JUDGEMENT Mridula Mishra, J. 1. Heard the counsel for the parties. 2. The petitioner, Dr. Vinod Kumar Singh, is working on the post of Associate Professor. Nephrology, Patna Medical College Hospital, Patna, under working arrangement since 14.05.1997. He has filed this application for a direction to the respondents to regularize his service on the post of Associate Professor, Nephrology, and for his promotion to the post of Professor in the Department of Nephrology from the date the post fell vacant, i.e., with effect from 01.11.2003. 3. Petitioners case is that he was appointed in the Bihar State Health Service on 21.03.1979. At that time there was no separate teaching cadre. All doctors either posted in the field hospital or in medical colleges were born in the common cadre. This practice continued until the State Government framed Rules, which became effective from 24th May, 1997. From this date a separate teaching cadre of doctors was created. Pursuant to an invitation for selection and appointment to the post of Resident Medical Officer (Nephrology) Department of Medicine in the State Medical Colleges, petitioner, having post graduate degree in medicine and experience, applied for the post. He was selected and posted as Resident Medical Officer, Nephrology in Patna Medical College Hospital on 17.07.1986 and continued till 23.07.1990. Petitioner was subsequently selected and posted to the post of Registrar (Nephrology), Patna Medical College Hospital, Patna. When the State Government invited applications for selection to the post of Assistant Professor, Nephrology, petitioner applied, selected and appointed as well as posted as Assistant Professor. Nephrology, Patna Medical College Hospital, by Notification, contained in Memo No. 512(17), dated 04.12.1993. Petitioner joined the post of Assistant Professor, Nephrology, on 07.12.1993 and continued till 15.05.1997. Even though post of Associate Professor was vacant and petitioner fulfilled requisite qualification through Notification No. 149(17), dated 14.05.1997, he was appointed as Assistant Professor on ad hoc basis in his own pay scale of Assistant Professor. The Notification, whereby petitioner was promoted to the post of Associate Professor, Nephrology, on ad hoc basis mention that the posting is being done in view of the ultimatum of the Medical Council of India either to fill up vacancies or face derecognition of its degree. 4. The Notification, whereby petitioner was promoted to the post of Associate Professor, Nephrology, on ad hoc basis mention that the posting is being done in view of the ultimatum of the Medical Council of India either to fill up vacancies or face derecognition of its degree. 4. It is an admitted fact that promoting and posting eligible doctors to the post of Assistant Professor, Associate Professor and Professor in different medical colleges of the State of Bihar on ad hoc basis was a practice for several years. In none of the Department. Promotions were being given on regular basis. All promotions were ad hoc arrangement in the same pay scale and every time the plea taken by the State Government used to be threat of derecognition by the Medical Council of India. 5. Grievance of the petitioner is that the petitioner was given promotion to the post of Associate Professor, Nephrology, on ad hoc basis even though the post was lying vacant and he was eligible to be promoted to the post. The post of Professor, Nephrology, fell vacant on 1st November, 2003. Petitioner, thereafter, represented before the Secretary, Department of Health and Medical Education, Government of Bihar, Patna (respondent No. 2), informing that the post has fallen vacant. The petitioner has got requisite qualification and experience to be promoted to the post, as such, his case be considered for being promoted to the post of Professor, Nephrology. In spite of repeated representations there was no response in spite of the fact that petitioner was the only eligible candidate for being appointed to the post of Professor, Nephrology. 6. Counsel for the petitioner submits that since the petitioner joined teaching cadre post, he has legitimate expectation of being promoted on higher teaching post specially when he possesses the requisite qualification and fulfills the eligibility criteria. 7. Respondent No. 2 in his counter affidavit has stated that as per the recommendation of the Medical Council of India eligibility for promotion to the post of Professor is M.D. in Nephrology, with five years teaching experience as Associate Professor. So far the petitioner is concerned, he is M.D. in Medicine and thus, he is not eligible for promotion to the post of Professor. Any one who does not possess post graduate qualification of M.D., Nephrology, is not eligible for promotion to the post of Professor. So far the petitioner is concerned, he is M.D. in Medicine and thus, he is not eligible for promotion to the post of Professor. Any one who does not possess post graduate qualification of M.D., Nephrology, is not eligible for promotion to the post of Professor. Further, it is stated in the first counter affidavit that Rule 10 of 1997 framed under Article 309 of the Constitution of India vide Memo No. 162, dated 21.05.1997 clearly provides that unless and until super speciality unit is developed and transformed into the separate and independent department it will be considered to be under the parent department. Seniority of teachers, working in such super speciality departments, shall be considered together with all teachers posted in the respective parent department. Seniority of such super speciality teachers shall not be counted from the date of posting in the super speciality department. 8. Petitioner has replied the statement made in the counter affidavit and stated that there is no such degree as M.D., Nephrology in the Schedule to the regulation framed by the Medical Council of India. The Petitioner has post graduate degree of M.D. in medicine with requisite experience in super speciality subject of Nephrology. When applications were invited for appointment to the post of Assistant Professor, Nephroogy, petitioners experience of teaching in junior teaching post of Resident Medical Officer and Registrar, Nephrology, was considered and found eligible for promotion to the post of Assistant Professor, Nephrology. Considering his past experience he was promoted to the post of Associate Professor on ad hoc basis. Considering the fact that petitioner was promoted to the post of Assistant Professor on the basis of his qualification and experience and also to the post of Associate Professor on ad hoc basis, then in no case respondents, now, can raise objection regarding eligibility of petitioner for being promoted to the post of Associate Professor on regular basis as well as to be promoted to the post of Professor. 9. In the second counter affidavit also it is stated the M.D. in general medicine is not requisite qualification for promotion to the teaching post in the department of Nephrology. The Medical Council of India has framed regulation relating to minimum qualification for appointment of teachers in medical institutions which is Regulations 1998. 9. In the second counter affidavit also it is stated the M.D. in general medicine is not requisite qualification for promotion to the teaching post in the department of Nephrology. The Medical Council of India has framed regulation relating to minimum qualification for appointment of teachers in medical institutions which is Regulations 1998. Clause 4 of the Regulation provides that after 31st May, 1977, for all teaching appointments to posts higher than tutor in higher specialities, the candidates must possesses post graduate degree qualification in the speciality concerned, i.e., D.M./M.Ch. when D.M./M.Ch. approved by the Council time to time where teacher with D.M./M.Ch. qualification are not available in respect of the courses which have not yet been started, matter regarding relaxation of qualification and experience of post graduate teachers may be taken up with the Medical Council of India. Provided that the requirement of possessing a post graduate degree, qualification in the concerned higher speciality shall not be applicable for higher appointments in the case of existing teachers holding regular teaching posts whose appointment was initially made on the basis of two years special training in the speciality after the requisite M.D./M.S. 10. I find that the objection, which is being raised by respondent No. 2 in his counter affidavit, is not sustainable. The regulation laying down minimum qualification for teachers in medical institutions was framed in the year 1998. In the regulation the requisite qualification prescribed is D.M./M.Ch. for any new appointment in super speciality subjects. However, Medical Council of India being fully conscious about the prevailing situation of the medical institution in the country where a number of teaching posts were filled up by doctors having post graduate qualification in the subject concern and not by doctors possessed with D.M./M.Ch. In order to meet such situation it was provided that the doctors having post graduate qualification and requisite teaching experience in super speciality can not be denied benefit of promotion to the higher teaching posts. In case of existing teachers, holding regular teaching posts, whose appointments were initially made on the basis of two years special training in the speciality after requisites qualification of M.D./M.Ch., so far petitioner is concerned, he has got post graduate degree in medicine. He has worked on teaching posts in the super speciality subject for several years and this experience can be counted as special training in the super speciality of Nephrology. 11. He has worked on teaching posts in the super speciality subject for several years and this experience can be counted as special training in the super speciality of Nephrology. 11. Supreme Court of India in the similar situation, in the case of State of Bihar and Anr. v. Ramesh Chandra and Anr. 1997 (1) P.L.J.R. (S.C.) 131 has held as follows: ...It was contended on behalf of Dr. Verma that the qualification of M.Ch. was not a condition precedent for promotion to the post of Associate Professor from the post of Assistant Professor and as he had put in more than 15 years experience as Assistant Professor in the speciality concerned, he was entitled to be considered for promotion as Associate Professor. It appears that the point that M.S./F.R.C.S. or M.S. or F.R.C.S. or a qualification equivalent in Surgery with two years special training in the speciality concerned or Speciality Board (USA) in the speciality concerned, is an alternative academic qualification, was not specially raised, though such an interpretation was suggested on behalf of Dr. Verma. Therefore, this Court considered only the first qualification, namely, M.Ch. in speciality concerned after M.S./F.R.C.S. and held that for promotion to the post of Professor or Associate Professor, the qualification of M.Ch. in speciality concerned after M.S./F.R.C.S. is a must. We are of the opinion that if that qualification was considered as a must for appointment the relevant regulation would not have provided M.S./F.R.C.S. or equivalent qualification in surgery with two years special training in the speciality concerned as qualification for the post of Professor or Associate Professor also. A plain reading of the regulation indicates that it is an alternative qualification for being appointed as Professor or Associate Professor. For such appointment the person should have either of these qualifications. If the said regulation is interpreted otherwise and it is held that M.Ch. in speciality concerned after M.S./F.R.C.S. is a must before a person can be appointed as Professor or Associate Professor that would make the latter part of the prescribed academic qualification redundant. M.Ch. is no doubt a higher degree than M.S. and, therefore, in respect of a person who is not M.Ch. and has only the M.S. degree it is further necessary that he should have two years special training in the concerned speciality to make him eligible for appointment as Professor or Associate Professor.... 12. M.Ch. is no doubt a higher degree than M.S. and, therefore, in respect of a person who is not M.Ch. and has only the M.S. degree it is further necessary that he should have two years special training in the concerned speciality to make him eligible for appointment as Professor or Associate Professor.... 12. In this very decision the Apex Court has held that since appointment as Associate Professor was not in dispute and the prescribed qualification for the two posts are same, it has to be assumed that the appointing authority was satisfied that the person, who had already been appointed on one of those posts did possesses the requisite qualification for appointment on the other post. 13. In the present case objection has not been raised by the respondent against petitioners appointment to the post of Associate Professor, requisite qualification for the post of Associate Professor and Professor is same. The respondents, now, can not raise objection regarding non-fulfillment of requisite qualification for being promoted to the post of Professor. 14. So far the statement in the counter affidavit regarding Rule 10 of 1997 Rules is concerned, now, has got no relevance as respondent has admitted regarding establishment of Nephrology as a separate super speciality Department in Patna Medical College Hospital vide Resolution No. 1358(17), dated 29.01.2008. It has also been admitted that a combined gradation list of the Department of Medicine has been finalized in the year 2008, which also includes Nephrology. In this list the name of petitioner is at serial No. 27. This gradation list, after creation of Nephrology unit as super speciality Department in Patna Medical College Hospital, Patna, has no relevance. The respondents have to come out with a separate gradation list of Nephrology, which is a super speciality department. 15. In this regard, the statement of petitioner made in his reply to the counter affidavit is significant. It has been stated in the reply to the counter affidavit that it is true that Nephrology was a unit within the Medicine Department, but for all practical purposes it has no concern with the Department of Medicine. In the Nephrology unit promotions have been given to the teachers on the basis of separate gradation list prepared for the Nephrology. It has also been stated that the Nephrology unit established in 1971 had initially two posts of Medical Officers. In the Nephrology unit promotions have been given to the teachers on the basis of separate gradation list prepared for the Nephrology. It has also been stated that the Nephrology unit established in 1971 had initially two posts of Medical Officers. Later on posts of Resident Medical Officer, Registrar, Assistant Professors, Associate Professors and Professors were created in Nephrology Unit and it started to work as super speciality as an independent unit. It has further been stated that in the year 1991 a separate panel for Assistant Professor of Nephrology Department was prepared and a separate panel of Registrar was also prepared. In the year 1991 itself vide notification, contained in Memo No. 278, dated 10.05.1991, Assistant Professors were promoted to the post of Associate Professor in Nephrology in Patna Medical College Hospital, Patna. A proceeding was also initiated in the Department to give promotion to the persons working in the super speciality department only. These statement made by the petitioner based on the relevant documents have not been denied by the respondents. This shows that since the day of creation of Nephrology as super speciality unit, promotions, posting in that unit is being given on the basis of a separate panel considering seniority of doctors working in that speciality only. If that is the case the seniority of doctors/teachers working in the super speciality is already in existence, in that view the respondents should not have any reason for not giving regular promotion to the petitioner as an Associate Professor from the date he was promoted on ad hoc basis with all consequential benefits and also to promote petitioner to the post of Professor from the date it fell vacant as petitioners case is that he is senior most in the Department and also have requisite qualification and experience for being promoted to the post. 16. In the last affidavit filed on behalf of respondent No. 2, it has been stated that the Government has taken a Resolution for appointment on the posts of Professor, Associate Professor and Assistant Professor in the Department of Nephrology on contract basis. In this regard, advertisement was published in the daily newspaper "Hindustan", dated 02.11.2008, inviting application for appointment on the newly created posts on contract basis, but it did not attract the attention of the applicants, reason being low pay structure, as such, a proposal has been initiated to enhance the pay. In this regard, advertisement was published in the daily newspaper "Hindustan", dated 02.11.2008, inviting application for appointment on the newly created posts on contract basis, but it did not attract the attention of the applicants, reason being low pay structure, as such, a proposal has been initiated to enhance the pay. A fresh advertisement will be issued enhancing the pay structure. 17. I fail to understand that why the State Government is anxious to appoint teachers/doctors in the Nephrology Department on the post of Assistant Professor, Associate Professor and Professor on contract basis when already doctors were working on these posts in the unit of Nephrology. Now, the unit has been converted into a super speciality department, persons, who were already working, can not be denied promotion simply because super speciality department of Nephrology has been created. Inviting applications for promotion/appointment on contract basis will certainly affect legitimate expectations of petitioner and others for promotion on higher teaching posts. They have continued to work on these posts. Now, when the post is available they can not be denied the benefit of promotion. 18. Considering all these facts, the respondents are directed to regularize the promotion of the petitioner as Associate Professor earlier given on ad hoc basis, salary for the post of Associate Professor with all other consequential benefits be paid to the petitioner and claim of the petitioner for promotion to the post of Professor be considered with other eligible candidates. In case, petitioner is found fit, senior most, he should be allowed promotion to the post of Professor from the date the post fell vacant as he fulfills the requisite qualification and experience. The direction be complied within six weeks from the date of production/communication of the order. 19. With the aforesaid observations and directions, this application is allowed.