JUDGMENT JUDGMENT S. Ali Ahmad & Bhuvaneshwar Pd. JJ. These three writ applications have been beard together and are being disposed of by this common judgment. 2. The petitioners of these writ applications were Assistant Professors of Obstetrics and Gynaecology and were posted in different Medical Colleges of the State. Eighteen posts of Associate Professors of Obstetrics and Gynaecology fell vacant. These three petitioners along with others were called for interview and were supplied a proforma in which they had to indicate as to whether they gave consent to their promotion as Associate Professor. They were also in that very proforma asked to give preference for places of posting in case they were promoted to the rank of Associate Professors. The proforma contained an undertaking that in case they fail to join the place of posting on promotion they, he or she shall be liable to be debarred from promotion for next three years. There was a further undertaking that refusal to give consent for promotion will likewise debar them from promotion for the next three years. An these three petitioners signed the proforma giving consent to their promotions. With regard to posting petitioners of C.W.J.C. No. 3588 of 1983 and C.W.J.C. No. 1928 of 1986 gave consent for Patna Medical College Hospital as the first preference and Nalanda Medical College Hospital as the second preference. Dr. (Mrs.) Barun Kala Sinha petitioner C.W.J.C. No. 5030 of 1983 in addition to Patna Medical College Hospital and Nalanda Medical College Hospital gave two more preferences for Sri Krishan Medical College Muzaffarpur and Bhagalpur Medical College. It may be mentioned that while giving the preferences, this petitioner gave a note in the proforma explaining her difficulties in moving out of Patna. Towards the end she said that if possible she may be posted at Patna. She also enclosed a letter (Annexure B) to the proforma addressed to the Health Commissioner stating that in case she could not, after promotion, be posted at Patna for the present then her case may be considered for promotion in the next vacancy that was likely to occur in Patna. After sometime she very positively said that there may be some delay in her promotion but she may be considered for promotion in the vacancies likely to occur in future in Patna only. After sometime she very positively said that there may be some delay in her promotion but she may be considered for promotion in the vacancies likely to occur in future in Patna only. The authorities on the basis of the circular dated 3.3.1975 which has been marked as annexure 5 in C.W.J.C. No. 3588 of 1983 held that since the petitioners of all these three writ applications had refused their promotion and were not prepared to go out of Patna, they earned the debarment under aforesaid circular dated 3.3.1975 for a period of three years. They were accordingly by the notification dated 18.5.1983 (annexure 1) to the writ application no. 3588 of 1983 informed that they stood debarred for three years on account of their refusal to go out of Patna. By the same notification other doctors, some of whom were juniors, were promoted to the rank of Associate Professor. The petitioners have now come to this Court challenging the order of department as contained in the notification dated 18.5.1983 and praying to this Court for issuance of a direction to the respondents to consider the case of the petitioners for promotion to the rank of Associate Professors and, if necessary, to quash the promotion of such of the doctors who were juniors to these writ petitioners. 3. Cause has been shown by the respondents including the State. In all these three writ applications counter-affidavits have been filed and it is said that all three petitioners of these three cases have had refused to go out of Patna on promotion and as such they earned debarment as provided by a circular dated 3.3.75. It is, therefore, necessary to consider the individual cases now. C.W.J.C. No. 3588 of 1983 4. Annexure 4 is the copy of the profoma that was supplied to the petitioner but this has not been filled up. The State in the circumstances produced the original proforma that was given by the petitioner Dr. (Mrs.) Mahendra Kaur Suri. She gave her preference for posting at Patna Medical College and Hospital and Nalanda Medical College, Patna only. In the bottom of the page she wrote “As we are refugee and have widow mother who is bed-ridden no one is there to look after her. (Mrs.) Mahendra Kaur Suri. She gave her preference for posting at Patna Medical College and Hospital and Nalanda Medical College, Patna only. In the bottom of the page she wrote “As we are refugee and have widow mother who is bed-ridden no one is there to look after her. I on very compassionate ground given this choice.” The preferences for only two Medical Colleges and the note written in the bottom of proforma persuaded the authorities to hold that she has refused promotion in case she was promoted and posted beyond Patna. 5. Mr. Dayal appearing on behalf of the petitioner strenuously contended that she very categorically had given her consent for being considered for promotion to the post of Associate Professor. So far as the place of posting is concerned, she had only given her preferences and that did not mean that in case she was sent elsewhere then the same was not acceptable to her. In support of his contention Mr. Dayal referred to the decision of 1987 P.L.J.R. 528 (Ram Bilash Ram v. The State of Bihar & Others). The petitioner of this case appeared in the 29th Combined Competitive Examination gave preference for only seven of the services on the basis of the marks obtained by him. It was not possible to accommodate him in either of the service to which he indicated preference. The question then arose as to whether he could be considered for any service other than those seven services. The Bench held that preference means to give priority to one over another and the candidate cannot be said to withdraw his candidature for the posts and services which he did not include in his preference list. Mr. Govt. Pleader tried to distinguish this case by saying that in the reported decision there were different services while in the case before us there is only one service. Only the place of posting is different. This is hardly a distinction as the ratio decidendi is entirely different. The aforesaid Bench decision of this Court therefore, fully applies to this case and in our view, therefore, Dr. (Mrs.) Mahendra Kaur Suri was wrongly debarred from consideration. We accordingly quash the order debarring her for consideration for the next three years as contained in the order dated 18.5.1983 (annexure 1). The aforesaid Bench decision of this Court therefore, fully applies to this case and in our view, therefore, Dr. (Mrs.) Mahendra Kaur Suri was wrongly debarred from consideration. We accordingly quash the order debarring her for consideration for the next three years as contained in the order dated 18.5.1983 (annexure 1). We are informed that all the 18 posts that fell vacant in the year 1983 could not be filled up because there was no Scheduled Tribe candidate available for whom two seats were reserved. We were also informed that the State Government by the notification dated 27.9.1987 has de-reserved these posts which have now to be filled up from the general candidates. In the circumstances without disturbing those already promoted we direct that the petitioner may now be considered for promotion to the post of Associate Professor in the department of Obstetrics and Gynaecology against one of the posts which have not been filled up. We also direct that in case the petitioner is promoted then the will be given retrospective promotion with effect from the date her juniors have been promoted so that in the cadre of associate Professor she may not lose her seniority. Mr. Dayal very fairly says that she may not get any financial advantage on account of her retrospective promotion. C.W.J.C. No. 1928 of 1986 6. The petitioner in this case is Dr. (Mrs.) Kusum Kapoor. Her case is similar to that of Dr. (Mrs.) Mahendra Kaur Suri the petitioner in C.W.J.C. No. 3588 of 1983. She also filled up the proforma supplied to her. She gave her consent for promotion to the post of Associate Professor in the department of Obstetrics and Gynaecology. With regard to the place of preference she gave Patna Medical College as finrst preference and Nalanda Medical College as the second preference. No other preference was given. She also filed a representation that she may be posted after promotion at one of the two aforesaid Colleges as she will face some difficulty in giving education to her children and in looking after her widow mother in case she bas to go out of Patna. This was construed by the authorities as refusal of this petitioner to go out of Patna on promotion. I have indicated in the case of Dr. (Mrs.) Mahendra Kaur Suri that preference does not mean refusal to accept other positions. This was construed by the authorities as refusal of this petitioner to go out of Patna on promotion. I have indicated in the case of Dr. (Mrs.) Mahendra Kaur Suri that preference does not mean refusal to accept other positions. Her case, therefore, had to be considered for promotion. The authorities were clearly in error in thinking that she came within the mischief of the circular dated 3.3.1975. The order of debarment of this petitioner as contained in annexure 1 to this writ application, is therefore, bad and is quashed (in so far as this petitioner is concerned). In the circumstances, therefore, it is directed that this petitioner also should be considered for promotion to the post of Associate Professor in the department of Obstetrics and Gynaecology against one of the posts which have not been filled up so far. We also direct that in case the petitioner is promoted then she will be given retrospective promotion with effect from the date her juniors have been promoted so that in the cadre of Associate Professors she may not lose her seniority Mr. Dayal very fairly says that she may not get any financial advantage on account of her retrospective promotion. C.W.J.C. No. 5030 of 1983 7. Dr. (Mrs.) Barun Kala Sinha is the petitioner in this case. She also was supplied the proforma to give her consent for promotion to the post of Associate Professor in the department of Obstetrics and Gynaecology along with her preference with regard to place of posting. She gave her consent for promotion. With regard to preference she indicated Patna Medical College Hospital, Nalanda Medical College Hospital and Bhagalpur Medical College, Hospital. She also gave a note explaining the desirability of her posting at Patna and said that if possible she may be posted at Patna. She annexed an application along with this proforma in which she stated that in case on account of her position in the seniority list it was not possible to post her at Patna after promotion then she may not be considered for the present as a post is likely to fall Vacant in Patna itself after a few months. She therefore, requested that her case for promotion may be considered for the post likely to fall vacant at Patna, even if, there may be some delay in the matter of promotion. She therefore, requested that her case for promotion may be considered for the post likely to fall vacant at Patna, even if, there may be some delay in the matter of promotion. The authorities, therefore, in our opinion rightly came to the conclusion that she had refused her promotion because she was not prepared to move out of Patna. It was, however, contended on behalf of this petitioner that what she stated in the letter attached to the proforma was only a request and was not actually refusal. It is not possible to accept this contention. She very positively said that she may not be considered for the present rather she should be considered for promotion after sometime when another post will fall vacant in Patna. She was clear in her mind that this refusal may cause some delay therefore, she stated that her promotion may be delayed but then she will be at Patna if she is promoted after sometime. It is, therefore, not possible to accept this contention. It may also be said that this position was again reiterated in annexure C on application order dated 5.4.1983 when she said that after promotion she may be posted at Patna because she was not in a position to go beyond this city. It is, therefore, not possible to accept this position that this was only a request and not refusal. This petitioner, therefore, clearly came within the mischief of the circular dated 3.3.1975. The validity of the circular dated 3.3.1975 on the basis of which the petitioner has been debarred from consideration for promotion for the next three years was challenged in the case of Dr. Ramji Pandey v. The State of Bihar (1988 P.L.J.R 84). In that case the attack was that it violated the provisions of Articles 14 and 16 of the Constitution. The argument was rejected and it was held that the circular dated 3.3.1975 which was all executive instruction under Article 162 of the Constitution was valid. Learned counsel has now said that the executive instruction violates Rule 49 read with Section 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930. Rule 49 enumerates different penalties that may be imposed on government servants for good and sufficient reasons. Withholding of promotion is one of the punishments so prescribed. Learned counsel has now said that the executive instruction violates Rule 49 read with Section 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930. Rule 49 enumerates different penalties that may be imposed on government servants for good and sufficient reasons. Withholding of promotion is one of the punishments so prescribed. Rule 55 A says that no order imposing penalty specified in Clause (i), (ii) or (iv) of Rule 19 (which includes punishment of withholding promotion) shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed. Learned counsel says that the circular does not make any provision for giving notice or asking for representation before an order of debarment is passed. In our view this argument has no substance. Rule 49 applies only in cases where punishments are imposed and Rule 55A is the procedure provided for any punishment as prescribed. Her debarment is not as a result of any misconduct within the meaning of Rule 49, as said in the case of 1988 P.L.J.R. 84 (supra). This circular was issued with a view to discourage the doctors from refusing to go on promotion or to discourage them from refusing to join the College to which they have been assigned. This is a matter of public policy for the benefit of the Medical students and the ailing members of the public. This is not by way of punishment but only to discourage the tendency of the doctors to remain permanently at one station for their own personal convenience and advantage but personal convenience has to give way to the greater good of the public. 8. Learned counsel also urged that before the actual order of debarment was passed the petitioner should have been given a hearing. In that connection learned counsel has referred to the decision in the case of Commissioner of Income Tax (Central) v. B.N. Chatterjee and another (1979 Supreme Court Cases 121 Volume IV). The facts of this case were entirely different. The assessee filed a review application for review of the Commission's order on the ground that no hearing was afforded to him. The Commission on hearing him decided to proceed with the application on merit. The facts of this case were entirely different. The assessee filed a review application for review of the Commission's order on the ground that no hearing was afforded to him. The Commission on hearing him decided to proceed with the application on merit. The C.I.T. challenged the order of the Commission to hear the grievance on merit. It was in this connection that the Supreme Court held that the principle of natural justice was violated because the earlier order passed by the Commission was without affording any opportunity to the assessee to explain his case. So far as the present case is concerned the petitioner and everyone was informed of the consequences. In case the consent as required was not given, the petitioner therefore, cannot make a grievance that the principle of natural justice has not been complied with. This contention also has no substance. 9. In the result the writ application fails and is dismissed but without costs.