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2001 DIGILAW 799 (PAT)

Kedar Nath v. State Of Bihar

2001-08-29

AFTAB ALAM

body2001
Judgment 1. Except for the difference in the subjects of teaching these two writ petitions are exactly similar on all material points. These two cases were, therefore, heard together and are being disposed of by this common judgment. 2. There are two petitioners in CWJC No. 8668 of 2000 and the controversy in this case relates to appointment to the post of tutor in Bio-chemistry; in CWJC No. 8715 of 2000 there is a single petitioner and it arises from a dispute regarding appointment as tutor in Forensic Medicine and Toxicology. The petitioners in both the writ petitions seek to challenge notification no. 493 (17)/Heaith issued by the Deputy Secretary to the Government in the Department of Health, Medical Education and Family Welfare on 25.8.2000. (A copy of this notification is at Annexure 6 in CWJC No. 8668 of 2000 and at Annexure 1 in CWJC No. 8715 of 2000). By this notification the Government decided to put to end the system of placing medical officers on deputation and cancelled with immediate effect, all deputations in all medical colleges and hospitals (except in the I.G.I.C. and the I.G.I.M.S., Patna). 3. The impugned Government decision, on the face of it and generally speaking, is quite unexceptionable but in the case of the three petitioners it has led to adverse and even discriminatory consequences as would appear from the following facts and circumstances. 4. The Department of Health, Medical Education and Family Welfare issued an advertisement inviting applications for preparation of a panel for appointment to junior teaching posts in different subjects. 5. It may be noted here that the advertisement, though made much later, appertained to the year, 1994 and the panel prepared on the basis of that advertisement is commonly referred to as the 1994 panel. It is also an admitted position that this was the fast panel and after the 1994 panel no fresh panel for appointment to junior teaching posts has been prepared by the State Government. 6. In response to the advertisement, the two petitioners in CWJC No. 8668 of 2000 applied in Bio-chemistry while the sole petitioner in CWJC No. 8715 of 2000 was an applicant in Forensic Medicine and Toxicology. in the panel for Biochemistry petitioners 1 and 2 were at serials 3 and 5 respectively while Dr. Yogesh Krishna Sahay, respondent no. 4 was at serial no. 6. in the panel for Biochemistry petitioners 1 and 2 were at serials 3 and 5 respectively while Dr. Yogesh Krishna Sahay, respondent no. 4 was at serial no. 6. It is also to be noted that doctors who were at serials 1 and 2 in that panel were at that time already posted as tutors and it was, therefore, petitioner no.1 at serial no.3 who would have been the first claimant to any fresh posting as tutor in that subject. In the panel for Forensic Medicine and Toxicology the petitioner in CWJC No. 8715 of 2000 was at serial no. 1 and Dr. Chandra Shekhar Prasad, respondent no. 4 was below him at serial no.2. 7. At this stage the authorities in the Health Department acted in a very curious and inexplicable manner. A notification was issued on 25.4.1998 making a number of appointments on the posts of Assistant Professor, Registrar and tutor in different subjects. By this notification, Dr. Chandra Shekhar Prasad, respondent no. 4 in CWJC No. 8715 of 2000 was appointed as tutor in Forensic Medicine and Toxicology in Patliputra Medical College, Dhanbad; there was no mention of the petitioner in this notification who was, above respondent no. 4, at serial no. 1 in the 1994 panel. Similarly, by notification, dated 22.6.1998 Dr. Yogesh Krishna Sahay, respondent no. 4 in CWJC No. 8668 of 2000 who was at serial no. 6 in the 1994 panel was appointed as tutor in Bio-chemistry in the Nalanda Medical College, Patna. The two petitioners who were at serials 3 and 5 in that panel were simply ignored. 8. Thus left out, the three petitioners in these two writ petitions represented before the authorities in the Health Department pointing out that the appointments of Dr. Chandra Shekhar Prasad (respondent no. 4 in CWJC No. 8715 of 2999) and Dr. Yogesh Krishna Sahay (respondent no. 4 in CWJC No. 8668 of 2000) were in complete disregard of the 1994 panel and the petitioners were unreasonably and illegally sidelined while making appointments in the respective subjects. The representation of petitioner no. 1 (who was at serial no. 3 in the 1994 panel for Bio-chemistry) is at Annexure 3 in CWJC No. 8668 of 2000 and the representation of the sole petitioner (who was at serial no. The representation of petitioner no. 1 (who was at serial no. 3 in the 1994 panel for Bio-chemistry) is at Annexure 3 in CWJC No. 8668 of 2000 and the representation of the sole petitioner (who was at serial no. 1 in the 1994 panel for Forensic Medicine and Toxicology) is at Annexure 3 in CWJC No. 8715 of 2000. Even at this stage the authorities did not deem it fit to correct the mistake in appointing the two respondents over the heads of the petitioners in the respective subjects. But the Government responded to the petitioners representation by placing them on whole-time deputation in different medical colleges in the State in their respective subjects. It was, however, stipulated that the deputationists will not be entitled to any teaching experience for the period of their deputation. By notification no. 388(17)/Health, dated 12.8.1998 petitioner no. 1 in CWJC No. 8668 of 2000 was placed on deputation as tutor in the Department of Bio-chemistry in Sri Krishna Medical College, Muzaffarpur and petitioner no. 2 in the same department in Anugrah Narain Magadh Medical College, Gaya. By another notification no. 390 (17)/Health, of the same date, the sole petitioner in CWJC No. 8715 of 2000 was put on deputation as tutor in the Department of Forensic Medicine and Toxicology in Jawaharlal Nehru Medical College, Bhagalpur. 9. The grievance of the three petitioners was, thus, substantially redressed and at that stage they did not seek any further relief by approaching a court of law. 10. Two years later the Government took a policy decision to put an end to the system of deputation and consequently the notification, dated 25.8.2000 was issued cancelling, with immediate effect, all deputations. As a result the three petitioners were thrown out from the posts of tutor and the adverse and discriminatory position that had been created by the appointments of Dr. Yogesh Krishna Sahay and Dr. Chandra Shekhar Prasad (respondents 4 in the two writ petitions) was once again restored and re-created. Within a few days of the issuance of the notification, dated 25.8.2000 the petitioners came to this court in these two writ petitions seeking appropriate reliefs. 11. In the afore-mentioned facts and circumstances no one can have the slightest doubt that the appointments of Dr. Yogesh Krishna Sahay and Dr. Within a few days of the issuance of the notification, dated 25.8.2000 the petitioners came to this court in these two writ petitions seeking appropriate reliefs. 11. In the afore-mentioned facts and circumstances no one can have the slightest doubt that the appointments of Dr. Yogesh Krishna Sahay and Dr. Chandra Shekhar Prasad, at the time when it was made was quite illegal and unsustainable in law and in case the petitioners had challenged the notifications, dated 25.4.1998 (under which Dr. Chandra Shekhar Prasad was appointed) and, dated 28.6.1998 under which Dr. Yogesh Krishna Sahay was appointed as tutor at the time the two notifications were issued, those would have been struck down without much ado for causing infringment of the petitioners rights and being violative of Arts. 1.4 and 16 of the Constitution. Has this position changed after a lapse of three years and is it still open to the petitioners to successfully challenge the two notifications. In my considered view the answer can only be in the affirmative. When the petitioners represented to the Government, pointing out the Illegality of its action in appointing Dr. Chandra Shekhar Prasad and Dr. Yogesh Krishna Sahay as tutors in disregard of the pane) position and in infringment of the petitioners rights, the Government did not really rectify the mistake but simply silenced the petitioners by giving them the same post on deputation. Now the petitioners postings on deputation has also been taken away from them as the result of the Government decision not to continue the system of deputation any longer. The petitioners are, thus, once again in the same position where they are subjected to adverse and unreasonable discrimination. They are, therefore, fully entitled to question the appointments of respondent 4 in these two writ petitions. 12. At this stage, it may be noted that according to respondent no. 4 in CWJC No. 8715 of 2000, his appointment as tutor in the Patliputra Medical College, Dhanbad was an emergency measure as that college was under threat of derecognition by the Medical Council of India for want of sufficient number of teachers in that college. The plea does not stand a moments scrutiny. No amount of emergency would allow the Government to by pass the candidates occupying higher position in the panel and pick up someone at a lower position in the panel for appointment. The plea does not stand a moments scrutiny. No amount of emergency would allow the Government to by pass the candidates occupying higher position in the panel and pick up someone at a lower position in the panel for appointment. Moreover, as rightly pointed out by the petitioner in this case, the Government never gave him the offer to join as tutor in the Patliputra Medical College, Dhanbad. If the Government had given him such an offer and in case the petitioner had declined to go to the Dhanbad college, under the existing rules the Government would have debarred him from being appointed as tutor for the next three years. Therefore, the plea raised on behalf of respondent no. 4 that his appointment as tutor in the Dhanbad college was a measure of urgency is of no consequence. 13. At one stage in the hearing of this matter, it was submitted both on behalf of the petitioners and the private respondents in the two cases that a number of posts of tutor in both Bio-chemistry and Forensic Medicine and Toxicology were lying vacant and, taking the course of least resistence, the court may direct for appointment of the three petitioners in their respective subjects even without disturbing respondent 4 in the two cases. 14. At that stage the court asked Mr. A. A. G. II appearing for the State to take instructions whether the authorities in the Department of Health were agreeable to appoint the petitioners in their respective subjects and, thus, to remove the anomaly resulting from the appointments of respondent 4 in the two cases. In response to the courts query a supplementary counter affidavit was filed in CWJC No. 8668 of 2000 on 20.8.2001 on behalf of respondents 1 to 3. In paras 6 and 7 of this affidavit, it is stated as follows: "6. That so far the appointment of respondent no. 4 is concerned, it appears to have been done by mistake, ignoring the claims of the petitioner, who were admittedly senior to him in the year 1994 panel. However, in view of judgment passed by this Hon ble court referred to above, the respondent no. 4 should not have been appointed. "7. That it is submitted that the claims of the petitioners are not file (sic) to be allowed as the same will amount to perpetuating illegality. However, in view of judgment passed by this Hon ble court referred to above, the respondent no. 4 should not have been appointed. "7. That it is submitted that the claims of the petitioners are not file (sic) to be allowed as the same will amount to perpetuating illegality. Rather, in the facts and circumstances of this case, appointment of respondent no.4 is fit to be cancelled." 15. A supplementary counter affidavit was similarly filed in CWJC No. 8715 of 2000. In this counter affidavit once again a faint attempt is made to justify the appointment of Dr. Chandra Shekhar Prasad over the head of the petitioner by stating that the option of Dr. Chandra Shekhar Prasad to go to the Dhanbad college was received earlier than that of the petitioner and he was, therefore, posted there. The plea is meaningless in view of the fact that there was no last date fixed forgiving option and it is not the case of the respondent authorities that the option of the petitioner was received after expiry of the last date for giving such option. Here it may also be pointed out that the procedure of asking for option was itself questionable. The authorities were required to simply issue an order of appointment/posting of the first person from the top in the panel, giving him some time to join the post and in case of his failure to join within the stipulated time, the authorities could debar him from appointment for the next three years and appoint the next man in the panel. However, on the question whether the petitioner could also be appointed against any vacant post without disturbing respondent no. 4, this is what is stated in para 10 of this counter affidavit : "10. That it is submitted that the claim of the petitioners are not fit to be allowed as the same will amount to perpetuating illegality. Rather in the facts and circumstances of this case, appointment of respondent no. 4 is fit to be cancelled." 16. Thus, in both the cases the clear stand of the respondent authorities is that the appointments of Dr. Chandra Shekhar Prasad and Dr. Yogesh Krishna Sahay were bad and illegal and, rather, than appointing the petitioners the appointments of respondents 4 in the two cases are liable to be cancelled. 17. 4 is fit to be cancelled." 16. Thus, in both the cases the clear stand of the respondent authorities is that the appointments of Dr. Chandra Shekhar Prasad and Dr. Yogesh Krishna Sahay were bad and illegal and, rather, than appointing the petitioners the appointments of respondents 4 in the two cases are liable to be cancelled. 17. Thus confronted by the stand taken by the respondent authorities, Dr. Sadanand Jha, learned Senior counsel appearing for respondent no. 4 in CWJC No. 8715 of 2000 made a spirited plea that the ends of justice will be served by giving direction for appointment of the petitioners too, instead of directing the removal of respondent no. 4. In this plea he was joined by Mr. Ram Balak Mahto, Senior Advocate and Mr. Banwari Sharma, Advocate, appearing for the petitioners in CWJC Nos. 8715 and 8668 of 2000 respectively. Counsel for both the petitioners and respondent no. 4 in both the cases stated that a large number of vacancies were in existence in the post of tutor, both in Bio-chemistry and Forensic Medicine & Toxicology and no panel was prepared for appointment to the teaching posts after the 1994 panel. It was, therefore, submitted that the petitioners in the two cases could be appointed as tutors in their respective subjects without any difficulty and without infringing upon the rights of anyone. 18. Having given a careful considerations to this matter, I am unable to follow the course suggested by the parties. This is because there is no sufficient material before the court to judge with any amount of certainty that any direction for the appointment of the petitioners would not adversely affect the rights of others who are not before this court. It may be true that no panel for appointment was prepared after the 1994 panel but that may not be conclusive because after the preparation of the 1994 panel many more doctors would have become equally eligible for being considered for appointment to the posts in question. 19. I, therefore, do not propose to issue an out right direction for the appointment of the petitioners. What I propose to do is to record a finding and to direct the respondent authorities to take corrective measure. It is accordingly found and held that the appointments of Dr. Yogesh Krishna Sahay (respondent no. 19. I, therefore, do not propose to issue an out right direction for the appointment of the petitioners. What I propose to do is to record a finding and to direct the respondent authorities to take corrective measure. It is accordingly found and held that the appointments of Dr. Yogesh Krishna Sahay (respondent no. 4 in CWJC No. 8668 of 2000) and Dr.Chandra Shekhar Prasad (respondent no. 4 in CWJC No. 8715 of 2000) to the exclusion of the petitioners in the two writ petitions were bad, invalid, illegal and unconstitutional and this position cannot be permitted to continue. There are two ways before the respondent authorities to correct this illegality; one is to appoint the petitioners in the respective subjects and to give them seniority in the post of tutor from the dates respondent no.4 were appointed as tutor in the respective subjects. And the other is to cancel the appointments of respondent 4 in the two writ petitions on the ground that the appointments were made illegally and in violation of the constitutional provisions. 20. The respondent authorities are directed to take a decision in this regard and issue necessary orders without any undue delay and preferably within six weeks from the date of receipt/production of a copy of this order (and hopefully before the filing of the contempt petition). 21. In the result, these two writ petitions are allowed to the extent indicated above. There shall be no order as to costs.