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1997 DIGILAW 137 (PAT)

Shahabuddin v. State Of Bihar

1997-02-18

R.M.PRASAD

body1997
Judgment Radha Mohan Prasad, J. 1. As in all these writ applications the writ petitioners are aggrieved by one and the same action of the respondent State and the question involved are common, with the consent of the parties, they have been heard together and are being disposed of by this common judgment/order. 2. In all these writ applications the petitioners are aggrieved by the decision of the Departmental Promotion Committee (in short d. P. C. )which has recommended the case of respondent Dr. Surendra Kumar Singh to the Bihar Public Service Commission (in short the Commission) seeking its concurrence for appointment as director, Indigenous medicines, Bihar, patna. 3. In short, the relevant facts are that a separate Directorate for the three disciplines of indigenous medicines, namely, Ayurvedic, Unani and Homeopathic, was constituted, vide government decision, contained in the notification dated 6-5-1978. By the said decision, one post of Director and two posts of Deputy Director in the Directorate were created. The post of Director was to be filled up from one of the three disciplines and the two posts of deputy Director were to be filled up from the remaining two other disciplines. In the year 1982, vide Government notification dated 5-10-1982, a third post of the Deputy Director, ayurvedic was created. 4. It is to be noted here that the two disciplines, namely, Ayurvedi and unani, have separate cadres. However, no cadre has formally been constituted for the Homeopathic discipline. The petitioner of C. W. J. C. No, 2122 of 1995 (Dr. Chakradhar Paswan), being a member of the reserved category, long back in the year 1979 was appointed as deputy Director, Homeopathic, the validity of which was Challenged in this court. This Court held that there being only one post of Deputy Director, homoeopathic, the reservation policy would not apply and, accordingly, quashed the order appointing him as deputy Director and directed that the post should be filled up by direct recruitment. The matter went up to the supreme Court and the Apex Court upheld the decision of this Court and directed for filling up the post by direct recruitment. However, as during this period, Dr. Paswan had been working on the post of Deputy Director for long eight years, the Supreme Court directed the State Government to post him on an equivalent post. However, as during this period, Dr. Paswan had been working on the post of Deputy Director for long eight years, the Supreme Court directed the State Government to post him on an equivalent post. Accordingly, the notification was issued posting him as deputy Director-Cum-Superintendent, administrative, with effect from 25-7-1990. 5. In the meantime, the post of deputy Director, Homoeopathic in the directorate was advertised and pursuant thereto Dr. Surendra Kumar singh was directly appointed on the said post. The other two posts of deputy Director in Indigenous medicines are vacant. The petitioners of the other writ applications claim to be working in the same grade in which dr, Paswan and respondent Dr. Surendra Kumar Singh are working. As there is none other than respondent dr. Surendra Kumar Singh posted as the Deputy Director in the Directorate, the D. P. C. recommended his case to the commission seeking its approval/concurrence for his regular appointment against the vacant post of Director, vide letter dated 30-3-1996 (Annexure 11 to the first writ case) which is impugned in these cases. 6. Learned Counsel for the petitioners submitted that in the absence of rules relating to promotion to the post of Director, the said post should be filled up by promotion on consideration of the cases of the persons of all the three disciplines working in the grade next below it and that it should not be confined to only these posted as Deputy Directors in the directorate. Mr. Choubey, Learned senior Counsel appearing for Dr. Chakradhar Paswan in C. W. J. C. No.2122 of 1993 submitted that in case the promotion to the post of Director is confined to only amongst the Deputy directors Working in the Directorate, than the persons though may be senior and getting higher salary in the same grade, but not posted as Deputy Director in the Directorate would be illegally and arbitrarily deprived of their right of being considered completely ignoring their seniority, for which there "cannot be any rationale. 7. On the other hand Mr. Kanth, learned Senior Counsel appearing for respondent Dr. Surendra Kumar Singh submitted that the provision made in the Government decision of 1978 for filling up the post of Director from amongst one of the Deputy directors posted in the three disciplines in the directorate goes to show the intention of the State Government that there. On the other hand Mr. Kanth, learned Senior Counsel appearing for respondent Dr. Surendra Kumar Singh submitted that the provision made in the Government decision of 1978 for filling up the post of Director from amongst one of the Deputy directors posted in the three disciplines in the directorate goes to show the intention of the State Government that there. should be representation from all the three disciplines in the Directorate and the senior most among them be made the Director of the Directorate. According to Mr. Kanth, mere creation of third post of Deputy Director, vide notification of 1982, would not change the import of the aforesaid provision, contained in 1978 Government decision. It was further submitted by him that after creation of the third post of Deputy Director, the post of Director is to be fill up as per the inter se seniority of the persons working as deputy Directors in the Directorate and the said respondent being the alone person posted as Deputy director in the Directorate, his case has rightly been recommended by the d. P. C. for approval/concurrence of the commission for appointment by promotion to the post of Director. It was further submitted by Mr. Kanth that if the submission of the Learned counsel for the petitioners is accepted that the post of Director has to be filled up on consideration of the cases of the persons working in the three disciplines in the same grade, then the case of the persons working in the homoeopathic discipline will never be considered as uptill now there is no cadre in the said discipline. In indigenous Medicines at present there are only two cadres; one of Ayurvedic and other of Unani. The only cadre post in the Homeopathic discipline is that the Deputy Director in the directorate. As such, according to him, the interpretation put forward on behalf of the writ petitioners would deny promotion from the Homoeopathic discipline for ever which would be unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India, besides inequitable. 8. Mr. Yugal Kishore, Learned standing Counsel No. VII appearing for the State submitted that there is no illegality in recommending the case of the respondent, namely, Dr. Surendra kumar Singh to the Commission seeking its approval/concurrence for appointment to the post of Director. 8. Mr. Yugal Kishore, Learned standing Counsel No. VII appearing for the State submitted that there is no illegality in recommending the case of the respondent, namely, Dr. Surendra kumar Singh to the Commission seeking its approval/concurrence for appointment to the post of Director. According to him, Directorate has got two cadres; one of Director and the other of Deputy Directors. Hierarchy for the Deputy Directors is the post of director. The cadres below the Deputy directors in the two disciplines, namely, ayurvedic and Unani, are separate from the cadres in the Directorate and for them the venue of promotion will first be the rank of Deputy Director in the Directorate and then only to the post of Director. 9. In reply, Mr. Choubey, Learned senior Counsel appearing for the petitioner (Dr. Chakradhar Paswan)submitted that in any view of the matter. Dr. Paswan who has been holding the equivalent post of Deputy Director as per the direction of the Supreme court for all purposes, is to be considered as Deputy Director in the directorate. The word equivalent, as per the Chambers Dictionary means equal in value. power, meaning etc, interchangeable: of like combining value. as such, according to him, the petitioner (Dr. Paswan) drawing higher salary than the respondent concerned is senior to the respondent concerned and is entitled for preferential claim over the post of Director. 10. I do not find any substance in the submissions of Mr. Choubey, learned Senior Counsel appearing for dr. Paswan as well as the Learned counsel appearing for other petitioners. Learned Standing Counsel no. VII rightly submitted that vide annexure 4, the Directorate of Indigenous medicines was created with the Director as its head having administrative and financial control over all the three disciplines of the Indigenous medicines. Paragraph 4 of the said government decision makes it further clear that the post of Director is to be filled up from among the three disciplines of Indigenous Medicines and the posts of Deputy Director shall be filled up from the remaining disciplines of the said Medicines. 11. It is not the case of the petitioners that the posts of Deputy directors in the Directorate are not in the hierarchy of their respective cadres. This is also evident from the government decision (Annexure 4) under which representations were given to all the three disciplines in the Directorate. 11. It is not the case of the petitioners that the posts of Deputy directors in the Directorate are not in the hierarchy of their respective cadres. This is also evident from the government decision (Annexure 4) under which representations were given to all the three disciplines in the Directorate. It is true that later third post of Deputy director was created in the year 1982, but that will not change the position unless it would have been the case of the petitioners that the posts of Deputy director in the directorate are not in the hierarchy of the respective cadres. 12. There appears to be rationale in the Government decision to fill up the post of Director from one of the three disciplines and the posts of deputy Director from the remaining two disciplines as per the said government Decision taken in the year 1978. Even after creation of third post of deputy Director, the position will not change inasmuch as by the representation of all the three disciplines in the Directorate, the control over all the three cadres will now vest in the respective Deputy Directors and the overall control in the Director to be appointed from one of the three disciplines. This will give chance to fill up the post of Director from all the three disciplines keeping in view the inter se seniority among the three Deputy directors. 13. The above interpretation will only to do justice with the members of the service of all the three disciplines. This will also resolve the problem of inter se seniority among the persons of the three disciplines. The cadres of all the three disciplines being separate, the inter se senionty of the persons in the said three cadres cannot be determined combinedly and has to be determined separately within the respective cadres from which the posts of Deputy Director which are next in the hierarchy of the three disciplines are to be filled up, otherwise it will be difficult to determine the inter se seniority of the persons posted in the three separate cadres in order to fill up the vacancy of the post of Director. 14. 14. As regards equivalence of other posts to that of the posts of deputy Director, the submission cannot be accepted unless the Government declares any such post as equivalent to that of the post of Deputy Director, merely because any body is receiving equivalent salary or in the same grade will not make that post or the holder of post equivalent to the post of Deputy director. Even from the meaning of the word equivalent, referred to above, mere equal in grade or receiving salary will not make the holder of such post equivalent to that of Deputy Director in the Directorate. The post has to be equal in value, power etc. interchangeable. Learned Counsel for the petitioners have not brought to my notice any material or any Government decision under which any other post has been declared as equivalent nor there is anything on the record of this case to show that any other post is equivalent in value and power to that of the post of Deputy Director. 15. As such, I do not find any merit in all the four writ applications and the same are, accordingly, dismissed, but without costs. Application Dismissed.