The Court held that past service in an affiliated college must be counted, and an amendment restricting CAS to constituent colleges was invalid.
However, due to delay in approaching the Court, the teacher will get only limited arrears.
Her pay is to be notionally fixed from the correct date, with actual arrears paid only for a restricted period.
Case Background
The petitioner is a college teacher under the B.R. Ambedkar Bihar University, Muzaffarpur. She first joined as a Lecturer in Hindi in an affiliated college of the University in 1997 after selection by the Bihar College Service Commission under Section 57A of the Bihar State Universities Act, 1976.
Later, in 2003, she was selected again, this time by the Bihar State University (Constituent Colleges) Service Commission, and appointed as a Lecturer in a constituent college of the same University.
Under the Bihar State Universities Act, 1976, a Statute for Career Advancement Scheme (CAS) for university teachers was approved by the Chancellor on 29.06.2005, but it was made effective retrospectively from 27.07.1998. This scheme allowed teachers, after a minimum period of service, to move to higher pay scales such as Lecturer (Senior Scale) and Selection Grade.
The petitioner claimed that by the time she joined the constituent college in 2003, she had already put in more than four years of continuous service as Lecturer in the affiliated college and also possessed a Ph.D. degree. She therefore argued that she should have been placed in the higher Senior Scale right from her first appointment in the constituent college, by counting her past service in the affiliated college.
As per the judgment, Career Advancement was generally delayed for many teachers, but when it was given, it was often granted with retrospective effect. The petitioner received CAS benefits only in 2011, through an order marked Annexure-11.
However, the University counted her service only from the date of joining the constituent college in June 2003 and granted her Senior Scale from 26.06.2007, treating four years’ service in the constituent college as the qualifying period. This was done on the strength of an amendment approved by the Chancellor (Annexure-9), which added the word “constituent” before “college” in the CAS Statute.
The petitioner contended that this amendment was illegal, that it could not cut down her already accrued rights, and that her affiliated college service ought to be counted under the original Statute. She approached the Patna High Court in Civil Writ Jurisdiction Case No. 3697 of 2020, filed on 17.02.2020.
What the Court Examined and Decided
The Division Bench of the Patna High Court, consisting of Hon’ble the Chief Justice and Hon’ble Mr. Justice Rajiv Roy, focused first on the legal framework of the Bihar State Universities Act, 1976.
Under Section 2(c) and 2(i) of the Act, “affiliated college” and “constituent college” are separately defined. An affiliated college is an educational institution receiving privileges from the University as per the Act and Statutes, while a constituent college is an institution maintained and controlled by the University.
Section 2(f) defines “college” in a way that includes both affiliated and constituent colleges.
Section 34 of the Act deals with Statutes, Ordinances, Regulations and Rules, including classification of teachers, their appointment and recognition. It was under this provision that the CAS Statute was framed in 2005, operative from 27.07.1998.
The CAS Statute contained Clause 10.0.0 (“Counting of Past Service”) and Clause 10.1.0, which allowed previous service without break as Lecturer or equivalent “in a College” to be counted for placement as Lecturer (Senior Scale/Selection Grade), subject to certain conditions. For those with a Ph.D., the minimum length of service required to move into Senior Scale was four years.
The University authorities, however, applied an amendment that inserted the word “constituent” before “college” in the relevant part of the Statute. Based on this, they considered only the petitioner’s service in the constituent college for CAS, ignoring her earlier experience in the affiliated college.
The State, through the learned Government Advocate, defended this amendment. It was argued that:
- The State Government is competent to make suggestions to the Chancellor regarding Statutes, and the Chancellor may act on such suggestions.
- The amendment (Annexure-9) was based on such a suggestion and aimed to ensure that only service in constituent colleges counted for CAS, given that affiliated and constituent colleges stand on “distinct footing” under the Act.
- Reliance was placed on the Supreme Court decision in Registrar, Karnataka University and Another v. Dr. Prabhugouda and Another, (2021) 15 SCC 706, where, according to the State, the Court had held that only persons in constituent colleges were entitled to similar benefits.
- It was also pointed out that the CAS had been “completely revamped” from 18.07.2018 under a new scheme.
The High Court then turned to Section 36 of the Universities Act, which specifically deals with promulgation, amendment and repeal of Statutes.
Under Section 36, the Senate has the primary power to make, amend or repeal Statutes, either on its own motion or on submissions from the Syndicate. A Statute passed by the Senate has no validity unless assented to by the Chancellor.
Sub-sections (6) and (7) of Section 36 create special mechanisms for framing Statutes when the Senate is not in session, both using non-obstante clauses.
Sub-section (6) allows the Chancellor, after receiving advice from the Inter-University Board, to send draft Statutes to the Syndicate of the University for its opinion, and, after receiving that opinion, to give assent. Such Statutes must then be placed before the next Senate meeting for confirmation. If there is any financial implication, prior approval of the State Government is required.
Sub-section (7) allows the Chancellor to frame Statutes on subjects of common interest of all Universities, after seeking the advice of a Committee of three Vice-Chancellors constituted by him. The draft Statute must be sent to all Vice-Chancellors for their opinion, and only after considering such opinions can the Chancellor give assent. The proviso to sub-section (7) states that the State Government may also suggest to the Chancellor to frame Statutes of any subject of common interest.
The Court noted that sub-section (7) refers specifically to “the above clause” (in the singular), meaning it operates notwithstanding sub-section (6). However, whether the Chancellor acts under sub-section (6) or (7), the detailed procedure laid down there must be followed.
Examining Annexure-9, the Court found no indication that:
- A Committee of three Vice-Chancellors had been constituted.
- Any draft Statute had been sent to this Committee for opinion.
- The draft had then been circulated to all Vice-Chancellors for their comments.
- The Chancellor had considered such opinions before assenting to the amendment.
In other words, there was no material to show that the mandatory steps under Section 36(7) were followed when the word “constituent” was inserted before “college” in the CAS Statute.
On this basis, the Bench held that the amendment reflected in Annexure-9 was not made in accordance with the prescribed statutory procedure and was, therefore, of no consequence.
Once this amendment was ignored, the Court proceeded on the footing of the original CAS Statute, which used only the word “college”. Given the definition of “college” in Section 2(f), the Statute clearly covered both affiliated and constituent colleges.
The Court therefore held that the petitioner’s previous service as Lecturer in the affiliated college also had to be counted for CAS benefits.
The Court took note of the factual position that:
- The petitioner was appointed in the affiliated college in 1997.
- She joined the constituent college in 2003, by which time she had already completed six years in the affiliated college.
- The CAS Statute was given retrospective effect from 27.07.1998.
- Hence, by 27.07.2002, she had completed four years of service.
The Court recorded that it had been told the petitioner held a Ph.D. even before joining the affiliated college, though no certificate was available in the records. It stated that this would be verified by the University. Even if she did not have a Ph.D., the Court observed that the Senior Scale would apply on completion of six years of service.
The Bench also addressed the delay in challenging the denial of full CAS benefits. Although the CAS Statute was brought into force with retrospective effect from 27.07.1998 and implemented in 2005, and though Annexure-11 granted benefits from 26.06.2007 in 2011, the petitioner did not challenge that limited grant at that time.
The Court acknowledged the argument that teachers often receive CAS benefits belatedly but with retrospective effect, and found some support for this in Annexure-11 itself, which granted benefits retrospectively from 2006 though the order was issued in 2011.
However, the Bench emphasised that repeated representations do not stop limitation or justify unreasonable delay. It referred to the Supreme Court’s observation that “un-represented memorials” do not save limitation and that “the law favors the diligent and not the indolent.”
At the same time, the Court held that denial of proper CAS benefits is a “continuing wrong” because the under-fixation of pay continues month after month. Following the Supreme Court’s decision in Union of India v. Tarsem Singh, (2008) 8 SCC 648, it ruled that while the petitioner’s entitlement could be recognised from the correct date, arrears would be restricted.
The writ petition had been filed on 17.02.2020. Applying Tarsem Singh, the Court held that:
- The petitioner would be given the benefit of the CAS by counting her service in the affiliated college as past service, with effect from the date she was entitled under the Statute. This would operate notionally up to 17.02.2017.
- Actual arrears of pay would be payable only for three years before the filing of the writ petition. After computation, the Court directed that arrears must be paid from 17.02.2017 onwards.
- The arrears must be worked out after giving all due increments and further advancements under the CAS between 17.02.2017 and 18.07.2017.
- Any further CAS benefits would also be given on the due dates as per the Statute up to 2017, and thereafter under the new scheme, which the judgment notes as being introduced on 18.07.2017 (while the counter affidavit had mentioned a revamp effective from 18.07.2018).
- The arrears are to be paid in accordance first with the CAS Statute promulgated on 29.06.2005 and then under the new scheme introduced on 18.07.2017.
In essence, the Court allowed the petition in part. It recognised the petitioner’s right to have her past service in the affiliated college counted for CAS and declared the restrictive amendment invalid, but limited the monetary relief to a three-year period before the writ petition due to her delay.
Why This Judgment Matters
This judgment is important for university and college teachers in Bihar, particularly those who have moved from affiliated colleges to constituent colleges under the same University.
First, the Patna High Court has clarified that, under the original CAS Statute framed under the Bihar State Universities Act, the word “college” includes both affiliated and constituent colleges. Past service in an affiliated college cannot be ignored when deciding CAS benefits, unless a validly framed amendment specifically provides otherwise.
Second, the Court has insisted that any change in such Statutes must strictly follow the procedure laid down in Section 36. An amendment affecting teachers’ rights cannot be introduced merely on the basis of a suggestion from the State Government without following the mandatory steps involving committees of Vice-Chancellors and circulation of drafts.
Third, the Court has balanced fairness and delay. It has recognised that underpayment under CAS is a continuing wrong and cannot be brushed aside. At the same time, it has applied the Supreme Court’s ruling in Tarsem Singh to limit arrears to three years before the filing of the writ petition.
For teachers, this means that if they have been wrongly denied CAS benefits, they can still seek correction of their pay fixation, but they may not receive arrears for the entire past period if they approach the Court late.
Legal Issues and Answers
Issue: Can the petitioner’s past service as Lecturer in an affiliated college be counted for Career Advancement Scheme benefits when she later joins a constituent college?
Answer: Yes. The Court held that under the original CAS Statute, “college” includes both affiliated and constituent colleges, so the petitioner’s past service in the affiliated college must be counted.
Issue: Was the amendment inserting the word “constituent” before “college” in the CAS Statute validly made under Section 36 of the Bihar State Universities Act, 1976?
Answer: No. The Court found that the mandatory procedure under Section 36(7) was not followed; hence the amendment (Annexure-9) was of no consequence.
Issue: Despite delay in challenging the limited CAS benefits granted in 2011, is the petitioner entitled to arrears, and if so, for what period?
Answer: Yes, but only partially. Treating the denial as a continuing wrong and applying Union of India v. Tarsem Singh, the Court restricted arrears to three years prior to the writ petition, granting actual arrears from 17.02.2017 onwards, while earlier benefits are to be given only notionally.
Cases Cited by the Court
- Registrar, Karnataka University and Another v. Dr. Prabhugouda and Another, (2021) 15 SCC 706 (relied upon by the State; distinguished in light of the statutory scheme and procedure under the Bihar Act).
- Union of India v. Tarsem Singh, (2008) 8 SCC 648 (relied upon by the Court on the question of continuing wrong and limitation of arrears).
Case Details
Case Number: Civil Writ Jurisdiction Case No. 3697 of 2020
Case Title: Dr. Poonam Singh v. The State of Bihar & Others
Coram: Hon’ble the Chief Justice; Hon’ble Mr. Justice Rajiv Roy
Citation: 2024 (1) PLJR 683
Date of Judgment: 19.01.2024
Natures of the Case: Writ petition under civil writ jurisdiction challenging denial and restriction of Career Advancement Scheme benefits under the Bihar State Universities Act, 1976.
Advocates:
- For the petitioner: Mr. Abhinav Srivastava, Advocate
- For Respondent Nos. 1 and 2 (State of Bihar / Education Department): Mr. Prashant Pratap, GP-2
- For Respondent No. 3 (Chancellor of Universities of Bihar): Mr. Rana Vikram Singh, Advocate
- Appearance for the University (Respondent Nos. 4 to 6) is not specifically recorded in the extracted text.
Link to Judgment: Patna High Court Judgment in CWJC No. 3697 of 2020
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