Ramawatar Singh vs The Chancellor and Others

Aftab Alam, J.—The Petitioner in this application, inter alia, challenges communication and notification contained in Annexure 1. 15 and 18 at Annexure-I is the copy of a letter dated 1.6.1992 from the O.S.D. (ii) Governor Secretariat, Bihar, Patna, to the Vice-Chancellor, Magadh University. It informs the Vice-Chancellor that the Chancellor had been pleased to allow the representation of Respondent No. 4 and had also been pleased to allow him to function in his department as a senior teacher as prayed by him. The Vice-Chancellor was asked to take the necessary follow-up actions and to send the compliance report. At. Annexure 15 is the copy of Anr. letter, dated 13.10.1993, whereby the O.S.D. (ii) Governor''s Secretariat, Bihar, Patna, as directed by the Chancellor advised the Vice-Chancellor, Magadh University that the Petitioner had been wrongly given time bound promotion to the post of Reader with effect from 19.1.1986 as on that date he had not completed ten years continuous service. The vice-Chancellor was, accordingly, directed to denotify the promotion given to the Petitioner and to withdraw all consequential benefits. Following the letter contained in Annexure 15, a notification dated 2.11.1993, was issued whereby the earlier notification No. 1282/G (i), dated 15.9.1986 promoting the Petitioner to the post of Reader was denotified, a copy of this notification dated 2.11.1991 is at Annexure 16.

For the sake of the record it may be noted that the direction contained in the letter, dated 13.10.93. (Annexure 15) was stayed by this Court vide order, dated 4.11.93, and hence the University authorities were forced to withdraw the notification dated 2.11.93 (Annexure-16) by Anr. notification dated 17.1.94. It is the Petitioner''s apprehension and it is understandable too, that in case the Petitioner''s challenge to Annexure-15 fails the University authorities are bound to issue a notification denotifying this promotion to the post of Reader.

At this stage, I am required to record that barest facts of this case as the Counsel representing the parties are in agreement that this application may be disposed of in terms of a consent order. The brief facts which are not in dispute are as follows. The Petitioner was appointed as a Lecturer in the Department of Law, A.M. College, Gaya, on 19.1.1976. By order, dated 28.8.1982, his services were made permanent with effect from 19.1.1976.

Respondent 4 was similarly appointed as a Lecturer in the Department of Law, A.M. College, Gaya on 29.3.1978 and his services were made permanent with effect from that date by order, dated 15.2.1983. It is also not in dispute that the Petitioner was put under suspension on 18.8.1984 and was relieved from suspension on 21.8.1985 by an order of the Registrar following a resolution of the Syndicate; true copies of the Registrar''s order, dated 21.8.1985 and the Syndicate''s resolution are to be ''found at Annexures 2 and 8 respectively. It is also to be noted that the period of suspension (one year and three days) was treated as punishment and not as duty and the Petitioner was held not entitled to any payment for this period other than the subsistence allowance. It is also undeniable that the Petitioner did not prefer any appeal against the Syndicate''s resolution or the Registrar''s order and they have now become final. Later on vide notification, dated 15.9.1987, the Petitioner was given time bound promotion to the post of Reader with effect from 19.1.1986. This was apparently on the assumption that he completed ten years continuous service (one of the conditions for time bound promotion) on that dale. It appears that in computing the period of ten year''s continuous service the authority then overlooked to include the period during which the Petitioner remained under suspension.

The present controversy appears to have arisen on the basis of a representation filed by Respondent No. 4 wherein he brought this fact to the notice of the Chancellor and then by the order of the Chancellor the notification, dated 15.9.87, granting time bound promotion to the Petitioner was withdrawn by the impugned notification, dated 2.11.93. (Annexure-16)

At this stage, it will be useful to take a look at the relevant provisions contained in Rule 11 of the General Conditions of Service of Employees of Patna, Bihar Ranchi, Bhagalpur, Magadh, L.N. Mithila and K.S.D. Sanskrit Universities (''Service Statute'' for short.). The relevant provision as contained in Rule 11 are as follows:

11(1) Time passed under suspension pending enquiry into conduct will count as service if the suspension is immediately followed by re-instatement, but time passed under suspension when suspension is adjudged as a specified penalty will not so count.

(2) If an University servant, who has been suspended pending enquiry into his conduct, is re-instated, but with forfeiture of any part'' of his allowances for the period of suspension, this, period will not count as service, unless the authority which reinstates him expressly declares at the time that it shall so count.

Mr. Mukhopadhya, learned Counsel appearing on behalf of Respondent No. 4, fairly stated that the aforequoted provisions cannot be interpreted to mean break in Service. He, further submitted that the effect of the rules would be that the period under suspension shall not be taken into account for calculating the total length of service. Mr. Dinu Kumar, learned Counsel appearing on behalf of the Chancellor, does not dispute this proposition.

Mr. Mukhopadhyaya further submitted that the earlier notification, dated 15.9.87 granting promotion to the Petitioner with effect from 19.1.86 was prima facie erroneous inasmuch as it did not exclude the period during which the Petitioner had remained under suspension in calculating his total length of service and to that extent the impugned notification, dated 2.11.1993. did nothing more that rectify a mistake. When pointed out that even if his submission was to be accepted, the Petitioner would still be entitled for consideration for time bound promotion, though from a later date when he would complete ten years service after excluding the period during which he remained under suspension. To this, Mr. Mukhopadhya fairly agreed and stated that the authorities may be directed to consider the case of the Petitioner for grant of time bound promotion with effect from the date he completed ten years'' service after excluding the period of his suspension. Mr. Rajendra Prasad Singh, learned Counsel for the Petitioner, agreed to such a direction being given to the authorities. Mr. Dinu Kumar, learned Counsel for the Chancellor also has no objection to such a direction.

In view of the parties agreement this application is disposed of with a direction to the Vice-Chancellor to consider the case of the Petitioner for grant of time bound promotion with effect from the date the Petitioner completed ten years continuous service. The Vice-Chancellor, while considering the Petitioner''s case for time bound promotion shall be entitled to take into consideration the other terms and conditions of the statute relating to time bound promotions. A final decision in this regard must be taken within eight weeks from the date of receipt/production of a copy of this order. The question of interse seniority between the Petitioner and Respondent No. 1 shall be determined after a final decision is taken on the Petitioner''s claim for time bound promotion.

With these directions, to which the parties are in agreement, this application stands disposed of.