RAM NARAYAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India, the petitioner have approached this Court impugning the order of the Government of Bihar, Science and Technology Department dated 7.12.1994, a copy of which is annexed as Annexure 1 to the petition. By the impugned order, the Government have cancelled the final seniority list dated 175.1993 of the Professors of three Government Engineering Colleges, namely, Muzaffarpur Institute of Technology, Muzaffarpur (in short 'M.I.T., Muzaffarpur'), Bihar Institute of Technology, Sindri (in short 'B.I.T., Sindri') and Bhagalpur Engineering College. Bhagalpur (in short 'B.E.C., Bhagalpur'), and published a provisional seniority list, including the names of the time-bound promotes to the post of Professor in the three Colleges. The petitioners have also challenged the appointment of respondent No. 6, I.D.P. Singh, to the post of Director, B.I.T., Sindri on the ground that respondent No. 6 does not possess the basic qualification for appointment to the post of Director. The English translation of the impugned order (Annexure 1) supplied at the Bar runs as follows: A seniority list of Professors in the Engineering Colleges was issued by departmental letter No. 1490/ Patna, dated 17.5.93. In the said seniority list names of those teachers who were promoted by upgrading the posts held by them to the Posts of Professor basically were not included as per the earlier opinion tendered by the Personnel and Administrative Reforms Department. The Yardsticks on which the earlier opinions of the Personnel and Administrative Reforms Department were based, are not yard-sticks applicable to those teachers of this department who have been given promotion by upgrading, on basis, the posts held by them. As a result, the Personnel Department was asked to reconsider their earlier advices for these reasons. After full consideration of the recent advice given by the Personnel and Administrative Reforms Department, the Government have decided that the benefit of seniority etc. in the Cadre of Professors be given to those promotes teachers who were lawfully promoted after the Concurrence of the B.P.S.C. to the posts of Professors by upgrading, on basis, the posts held by them. It may be known that these professors too were satisfying the prescribed minimum qualifications for the post of Professor on the date of promotion and in this promotion the B.P.S.C. had also examined the merit and qualification of the concerned teachers. 1. In the light of the above, the Intense-seniority list of the Professors published by the departmental letter No. 1490/ Patna, dated 17.5.93, is cancelled as directed.

(2.) A new seniority list of Professors in the Cadre in Engineering Colleges prepared in accordance with the Circular No. 3 R-1-106-72-15784 (Personnel 26.8.72 of the Personnel and Administrative Reform Department, is enclosed for Circulation. Its main provisions are as follows: (i) If Officers are appointed by promotion and by direct recruitment at the same time. (a) The Promoted Officers shall get precedence over the Officers directly recruited. Note : "at the same time" means "the same transaction". (b) The inter-se-position of the promoted Officers shall be same as in their lower service. (c) Seniority of direct recruits shall be according to their position as determined by the competent authority of their first appointment. Earlier ad-hoc appointment made to any post will not be considered for inter-se-seniority. 2. In order to appreciate the points raised by the petitioners, it. is necessary to state the relevant facts, involved in the case in a nutshell. The three Engineering Colleges, namely, M.I.T., Muzaffarpur, B.I.T., Sindri and B.E.C., Bhagalpur, are Government Engineering Colleges and these Colleges form one group under the Department of Science and Technology, Government of Bihar, for the purpose of appointment/promotion of teachers therein and a common seniority list is maintained of each cadre of teaching staff. The Government of India, Ministry of Education and Social Welfare by letter dated 30.9.1975 addressed to all the Education Secretaries, Technical education of all State Governments intimated the All India Council of Technical Education (in short 'A.I.C.T.E.') at its meaning held on May 17.1974, recommended that the revised scales announced by the Central Government for teachers in Universities and Colleges should be made applicable to teachers in Technical Institutions. The Council, however, felt that before implementation of the decision of the revised pay scales of teachers in Technical Institutions, the details of qualifications, experience and other requirements prescribed for various categories of teaching posts in Technical Institutions, should be examined vis-a-vis those recommended by the University Grants Commission (in short 'U.G.C.') for teachers in Universities and Colleges for whom the revised pay scales were applicable. It was further indicated that the implementation of the revised pay scale and the Central assistance would be subject to the conditions stipulated in Annexure I and II of the said letter. In Annexure I, the qualifications of Professor, Assistant Professor and Lecturer were prescribed Paragraph 3 of Annexure II reads as follows:

(3.) Recruitment to all categories of teachers shall be made strictly on merit and on the basis of all India advertisement and selection. The qualifications prescribed for the posts should essentially be related to academic attainments in the subject concerned and should not be linked with language or other regional considerations. Appointments should not be made on communal or caste considerations Selection Committees should have not less than two outside experts (3 in the case of Professors, Principals) appointed by the University. It was further indicated in the said letter that the central assistance to this would be available for the period from January 1, 1973 to March 31, 1979. The Government of Bihar in Science and Technology Department, thereafter, by letter issued under memo No. 1230 dated 28.2.1977, intimated the Accountant General, Bihar, that the Government of Bihar had approved the grant of U.G.C. scale to the teachers of the Engineering Colleges under the Department of Science and Technology as approved by the Government of India vide letter dated 30.9.1975. After acceptance of the Government of India's suggestion intimated by letter dated 30.9.1975, the mode of appointment to the posts of Teachers in the Government Engineering Colleges/Institutes was drastically changed. The Government of Bihar after giving effect to the norms prescribed by Government of India under letter dated 30.9.1975, however, decided that those teachers, who were due to be promoted prior to 30.9.1975, but were not considered for promotion, would be promoted after following due observance of procedures but after that date, the appointments would be made only on the basis of selection on All India competition. 3. With a view to providing statutory powers to the A.I.C.T.E. to ensure proper planning and co-ordinate development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. All India Council for Technical Education Act, 1987 (52 of 1987) was enacted by the Parliament. In the year 1989, the Government of India, Ministry of Human Resource Development by letter dated 28.2.1989 (Annexure 6) addressed to all the Secretaries dealing with Technical Education of all the States/Union Territories, intimated that following the appointment of Fourth Pay Commission for revision of pay scales of the Central Government Employees, and keeping in view of need to attract and retain the best talents, in the country as teachers in institution of technical education, National Expert Committee was set up under the Chairmanship of Prof. R.N. Dogra to make recommendations in respect of revision of salary structure, qualifications and conditions of service of teachers of technical institutions. The report of the Dogra Committee was placed before A.I.C.T.E. at its meeting held on 8.1.1988. The Government of India have carefully examined the recommendations contained in the Expert Committee's report and those made by the A.I.C.T.E. and have decided to implement the scheme of revision of pay scales of teachers of Engineering Colleges and Technical Institutions, including Librarians and Physical Education Instructors with effect from January 1, 1986. In the said letter, a copy of the Scheme for revision of pay scale was attached as Appendix. Paragraphs 10 and 18 of the Appendix attached to the letter, having bearing in the instant case are quoted below: 10. Appointment to the posts of Lecturers, Assistant Professors, Associate Professors, Professors, Librarians and Directors of Physical Education/Physical Education Instructors shall be by open selection on the basis of merit as per prescribed qualifications and experience. Placement in the Senior Scale and Selection Grade in the case of Lecturers, Librarians, and Directors of Physical Education Physical Instructors shall be through promotion as per conditions prescribed AICTE will lay down the constitution of selection/promotion committees; and the existing procedure will remain in vogue till AICTE does so. The details of the qualifications prescribed for various positions are given in Annexure-III. 18. Flexible staff structure will be admissible wherein the number of positions at various levels may be decided by the institutions themselves with the approval of their respective competent authorities to meet their specific requirement. Provision for the purpose should be made within the overall sanctioned strength, but without deviating from the normal principle of selection on the basis of merit Specific guidelines in this behalf shall be evolved by the All India Council for Technical Education. The Government of Bihar, after receipt of the said letter of the Government of India dated 28.2.1989, by letter dated 16.2.1990 addressed to the Accountant General, Bihar, Patna, communicated the decision about the grant of revised pay scale and approved U.G.C. scale to the teachers of the Engineering Colleges under the control of the Department of Science and Technology, pointing out that the revised pay scale would be given with effect from 1.1.1986, but actual payment would be made from August, 1989.