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1997 DIGILAW 255 (PAT)

Binod Prasad Singh v. State of Bihar

1997-03-31

S.N.JHA

body1997
Order The petitioner seeks quashing of the Notification No. 220(17) of the State Government in Health Medical Education and Family Welfare Department dated July 15, 1996 directing him to join the department for next posting, pursuant to the resolution of the State Government contained in the Department's memo no. 218(17) dated July 15, 1996 cancelling the postings of the junior teachers holding higher teaching posts. He also seeks quashing of the consequential order of the Principal, A.N. Medical College, Gaya dated July 31, 1996 and his relieving from the post of Tutor (PSM) from that College on August 14, 1996. The petitioner further seeks quashing of the Notification no. 405(17) dated November 2, 1996 posting him as Tutor (PSM) in Jawaharlal Medical College; Bhagalpur. True Copies of the aforesaid notifications/orders are contained in Annexures 4, 5, 7 and 9 of the writ petition. He also seeks a direction to allow him to continue on the post of Tutor (PSM) in Magadh Medical College, Gaya. The relevant facts are as follows: 2. The petitioner joined the Bihar Health Service as Civil Assistant Surgeon in 1980. In 1983 he applied for the post of Tutor in Preventive and Social Medicine (PSM). On November 13, 1986 after his appointment to the post of tutor, he was posted in A.N. Magadh Medical College, Gaya against a leave vacancy in the post of Assistant Professor in the concerned department. The notification mentioned that on return of the holder of the post the petitioner would be adjusted against the vacancy in the post of tutor (PSM). The petitioner joined the post/college in 1987. He continued as such until the issuance of the impugned notifications and orders. It may be stated here that in the meantime on January 4, 1988 respondent no. 6 Dr. Tarun Kishore Jain was posted as Tutor (PSM) in A.N. Magadh Medical College, Gaya. 3. The grievance of the petitioner is that on the vacancy in the post of tutor (PSM) in Magadh Medical College, Gaya he should have been adjusted against the post and not respondent no. 6. It has been highlighted that the posting of the petitioner against a higher post may not be correct but in the matter of posting, the person concerned has hardly any say. And if the State Government committed a mistake the petitioner should not be made to suffer. 6. It has been highlighted that the posting of the petitioner against a higher post may not be correct but in the matter of posting, the person concerned has hardly any say. And if the State Government committed a mistake the petitioner should not be made to suffer. During the course of hearing it was pointed out that one vacancy in the post of tutor in Patna Medical College & Hospital (PMCH) has occurred against which the petitioner can be considered. It was stated that the petitioner had applied for the National Board of Examination which was rejected on the ground that he does not possess certificate of training in PSM for 3 years in any Medical College where post graduate teaching is done. It was contended that if the petitioner had been posted in Patna Medical College or Rajendra Medical College, Ranchi or Darbhanga Medical College (where Postgraduate teaching is done) he would have acquired the necessary qualification. 4. Both the department and respondent no. 6 have filed their respective counter affidavits. It has been stated in the affidavit of the department that the Policy decision to cancel the postings of all such junior teachers against higher teaching posts in different Medical Colleges has been taken pursuant to the direction of this Court. In the light of the aforesaid Policy decision the petitioner and a number of other junior teachers have been reverted to the substantive posts. As regards the postings of respondent no. 6 it has been stated that the same is in accordance with the guidelines laid down by this Court in the case of Dr. Rita Sinha vs. State of Bihar, 1990 (2) PLJR 243 . The averment of the petitioner about the existence of vacancy in the post of Tutor (PSM) in Patna Medical College has been admitted but it is said that the vacancy is not meant for 1993 panel to which the petitioner belongs and, therefore, in the light of the decision in Dr. Rita Sinha's case, he can not be posted against that post in Patna Medical College. As regards the petitioner's grievance that he has not been able to appear in the National Board's Examination, it is suggested that the grievance is not genuine. The petitioner joined the post at Gaya in 1987 and it was after more than 5 years that he applied for DNB Examination before the National Board. As regards the petitioner's grievance that he has not been able to appear in the National Board's Examination, it is suggested that the grievance is not genuine. The petitioner joined the post at Gaya in 1987 and it was after more than 5 years that he applied for DNB Examination before the National Board. It has been stated that according to the Government decision a tutor in any Para Medical or Non-clinical Department must acquire PG degree within 5 years of his joining as tutor otherwise he is be liable to be reverted to the administrative side of the cadre. 5. Respondent no. 6 in his counter affidavit has stated that his posting as Tutor (PSM) in A.N. Magadh Medical College, Gaya was pursuant to valid selection and appointment and he should not be dislodged from the post to accommodate the petitioner. It has been submitted that the petitioner never made grievance of his posting since 1988 and after 8 years he can not be permitted to challenge his posting. In other words, the claim of the petitioner vis-a-vis respondent no. 6 is highly belated. 6. As regards the notification dated July 15, 1996 as contained in annexure-4, there can not be any doubt that the same being a consequence of the general policy decision, in the light of orders of this Court, no illegality or arbitrariness can be attributed. This Court had noticed the fact that several junior teachers were posted against higher teaching posts, some of them even against the post of Professor, and issued direction to the State Government to cancel all such postings. It was pursuant to the direction of this Court that the State Government took the policy decision to implement the same, cancelled all such postings including that of the petitioner. If his reversion to the substantive post of tutor is not illegal or arbitrary, the orders as contained in annexures 4, 5 and 7 cannot be said' to illegal. They are merely the consequential orders. The submission of the petitioner however, as noticed above, is that he should have been adjusted against the post of tutor in Magadh Medical College in place of respondent no. 6. 7. They are merely the consequential orders. The submission of the petitioner however, as noticed above, is that he should have been adjusted against the post of tutor in Magadh Medical College in place of respondent no. 6. 7. On first blush it appears that the petitioner being entitled to be posted as Tutor (PSM) from before and adjusted against higher post, supposedly for want of vacancy in the post of tutor, should have been adjusted against the vacancy against which respondent no. 6 was posted on January, 1998. But the posting of respondent no. 6 being not otherwise illegal or irregular, I do not think it would be appropriate exercise of discretion to oust him from the post only to accommodate the petitioner. After all, the petitioner did not challenge the posting of respondent no. 6 for more than 8 years. Once the posting of the petitioner against the higher teaching post was found to be irregular, he had to be adjusted against any equivalent post where vacancy was/is available. As noticed above, the petitioner had expressed his readiness to be shifted to Patna Medical College. If he can go to Patna Medical College then why he can not go to Jawaharlal Medical College, Bhagalpur. Besides, as stated in the counter affidavit of the State the vacancy in the post of tutor in Patna Medical College can not be filled up from the panel of 1983 as per the decision in Dr. Rita Sinha's case (supra). If the petitioner was sincere about acquiring the post graduate qualification, he should have taken steps within the stipulated period of 5 years. Now that in terms of the Government decision, he is liable to be reverted to the administrative side of the cadre, he should be happy that instead of being reverted to the administrative side, he has been posted as tutor in Jawaharlal Medical College, Bhagalpur. The petitioner has no legal right to continue to Magadh Medical College or to insist on his being shifted in Patna Medical College. His claim in these premises can not be allowed. 8. During the course of hearing of the case it transpired that the State Government has taken steps to frame statutory rules for making appointments/postings against teaching posts and the rules are in offing. His claim in these premises can not be allowed. 8. During the course of hearing of the case it transpired that the State Government has taken steps to frame statutory rules for making appointments/postings against teaching posts and the rules are in offing. It is expected that as and when the rules are made and brought into effect, the case of the petitioner (and indeed others similarly placed) will be considered and he will be adjusted against the suitable post/College. 9. In the result, I do not find any merit in this writ petition which is accordingly dismissed.