;

(g)

Two Principals of Colleges maintained by the University to be nominated by rotation as prescribed by the Statute, whose term of office shall be for one year from the date of nomination;

(h)

Two from amongst Professors and Readers of the University of the University other than the University Heads of Departments and tow such Lecturers as have a minimum of five years of teaching experience, to be elected by the teacher members of the Senate by single transferable vote in accordance with the system of proportionate representation, one of whom shall be from other Backward classes from the rank of Professors and Reader, and on from Scheduled Castes/Scheduled Tribes from the rank of Lecturers; (i) Four from amongst the members of the Senate other than teachers, students and employees of University and Colleges, to be elected by the non-teacher members of the Senate by single transferable vote in accordance with the system of proportionate representation, but one of whom shall be Scheduled Castes/Scheduled Tribes and one from the other Backward Classes;

(j)

One reputed educationist nominated by the Chancellor;

(k)

Five persons to be nominated by the State Government one of whom shall be from Castes/Scheduled Tribes/other Backward Classes and one from women having academic interest and in social work elected in aforesaid manner.]

(2)

The term of office of members, other the ex-officio member shall be for a period of three years with effect from the date of their respective election or nomination except otherwise provided and shall include any further period which may elapse between the expiry of the said period of three years and the date of the succeeding election or nomination, except in case of an election or nomination to fill up any casual vacancy 3[ but such extended period shall not be more than one year]; 1

[Provided that any member elected or nominated shall be deemed to vacate office with effect from the date on which he ceases to be member of the category from which he has been elected or nominated.]

2 [(4) The Syndicate shall have perpetual succession and any of its acts or proceedings shall not be invalid merely because of any vacancy of vacancies in its membership.]

1[23. Powers and duties of the Syndicate.-The Syndicate shall

(a)

hold, control and manage the property and funds of the University;

(b)

regulate the use of the common seal of the University;

(c)

subject to the. powers conferred, by or under this Act, on the Vice Chancellor and the Academic Council, determine and regulate all matters concerning the University in accordance with this Act the and the Regulation;

(d)

manage any funds placed at the disposal of the University for specified purpose;

(e)

have power to accept transfers on behalf the University any movable or immovable property to and fo r the benefit of the University or a College;

(f)

make Ordinances, and shall amend or repeal them, and

(g)

exercise such other powers and perform such other duties as are conferred or imposed on it by this Act, or the Statutes.]

35.

No post for appointment shall be created without the prior sanction of the State Government.— Notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such College

(a)

as is established, maintained or governed by the State Government; or

(b)

as is established by a religious or linguistic minority;

(i)

After the commencement of this Act no teaching or non-teaching post involving financial liabilities shall be created without the prior approval of the State Government.]

(ii)

shall either increase the pay or allowance attached to any post, or sanc tion any new allowance; Provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance.

(iii)

shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment or any other benefit having financial implication to any person holding a teaching or non-teaching post;

(iv)

shall incur expenditure of any kind on any development scheme without the prior approval of the State Government.

2.

Notwithstanding anything contained in this Act, no College other than one mentioned in clauses (a) and (b) of sub-section (1), shall, after the com-mencement of this Act, appoint any person on any post without the prior approval of the State Government.

Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification.

[(3) Any appointment or promotion made contrary to the provisions of this Act, or Statues, Rules or Regulations made thereunder or made in irregular or unauthorised manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realised from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.] Legislative changes (after 1982)—

By Ordinance 4 of 1985 sub-clause (i) of clause (b) of subsection (1) of this section was substituted which continued by successive Ordinances till Act 3 of 1990 was enacted. Prior to its substitution this sub-clause read as follows:—

"(i)

shall, after the commencement of this Act, create any teaching or non-teaching post involving financial liability without the prior approval of the State Government;" This section underwent amendments when sub-section (3) was added by Ordinance 14 of 1993 which read as follows:—

"(3)

Any appointment or promotion made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner shall be invalid and shall be terminated at any time without notice. All expenditures incurred by the University in regard to such appointment or promotion shall be realised from the appointing officer as a public demand under the provisions of the Public Demand Recovery Act, 1914."

Act 17 of 1993 which repealed Ordinance 14 of 1993 also retained the addition of Sub section (3) but with certain changes.

36.

Statutes how made.— (1) The Senate may, either on its own motion or on submission by the Syndicate, make Statutes, or amend or repeal

Provided that

(a)

the Senate shall not consider any statute having the effect of changing the number of post of teachers, officers and servants of the University, their pay scales or pay order; unless such a draft is recommended by the Chancellor for the considerations of the Senate;

(b)

the Syndicate shall not propose any such statutes, as may affect the status, powers and constitution of any authority of the University, unless that authority has been allowed an opportunity to furnish written opinion upon the proposed changes, and the Senate shall have to consider such option expressed in writing; and

(c)

in matters relating to status, powers, functions and constitution of the Academic Council, it shall be lawful for the Academic Council to initiate such Statutes and forward it to the Syndicate, which shall submit it to the Senate with such recommendations as it may like to make.

(2)

If the draft of any Statutes or a portion thereof, after being presented by the Syndicate before the Senate is sent back to the Syndicate for reconsideration, and the Syndicate does not agree, after reconsideration, to the amendments suggested by the Senate, then it shall be lawful for the Senate to pass the Statutes or a portion of the Statutes in such form as it may deem appropriate, and the deci-sion of the Senate shall, subject to the provision contained in sub-section (3) and sub-section (4), be final:

[(3) Where the Senate has passed the draft of any Statute it shall be submitted to the Chancellor who shall declare that he assents thereto as passed by the Senate or with such amendments as he deems proper:] Provided that the Chancellor may as soon as possible after the presentation to him of the draft of the Statute so passed for assent, return the draft together with a message requesting that the Senate shall reconsider the draft and when the draft is so returned, the Senate shall reconsider the draft accordingly and if the draft is passed again by the Senate with or without any amendment and is presented to the Chancellor for assent, the Chancellor shall declare either that 1[he assents thereto with such amendments which he deems proper] or that he withholds assent therefrom : 2 [ x x x x ]

(4)

Where any member of the Senate proposes to the Senate of the draft of any Statute, the Senate shall refer the same to the Syndicate, and it shall thereupon be the duty of the Syndicate to consider the draft and the Syndicate may either recommend to the Senate that the proposal be rejected or submit the draft to the Senate in such forms as the Syndicate may approve, and the provisions of this section shall apply in the case of any draft so submitted as they apply in the case of the draft proposed to the Senate by the Syndicate.

(5)

A Statute passed by the Senate shall have no validity until it has been assented to by the Chancellor.

[(6) Notwithstanding anything contained in the above clauses, if at any time when the Senate is not in session and the Chancellor is satisfied that it is necessary to frame Statutes on any subject, the Chancellor after obtaining the advice of the 4[Department of Higher Education, Government of Jharkhand] shall send the draft Statutes for opinion to the Syndicate of the University and it shall be binding on the Vice-Chancellor to convene a meeting of the Syndicate for consideration of the drafts statutes within 10 days of receipt of the said draft. The Chancellor shall then give his assents to the Statutes with such amendments as may deem necessary in the light of the opinion of the Syndicate. The Statutes shall be deemed to have come into force in the University from the date of assent. Statutes framed in this manner shall be placed before the next meeting of the Senate for confirmation: