Partly allowed

Ram Nath Rai v. The State Of Bihar and Ors.

Patna HC25 Oct 2013CWJC/15667/2013

Case brief

AI extract

What is this about?

This High Court quashed a university promotion order favoring graduate applicants over a non-graduate petitioner. The Court held the Acting Vice Chancellor lacked jurisdiction to confer promotion without statutory backing and directed the matter back to determine availability of sanctioned posts before drafting new promotion statutes.

What did the court decide?

Quashed the impugned promotion order and remitted the matter to the State Government to ascertain vacant sanctioned posts and return to the University for a fresh decision strictly in accordance with

Ram Nath Rai Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15667 of 2013

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====================================================== Ram Nath Rai S/O Shri Musafir Rai Resident Of Village- Madapur, P.SKudhani, District- Muzaffarpur. .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Education Department, Bihar, Patna. 2. B.R. Ambedkar Bihar University, Muzaffarpur Through Its Registrar. 3. Vice Chancellor, B.R.Ambedkar Bihar University, Muzaffarpur. 4. Registrar, B.R. Ambedkar University, Muzaffarpur. 5. Sri Upendra Kumar Dwivedi, Routine Clerk, B.R. Ambedkar Bihar University , Muzaffarpur. 6. Sri Braj Mohan Ran, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 7. Sri Krishna Kumar Singh, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 8. Sri Nand Kishore Thakur, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 9. Sri K.K. Singh- I I, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 10. Sri Arun Kumar Singh, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 11. Sri Abhishek Anand, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 12. Sri Kailash Mishra, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 13. Sri Shikandar Singh, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. 14. Sri Nalin Kumar Vairagi, Routine Clerk, B.R. Ambedkar Bihar University, Muzaffarpur. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Abhinav Srivastava, Adv. For the State : Mr. Dilip Kumar, AC to GA2 For the respondents : Mr. Shivendra Kishore, Sr.Adv. Mr. Harendra Kumar Tiwari, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER

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7 25-10-2013 Heard learned counsel for the parties with regard to the following relief prayed in this writ application:

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“(i) Issuance of a direction, order or writ including writ in the nature of certiorari quashing the office order dated

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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27.6.2013 issued by the B.R.Ambedkar Bihar University, Muzaffarpur (hereinafter referred to as “the University”) by which persons working against different Class IV posts in the services of the University have been promoted as Lower Division Clerks against sanctioned vacant posts under the University ignoring the claims of the petitioner notwithstanding the fact that a number of such persons are admittedly junior to the petitioner.

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(ii) Issuance of a direction, order or writ including writ in the nature of mandamus commanding the concerned respondent authorities under the University to take steps towards considering the case of the petitioner for granting him promotion against a Class III post on the basis of his eligibility and seniority in the services of the University as a Class IV employee.”

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Mr. Abhinav Srivastava, learned counsel appearing on

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behalf of the petitioner, in support of the aforementioned prayer has submitted that the impugned order by which the private respnodents no. 5 to 14 have been promoted on the post of Routine Clerk is wholly unsustainable either on fact or in law, inasmuch as the case of the petitioner has not been considered though he too was a Class IV employee and eligible for consideration of such promotion. In support of the aforementioned submission he has also referred to an earlier order of this Court dated 12.3.2008 in C.W.J.C.No. 10683/2005 which categorically records specific

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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stand of the University that the petitioner who with others was in fact given promotion earlier on the post of Routine Clerk, was in fact eligible for promotion. He has also referred to the subsequent order passed on 12.3.2011 by the Vice Chancellor of the University wherein again it was reiterated that the petitioner‟s case for promotion would be considered sympathetically in future subject to availability of post. According to Mr. Srivastava when the post became available the petitioner was sidelined and the private respondents had stolen march over him on the basis of a wholly illegal and arbitrary procedure evolved by the University.

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In this case a counter affidavit has been filed not only by the University but also by the private respondents and in both of them the impugned order of promotion has been described to be provisional in nature and subject to its being approved by the State Government. According to the University as also private respondents though such conditional order of promotion was notified they are still getting the pay and emoluments of Class IV employee as per conditions incorporated in their order of promotion.

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Mr. Shivendra Kishore, learned Senior counsel appearing on behalf of the private respondents, while defending the impugned order of promotion of the private respondents has

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also submitted that in view of the aforementioned conditional order of promotion which is dependent on the final view to be taken by the State Government, this writ application is premature. He has further submitted that the petitioner has a statutory alternative remedy of moving the Chancellor under section 9(4) of the Bihar State Universities Act. Proceeding further Mr. Kishore is of the view that since the petitioner is only a Matriculate and the Government decision, as contained in Annexure „D‟ to the counter affidavit of the University postitulates Class III post to be filled up from amongst the Graduates alone the petitioner cannot claim such promotion on the post of Routine Clerk which is a Class III post. He has finally relied on Clause 30 of the Statutes for grant of retirement benefit to the employees of Bihar/ Ranchi/ Bhagalpur/ Muzaffarpur/ L.N.Mithila University/ Kameshwar Singh Darbhanga Sanskrit University for supporting himself that if any matter was not specifically dealt in Statutes and the Rules, the order applicable to the employees of the State Government of Bihar will apply mutatis mutandis also in the case of the employees of the University.

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In the considered opinion of this Court all these pleas raised by Mr. Shivendra Kishore have to be only noted for its being rejected. First of all when an order of promotion has been

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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issued by the University and is only awaiting approval of the State Government in the matter of release of find or sanction of post it cannot be said that the grievance of the petitioner is premature. The petitioner happens to be a Class IV employee, whereas his counter parts have been promoted on the post of Routine Clerk on a Class III post. Therefore, when this order till date has not been recalled as a whole, merely because the private respondents have not been getting salary of the promotional post of Routine Clerk, that will not make their status also that of the petitioner, who is a Class IV employee, whereas the private respondents by being posted on the promotional post have become Class III employees.

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As with regard to the statutory alternative remedy this must be examined in the context when the order was passed. This order was passed by an Acting Vice Chancellor who was clearly restrained both by the Apex Court as also by this Court not to indulge into any exercise except day to day routine affairs. Promotion against non-existing posts for which the Vice Chancellor himself found that the State Government‟s approval was required was not such an emergent work that it had to be decided at a stage when his own status was that of an Acting Vice Chancellor. Section 13 of the Bihar State Universities Act when it envisages power and function of an Acting Vice Chancellor it

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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does not envisage that such Acting Vice Chancellor or In-charge Vice Chancellor shall also start taking decision on all these matters which have a financial implication. In any event the decision taken by the Acting Vice Chancellor without there being any Statute to this effect for giving promotion from Class IV to Class III post was itself wholly without jurisdiction. It has to be kept in mind and in fact an Acting Vice Chancellor of B.R.A.Bihar University was also well aware of it that the Statutes for giving promotion from non-teaching post in the University were being framed by the Chancellor for which views of the State Government and the Universities had already been ascertained and the Chancellor was in the process of finalizing the Statutes. In such a situation, this Court would find that when the action of the Acting Vice Chancellor was itself wholly without jurisdiction, the statutory alternative remedy under Section 9(4) of the Act would stand as a bar in entertaining the writ application.

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Coming to more important aspect that in absence of any Statute, the provision made applicable for the State Government employees, shall be made applicable as referred to and relied by Mr. Shivendra Kishore in terms of Clause 30 of the Statutes seems to be wholly misplaced. The Statute which talks of applicability of Rules and the orders of the State Government to apply mutatis

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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mutandis in the case of the employees of the University is specifically in the field of grant of retirement benefit as is apparent from the heading of the Statutes namely “Statutes for grant of retirement benefits to the employees of Bihar/ Ranchi/ Bhagalpur/ Muzaffarpur/ L.N.Mithila University/ Kameshwar Singh Darbhanga Sanskrit University”. It is only in this Statute where the details of fixation of pension including family pension has been given and a provision has been incorporated in Clause 30 which if read together with Clause 28 and 29 will make it clear that the same cannot be in any way made applicable also in case of promotion in the University. Clause 28, 29 and 30 of the aforesaid Statutes, therefore, are reproduced hereinbelow:

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“28. The amount of pension/ gratuity payable to an employee and his/her beneficiaries shall be expressed in whole rupees and where the pension or gratuity contained a fraction of a rupee; it shall be rounded off to the next higher rupee.

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The rate of all types of pensions (superannuation, retiring, invalid, compensation, family pension) will be subject to minimum of Rs.40 p.m. and inclusive of adhoc increase where applicable (Rs.60 from 1.4.1980). 30. In all matters, not specifically dealt within these rules (both Appendix „A‟ and „B‟) the Rules and orders applicable to the employees of the Government of Bihar, will apply mutatis mutandis to the employees of this

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University.”

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Once this aspect would become clear that aforesaid

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Clause 30 of the Statutes will not come to the rescue of the private respondents, the reliance placed on Annexure „D‟ to the counter affidavit of the University has to be also held as wholly misplaced. Annexure „D‟ has been issued by the State Government as with regard to grant of pay scale of the post of Assistant by way of upgradation of the existing post. That would also become clear from the subject of the letter dated 6^th October, 1986 (Annexure „D‟) which is quoted hereinbelow:

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^^i=kad ts- ,e0 228189 f'k0 124

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fcgkj ljdkj ds la;qDr lfpo] f'k{kk foHkkx lsok esa]

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Jh lnkuUn flag

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ljdkj ds la;qDr lfpo] f'k{kk foHkkx

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lsok esa]

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egkys[kkdkj] fcgkj ljdkj

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A}kjk foRr foHkkxA

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iVuk] fnukad 6 vDVwcj 1984

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fo"k;& osrueku 730&1020 esa l`ftr fo'ofo|ky; f'k{kdsRrj deZpkfj;ksa ds inksa dks osrueku 785&1210 esa mRdze.kA egk'k;]

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mi;qZDr fo"k; ds laca/k esa funs'kkuqlkj dguk gS fd fcgkj jkT; fo'ofo|ky; ,oa egkfo|ky; f'k{kdsRrj deZpkjh egkla?k dk ekaxksa ij gq, le>kSrk esa ;g fu.kZ; fy;k x;k gS fd&

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1- fo'ofo|ky; ds ,sls deZpkfjk;ksa dh ftuds in foRr foHkkx dh lgefr ds ljdkj }kjk l`ftr gks] lfpoky; ds lgk;d ds vuq:i la'kksf/kr osrueku 185&1210 :i;k vuqekU; gksxk c'krsZ mudks igys

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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730&1010 :i;k dk osrueku vuqekU; FkkA os cdk;k vuqekU; ugha gksxkA

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2- mi;qZDr ifjis{k esa jkT; ljdkj us jkT;kns'k la[;k 681 fnukad 2- 9-82 ds }kjk fo'ofo|ky; f'k{kdsRrj deZpkfj;ksa ds inksa ds osrueku 730&1080 esa Lohd`r fd;k x;k gS mUgas foi= vkns'k fuxZr gksus dh frfFk ls osrueku 785&1210 esa mRdzfer djus dk fu.kZ; fy;k gSa ijUrq mRdzfer osrueku mUgha vgZrkvksa dk vuqekU; gksxk tks lfpoky; lgk;dksa ds fy, fu/kkZfjr ;ksX;rk j[krs Fks vFkok fu;qfDr ds le; vc mudh ;ksX;rk U;wure Lukrd gksA bl mRdze.k ds QyLo:i vkns'k fuxZr gksus ds iwoZ dh frFk dk dksbz Hkh cdk;k vuqekU; ugha gksxkA mRdze.k dh fLFkfr ls lacaf/kr deZpkfj;ksa dk osru fcgkj lsok lafgrk ds fu;e 8,A1A ds vuqlkj iwoZ ds osrueku ls izkIr osru ds Bhd vxys izdze ij fu/kkZfjr gkszxkA funas'kd AmPP f'k{kkA dks lwfpr fd;k x;k gSA

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ljdkj ds la;qDr lfpo] fcgkj Kkikad ts@,e0228179 f'k0------------ 1424 iVuk fnukad 6 vDVwcj 1986**

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From the aforesaid letter of the State Government issued

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in the year 1986 it would become clear that neither Class IV employees of the University were in the pay scale of Rs.730-1080 nor pay scale of Routine Clerk was Rs.785-1210. In fact pay scale of 785-1210 in the year 1986 was that of the Assistant of the Secretariat and that was sought to be extended to the working Class III employees on the post of Clerk in the University headquarters. Therefore, whatever has been stated in Annexure „D‟ is only with regard to up-gradation of the existing post of

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Patna High Court CWJC No.15667 of 2013 (7) dt.25-10-2013

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Clerk in the University as an equivalent Assistant in the Secretariat. They infact do not in any way refer to the promotion from class IV to Class III post much less Class IV post to the post of Routine Clerk.

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It is in this background that the stand of the University will have to be also examined because it has somehow been taking a wavering and a changing stand from time to time. In this regard it has to be noted that earlier the petitioner was granted such promotion on the post of Routine Clerk on 21.5.2005 but that was somehow not given effect to and as a result whereof when the petitioner and other similarly situated persons promoted from Class IV to Class III post of Routine Clerk had moved this Court, a specific stand had been taken by the University that though the petitioner had possessed the qualification and was eligible for being considered on the post of Routine Clerk his such promotion was not given effect to because of embargo imposed by the State Government. This Court infact on such stand of the University had remitted the matter back to the University and the State Government to take a final decision. This would become more clear from the following extract of the order of this Court dated 12.3.2008 in C.W.J.C.No. 10863/2005:

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“ Coming now to the merit of the case of the petitioner

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of this writ application it is found that the same has been filed for quashing of the aforementioned order contained in Memo no.B/1715 dated 4.8.05 (Annexure 10) whereby and whereunder the appointment/ promotion of Class IV employees as a routine clerk communicated by the University in its letter dated 21.5.2005 (Annexure 7) has been kept in abeyance and the status quo ante as obtaining on 21.5.2005 has been restored. It further appears that Vice Chancellor has constituted a committed to explore possibility of number of vacancy on class III posts so that a fresh exercise for appointment/ promotion on Class III posts can be undertaken. The Committee of three officials of the University has been directed to submit its report by 15^th September, 2008.

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A counter affidavit has been filed by the University confining it to the relief of the petitioners wherein a stand has also been taken that the petitioners are/were eligible for promotion on the post of routine clerk. This counter affidavit which was sworn on 8.8.2006 however, does not show that the order which was issued in favour of the petitioners as contained in Annexure 7 dated 21.5.2005 promoting/ appointing them on routine clerk has been cancelled. In fact the stalemate which was created by the order dated 4.8.2005 is said to be still continued despite the fact that the order dated 21.5.2005 was only kept in abeyance and not cancelled. Such embargo cannot be allowed to continue for an indefinite period.

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In that view of the matter, respondents B.R.Ambedkar Bihar University including Vice Chancellor are hereby directed to take a firm and final decision as with regard to the fate and future of the petitioners in relation to their right according from appointment/ promotion as contained in the notification no. B/1006 dated 21.5.2005 within a period of three months from the date of receipt/ production of a copy of this order.

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With the aforementioned observations/ directions, this application is disposed of.”

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A bare reading of the aforementioned order of this Court would therefore make it clear that at that point of time the University itself took a plea that the petitioner was fully eligible for being considered and promoted on the post of Routine Clerk and the matter was only remitted for taking a final decision. In fact pursuant to the aforementioned order passed by this Court when the order was passed by the Vice Chancellor on 12.3.2011, as contained in Annexure 9 to the writ application, a plea was taken therein that the petitioner and similarly situated person could not be given promotion on the post of Routine Clerk only due to want of vacant sanctioned post. This would also become clear from the order of the University dated 12.3.2011 which reads as follows:-

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“ This order is being passed by the undersigned in pursuance of the orders of the Hon‟ble Patna High Court passed in I.A.No. 5618/2005 arising out of C.W.J.c.No.

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10863 of 2005- Shri Dhanraj Ram & ors. vs. B.R.Ambedkar Bihar University, Muzaffarpur. The case in breief is that 12 (Twelve) Class IV employees working in the University office, its allied Offices and University Departments vide Office Order contained in Memo No. B/1006 dated the 21^st May 2005 were appointed by promotion as Routine Clerk. Subsequently it was brought to the kind notice of the then V.C. that the posts against which these twelve class IV employees have been appointed by promotion, do not exist. In consideration of the above facts, the then V.C. vide Office Order contained in Memo No. B/1715 dated the 4^th August 2005 was pleased to order that the Office order with regard to appointment/ promotion of 12 class IV employees as Routine Clerk communicated vide Memo No. B/1006 dated 21.5.2005 be kept in abeyance. The V.C. was further pleased to constitute a committee to explore possible vacancies in class III cadre so that fresh appointment/ promotion can be considered. The Committee was further directed to submit its report before the 15^th September 2005. As the aforesaid committee did not complete the assigned task in time another committee bearing Memo No. 1565/R dated the 4^th March 2006 was constituted to explore the vacancy position in class III cadre in University office and its allied offices. In the light of the recommendations of the aforesaid committee it was pointed out that there are twenty three Routine Clerks, 11 (eleven) in the University office, 08 (eight) in the University

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Departments and 04 (four) in the University Press working beyond sanctioned strength due to appointment of wards of deceased teaching and non teaching employees on compassionate ground.

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It was also found that the audit team of the Comptroller and Auditor General of India which was auditing the accounts of the University had raised severe objections with regard to the number of sanctioned strength and excess working men in position.

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Even if vacancies had existed, the State Government vide its letter bearing No.344 dated 18.6.1990 had made it clear that 50% of the vacancy occurring in Routine Clerk cadre has to be filled by promotion/ appointment from class IV employees and 50% vacancy has to be kept reserved for new appointment.

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Section 35 of the Bihar State Universities Act 1976 as amended upto date explicitly states that any appointment or promotion contrary to the provisions of this Act shall be invalid and terminated at any time.

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So far supplementary show cause filed by the petitioner in M.J.C.No. 1616/09 arising out of C.W.J.C.No. 10863/05 is concerned, there was 23 posts of Routine Clerks in operation in excess of sanctioned strength as reported by the Committee constituted for the purpose and C.A.G. reports as on 7^th September, 2006. The excess operation was reported after including the 9 (Nine) routine clerks promoted vide memo no. 65 dated 7.1.2006. Thereafter only 21 Routine Clerks were promoted as Assistants vide University Memo

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No.B/1901 dated 1^st September 2009. Thus, the position as it stands today finds no vacant post of Routine Clerk. In consideration of the facts as mentioned above and also in view of the facts that there is no sanctioned vacant posts of Routine Clerks available at present in the University as also in view of the objection of the excess operation of post by the C.A.G. Audit Team deputed by the State Government, the order bearing no. B/1006 dated the 21^st May 2005 is set aside. However, petitioner‟s case will be considered sympathetically in future subject to the availability of post.

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Let a copy of this order be made available to the petitioner.”

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In presence of these orders so called decision taken by the Sub Committee of the University while recommending for

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promotion of the private respondents by leaving the petitioner would itself go to show that a criteria which was never evolved much less had any statutory force was sought to be introduced only for eliminating the case of the petitioner. In fact till date there was no criteria to give promotion from Class IV employees who had possessed the qualification of graduation. Nothing infact has also been brought on record by the University or even by the private respondents to show that only graduate Class IV employees could be promoted on the post of Routine Clerk. In fact this was the issue which was pending before the Chancellor who

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was in the process of framing the Statutes for giving promotion of non-teaching post including Class IV to Class III post of Routine Clerk. The Acting Vice Chancellor, therefore, in all fairness ought to have awaited framing of such Statutes by the learned Chancellor instead of rushing to pass the order. The relevant portion of the proceedings of the Sub-Committee, where the aspect relating to promotion from Class IV to Class III posts has been discussed nowhere indicates that the case of the petitioner was also considered, inasmuch as whatever has been done by the Sub-Committee seems to be beyond its powers and jurisdiction. The Sub-Committee infact firstly on 16.8.2012 took a decision 'under any other item' to consider the case of promotion from 4^th Grade to III grade by inviting application from the desiring qualified and eligible working employees without defining as to who they were. None-the-less on 23.8.2012 when such notice was issued all Class IV employees were made eligible to stake claim for promotion on Class III post without there being any bar of educational qualification. Surprisingly the proceeding which was drawn thereafter by the Sub Committee on 6.9.2012, so far it related to grant of promotion from 4^th Grade to 3^rd Grade has taken into account graduation qualification or above to be the basis for grant of promotion which would be evident from the following

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passage of consideration made by the Sub-Committee:

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“6. The L.D.C. may be promoted to the U.D.C. rank against the vacancies available after approval of the State Govt.

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Considered the promotion of 4^th grade employees to the vacant sanctioned posts of L.D.C. It was noticed that there is no provision of direct promotion of 4^th grade employees in 3^rd grade. However, 4^th grade employees possessing qualification may be appointed in clerical cadre in order of seniority. The Committee noted that 37 4^th grade employees have applied for promotion. The total no. of posts likely to be vacant after the above proposed promotion are 15.

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Resolved that 50% of the vacancies i.e. 8 vacancies may be filled up by appointment.

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There are 9 persons of 4^th grade employees among the applicants who are possessing graduate qualification and above and whose names are placed below:-

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(i) Sri Upendra Dwivedi, M.A.

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(ii) Sri Braj Mohal Rai, B.A.

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(iii) Sri Krishna Kumar Singh, B.A.

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(iv) Sri Nand Kishore Thakur, B.A.

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(v) Sri K.K.Singh-II, B.A.

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(vi) Sri Arun Kumar Singh, B.A.

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(vii) Sri Abhishek Anand, B.A.

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(viii) Sri Kailash Mishra, B.A.

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(ix) Sri Nalin Kumar Bairagi, B.A.

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Sl.No.1 to 8 may be appointed as L.D.C. against the vacant posts available after promotion. Sl.No.9 Nalin

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Kumar Bairagi may be appointed L.D.C. with effect from 1.12.2012 against the post likely to be vacated by the promotion of Sri Fatch Bahadur Singh, the State Govt. may be informed accordingly.”

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It is this recommendation of the Sub-Committee dated 6.9.2012 which was not even acted upon by the regular Vice Chancellor till he remained in office (upto April, 2013) was sought to be acted upon by getting its routed through the Statutory Promotion Committee which on 3.6.2013 with that very Acting Vice Chancellor as its Chairman of that Committee had sought to ratify the proposal of the Sub-Committee giving promotion of Class IV employees. The relevant portion of consideration made by the Statutory Promotion Committee on 3.6.2013 so far it relates to promotion in question reads as follows:

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“4. The Committee perused the letters bearing no.15/G01/12-125 dated 20.3.2013 (para-16), Memo No. 3(A) -2 Be.Pu.02/2011/293/Vi dated 31.3.2011 (para-3) (iv) and the letter bearing no. 1028/09-10344 dated 18.6.1990 and noted that there is provision of appointments of those working IVth grade employees in IIIrd grade on the basis of requisite qualification and seniority. The committee approved a list of all IVth grade employees mentioned below who were possession graduate and above qualification as eligible for appointment against the posts vacated due to promotion recommended in para (2).

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1. Sri Upendra Dwivedi

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1. Sri Braj Mohal Rai

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1. Sri Krishna Kumar Singh

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1. Sri Nand Kishore Thakur

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1. Sri K.K.Singh-II

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1. Sri Arun Kumar Singh

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1. Sri Abhishek Anand

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1. Sri Kailash Mishra

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1. Sri Shikandar Singh

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Sri Nalin Kumar Bairagi”

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As would be apparent from the proceeding dated

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3.6.2013 of the Statutory Promotion Committee it did not consider the case of the petitioner and the ground which is now being taken in the counter affidavit filed by the University and the private respondents is that since the petitioner has not passed his graduation examination, he was not found to be fit for promotion.

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This Court cannot approve such procedure for more than

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one reason first of all consideration of promotion has to be specifically made by deciding all the cases as per rules. As noted above, the applications were invited from all concerned by the University and therefore, even if this criteria was sought to be evolved where the cases of all graduates were to be clubbed together and rest of them were required to be rejected that should have been specifically recorded. Nothing of this sort had however

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happened and infact could not have been happened because at one point of time the University before this Court had already created an impression by filing an affidavit that the petitioner and others even though non-graduates were eligible for promotion on the post of Routine Clerk. In fact earlier regular Vice Chancellor had also gone to pass an order to this effect when contempt petition was filed by the petitioner holding that his case of promotion would be considered once vacancy on the post of Routine Clerk would emerge.

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Considering all these aspects this Court will have no difficulty in holding that the impugned order by which the cases of promotion of the private respondents were decided was totally in the teeth of undertaking given before this Court as also without there being any statutory basis for eliminating non-graduates from being given promotion on the post of Routine Clerk.

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This Court therefore will have no difficulty in quashing the impugned order of promotion dated 27.6.2013 (Annexure 19) and remitting the matter back to the State Government to first decide as to whether there are available vacant post of Routine Clerk which can be filled up by way of promotion from amongst the working Class IV employees of the University. Once the University is communicated avibility of vacant sanctioned post of

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Routine Clerk it would proceed to decide the cases of promotion of all class IV employees including that of the petitioner and the private respondents strictly in accordance with the Statutes which are now to be notified by the Chancellor. In the event the Statutes are not notified within a period of three months from the date of receipt of this order the University will move the Chancellor for giving appropriate guideline for filling up the post of Routine Clerk from amongst all the eligible Class IV employees of the University.

¶139

Let it be made clear that the University on its own cannot and shall not introduce its own criteria for giving promotion on the post of Routine Clerk and it would strictly abide by the Statutes to be framed by the learned Chancellor or the specific direction issued by the Chancellor.

¶140

With the aforementioned observation and direction, this application is disposed of.

¶141

(Mihir Kumar Jha, J)

¶142

surendra/-

Ram Nath Rai v. The State Of Bihar and Ors.

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Ram Nath Rai v. The State Of Bihar and Ors.

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