Prem Chandra Prasad vs Lalit Narayan Mithila University
2021 Latest Caselaw 5197 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.6981 of 2020
     ======================================================

Prem Chandra Prasad, male, aged about 48 years, Son of Late Dineshwar Singh, Resident of Village + P.O. - Harpur Belwa, Police Station - Mahua, District - Vaishali, at Present R/o University Quarter No. 97, Saffullaganj, Lal Bagh, C.M. Law College Campus, Darbhanga.

... ... Petitioner/s Versus

1. Lalit Narayan Mithila University Kameshwar Nagar, Darbhanga through its Registrar.

2. The Vice Chancellor Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga.

3. The Registrar Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga.

4. State of Bihar through the Chief Secretary Government of Bihar, Patna.

5. Principal Secretary, Human Resource Development Department, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Binodanand Mishra, Adv. For the L.N.M.U. : Md. Nadim Seraj, Adv. For the State : Mr. Priyadarshi Matri Sharan, AC to AAG-15 ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 15-11-2021

Heard Mr. Binodanand Mishra, the learned

Advocate for the petitioner and Md. Nadim Seraj, the

learned counsel for the respondent/Lalit Narayan Mithila

University. The State is represented by Mr. Priyadarshi

Matri Sharan, the learned AC to AAG-15.

2. The petitioner has not been promoted to Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

the Class-III post on the ground that he has not secured

45% marks in each of the papers in the examination for

the purposes of promotion.

3. Mr. Mishra has drawn the attention of

this Court to the Rule framed in this regard with respect

to departmental examination.

4. The relevant clause reads as hereunder :

(v) foHkkxh; ijh{kk

(i) fo'ofo|ky; rFkk egkfo|ky; ds dfeZ;ksa ds lsok lEiqf"V ,oa izksUufr ds fy, fo"ofo|ky; Lrj dk foHkkxh; ijh{kk dk vk;kstu fo'ofo|ky; }kjk o"kZ esa nks ckj fd;k tk;sxkA

(ii) fo"ofo|ky; ds foHkkxh; ijh{kk dk ikB~;Øe fuEuor~ gksxk % ¼d½ foHkkxh; ijh{kk nks i=ksa esa gksaxsA izR;sd iz"u i= ,d&,d lkS iw.kkZad ds gksaxsA foHkkxh; ijh{kk esa mŸkh.kZrk ds fy, de ls de 45 izfr"kr vad izkIr djuk vfuok;Z gksxkA (emphasis provided)

¼[k½ izFke i=& fgUnh fVIi.kh izk:i.k dk Kku] foŸk ,oa ys[kk] Ø;] lsok fu;ekoyh] dk;kZy; izca/ku] LFkkiuk ,oa ctV rFkk dEI;wVj ls lacaf/kr KkuA ¼x½ f}rh; i=& fo"ofo|ky; vf/kfu;e esa fufgr izko/kkuksa ds vkyksd esa ifjfu;[email protected];[email protected]/;kns"[email protected];eksa ds lkFk&lkFk fo"ofo|ky; f"k{kk ls lacaf/kr fuxZr i=ksa] jkT;kns"kksa rFkk ladYiksa dh tkudkjh ls lacaf/kr iz"u iwNs tk;saxsA Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

5. The petitioner had appeared in the

departmental examination in both the papers and

obtained an aggregate of more than 45% marks.

However, he has not been given promotion on the

ground that in one of the papers, he has scored only 34

marks.

6. Md. Nadim Seraj, the learned counsel for

the respondent/University has submitted that the Rule is

absolutely clear in as much as for a person to pass in the

examination, he ought to have 45% marks in all the

papers in which he appears.

7. This gloss over the concerned Rule is the

issue in dispute.

8. The Rule clearly says that the

departmental examination shall be of two papers, each of

hundred marks. There is some vagueness in the

following statement in the concerned clause which says

that for a person to pass in the departmental

examination, he has to obtain a minimum of 45% marks.

The clause does not specify that a candidate has to Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

obtain minimum of 45% in all papers.

9. Mr. Mishra, therefore, contends that

some requirement, which is not there in the Rule, cannot

be read into it as the Rule has been framed by the

Government which has been implemented by the Vice-

Chancellor of the University.

10. Mr. Mishra has further submitted that

for about three decades, the petitioner has been

rendering his services in the University to the satisfaction

of all and prior to the introduction of the Rule referred to

above the promotions to the post in Class-III was only

based on seniority. Later, with the introduction of Rule,

the principle was changed from mere seniority to

seniority-cum-merit. Mr. Mishra is very specific in his

assertion that the principle of promotion in this case is

not merit-cum-seniority but seniority-cum-merit. In that

case, he submits that the concerned clause of the Rule

be read in its literal terms which would mean that a

person has to obtain 45% marks in overall and not in

each of the papers.

Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

11. In support of this argument, Mr. Mishra

has relied on the logic that the scheme of promotion is

seniority-cum-merit and the post on which the petitioner

is to be promoted is a Class-III post. In that view of the

matter, reading a more onerous and difficult condition in

a Rule which is ambiguous, to say the least, would be

counter productive. He further submits that in other

Universities, the Rules are framed in similar terms but so

far as its implementation is concerned, the minimum

percentage of marks for passing is always construed as

such percentage in overall and not in specific/ each of

the papers.

12. On these two grounds, Mr. Mishra has

contended that he deserve to be considered for

promotion on seniority-cum-merit principle.

13. As opposed to the aforesaid contention,

Md. Nadim Seraj, the counsel for the

respondent/University has submitted that for effective

administration of official work, even if it is ministerial,

competence in each of the aspects of administration Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

would be required and, therefore, the examination

scheme is designed in such a manner that a candidate is

tested on all aspects including his computer knowledge

and about the circulars of the University. All the files are

processed for further deliberation and action by people

holding Class-III posts. In that case, it would be rather

difficult for the University to give that kind of

interpretation to the Rule as it would only promote

incompetence and nothing else.

14. After having heard the counsel for the

parties and after having perused the concerned clause of

the Rule, it becomes very clear that the Rule only

prescribes that for passing in a departmental

examination, a minimum of 45% marks is required.

There is no specific requirement under the Rules that

such marks have to be obtained by a candidate in all the

papers in which he/she appears. In such view of the

matter, giving any other interpretation to the Rule would

be putting such candidates to unnecessary difficult

situation.

Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

15. True it is that there cannot be any

premium on incompetence but one cannot loose sight of

the fact that the basic principle of promotion in this case

is seniority-cum-merit and not vice versa.

16. With this background facts, it would be

rather harsh to read the Rule in the manner in which it

has been read and consequently the claim of the

petitioner has been rejected.

17. Apart from this, what strikes this Court

is that a Rule has to be interpreted in such a manner

that it causes no ambiguity in seniority-cum-merit

scheme of promotion. If there is no specification with

respect to a candidate requiring him to pass in all papers,

it would be rather unsafe to read such requirement in a

properly worded Rule.

18. Apart from this, there is no minimum

pass marks prescribed for each paper and in that view of

the matter, raising the threshold of passing marks to

number 45 would be asking for more than what is

required for a Class-III post.

Patna High Court CWJC No.6981 of 2020 dt.15-11-2021

19. Be that as it may, this Court is not

observing anything on the issue of the competence of

the Government or the University to frame Rules with

respect to promotion, but is only interpreting the Rule as

it has been framed.

20. In that view of the matter, the writ

petition is allowed.

21. The petitioner deserves to be considered

accordingly, if he satisfies other conditions.

22. It would only be appropriate for the

University to move a proposal for making amendments in

the Rule, if so desired, and the Government also would

be under an obligation to look into such proposal and

decide accordingly and make necessary amends.

(Ashutosh Kumar, J)

Praveen-II/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          20.11.2021
Transmission Date       N/A