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2001 DIGILAW 503 (JHR)

Krishna Kumar Lal v. State Of Bihar

2001-07-24

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. This application was preferred by petitioner for direction on the respondents to treat the petitioner as lecturer, Mahatma Gandhi Memorial Medical College and Hospital (M.G.M. Medical College and Hospital for short), Jamshedpur. He also challenged the order contained in Memo No. 376 (2) dated 30.6.1998 whereby and whereunder, the petitioner was transferred and posted as Medical Officer, Primary Health Centre, Pat-made, East Singhbhum. 2. The case of the petitioner is that he was appointed as Civil Assistant Surgeon vide Notification No. 1686/88 dated 26.3.1988 on the recommendation of the Bihar Public Service Commission. Subsequently, he obtained Master Degree (M.S.) in surgery in August, 1988 and become eligible for appointment against junior teaching post. After due advertisement and selection, the petitioner was appointed by transfer as resident Ophthal- mology vide Memo No. 504 (16) dated 22.8.1991. Even after completion of tenure was allowed to continue against the said post till the order contained in Memo No. 560 dated 30.4.1998 was Issued by the Superintendent. M.G.M. Medical College and Hospital, Jamshedpur. 3. The case of the petitioner is that in view of the provision made under "Bihar Medical Teaching Service Cadre Rules, 1997", as the petitioner was holding a teaching post as on 21.5.1997, the late rule came into effect, the petitioner should be construed to have been taken in services of the State in the teaching cadre by operation of law. 4. It appears that there was a common cadre of doctors in the Bihar Health Services. The teaching posts were available in different Medical Colleges of the State of Bihar. The posts of resident/resident Medical Officer/resident Surgical Officer/Registrar were teaching tenure posts against which a person could have been posted for three years. The next higher post of the Assistant Professor, Associate Professor and Professor which were non-tenure teaching posts. 5. The State of Bihar framed a rule under proviso to Article 309 of the Constitution of India known as "Bihar Medical Teaching Service Cadre Rules. 1997" (hereinafter referred to as 1997 Rules). The teaching cadre was separated and it was ordered that the teachers holding one or other teaching post on 21.5.1997 may exercise their option will be retained in the teaching cadre. 6. From the judgment passed by this Court, as enclosed as Annexures 8 and 9, it appears that a latter dated 31.5.1997 was issued by the Deputy Secretary. The teaching cadre was separated and it was ordered that the teachers holding one or other teaching post on 21.5.1997 may exercise their option will be retained in the teaching cadre. 6. From the judgment passed by this Court, as enclosed as Annexures 8 and 9, it appears that a latter dated 31.5.1997 was issued by the Deputy Secretary. Department of Health, Medical Education and Family welfare, Government of Bihar. Therein it was ordered to revert the teachers, who were holding tenure post and had completed three years period of tenure. The direction aforesaid given by letter dated 31.5.1997 was challenged by the Junior Medical Teachers Association before the Patna High Court in CWJC No. 5577/97. In the said case, the Court by judgment and order dated 14.1.1999 taking into consideration 1997 Rules held that the petitioners (of the said case), who were resident Medical Officer and Registrar on the date of coming into force of the rule, namely, 21.5.1997 and those who have exercised their option, they become lecturer by operation of law, and in their cases, letter dated 31.5.1997 shall not apply. 7. Similar was the decision given by this Court in the case of Vinay Pratap and Ors. v. State of Bihar and Ors., CWJC No. 2997/97 (R), disposed of on 8.2.1999. The Court held that the petitioners, who were holding the teaching posts of resident Medical/ Surgical Officer/Registrar as on 21.5.1997 and who have already exercised option, they become lecturer by operation of law. 8. According to petitioner, though his tenure completed after three years of posting as resident medical officer but was allowed to function against such teaching post tilt 21.5.1997, he should also be treated as lecturer by operation of law and could not have been transferred against a non-teaching post, as made vide order dated 30.6.1998. 9. A counter-affidavit has been filed on behalf of Commissioner-cum- Secretary, Health Services, Jharkhand, Ranchi. It is stated that the Health Department, Government of Jharkhand has requested the Government of Bihar vide letter dated 20.4.2001 to forward the details about the action taken in the case but they have not received any reply. 10. In spite of time granted to the State of Bihar, no counter- affidavit has been filed till date. 11. Having regard to the facts and circumstances, the case is remitted to the Secretary. 10. In spite of time granted to the State of Bihar, no counter- affidavit has been filed till date. 11. Having regard to the facts and circumstances, the case is remitted to the Secretary. Health, Medical Education and Family Welfare, Department, Government of Jharkhand, Ranchi. 12. The petitioner will file a representation showing the details of his service career giving reference of notifications by which he was posted in the Medical College. 13. The Secretary, Health, Medical Education and Faintly Welfare Department, Government of Jharkhand, Ranchi will enquire as to whether the petitioner was holding a teaching post as on 21.5.1997 and had given option to remain in the teaching cadre or not. If necessary, he may call for the records from the State of Bihar. If it is found that the petitioner was holding a teaching post on 21.5.1997 and had given option for his retention in the teaching cadre in terms with 1997 Rules, the Secretary, Health, Medical Education and Family Welfare, Government of Jharkhand will issue an appropriate order posting the petitioner against an equivalent teaching post in one or other medical colleges of the State. 14. If any adverse decision is taken, the ground to be communicated to the petitioner. 15. The Officer is to pass a reasoned order within a period of three months from the date of receipt of such representation. 16. The writ petition stands disposed of, with the aforesaid observed. 17. Petition disposed of.