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2001 DIGILAW 663 (PAT)

Sushma Pandeya v. Sheela Sharma

2001-07-30

NAGENDRA RAI, P.N.YADAV

body2001
Judgment 1. This appeal is directed against the order dated 26.6.2001, passed by a learned Single Judge in C.W.J.C. No. 7274 of 2001, allowing the writ application filed by the writ petitioner-respondent no. 1, directing respondent no, 3-the Secretary, Department of Medical Education and Family Welfare and Indigenous Medicine, Government of Bihar (respondent no, 2 in the writ application) to issue notification promoting and appointing the writ petitioner on the post of Professor in the Department of Obstetrics and Gynaecology (hereinafter referred to as the Department) on the basis of the recommendation of the Bihar Public Service Commission (hereinafter referred to as the Commission) and approval of the same by the Cabinet, Government of Bihar. 2. Necessary facts for disposal of the present appeal are as follows: Before adverting to the respective cases of the parties, it is to be stated that the controversy between the parties is as to the appointment of Professor in the Department. The Bihar Government, in exercise of the power under Article 309 of the Constitution of India, framed Bihar Medical Education Service Cadre and Recruitment Rules, 1997 (hereinafter referred to as the Rule), which was published on 21.5.1997. By the said Rules, provisions were made for creation of a separate cadre of teaching staff and providing procedure for filling up the teaching post by direct recruitment as well as by promotion. So far as the filling up the post of Professor is concerned, it provides that all the posts of Professor shall be filled up by direct recruitment from the eligible Associate Professors by making an open advertisement on all India basis. A copy of the said Rules has been annexed as Annexure 6 to the memo of appeal. 3. Rule 8 (Gha) of the said rules contains a provision with regard to the post of Professor and it provides that the post of Professor shall be filled up in accordance with the Rule of the Medical Council of India and the Rules in question on the basis of an advertisement on all India basis. The requisite qualification would be the minimum educational qualification and five years experience as Associate Professor. An advertisement was issued on 8.12.1998 (Annexure 7 to the memo of appeal) for filling up the post of Professor in several departments, including the Department in question. The requisite qualification would be the minimum educational qualification and five years experience as Associate Professor. An advertisement was issued on 8.12.1998 (Annexure 7 to the memo of appeal) for filling up the post of Professor in several departments, including the Department in question. Seven vacancies were advertised for the Department in question, out of which four posts were for general category candidates and three were for reserved category candidates. The appellant and the writ petitioner-respondent no. 1 as well as others applied and the Commission made a recommendation on 22.6.2000 of four candidates in general category for appointment to the post of Professor (Annexure-10 to the memo of appeal). In the said recommendation, the writ petitioner is shown at serial no. 1 and the appellant has been shown at serial no. 3. The matter was placed before the Bihar Cabinet, which was approved on 17.3.2001. Thereafter, as no notification was issued, appointing the writ petitioner- respondent and others on the vacant post of Professor, she filed the writ application in question on 19.6.2001. When the matter was taken up, the learned counsel for the State stated before the court that necessary notification would be issued. The appellant is stated to have appeared as intervenor, No specific order appears to have been passed adding her as a party. It was admitted at the Bar that she was also heard and, thereafter, the impugned direction has been issued by the learned Single Judge. 4. The writ petitioner-respondent joined the Bihar Health Service on 5.5.1971. She worked as a Residential Surgical Officer in the Department in question. She was appointed as Registrar from 7.4.1979 and worked in that capacity till 12.3.1982. Thereafter, she was appointed as an Associate Professor on 18.5.1983. The appellant was initially appointed in a private Medical College, which was taken over on 1.1.1980 and her claim is that she was shown as Assistant Professor at the time of taking over. The writ petitioner was appointed as an Associate Professor in 1983, whereas, the appellant was not appointed on the said post. She filed a writ application being C.W.J.C. No. 7064 of 1991 before this court for a direction to promote her to the post of Associate Professor. In the said writ petition, she also challenged the promotion given to the writ petitioner- respondent and she was arrayed as respondent no. 8 therein. She filed a writ application being C.W.J.C. No. 7064 of 1991 before this court for a direction to promote her to the post of Associate Professor. In the said writ petition, she also challenged the promotion given to the writ petitioner- respondent and she was arrayed as respondent no. 8 therein. The said writ application was dismissed as with-drawn on 23.6.1998 on the ground that her grievances had been redressed. The appellant was made Associate Professor in the year 1995. 5. It further appears that on 25.4,1998, the appellant was promoted as Professor with effect from 19.2.1997 in Patliputra Medical College, Dhanbad. The writ petitioner-respondent challenged the same in C.W.J.C. No. 4221 of 1998 on the ground that the appellant did not possess the requisite qualification of five years experience as Associate Professor, promotion was made without advertisement and her claim of her being Associate Professor since 1983 was ignored. A learned Single Judge allowed the said writ application by order dated 10.11.1998 and held as follows: "In view of the clear mandates of the rules both in the M.C.I. regulation and the rules framed under Article 309 of the Constitution, this Court is of the opinion that in the matters of promotion of the petitioner vis-a-vis respondent no. 5 those rules hold the field. Therefore, the said Division Bench Judgment is not of much relevance to decide the controversy between the parties. Apart from that this Court is of the opinion that the petitioner could not be an applicant for the post of Professor to which the respondent no. 5 was appointed and there was no advertisement for that appointment. In any event the petitioner has the locus to point out that the appointment to the post of Professor has been made in violation of rule of such appointment, in a discipline in which the petitioner has been an Associate Professor since 1983. In fact in paragraph 1 of the writ petition she has prayed for quashing of the appointment of respondent no. 5." 6. The appellant has filed L.P.A. No. 1323 of 1998 and the State has filed L.P.A. No. 323 of 1999 and the same matter is pending. The prayer for interim stay of the operation of the order of the learned Single Judge was rejected by a Division Bench. Later on, it has been ordered that one post shall be kept reserved for the appellant. The prayer for interim stay of the operation of the order of the learned Single Judge was rejected by a Division Bench. Later on, it has been ordered that one post shall be kept reserved for the appellant. Thereafter, in terms of the Rules framed under Article 309 of the Constitution, an advertisement was published for filling up seven posts of Professor in the Department, pursuant to which the writ petitioner-respondent and the appellant both appeared and, thereafter, a panel has been prepared as stated above. 7. Learned counsel appearing for the appellant has assailed the order of the learned Single Judge on the points, which will be dealt with in seriatim. Firstly he submitted that the writ petitioner-respondent has no requisite qualification and she was not having experience of Assistant Professor for a period of three years before her promotion to the post of Associate Professor in 1983. In this connection, he has relied upon a seniority list as contained in Annexure 4 to the memo of appeal. 8. From a perusal of Annexure 4 to the memo of appeal, it appears that it is clearly stated in the said notification about the promotions given to the post of Associate Professor that prior to issuance of Annexure-4, the promotions to the post of Associate Professor will not be interfered with. Admittedly, the writ petitioner- respondent was promoted as Associate Professor in 1983. In that view of the matter, Annexure 4 does not in any way help the case of the appellant. This apart, as stated above, the appellant had already filed a writ application in 1991 challenging the promotion given to the writ petitioner-respondent as Associate Professor and the said writ application was withdrawn. In terms of the provisions of the Medical Council of India and the Rules framed by the State Government under Article 309 of the Constitution of India, the teaching experience required for the post of Professor is five years as Associate Professor and, admittedly, the writ petitioner-respondent possesses the same by virtue of being on that post since 1983, whereas, the appellant is on the said post since 1995. Thus, there is no merit in the first submission advanced on behalf of the appellant that the writ petitioner-respondent did not possess the requisite qualification in terms of the advertisement. Thus, there is no merit in the first submission advanced on behalf of the appellant that the writ petitioner-respondent did not possess the requisite qualification in terms of the advertisement. At this stage, it is to be mentioned that a Division Bench of this court in the case of Dr. Lala Summendra Nath vs. State of Bihar, reported in 2001 B.L.J. 596 has held that all the posts of Professor even though they were vacant before coming into force of the aforesaid Rules but existing when the new Rules came into force, are to be filled up by the new Rules. The court held that the Rules have been given retrospectivity. 9. The second point urged on behalf of the appellant is that the life of the panel, according to the Rules, is only one year and it has lost its force as the Commission recommended the name on 8.6.2000 and its fife expired on 8.6.2001, whereas, the writ petitioner-respondent filed his writ application after expiry of the said period on 19.6.2001. In support of the said submission, learned counsel for the appellant relied upon two judgments of the Supreme Court, in State of Bihar vs. Md. Kalimuddin, reported in (1996)2 S.C.C. Page-7 as well as in State of U.P. vs. Harish Chandra, reported in (1996)9 S.C.C. 309 . 10. Rebutting the aforesaid submission, learned counsel appearing for the writ petitioner-respondent submitted that in this case recommendation was sent by the Commission vide letter dated 22.6.2000 (Annexure-10 to the memo of appeal) and the said panel was approved by the Cabinet on 17.3.2001. The period of life of the panel was up to 22.6.2001, whereas, the writ application was filed before expiry of the life of the panel. In other words, it was submitted that as the panel was approved within one year and a formal notification is to be issued, the question raised by the appellant does not arise. Alternatively, it was submitted that the recommendation was sent by the Commission on 22.6.2000 and the writ application was filed for issuance of a direction before expiry of one year and in such a situation the court is competent to issue direction. In support of his submission, he relied upon a judgment rendered by the three Judges of the Supreme Court in the case of State of U.P. vs. Ram Swarup Saroj, reported in A.I.R. 2000 S. C. 1G97. 11. In support of his submission, he relied upon a judgment rendered by the three Judges of the Supreme Court in the case of State of U.P. vs. Ram Swarup Saroj, reported in A.I.R. 2000 S. C. 1G97. 11. There is no dispute about the legal proposition that if the life of the panel has expired, the court cannot issue a writ of mandamus to revive the panel. In the case of Md. Kalimuddin (supra), it appears that the writ application was entertained by the High Court after expiry of one year (paragraph 4 of the judgment) and in that context the Apex Court held that where under the statutory Rule, the period of the select list has expired, the order of the High Court to continue that list is illegal. In the case of Harish Chandra (supra), the life of the list expired on 4.4.1988 in terms of the Rule and the writ application was entertained in the year 1990 and in that context it was held that the High Court was not justified in issuing a direction. Such is not the case here. The life of the panel has not expired at the time of filing of the writ application. This apart, the Cabinet has already approved the list within time. In such a situation, a direction can be issued by the court as held by the Supreme Court in the case of Ram Swarup Saroj (supra) at paragraph no. 10, which runs as follows: "Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November, 1996 and the writ petition was filed by the respondent in the month of October, 1997, i.e. before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court." Thus, the second point urged on behalf of the appellant is also devoid of any substance. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court." Thus, the second point urged on behalf of the appellant is also devoid of any substance. 12 The third point urged on behalf of the appellant is that the State has acted mala fide in the matter as in the other case the State has made a statement that the Rules framed under section 309 of the Constitution are going to be amended and took time on that ground. In this case, the State took a different stand that a notification would be issued with regard to the appointment in the Medical teaching cadre. 13. We fail to see any mala fide on the part of the State towards the appellant. Rules are still in force. The same have not been amended. This court has already held that the appointment is to be made in accordance with the Rules and as such the State is taking step on the basis of the existing Rules. Only because earlier in one case the State made a statement that the Rules are going to be amended, but up-till now not amended for one year, the mala fide cannot be inferred. 14. The last submission advanced on behalf of the appellant that she has also filed a writ application (C.W.J.C. No. 3752 of 2001) challenging the recommendation of the Commission regarding the writ petitioner-respondent, which is still pending, 0and as such the direction should not have been issued by the learned Single Judge. 15. Admittedly, in terms of the advertisement, the writ petitioner-respondent and the appellant both possess the requisite qualification. Her challenge to the appointment of the writ petitioner-respondent as Associate Professor in 1983 has been unsuccessful as stated above In such a situation, the filing of the second writ application 0by her on the same very ground cannot be a ground to deny the relief to the writ petitioner-respondent. This apart, she having participated in the selection process in terms of the Rules and the advertisement, now, cannot be allowed to challenge the recommendation. The appellant has put forth all her points before this court, which have been discussed and decided. From the memo of appeal, it further appears that she was heard by the learned Single Judge. This apart, she having participated in the selection process in terms of the Rules and the advertisement, now, cannot be allowed to challenge the recommendation. The appellant has put forth all her points before this court, which have been discussed and decided. From the memo of appeal, it further appears that she was heard by the learned Single Judge. 16. In the result, we find no merit in this appeal and the same is, accordingly, dismissed. The stay order passed by this court on 5.7.2001 is vacated. The Respondent-State is directed to issue notification in terms of the direction issued by the learned Single Judge.