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2004 DIGILAW 1242 (PAT)

Rahul Kumar v. State Of Bihar

2004-12-14

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. Petitioner earlier filed CWJC No. 14410 of 2002 (Dr. Rahul Kumar V/s. The State of Bihar & Ors.) inter alia praying for issuance of a writ in the nature of mandamus commanding the respondents to allow him to join the post of the Resident Medical Officer, Nalanda Medical College and Hospital or in the alternative to post him as Resident Medical Officer at Anugrah Narayan Magadh Medical College and Hospital, Gaya. The facts pleaded by the petitioner seeking aforesaid relief were that while he was a member of Bihar Health Service, he was appointed as Resident Medical Officer in the department of Medicine at Nalanda Medical College and Hospital, Patna on 23.1.1996 and while serving as such appointed as Chief Medical Officer of Uranium Corporation of India. On account thereof, petitioner made application dated 9.5.1997 before the State Government seeking lien on the post which was allowed for one year by the State Government by letter dated 9.6.1997. The order granting licence indicated that period of lien would not be extended on any ground. Petitioner having obtained the lien joined the Uranium Corporation of India after being relieved from the post of Resident Medical Officer, Nalanda Medical College and Hospital. Later on the lien was extended for another year, by order dated 28.10.1998. 2. After serving the Uranium Corporation of India, petitioner returned and submitted his joining before the Superintendent of Nalanda Medical College and Hospital and according to him when it was declined he submitted his joining on 12.10.1999 before the Commissioner and Secretary, Department of Health, inter alia, making a request to allow him to join the post of Resident Medical Officer at Nalanda Medical College Hospital, instead the petitioner was posted as Medical Officer, Pilgrim Hospital, Gaya. Aggrieved by the same petitioner brought the aforesaid action before the Court for posting as Resident Medical Officer at Nalanda Medical College Hospital, Patna or A.N.M. Medical College, Gaya. The respondents resisted the prayer of the petitioner, inter alia, contending that the petitioner did not exercise option to continue in the Medical Education Cadre as required under Bihar Medical Education Cadre Recruitment Rules, 1997, which came into force on 21.5.1997. Hence, his claim for posting on a teaching post is absolutely unjustified. The respondents resisted the prayer of the petitioner, inter alia, contending that the petitioner did not exercise option to continue in the Medical Education Cadre as required under Bihar Medical Education Cadre Recruitment Rules, 1997, which came into force on 21.5.1997. Hence, his claim for posting on a teaching post is absolutely unjustified. The respondents further resisted the prayer of the petitioner on the ground that in view of the resolution of the State Government a doctor holding a tenure teaching post, going on study leave/deputation shall not be allowed to join his erstwhile teaching post and his tenure will automatically come to an end.on such leave or deputation. According to the answering respondent, petitioner having left the post of Resident Medical Officer in the midst of the tenure, he cannot be allowed to join the post. The plea putforth by the answering respondents found favour by this Court and by order dated 1.5.2003, the aforesaid writ application was dismissed in the following term: "The respondents have filed counter affidavit. They have taken two-fold stand in the counter affidavit. It has, firstly, been stated that the petitioner did not exercise option to continue in the Medical Education Cadre in terms of the Bihar Medical Education Cadre Recruitment Rules, 1997 (which came into force on 21.5.97) and therefore, he cannot claim posting on a teaching post. Secondly, it has been stated that in view of the Government Resolution dated 16.12.75 a doctor holding a tenure teaching post, going on study leave/deputation will not be allowed to join his erstwhile teaching post and his tenure will automatically come to an end. Thus the petitioner having left the post of RMO in the midst of the tenure he cannot be allowed to join the post. Both the contentions of the respondents, in my opinion, are well founded. It is not in dispute that the petitioner went to Uranium Corporation on his own volition. Apparently, he found the service conditions there more attractive. The post of Resident Medical Officer at the relevant time used to be a tenure post of three years duration, completion whereof conferred certain advantages on the person concerned. Despite the advantage which he would have got on completion of the tenure the petitioner on his own volition and with eyes open he chose to leave the post in the midst of the tenure and join Uranium Corporation. Despite the advantage which he would have got on completion of the tenure the petitioner on his own volition and with eyes open he chose to leave the post in the midst of the tenure and join Uranium Corporation. In my opinion, the decision contained in resolution dated 16.12.1975 is based on sound principle of public policy and the petitioners case is fully covered by the same. Secondly having failed to exercise option in terms of the relevant provisions of the 1997 Rules, he cannot claim posting on a teaching post for which a separate medical education cadre has been created under the said Rules and therefore he has been rightly posted at the Pilgrim Hospital, Gaya." I, thus, do not find any merit in the writ application which is accordingly dismissed." 3 Aggrieved by the same, petitioner preferred LPA No. 416 of 2003 (Dr. Rahul Kumar V/s. State of Bihar & Ors.) and a Division Bench of this Court by order dated 21.5.2003 admitted the appeal and directed for its hearing alongwith another Letters Patent Appeal but while doing so this Court observed that pendency of the appeal will not stand in the way of the authorities to reconsider the matter, if representation is filed by the appellant. In view of the observation made by this Court, petitioner represented and prayed for posting him on a teaching post in a Medical College. The Secretary to the Government by order dated 27.10.2003 (Annexure-8) rejected the prayer of the petitioner. 4. In the present application filed under Article 226 of the Constitution of India, prayer of the petitioner is to quash the aforesaid order (Annexure-8). 5. Mr. Banwari Sharma appearing on behalf of the petitioner contends that another doctor similarly situated having been posted on the teaching side, petitioner deserves to be posted on the teaching side. He points out that although in the impugned order the Secretary observed for removal of the said doctor from the teaching side and to send her back to non-teaching side but she has not been sent back. Even if I assume in favour of the petitioner that the said doctor had continued in the teaching side, petitioner shall not be entitled for any relief. As stated earlier, petitioner came to this Court for the same relief earlier. Even if I assume in favour of the petitioner that the said doctor had continued in the teaching side, petitioner shall not be entitled for any relief. As stated earlier, petitioner came to this Court for the same relief earlier. This Court by order dated 1.5.2003 passed in CWJC No. 14410 of 2002 dismissed the writ application and negatived the contention raised by him. Although he preferred Letters Patent Appeal No. 416 of 2003 which was admitted by order dated 1.5.2003 but later on the appeal has been withdrawn. In my opinion, the reasoning and effect of the order passed by this Court in the earlier writ application shall not be diluted only on the ground that the Division Bench while admitting the appeal, gave liberty to the authorities to reconsider the matter if the representation is filed by the petitioner. The order passed on such representation may give a fresh cause of action to the petitioner but the reasoning and the finding given by this Court in the earlier writ application shall be binding intra party. Any attempt to dilute the effect or reasoning of the said order in the present application shall be wholly inappropriate, nay impermissible. 6. In the result, I do not find any merit in this application and it is dismissed accordingly.