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2004 DIGILAW 726 (PAT)

Prashant Kumar Verma v. State Of Bihar

2004-07-22

R.S.GARG

body2004
Judgment 1. Heard learned counsel for the parties. 2. The petitioner was Medical Officer as on 19.4.1978. He was appointed as Registrar on 9.2.1990. While he was working as a Registrar, the State Government framed certain rules titled as Bihar Medical Teaching Services Cadre and Appointment on the Cadre Rules, 1997. Such rules were framed under Article 309 of the Constitution of India, and the service condition of the employees were to be governed by these rules. The said rules/notification dated 21st May, 1997 is available on the records at annexure-6. In Rule 5 (kh) it was made clear that the posts of Resident Medical Officer and the Registrar would be deemed to be Lecturer while other posts shall continue to be the same. Under Rule 5 (ga) it was observed that all the employees/incumbents working on different posts if wish to continue in the teaching cadre, then they would be required to exercise their option. A date was to be proposed and it was further observed that the person/persons who do not exercise their option by the said date their services would be returned back to their parent department. It was also observed that the person seeking absorption in the medical teaching service if do not possess minimum qualification then their services would also be returned. 3. On 31.5.1997 the State Government in its Department of Health Medical Education and Family Welfare Department issued circular under the signature of the Deputy Secretary. It was observed in para 2 of the said letter that in accordance with the annexure annexed to the rules, the persons holding non-tenure posts should exercise their option on or before 16th June, two copies be sent to the department, one be kept in the office. It was also observed in the said letter that the persons who are holding the tenure posts, on completion of their tenure would stand reverted to their parent department, i.e. Bihar Health Services Cadre. It was also observed that the Registrar and the Resident Medical Officer who have not completed their tenure would continue to hold their posts and they would not be deemed to be converted to the post of Lecturer. 4. From the records and the pleadings it appears that the last observation made in annexure 7 the circular letter dated 31.5.1997 came to be challenged before this Court in C.W.J.C. No. 5577 of 1997. 4. From the records and the pleadings it appears that the last observation made in annexure 7 the circular letter dated 31.5.1997 came to be challenged before this Court in C.W.J.C. No. 5577 of 1997. A learned single Judge of this Court vide his judgment dated 14th January, 1999 allowed the writ application. It was observed that the last paragraph of the circular dated 31.5.1997 was contrary to the spirit of the rules and in any case if right had accrued in favour of incumbent from the date of coming into force of the rules framed under Article 309 of the Constitution of India, then the right cannot be taken away by any Executive or Administrative fiat. The Court very consciously observed that those persons who are Resident Medical Officer and Registrar on the date of coming into force of the said rules on 21st May, 1997 and those who have exercised their option they became Registrar by operation of law and in their case annexure 3 of the said case (annexure 7 of the present case) would not apply. 5. Learned counsel for the petitioner placing his strong reliance upon the said observation of this Court submits that the petitioner exercised his option on 1.9.1997, but however submitted his application which was received in the department on 9.9.1997. A copy of the said application is annexed as annexure 10 to the rejoinder. The petitioner submits that as on 21st May, 1997 he was holding the post of Registrar and on coming into force of the rule he would be deemed to be Lecturer and as he has exercised his option at the earliest, therefore, the State Government is obliged to treat him as Lecturer and give him all the benefits. It is also submitted by him that neither in the rules of 1997 nor in the circular dated 31.5.1997 the time limit was fixed for exercising option, the respondents cannot be allowed to say that the petitioner did not exercise his option before he was relieved from the post of Registrar. 6. The respondents have submitted that the petitioner was Registrar on 21.5.1997 but before he could exercise his option he was relieved under annexure 8 and as he has exercised his option after he was relieved he would not be. entitled to any benefits or reliefs from this Court. 6. The respondents have submitted that the petitioner was Registrar on 21.5.1997 but before he could exercise his option he was relieved under annexure 8 and as he has exercised his option after he was relieved he would not be. entitled to any benefits or reliefs from this Court. It is also submitted that if the persons holding non-tenure posts were required to exercise their option before 16 June, then the persons holding tenure posts also should have exercised option within the reasonable time. !t is contended by the respondents that in the light of annexure 8 the order relieving the petitioner from the post of Registrar before he could exercise his option, the petitioner is not entitled to any relief. 7. From the judgment in C.W.J.C. No. 5577 of 1997 it would be clear that the persons who are holding the post on coming into force of the rules, i.e. 21st May, 1997 would become Lecturers and would be holding tenure posts. The question still would be that at what time the option should be exercised. The 1997 rules specially Rule 5 (ga) says that the option is to be exercised by the incumbent on or before a particular date, the date is to be fixed by the department. In absence of fixing a date for it, it cannot be argued by the department itself that the option should have been exercised within a reasonable time. For a particular man very short time may be reasonable time and for another man even a longer time may not be a reasonable time. The order of relieving issued against the petitioner in fact would not strike on his rights which already accrued in his favour. Undisputedly, under Rule 1997 which came into force on 21st May, 1997, the petitioner is to be deemed to be Lecturer For his continuance or absorption in the teaching services he was required to exercise his option but in absence of a date so fixed for exercising the option by the Government it cannot now be argued by the respondent that the petitioner can never exercise his option nor could he exercise his option either on 1st September or 9th September, 1997. If the State Government and its authorities were conscious in issuing annexure 2 in relation to the holder of non tenure posts and asking them to exercise their option on or before 16th June, then being alive to the rules and situation prevailing they should have fixed a date for all those deemed lecturers to exercise their option. 8. The laches are on the part of the State and not on the part of the incumbents. It is further to be seen that annexure 8 is the office order which simply says that with effect from 26.5.1997 Dr. Sachin Choudhary has taken charge of the office of the Registrar, therefore, the petitioner stands relieved with effect from 25.5.1997. But the fact cannot be lost sight of that before 26.5.1997, under the rules dated 21.5.1997 the petitioner had already become lecturer. The question of exercising option would not arise on 26 of 27th May, 1997 because by that date the State Government had even not fixed the date even in case of holders of non tenure posts. The State cannot be allowed to play games with its citizens. It is expected to be a model employer who does not strike at the rights of its own employees. The action of the State in not considering the case of the petitioner is bad. 9. The respondents are hereby directed to treat the petitioner as Lecturer in the teaching service, give him all his dues from the date his immediate junior was given all the benefits. In case the petitioner has acquired any right for his consideration for further promotion or increments then the same shall also be considered and if it is found that the petitioner is entitled then the same would be given to him. Let all these exercises be completed by State within four months from the date of submission of a copy of this order. 10. The petition is allowed.