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2001 DIGILAW 997 (PAT)

Keshwant Singh v. State Of Bihar

2001-10-19

AFTAB ALAM

body2001
Judgment Aftab Alam, J. 1. This writ petition on behalf of a single petitioner was filed initially challenging the gradation list of Drug Inspectors of the 1972-73 batch issued by the Joint Secretary in the Department of Health under his memo no. 1619(15), dated 30.9.1992 (Annexure 14). In this list the petitioner was shown, at serial no. 7, as junior to respondents 5 to 10 at serials 1 to 6 in the list. 2. Events, taking place during the pendency of this writ petition made the petitioner file two amendment petitions, one in order to challenge notification, dated 14.10.1998 (Annexure 21) by which respondent no. 6, in addition to his substantive post of Drug Inspector, was given the additional charge of the post of Assistant Drugs Controller, Bihar; and the second for assailing the final gradation list of Drug Inspectors issued under notification, dated 27.2.2001 (Annexure ?9). In the final gradation list too the petitioner was shown at serial no. 12 junior to respondents 5 to 10 who were at serials 6 to 11. The first amendment petition was allowed by order, dated 19.4.1999 and the second amendment petition by order passed in course of final hearing of this case. 3. The facts of the case are brief and without controversy. The Bihar Public Service Commission issued advertisement No. 79 of 1969 for filling up a single post of Chief Hospital Pharmacist. The minimum qualification for the post, as indicated in the advertisement, was a degree of B. Pharma from a recognised Indian University. The petitioner who was a candidate in response to the advertisement was selected and recommended for appontment by the Commission. Following the Commissions recommendation, the Deputy Secretary to the Government, acting on the order of the Governor, issued a notification under his memo no. 3177(2), dated 1.9.1970 (Annexure 1). By this notification, the Government, in exercise of its powers under section 21 read with section 3(e)(2) of the Drugs & Cosmetics Act, 1940, appointed the petitioner as Chief Hospital Pharmacist in the Darbhanga Medical College & Hospital on a temporary basis and for a period of six months from the date of his joining the post. It may be noted here that section 3(e)(ii) defines Inspector and Section 21 of the Act deals with the power of the Central Government or a State Government to appoint Inspectors by issuance of notification. It may be noted here that section 3(e)(ii) defines Inspector and Section 21 of the Act deals with the power of the Central Government or a State Government to appoint Inspectors by issuance of notification. Before completion of the period of six months the petitioner was posted on the temporary post of Chief Hospital Pharmacist on a regular basis with effect from 14.3.1970, by another notification, dated 8.3.1971 (Annexure 2), once again issued in exercise of powers under section 21 read with section 3(e)(2) of the Act. 4. Having thus been appointed, while the petitioner was working on the post of Chief Hospital Pharmacist, the Commission issued advertisement No. 47/1971 for filling up a number of posts of Drug Inspector. In the advertisement the post of Drug Inspector was shown to carry the same pay scale as Chief Hospital Pharmacist but the minimum qualification for the post was indicated, in the advertisement, as laid down under rule 49 of the Drugs & Cosmetics Rules, 1945 which apart from a degree in pharmacy provided for a number of other alternative qualifications. 5. The petitioner who was then posted as Chief Hospital Pharmacist at the Darbhanga Medical College and Hospital made an application also in response to advertisement no. 49 of 1991 and this appears to be at the root of the confusion, giving rise to the dispute of seniority. It may, however, be noted that the petitioner was not alone in this mistake. He submitted his application, as required by the relevant rules, in the department and the department forwarded it to the Commission. The Commission too entertained the application and treated the petitioner as one of the candidates in response to Adv. No. 47/1971. At the end of the selection process the Commission prepared a list, of 12 selected candidates which was sent to the Health Commissioner by the Secretary to the Commission along with his letter, dated 13.4.1972 (Annexure-B). One of the selected candidate Sangeet Kumar Sinha was recommended against the single vacancy in the permanent posts and the rest of the 11 candidates were recommended against vacancies in the temporary posts of Drug Inspector. In that list, prepared in order of merit, the petitioner was at serial no. 9, below respondents 5 to 10. 6. A memorandum, dated 24.2.1973 (Annexure C) was then prepared for being placed before the cabinet. In that list, prepared in order of merit, the petitioner was at serial no. 9, below respondents 5 to 10. 6. A memorandum, dated 24.2.1973 (Annexure C) was then prepared for being placed before the cabinet. In this memorandum the name of the petitioner appears to have figured both as one of the candidates selected by the Commission for appointment and also as one of the Drug Inspectors in service from before. The resolution of the cabinet is not on the record of this case but it appears that thereafter the Health Commissioner wrote a long note for the Minister. In this note (copy at Annexure 19), after castigating the office staff for their failure to point out that the petitioner was in service from before, the Health Commissioner stated that not only the petitioner possessed the minimum qualification for appointment as Drug Inspector but he was also appointed on the basis of a notification issued by the Government following the recommendation by the Commission. The Health Commissioner further clarified that the posts of Chief Hospital Pharmacist and Drug Inspector were always treated as inter-transferable and cited several examples from the past. The Health Commissioner also made a reference to the difference in the minimum qualification for the two posts (B. Pharma, the qualification required for the post of Chief Hospital Pharmacist, being one of several alternative qualifications for appointment as Drug Inspector). He also expressed the desirability of fixing one uniform set of minimum qualifications, framed in the light of section 49 and 76(i) of the Act for both the posts. There was, however, no denying that the petitioner possessed the qualification for appointment as Drug Inspector and he was appointed in exercise of the powers for appointment of Inspector on the basis of due recommendation made by the Commission. The Health Commissioner accordingly concluded his note by stating that there was no occasion to, re-appoint the petitioner and the petitioner could be given a post like the Drug Inspectors who were in service from before and the rest of the 11 selected candidates were required to be given appointment. On the Commissioners note, the Minister made the following directions : "As proposed by the Health Commissioner, the petitioner may be appointed by transfer so that his seniority mav not be adversely affected." 7. Thereupon, the notification, dated 12.4.1973 (Annexure 6) was issued. On the Commissioners note, the Minister made the following directions : "As proposed by the Health Commissioner, the petitioner may be appointed by transfer so that his seniority mav not be adversely affected." 7. Thereupon, the notification, dated 12.4.1973 (Annexure 6) was issued. By this notification the 11 candidates (excluding the petitioner) recommended by the Commission were appointed as Drug Inspectors; one of them was posted as Chief Hospital Pharmacist in Patna Medical College and Hospital and the rest ten were posted as Drug Inspectors for different areas shown against their names. it is crucial to note that the petitioner was not "appointed" along with the other 11 candidates, including respondents 5 to 10, but his case was dealt with in para 2 of the notification and he was simply transferred and appointed as Drug Inspector for Singhbhum district. It needs to be made clear at this stage that the word "appointment" (Niyukt) used in the notification in case of the petitioner does not mean appointment in the sense of entry in service but his appointment as Drug Inspector was with reference to the area of his jurisdiction as required under section 21 and section 3(e)(ii) of the Act. The appointment of respondents 5 to 10 was made in the sense of their entry in service. 8. Later on by notification, dated 30.4.1987 (Annexure 3) the petitioner and respondents 6, 9 and 10 were confirmed in service. The date of confirmation in the case of the petitioner was shown as 14.9.1971 which was in accordance with his earlier appointment as Chief Hospital Pharmacist, the direction of the Minister and the notification, dated 12.4.1973. The date of confirmation of the three respondents, on the other hand, was shown as 18.7.1974 treating their entry into service from a much later date than the petitioner. 9. I am aware that having regard to the uncertainties of Government employment an order of confirmation is hardly to be taken as conclusive in a dispute of seniority but an order of confirmation may not also be brushed aside as of no consequence in each and every case. 9. I am aware that having regard to the uncertainties of Government employment an order of confirmation is hardly to be taken as conclusive in a dispute of seniority but an order of confirmation may not also be brushed aside as of no consequence in each and every case. In the facts and circumstances of this case, the order of confirmation of the petitioner and the three respondents appear to be of some significance as it was fully in accordance with the note of the Health Commissioner, the direction of the Minister passed on that note and the notification by which the appointment of the three respondents was made for the first time. 10. In the notification issued on 9.1.1975 (Annexure 7) this order of seniority was maintained and the petitioner was shown at serial no. 9 whiie respondent 6 was at serial no. 12. But in a later tentative gradation list, dated 28.10.1990 (Annexure 8) the order was changed and the petitioner was placed at serial no. 24 while respondents 5 to 10 were placed above him at serial nos. 17 to 23. The petitioner then made a representation, dated 12.12.1980 (Annexure 9) for correcting his position in the seniority list whereupon a corrigendum (Annexure 10A) was issued placing the petitioner at serial no. 7 and respondents below him from serial no. 8 downwards. Finally, in the impugned gradation list, dated 30.9.1992 the petitioner was placed below the respondents showing him junior to them and this led him to come to this court in this writ petition. 11. Mr. Ganesh Pd. Singh, learned Senior counsel appearing in support of this writ petition took me through the materials on record very pains-takingly and in great detail and tried to show that the posts of Chief Hospital Pharmacist and Drug Inspector were always inter- transferable and the appointment of the petitioner as Chief Hospital Pharmacist tantamount to his appointment as Drug Inspector. His appointment being made about three years earlier than the respondents, he must rank senior to them and it would be wholly unfair and unjust to deny him the benefit of his previous service simply because he committed the mistake of making the application in response to the later advertisement issued by the Commission. 12. Mr. Ram Balak Mahto, learned Senior counsel appearing on behalf of respondent no. 12. Mr. Ram Balak Mahto, learned Senior counsel appearing on behalf of respondent no. 6, on the other hand, contended that the petitioners earlier appointment was on the post of Chief Hospital Pharmacist and his service on that post cannot be taken into account for determining his seniority as Drug Inspector. For the post of Drug Inspector his seniority must be determined on the basis of his position in the merit list recommended by the Commission. 13. Mr. S. J. Rahman, learned G.P. VII appearing for the State summed up the controversy by submitting that at the root of the controversy was the question whether or not the posts of Chief Hospital Pharmacist and Drug Inspector were inter transferable at the time when the petitioner was appointed as Chief Hospital Pharmacist. 14. In this regard, the materials appear to be overwhelmingly on the side of the petitioner and on an examination of the materials brought before this court, the conclusion becomes irresistible that the post of Chief Hospital Pharmacist and Drug Inspector were not only in the same scale, requiring common minimum qualification but were also inter-transferable. The following facts and circumstances relied upon by Mr. Ganesh Pd. Singh fully support this proposition and the case of the petitioner : (i) The appointment of Chief Hospital Pharmacist was made in exercise of powers under section 21 read with Section 3(e)(ii) of the Act. (ii) The two posts carried the same scale of pay. (iii) In Adv. No. 47/1971 and in all prior advertisement for the post of Drug Inspector, it was expressly stated that the post of Drug Inspector was inter-transferable with that of Chief Hospital Pharmacist. (iv) In the past the Government had always treated the two posts as. intertransferable. This would be evident from the following : (a) Note of the Health Commissioner a copy whereof is at Annexure 19, wherein this aspect of the matter has been dealt elaborately, citing examples from the past. (b) The order of the Minister passed on the Health Commissioners note. (c) The notification, dated 12.4.1973 by which, apart from Drug Inspectors who were in service from before, some among respondents 5 to 10 who entered into service by that notification were posted as Drug Inspectors while some others were posted as Chief Hospital Pharmacists. (b) The order of the Minister passed on the Health Commissioners note. (c) The notification, dated 12.4.1973 by which, apart from Drug Inspectors who were in service from before, some among respondents 5 to 10 who entered into service by that notification were posted as Drug Inspectors while some others were posted as Chief Hospital Pharmacists. (d) Resolution, dated 20.1.1983 (copy at Annexure-E) by which officers posted as Drug Inspectors were transferred and posted as Chief Hospital Pharmacists. (e) The Rules called the Bihar State Drug Control Service (Recruitment and the Service Conditions) Rules, 1983 framed under Art. 309 of the Constitution. In rule 3 of this rule, it is stated that the basic post of this service will be as it has been in the past Drug Inspector/Chief Hospital Pharmacist. 15. In these facts and circumstances, there appears little room for doubt that the posts of Chief Hospital Pharmacist and Drug Inspector had always been inter transferable. 16. I, therefore, see no reason why the petitioner should be denied the benefit of his three years service as Chief Hospital Pharmacist for counting his seniority in the post of Drug Inspector and I have no hesitation in holding that the petitioner on the basis of his earlier appointment would rank senior to respondents 5 to 10. A declaration is made accordingly and the respondent authorities are directed to make necessary corrections in the gradation list and to give to the petitioner all consequential benefits on the basis of his seniority over the private respondents. 17. In the result, this writ petition is allowed but with no orders as to costs.