S. K. Verma v. State of Bihar — 1992 DIGILAW 151 (PAT)

Order Having heard Mr. Arun Kumar Prasad, learned Counsel for the petitioner, Mr. P.K. Shahi, learned Government Pleader No. 7 on behalf of the State and Mr. Banwari Sharma appearing on behalf of respondent no. 4, in detail, we intend to dispose of this application at the admission stage itself. 2. In short, the grievance of the petitioner, in the present writ application is that though he possessed the requisite qualification as well as teaching experience, he was deprived of the promotions as Assistant Professor and then as Associate Professor and the last one as Professor in the E.N.T. Department of the Medical College whereas his juniors have been allowed to supersede him so much so that on 1.2.1991 the service of respondent no. 4, who is less qualified and possesses less total teaching experience, has been regularised as Associate Professor by the Government notification dated 1.2.1991, as contained in Annexure 1, without disposing of the representations of the petitioner made from time to time. 3. However, in the counter affidavit filed on behalf of respondent no. 2, a copy of order dated 1.2.1991 rejecting the representations filed by the petitioner has been annexed as E without giving any reason for the same. 4. The petitioner has given a comparative chart of his qualification and the teaching experience vis-a vis that of respondent no. 4 at Annexure 13 to the amendment petition filed on his behalf on 11th March, 1992. The correctness of the same has not been disputed by the learned Government Pleader No. 7 as also by Mr. Banwari Sharma, learned Counsel appearing for respondent no. 4 to whom we, even before the hearing of this matter commenced, had asked as to whether respondent no. 4 would like to file any counter affidavit but Mr. Sharma categorically stated that the facts stated in the comparative chart are not in disputed and, accordingly, we proceeded to hear the matter in detail, so that the same may be disposed of at the admission stage itself. 5. 4 would like to file any counter affidavit but Mr. Sharma categorically stated that the facts stated in the comparative chart are not in disputed and, accordingly, we proceeded to hear the matter in detail, so that the same may be disposed of at the admission stage itself. 5. The short question that has been raised on behalf of the respondents is that the petitioner, in view of the Government resolution, Contained in Memo No. 5935 (2) dated 7.9.1973 (Annexure 'C'), was not entitled to count the teaching experience in respect of supernumerary duty performed by him from 15.2.1971 to 15.12.1976 and from 16.12.1979 to 14.3.1980 when he worked in the Patna Medical College Hospital beyond the expiry of the so called tenure of three years. It was also contended that the petitioner is not entitled to count teaching experience from 8.5.1988 to 23.10.1988 when he worked as Medical Officer in the Preventive & Social Medicine Department of the Patna Medical College Hospital, Patna. However, learned Government Pleader No. 7 and also learned Counsel for respondent no. 4 have not disputed the fact that the petitioner has actually performed the teaching work in a teaching hospital right from 17.2.1971 till date. 6. Learned Counsel for the petitioner in reply submitted that in view of the principle laid down by the Supreme Court in the decision reported in AIR 1983 Supreme Court 509 (Dr. Asim Kumar Bose V. Union of India and others), the petitioner acquired the requisite teaching experience and was eligible and due for promotion as Assistant Professor with effect from 4.3.1976, as Associate Professor with effect from 19.1.1978 and as Professor in the E.N.T. Department on 18.2.1988. The petitioner's representations for due promotions have been arbitrarily rejected by order, as contained in Annexure E, which, according to the settled principle, is also bad in law as no reason has been assigned for the same. On the other hand, the learned Counsel for the respondents has relied on a Bench decision of this Court reported in 1990 BBCJ 45 : 1990 (1) PLJR 124 . (Dr. Anil Kumar Sinha v. The State of Bihar and others) which had taken notice of the aforementioned Supreme Court decision and also the resolution of the Government dated 7.9.1973 and had upheld the validity of the aforesaid Government resolution dated 7.9.1973 by holding it to be of binding nature. (Dr. Anil Kumar Sinha v. The State of Bihar and others) which had taken notice of the aforementioned Supreme Court decision and also the resolution of the Government dated 7.9.1973 and had upheld the validity of the aforesaid Government resolution dated 7.9.1973 by holding it to be of binding nature. We do not accept this submission of the learned Counsel for the respondents. 7. In fact, in the said decision, the Court was not considering the validity or otherwise of the said Government decision. Their Lordships proceeded to decide that case on the basis that since there was no statutory rule laying down the criteria for recognition of the teaching experience, the Government order dated 7.9.1973 was held to be an order of a binding nature. In our opinion, the validity of the said Government order would be doubtful, in view of the Supreme Court decision in Dr. Asim Kumar Bose's case (supra), but, since the validity of the same has not been challenged by the petitioner, in the present case, we do not want to express any final opinion a bout the same. 8. In the case of Dr. Asim Kumar Bose (supra), the Supreme Court held as follows:- "...the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation......" From the aforesaid it is clear that the Supreme Court has laid down the law that there is no different as to whether a teaching experience is acquired on a regular appointment or as Specialist in a teaching hospital with ex-officio designation. In substance, in the present case, the only objection appears to be that the petitioner did not acquire the teaching experience on regular appointment in accordance with the Government resolution (Annexure C) and, therefore, not entitled to the said period for consideration of his case for promotion. The fact that the petitioner acquired the actual teaching experience in a teaching hospital has not been disputed. The fact that the petitioner acquired the actual teaching experience in a teaching hospital has not been disputed. We are therefore, of the view that applying the principle laid down by the Supreme Court in the above case the petitioner is entitled to court the actual teaching experience acquired by him. 9. Learned Counsel for the petitioner has also relied on the order of the Supreme Court passed in Dr. Ram Janam Singh's case, in the light of which the Government issued notification in favour of Dr. Ram Janam Singh giving him the benefit of the teaching experience when he was not posted against a regular teaching post and, consequently, promoting him as Associate Professor and as Professor with effect from due date, though without financial benefit by relaxing the aforementioned Government resolution dated 7.9.1973. A true copy of the notification has been annexed as Annexure 17 to the reply affidavit filed on behalf of the petitioner. 10. It may be useful to quote the order passed by the Supreme Court in respect or Dr. Ram Janam Singh which has been quoted in Dr. Anil Kumar Sinha's case (supra):- "Heard learned Counsel for the parties. We are of the view that the legal position to be applied to the facts and circumstances of the case, has been properly settled by this Court in the case of Dr. Asim Kumar Bose v. Union of India & ors. The order and judgment of the High Court is set aside and the respondent State of Bihar is directed to dispose of the appellant's claim for regularisation of his service and the other reliefs in accordance with the principle indicated by this Court's judgment, referred to above. The direction given in that case will be taken as given here. The appeal is disposed of accordingly with no order as to costs." In view of the disposal of the appeal today, the writ petition is not pressed and is dismissed." 11. The Supreme Court set aside the judgment of the High Court and issued direction to the respondent State of Bihar to dispose of his claim for regularisation of his service and other reliefs in accordance with the principle indicated by the Supreme Court in Dr. Asim Kumar Bose's (supra). From Paragraph 15 of the decision in Dr. Anil Kr. Sinha (supra) and Annexure 17 to the reply affidavit it appears that Dr. Asim Kumar Bose's (supra). From Paragraph 15 of the decision in Dr. Anil Kr. Sinha (supra) and Annexure 17 to the reply affidavit it appears that Dr. Ram Janam Singh was given the benefit of the teaching experience for the period when he was not posted against a regular teaching post. More or less the case of the petitioner is also of similar nature as would appear from the stand of the State Government, as contained in sub-paragraph 4 of paragraph 2, wherein it has been stated that the petitioner was denied the benefit of the teaching experience while he worked on supernumerary duty and in the Preventive & Social Medicine Department. Besides that the period of the teaching experience spent beyond the expiry of tenure of the post of Registrar was also not recognised. 12. As regards the tenure, learned Government Pleader No. 7 could not point out any rule depriving a person of the actual teaching experience for the period spent beyond the tenure of the post of Registrar, the validity of which, in our opinion, would be doubtful even if it existed, in view of the Supreme Court decision in Dr. Asim Kumar Bose's case (supra). However, since no such Rule or even Government decision has been produced before us, we do not want to express any final opinion about the same but, in view of the Supreme Court decision in Dr. Asim Kumar Bose's case (supra), we are of the view that the petitioner could not have been denied the benefit of the actual teaching experience for tile period while he performed the same on supernumerary duty or during the period beyond the so called expiry of the tenure of the post of Registrar. 13. As regard the period, while he was posted as Medical Officer in the Department of Preventive & Social Medicine, the petitioner's claim is that he performed teaching work there also and acquired actual teaching experience, in support of which he has filed a copy of the certificate granted by the Head of the Department as Annexure 8 to the writ petition. Learned Counsel for the petitioner also submitted that the Department of Preventive & Social Medicine is a teaching department in terms of resolution of the Medical Council of India, a relevant extract copy of which has been annexed as Annexure 7 to the writ petition which is quoted hereunder- "Medical Council of India recommendations on undergraduates Medical Education adopted by M.C.I. in 1977 and corrected upto February, 80 page 34. (d) In addition to the teaching undertaken by the departments of Social and Preventive Medicine, a joint programme with other departments is essential in order to give the students a comprehensive picture in man, his health illness. (e) As regards the qualifications of teachers it is highly important that all the teachers have as far as possible, adequate administrative experience in audition to teaching experience. They should also be encouraged to acquire skill in clinical subjects specially released to community medicines. Page 41. Teachers from entire faculties of medical college should be given adequate orientation and posted in turns to rural centre for the training under-graduated in community health," These facts have not been disputed by the learned Counsel for the respondents. 14. Thus, in our opinion, the rejection of the representations of the petitioner by a cryptic order, contained in Annexure E, without giving any reason is wholly illegal and arbitrary. In any view of the matter since we have already held that the petitioner was entitled for the teaching experience all through right from 1971 since when, undisputedly, he performed the actual teaching work in a teaching hospital and also because this is not in dispute that he possessed the requisite qualification, we are of the view that the petitioner was/is entitled for his promotions as Assistant Professor, as Associate Professor and thereafter as Professor also with effect from due date. 15. Accordingly, we quash the order dated 1.2.91 as contained in Annexure E and direct the respondents authorities to dispose of the petitioners claim for regularisation of his service and other reliefs in the light of our directions given above without financial benefits from the due dates within a month from today, even if it is required, by creating shadow post (s) as the petitioner is retiring shortly. We may, however, indicate that the petitioner shall be entitled to get the scale of his last promotional post with effect from the date he assumes charge. 16. We may, however, indicate that the petitioner shall be entitled to get the scale of his last promotional post with effect from the date he assumes charge. 16. Let a copy of this order be handed over to the learned Government Pleader No. VII for onward communication.