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2009 DIGILAW 1327 (PAT)

Vijay Kumar Gupta v. State of Bihar

2009-10-27

body2009
JAYANANDAN SINGH, J:- Pleadings Filed 1. Petitioner filed this writ application on 20.7.2001 praying therein for issue of writ in the nature of writ of certiorari for quashing of the final gradation list contained in Memo No.160(17)/Health, Patna dated 6.4.1998 (Annexure-5) of teaching staff of the rank of Tutors/Associate Professors working under the Department of Anesthesiology in various Medical Colleges, wherein petitioner was placed at serial no.24 showing him appointed as Assistant Professor on 4.6.1987 in Patna Medical College & Hospital, Patna (hereinafter referred to as P.M.C.H.), instead of placing him at serial no.16 as per initial date of his appointment and joining as Assistant Professor on 4.6.1984. Petitioner also prayed for a direction to the respondents to prepare a fresh gradation list counting his services in the Department of Anesthesiology with effect from his initial appointment and joining on 4.6.1984 as Assistant Professor in Patliputra Medical College, Dhanbad, vide Notification dated 29.4.1984 (Annexture-2). By amendments applications, petitioner has also sought to challenge two subsequent notifications containing gradation list issued by the respondents during the pendency of this writ application (Annexure-7 dated 5.9.2004 with I.A. No. 4495/2004 and Annexure-10 dated 8.7.2008 with IA No. 4898/2008). 2. Besides official respondents, petitioner also made the incumbents, shown in the impugned gradation list above him and upto serial no.16, as respondent nos. 4 to 11 in the case. Petitioner also filed supplementary affidavit on 23.7.2001 bringing on record an order dated 28.4.1999 passed by this Court in C.W.J.C.No.4959 of 1997 whereby, a policy decision of the Government contained in memo no.176(17) dated 20.6.1996, which was issued in the matter of promotion to the post of Associate Professor (Anesthesia) and on the basis of which promotion had been granted to respondent No.7 to the post of Associate Professor at that time and was challenged by the petitioner of that case in the writ, was directed to be kept in abeyance. 3. By order dated 23.7.2001 official respondents were directed to file counter affidavit in the case and notices were ordered to be issued to the private respondents. Subsequently, respondents came up with the notification dated 5.9.2004 promoting certain Assistant Professors, including three incumbents junior to the petitioner, to the post of Associate Professors in the Department of Anesthesiology. 3. By order dated 23.7.2001 official respondents were directed to file counter affidavit in the case and notices were ordered to be issued to the private respondents. Subsequently, respondents came up with the notification dated 5.9.2004 promoting certain Assistant Professors, including three incumbents junior to the petitioner, to the post of Associate Professors in the Department of Anesthesiology. Accordingly, petitioner filed I.A.No.4495 of 2004 on 8.9.2004, annexing the said notification as Annexure-7, for amendment in the writ application by adding the said incumbents, so promoted, as respondents and for adding grounds for challenge of the said notification and prayer for quashing of the same also. The said I.A. was allowed by order No.5 dated 12.7.2007 passed by this Court and the said incumbents, as mentioned in paragraph 7(a) of the I.A., were allowed to be added as party respondent nos. 13, 14 & 15. Notices were also directed to be issued to the newly added respondents. The signatory to the said notification, a Deputy Secretary of the Department was also added as respondent no. 12. 4. In the meanwhile, pursuant to earlier direction of this Court, official respondent nos.1 and 2 filed their counter affidavit on 5.4.2005 sworn by one Dr. S.N. Sharma on their behalf, an Officer on Special Duty in the Department. In a nutshell, the official respondents disputed the claim of the petitioner, primarily on the ground that, subsequent to his appointment as Assistant Professor of Anesthesiology in Patliputra Medical College, Dhanbad, petitioner had joined as Anesthetist in P.M.C.H. willingly, pursuant to a notification, Annexure-3, which was a non-teaching post. Therefore, his earlier service on teaching post could not be counted from initial date of his appointment as Assistant Professor for fixing his eligibility for promotion to the post of Associate Professor. It was said that impugned Annexure-5 was prepared in the light of the said policy decision dated 20.6.1996 which was stayed by this Court. 5. Petitioner filed rejoinder to the counter affidavit of respondent nos.1 and 2 on 7.4.2005 in which he mainly claimed that the post of Anesthetist was also a teaching post carrying the same pay-scale and therefore he was entitled for counting of his entire period from 4.6.1984 for deciding his eligibility for promotion to the post of Associate Professor. 6. After service of notice, respondent No.7 also appeared in the case and filed his counter affidavit on 12.7.2007. 6. After service of notice, respondent No.7 also appeared in the case and filed his counter affidavit on 12.7.2007. He disputed the claim of petitioner by asserting that the posting of petitioner as Anesthetist in Patna Medical College and Hospital was made on the basis of his separate application and preparation of fresh panel. Respondent nos.13, 14 and 15 also appeared in the case and filed their separate counter affidavit on 10.10.2007 in which, in brief, they also contended that petitioner, on his own volition had opted for a lower posting on a non-teaching post. Hence, they asserted that, he could not be given benefit of the period during which he was posted as Anesthetist and these respondents have longer length of teaching experience with better claim for their promotion to the post of Associate Professor. 7. In the meanwhile, respondents prepared another final gradation list of doctors, working in the Department of Anesthesiology in. the, Medical Colleges and notified the same through letter dated 18.7.2008 in which petitioner was shown at serial No.5 in the category of Anesthetists. 8. Accordingly, petitioner filed IA.NoA898 of 2008 for necessary amendment in the writ application by adding prayer to challenge this gradation list also. In the I.A. he pleaded that a provisional gradation list was published earlier inviting objections, which he filed. However, without considering the same, final gradation list has been published, reverting him back to the category of Anesthetist, instead of retaining his name in the category of teaching staff of the Department, a position already accepted by the Department through Annexure5. Petitioner placed all the three documents on record with the I.A. as Annexures. 8, 9 & 10. 9. It appears that after IA. NoA.195 of 2004 was allowed by this Court by order dated 12.7.2007, respondent no.2 filed a counter affidavit to the said I.A. in Court on 23.6.2009 sworn by same Dr. S.N. Sharma on 26.11.2007, now posted as Additional Director Health (Medical Education). Respondent nos.13, 14 and 15 also filed supplementary counter affidavit on 9.7.2009. Respondent nos.1 and 2 also filed supplementary counter affidavit on 13.7.2009 sworn by the same Dr. S.N. Sharma under the authority of the competent authority and now posted as Professor Head of the Department, Physiology, P.M.C.H. 10. Respondent nos.13, 14 and 15 also filed supplementary counter affidavit on 9.7.2009. Respondent nos.1 and 2 also filed supplementary counter affidavit on 13.7.2009 sworn by the same Dr. S.N. Sharma under the authority of the competent authority and now posted as Professor Head of the Department, Physiology, P.M.C.H. 10. On 13.7.2009 itself, Petitioner filed a common reply to the supplementary counter affidavits of respondent nos.13, 14 and 15 as well as supplementary counter affidavit of respondent nos.1 and 2. Notices on all the parties having been served validly and parties appearing in the case having filed their pleadings, case was finally heard on 13.7.2009 and orders were reserved. Cases of the Parties 11. As per the pleadings, petitioner was initially appointed in the Bihar Health Services and joined as Medical Officer, Gopalganj on 31.5.1979. During this period, he was pursuing his course of Doctor of Medicine in Anesthesiology under Patna University, examination of which was held in September, 1981 and he was awarded degree of D.M. in Anesthesiology vide Annexure-1 dated 12.1.1982. 12. In the extra-ordinary Gazette of the State dated 9.6.1983 (Annexure-2), an advertisement was published inviting applications for appointment on various teaching posts and on posts of medical officers in the Medical Colleges of the State. For appointment on the post of Assistant Professor, in paragraph 3 of the advertisement, besides subject qualification, three years experience on the post of Resident/Registrar in the concerned subject was made an essential requirement. However, an exception was made in cases of candidates in the subject of Radiology, Radiotherapy, Skin and V.D., Anesthesia, Neurology, NeuroSurgery, Plastic-Surgery, as also in cases of specialization which may be created later on, with the stipulation that neither the said requirement of experience of three years on the post of Resident/Registrar nor the requirement of minimum 15 points shall be necessary. As the petitioner, otherwise, had the requisite qualification for the post of Assistant Professor of Anesthesiology, he applied for the same, and having been selected, he was empanelled, appointed and posted as Assistant Professor in the Department of Anesthesiology in Patliputra Medical College, Dhanbad, vide Notification No.444(17) dated 29.5.1984 (Annexure-2 series). He joined the post in the College concerned on 4.6.1984. He joined the post in the College concerned on 4.6.1984. Thereafter, vide Annexure-3, the Notification dated 7.2.1986 his services were transferred on the post of Anesthetist in P.M.C.H. By the said notification, other teachers and Medical Officers were also transferred on the post of Anesthetist in other Medical Colleges. The Notification made it clear that besides their pay, they shall also be entitled for other admissible (teaching) allowance. Accordingly, petitioner joined his post in Patna Medical College and Hospital on 14.2.1986 and has continued in the institution since then. 13. It appears that a Notification No. 176(17) dated 20.6.1996 was issued by the Department notifying certain policy decision in respect of criteria for filling up of higher post of Associate Professor. Pursuant to the said notification, State Government published a provisional combined gradation list of Assistant Professors and 'Anesthetists now designated as Assistant Professors of Anesthesiology Department, for their promotion to the post of Associate Professor, vide Annexure-4 dated 26.12.1996. The letter enclosing the list made it clear that Anesthetists having post graduate degree are being designated as Assistant Professors and have been clubbed together with them in the gradation list for their inter-se seniority. In the list petitioner was shown at serial no.30 and was shown as having joined the post of Anesthetist on 14.2.1986 and designated as Assistant Professor on 14.2.1989 and entitled for grant of teaching experience with effect from the same date. Representations/objections were invited against the said list from the aggrieved parties. Accordingly, petitioner filed his representation for correction of placement of his name in the gradation list claiming to be entitled for grant of teaching experience with effect from 4.6.1984, the date on which he had joined the post of Assistant Professor in the Department of Anesthesiology in Patliputra Medical College, Dhanbad. Respondents, thereafter, published final gradation list vide letter no. 160(17) dated 6.4.1998 (Annexure-5). In the said gradation list petitioner was shown at serial no.24. Against the name of petitioner his initial appointment was shown on 4.6.1984 as Assistant Professor but in column 5 he was shown to have been posted on the post of Assistant Professor on 4.6.1987 and in column 7 shown to be entitled for teaching experience from the said date. 14. Against the name of petitioner his initial appointment was shown on 4.6.1984 as Assistant Professor but in column 5 he was shown to have been posted on the post of Assistant Professor on 4.6.1987 and in column 7 shown to be entitled for teaching experience from the said date. 14. Not satisfied with the said placement of his name at serial no.24 on account of the fact that although he had joined as Assistant Professor on 4.6.1984 but was granted benefit of the same after three years i.e. 4.6.1987. Petitioner filed present writ application challenging the same primarily on the ground that at that point of time post of Anesthetist was also a teaching post and equivalent to the post of Assistant Professor and the petitioner was transferred to that post on the orders of the respondents without any representation or request on his part for the same. Therefore, he could not be denied teaching experience while holding post of Anesthetist in Patna Medical College and Hospital on the orders of the respondents. He also made the incumbents above him and upto serial no.16 as party respondents in the case. By order dated 23.7.2001 State counsel was directed to seek instructions and file counter affidavit in the case and notices were ordered to issue to private respondents. 15. However, during the pendency of the writ application and in spite of order dated 23.7.2001, respondents acted upon the said gradation list and issued Notification No. 638(17) dated 5.9.2004 by which some of the Assistant Professors working in the Department of Anesthesiology in different Medical Colleges in the State of Bihar were posted on the post of Associate Professor under working arrangement till further orders. Since some of such Associate Professors were appointed as Assistant Professor later than the petitioner, petitioner challenged the said notification by filing I.A.No.4494 of 2004 in this writ application which was allowed by this Court as stated above and such persons were allowed to be added as party respondents. 16. In the first counter affidavit filed on behalf of respondent nos.1 and 2, it was contended that the petitioner was transferred to a non-teaching post of Anesthetist by Annexure-3 and he worked in such capacity upto 3.6.1987, whereafter he was designated again as Assistant Professor with effect from 4.6.1987. 16. In the first counter affidavit filed on behalf of respondent nos.1 and 2, it was contended that the petitioner was transferred to a non-teaching post of Anesthetist by Annexure-3 and he worked in such capacity upto 3.6.1987, whereafter he was designated again as Assistant Professor with effect from 4.6.1987. Therefore, seniority granted to the petitioner by counting his service on teaching post with effect from 4.6.1987 by placing him at serial no.24 in the impugned Annexure-5 was perfectly justified and valid. It was also averred that by joining the post of Anesthetist petitioner had forgone his seniority on the basis of his service rendered as• Assistant Professor in Patliputra Medical College, Dhanbad and therefore his claim on that basis stood forfeited. It was again said that the post of Anesthetist was a non-teaching post whereas post of Assistant Professor was a teaching post. However, in paragraph 7 of the counter affidavit it has been contended that by counting the service of petitioner from 4.6.1984, the day on which he joined the post of Assistant Professor in Patliputra Medical College, Dhanbad, he was designated as Assistant Professor with effect from 4.6.1987, on completion of three years of experience on a junior post, as required under the law. The stand of the respondents in paragraph 9 of the counter affidavit is to the effect that though Annexure-3 mentions the word transfer, no such transfers are done unless the person concerned opts for inclusion of his name in the new panel. It is said that .the explanation for such transfers in case of petitioner can only be that he was not satisfied with his posting at Dhanbad and so he might have applied for appointment as Anesthetist and after getting a posting of his choice at Patna he relinquished his posting as Assistant Professor which carried a higher pay scale and joined as Anesthetist which carried a lower pay scale. It is a so said that petitioner did not protest to suet demotion. Lastly, it was contended that the impugned Annexure-5 was prepared in the light of the said policy decision of the Government dated 20.6.1996 which was stayed by this Court. 17. Petitioner filed rejoinder to the counter affidavit of respondent nos.1 and 2 in which he asserted that posting of petitioner as Anesthetist in Patna Medical College and Hospital by Annexure-3 was on account of routine transfer. 17. Petitioner filed rejoinder to the counter affidavit of respondent nos.1 and 2 in which he asserted that posting of petitioner as Anesthetist in Patna Medical College and Hospital by Annexure-3 was on account of routine transfer. He also asserted that the post of Anesthetist in Patna Medical College and Hospital at that point of time was a teaching post which is established from the fact that by the said notification, in express terms, teaching allowance was made admissible to the persons being posted on the post of Anesthetist in different Medical Colleges. Petitioner produced documents as Annexures-7 and 8 with his rejoinder to show that pay scale of the post of Anesthetist and Assistant Professor was same with additional teaching allowance for teaching duties and both posts were being considered as feeder post for promotion to the post of Associate Professor and that Anesthetists were also engaged in teaching in the Colleges. Hence, it was reiterated that petitioner was entitled to be placed at serial no.16 in the impugned Annexure-5 by counting his services on teaching post from 4.6.1984, which has been acknowledged by the respondents in their counter affidavit as they have accepted that counting his three years teaching experience from 4.6.1984 he has been designated as Assistant Professor with effect from 4.6.1987 by the impugned notification. 18. Respondent no.7 has also appeared in the case and has filed counter affidavit. Besides taking stand that petitioner had challenged the said notification belatedly, it is contended in the counter affidavit that post of Anesthetists, Registrars and Residents are lower posts but have been bestowed with the benefit of teaching experience. On the basis of letter of the Government No.110 dated 9.1.1963 addressed to the Accountant General, it was contended that the post of Anesthetist was placed in the category of junior teachers whereas tutors (Now Assistant Professors) were shown in different category. Similar to the stand of respondent nos.1 and 2, respondent no.7 also contended in his counter affidavit that pay scale of the two posts were different and it was evident from Annexure-A/7 itself that separate panels used to be prepared for Anesthetist and Assistant Professors. Similar to the stand of respondent nos.1 and 2, respondent no.7 also contended in his counter affidavit that pay scale of the two posts were different and it was evident from Annexure-A/7 itself that separate panels used to be prepared for Anesthetist and Assistant Professors. In paragraph 9 of his counter affidavit also, it has been said that posting of petitioner on the post of Anesthetist in Patna Medical College and Hospital 'must have been made on the basis of separate application and separate panel prepared for the same. against which petitioner did not raise any grievance. It is said that earlier total teaching experience used to be counted for promotion to the Associate Professor and it was only after judgment of this Court in the case of Dr. Hare Ram Singh that teaching experience of the post of Assistant Professor was separately started to be taken into account for such promotions to Associate Professors. Finally, it was contended that petitioner got himself posted against a junior post and therefore, he cannot complain about the same. It was stated that answering respondent was working on promotional post of Associate Professor with effect from 19.6.1986 itself which was sought to be cancelled later on and the dispute is pending before this Court in C.W.J.C.No.4959 of 1997. 19. Respondent nos.13, 14 and 15 also appeared in the case and filed their common counter affidavit. Apart from raising the ground of delay, they have taken a stand some what similar to the stand taken by respondent nos.1 and 2 and respondent no.7. It is contended that petitioner was holding teaching post in Dhanbad for one year eight months only. It is also contended that the post of Anesthetist and Assistant Professor belong to two different cadre with two different pay scales and required different qualifications for appointment on the same. It is stated that the claim of petitioner for his posting as Associate Professor on the basis of counting his services as Anesthetist will amount to a case of level jumping as noticed by this Court in the case of Dr. Hare Ram Singh. It is contended that posting of petitioner on the post of Assistant Professor in Patliputra Medical College, Dhanbad by Annexure-2 was withdrawn after petitioner availed his posting on the post of lower grade and therefore, he cannot claim the benefit of his previous posting at Dhanbad. Hare Ram Singh. It is contended that posting of petitioner on the post of Assistant Professor in Patliputra Medical College, Dhanbad by Annexure-2 was withdrawn after petitioner availed his posting on the post of lower grade and therefore, he cannot claim the benefit of his previous posting at Dhanbad. In this counter affidavit also, in paragraph 12, it is said that 'To the best of the knowledge of the answering respondents, this posting on inferior post of Anesthetist was made pursuant to the petitioners request for choice posting at his desired place at Patna. These respondents have also questioned the counting of three years of continuous service of the petitioner from 4.6.1984 for his designation as Assistant Professor on the ground that as in 1986 petitioner was reverted to a junior post, his past services on teaching post could not be reckoned for the purpose and he was required to qualify in selection test afresh for posting as Assistant Professor. Giving comparative teaching experience, it is said that the petitioner had teaching experience of only one year eight months, whereas respondent no.13 had teaching experience of 14 years, respondent no.14 had teaching experience of 13 years and respondent no.15 had teaching experience of seven years, and therefore, they were rightly posted on the higher post of Associate Professor by the said notification dated 5.9.2004. 20. During the pendency of this writ application, yet another gradation list was published through letter no. 866(17) dated 8.7.2008 in which, contrary to Annexure-5, petitioner has been shown as still in the grade of Anesthetist with joining date as 14.2.1986. Petitioner has challenged this notification also through I.A. No.4898 of 2008 praying therein for necessary amendments in the writ application. In the said I.A. it has been contended that provisional gradation list was published earlier against which petitioner had filed objections, still without considering his objection, he has been kept in the category of Anesthetist and his date of joining is shown as 4.6.1986 in the final gradation list. It is contended in the I.A. that upon their own showing, vide Annexure-5, petitioner had been designated as Assistant Professor with effect from 4.6.1987 although wrongly adjusting three years of his service against requisite teaching experience, which was not applicable in the case of the petitioner. It is contended in the I.A. that upon their own showing, vide Annexure-5, petitioner had been designated as Assistant Professor with effect from 4.6.1987 although wrongly adjusting three years of his service against requisite teaching experience, which was not applicable in the case of the petitioner. Now by this notification petitioner has been reverted back to the cadre of Anesthetist which is highly arbitrary, illegal and shows absolute non-application of mind by the respondents. 21. Respondent no.2 has filed a belated counter affidavit to I.A.No.4495 of 2004. In this counter affidavit stand of respondent no.2 is that though Anesthetists, Registrars and Residents have been benefited with the teaching allowance, but the same are ex-cadre posts. It is also said in the counter affidavit that petitioner was not comfortable at his posting in Dhanbad and therefore upon his transfer to the post of Anesthetist in Patna Medical College and Hospital from Patliputra Medical College, Dhanbad, he joined the post and thus forfeited his claim for being treated as Assistant Professor with teaching experience. It is claimed that out of the seven incumbents, who were posted on the post of Anesthetist vide Annexure-3 from panel of 1985, petitioner was the single person who was included in this notification. In respect of equal pay, it is contended that several posts may be in one pay scale but that does not necessarily establish that they are all in one cadre. Lastly, it is acknowledged in the counter affidavit that petitioner was posted as Assistant Professor from 1983 panel and statement made in paragraph 9 of the main counter affidavit has been referred to as correct. 22. Respondent nos.13, 14 and 15 have also filed a supplementary counter affidavit in which they have taken a specific stand that petitioner was appointed as Anesthetist from 1985 panel on his own initiative and therefore he cannot claim the benefit on the basis of his earlier appointment. It he: s again been reiterated that post of Assistant Professor and Anesthetist are borne in two different cadres and a person posted on higher post cannot be posted on an inferior post unless opted by him or he gets reverted. Petitioner was holding the post of Anesthetist whereas for posting on the post of Associate Professor three years teaching experience as Assistant Professor was required. Petitioner was holding the post of Anesthetist whereas for posting on the post of Associate Professor three years teaching experience as Assistant Professor was required. Respondents being senior most Assistant Professors in the Department, they were rightly posted on higher post of Associate Professor. The gradation list prepared on the basis of said notification dated 20.6.1996 was challenged in C.W.J.C.No.4959 of 1997 but the said gradation list has been approved by judgment passed in the said writ application on. 9.2.2009 against which two I P.As., namely, L.P.A.No.417 and 368 of 2009 are pending before this Court. 23. A supplementary counter affidavit has been filed on behalf of respondent nos.1 and 2 also in response to the query made by this Court on an earlier date with regard to clarification whether Annexure-3 was a posting on transfer or was a fresh posting of the incumbents on the post of Anesthetist in different Medical Colleges in response to an advertisement for fresh appointment. In their affidavit official respondents, in spite of opportunity, have not annexed any document to establish that annexure-3 was issued pursuant to any fresh advertisement and panel for fresh appointments in the year 1985 on vacant sanctioned posts in medical colleges. They have merely referred to stipulation made on the back of Annexure-3 to contend that the said posting was made on the basis of 1985 panel and that this means that petitioner had himself opted for empanelment in 1985 panel for Anesthetists. Therefore, it was not open to him to contend that he was posted on the post of Anesthetist on account of transfer. 24. Petitioner has filed common reply to the supplementary affidavits of respondent nos.1 and 2 as well as of respondent nos.13, 14 and 15. In very categorical terms• it has been said in his reply that petitioner had never applied in terms of any advertisement in the year 1985 for appointment on the post of Anesthetist. It has also been categorically asserted that petitioner does not belong to 1985 panel and there is nothing in annexure-3 to correlate him with 1985 panel. It is again asserted that Annexure-3 was a simple transfer in a routine manner in compliance to which petitioner had joined in P.M.C.H. on the post of Anesthetist. It has also been categorically asserted that petitioner does not belong to 1985 panel and there is nothing in annexure-3 to correlate him with 1985 panel. It is again asserted that Annexure-3 was a simple transfer in a routine manner in compliance to which petitioner had joined in P.M.C.H. on the post of Anesthetist. It is also asserted that petitioner has been functioning and discharging his duties as Assistant 'Professor in the Department of Anesthesiology in Patna Medical College and Hospital since then Documents placed on record Annexure-1 dated 21.1.1982 (P-18) This is a copy of Degree of D.M. in Anesthesiology issued to the petitioner from Patna University, Patna. Annexure-2 dated 8.6.1983 (P-19) This is a copy of Bihar Gazette containing advertisement issued by the Department of Health, Government of Bihar inviting applications for filling up of various posts in' different Medical Colleges and Hospitals including the post of Assistant Professor. For appointment of Assistant Professor any Post Graduate Degree in the concerned specialty including Degrees mentioned in Clause (C) of paragraph 2, as recognized by the Medical Council of India was laid down as requisite qualification. In paragraph 3, for Assistant Professors, three years experience as Resident or Registrar or both in the concerned specialty was also made essential eligibility condition. An exception to this was provided for subjects of Radiology, Radiotherapy, Skin, V.D., Anesthesia, Neurology, Neurosurgery, Plastic surgery and for specialties to be created in future, in which case, neither the said three years teaching experience nor the minimum 15 points, required for other faculties, was to be essential. Annexure-2 series dated 29.4.1984 (P-28) This is a notification issued from the Health Department posting petitioner and three other Medical Officers as Assistant Professor in the Department of Anesthesia in different Medical Colleges. By this notification, petitioner was posted in Patliputra Medical College, Dhanbad as Assistant Professor. Annexure-3 dated 7.2.1986 (P-30) This is a notification issued from the Health Department transferring petitioner and six others to the post of Anesthetist in different Medical Colleges. By this notification, petitioner was posted in P.M.C.H. as Anesthetist. This notification mentions that the incumbents will be entitled to other additional allowances (Teaching) apart from their pay. Annexure-3 dated 7.2.1986 (P-30) This is a notification issued from the Health Department transferring petitioner and six others to the post of Anesthetist in different Medical Colleges. By this notification, petitioner was posted in P.M.C.H. as Anesthetist. This notification mentions that the incumbents will be entitled to other additional allowances (Teaching) apart from their pay. On the back of the notification, it is mentioned that if the incumbents do not join their place of posting within the stipulated time, posting order shall be cancelled and thereafter they will not be posted in the same subject from 1985 panel. Annexure-4 dated 26.12.1996 (P-32) This is letter no. 470(17) issued under the signature of Additional Commissioner cum-Special Secretary of the Health Department addressed to all Principals/Superintendents of all Medical Colleges and Hospitals enclosing provisional inter-se seniority list of Assistant Professors and Anesthetists designated as Assistant Professor who had Post Graduate Degree, for the purposes of promotion to the post of Associate Professor in the department of Anesthesia. The Principals/ Superintendents were requested to notify the same amongst the working Assistant Professors/ Anesthetists inviting objections from them. This letter was issued in reference to Departments Resolution No.176 (17) dated 20.6.1996. Petitioner has been shown at serial no.30 in this list and he has been shown to be designated as Assistant Professor with effect from 14.2.1989 with entitlement for benefits of teaching experience from that very date, in view of his joining as Anesthetist in Patna Medical College and Hospital on 14.2.1986. Annexure-5 dated 6.4.1998 (P-37) This is letter no. 160(17) issued under the signature of Deputy Secretary of the Health Department to all Principals/Superintendents of all Medical Colleges and Hospitals of the State enclosing final inter-se seniority list prepared for promotion to the post of Associate Professors in the department of Anesthesia prepared in the light of Departments Resolution no.176(17) dated 20.6.1996 and orders passed by this' Court in C.W.J.C.No.8028 of 1990 and Departments Memo No.470(17) dated 26.12.1996 and after consideration of objections/ representations received from the concerned doctors. In this gradation list, petitioners name figured at serial no.24 by showing him Assistant Professor from 4.6.1984 and Anesthetist from 14.2.1986 and designated as Assistant Professor from 4.6.1987 and entitled for the benefits of teaching experience from the same date. In this gradation list, petitioners name figured at serial no.24 by showing him Assistant Professor from 4.6.1984 and Anesthetist from 14.2.1986 and designated as Assistant Professor from 4.6.1987 and entitled for the benefits of teaching experience from the same date. This notification has been challenged by the petitioner in the main writ application claiming that since three years experience stood waived by the advertisement (Annexure-2) for subject of Anesthesiology, his services as Assistant Professor ought to have been recognized from 4.6.1984 itself. Annexure-6 dated 28.4.1999 with SA of Petitioner (P-46) This is a photocopy of certified copy of interim order passed by this Court in C.W.J.C.No.4959 of 1997 by which direction was issued to keep the policy decision dated 20.9.1996 in abeyance in the matter of promotion to the post of Associate Professor (Anesthesia) till disposal of the writ matter. Annexure-7 dated 5.9.2004 with I.A.No.4495/04 (P-60) This is a notification issued from the Health Department notifying posting of some Assistant Professors of different Departments on the post of Associate Professors under working Arrangement. In the Department of Anesthesia seven Assistant professors of different Medical Colleges were posted on the post of Associate Professor by this Notification. Petitioner has challenged this Notification also through I.A.No.4495 of 2004 in respect of his juniors, who have been posted on the post of Associate Professor ignoring his case, by making them party respondents nos.13, 14 & 15, which has been allowed by order dated 12.7.2007. Annexure-A dated 28.4.1999 with C.A. of Respondent Nos.1 & 2 (P-74) This is the same order of this Court passed in C.W.J.C.No.4959 of 1997 which has been annexed as Annexure-6 above by the petitioner along with Supplementary Affidavit. Annexure-B dated 20.6.1996 with C.A. of Respondent Nos.1 & 2 (P-79) This is the Resolution of the State Government No.176(17) dated 20.6.1996 referred to in Annexures-4 and 5. By this Resolution, which was directed to be published in the official gazette, it was notified that that such Tutor/Anesthetist who had completed three years on the post in the subject concerned having teaching experience and had acquired Post Graduate Degree may be designated as Assistant Professor. However, they shall not be entitled for any additional financial benefits. It was also made clear that this benefit will not be available to the incumbents who were having qualification of Diploma only. However, they shall not be entitled for any additional financial benefits. It was also made clear that this benefit will not be available to the incumbents who were having qualification of Diploma only. This Resolution also spells out certain contingencies under which benefit would not be available to the individual incumbents. The Resolution also spells out that seniority of the designated Assistant Professors shall be decided as' per working period as Tutor/ Anesthetist after obtaining Post Graduate Degree. Earlier Resolutions of the Government in this regard were held to have been superseded by this. Annexure-7 dated 7.11.1985 with petitioners rejoinder to C.A. of Respondent Nos.1 &2(P-90) This is a notification issued by the Department by which 6 Assistant Professors and 3 Anesthetists of different Medical Colleges were appointed by posting on the post of Associate Professor in anticipation of recommendation of Bihar Public Service Commission. Annexure-8 dated 30.7.1986 with petitioner's said rejoinder (P-93) This is a letter issued from the Department under the signature of Deputy Secretary addressed to the Accountant General in respect of extension of post created in Departments of Orthopedic, Anesthesia and Pediatrics in Patna Medical College and Hospital. The letter intimated about approval of the Government for extension of the said created posts beyond 1.3.1986 and allocation of fund for the same. Expenditure Return was also enclosed with the said letter from which it appears that the post of Anesthetist and the post of, Assistant Professor in Patna Medical College and Hospital carried the same pay scale of Rs.1350-2000 with teaching allowance to Assistant Professors at the rate of RS.75/- per month. Annexure-9 dated 20.8.1998 with petitioner's said rejoinder (P-95) This is a letter of the then Head of Department, Anesthesiology, Patna Medical College and Hospital to the Principal of the College enclosing Standard Inspection Form (Form-B) of Medical Council of India duly filled up wherein petitioner and other doctors working in the Department were referred as Anesthetists-cum-Assistant Professors. Annexure-10 dated 14.7.2004 with petitioners said rejoinder (P-98) This is front page of synopsis of the thesis of a student of Post Graduate Course of M.D. for session 2003-2006 in which name of petitioner has been mentioned as guide with his designation as Assistant Professor. Annexure-10 dated 14.7.2004 with petitioners said rejoinder (P-98) This is front page of synopsis of the thesis of a student of Post Graduate Course of M.D. for session 2003-2006 in which name of petitioner has been mentioned as guide with his designation as Assistant Professor. Annexure-A/7 dated 9.1.1963 with C.A. of Respondent no.7 (P-111) This is a letter from the Health Department under signature of the Joint Secretary addressed to the Accountant General, Bihar containing list of posts which were included in the category of junior teachers which included post of Anesthetist also other than Professors and Lecturers. Annexure-B/7 dated 20.6.1996 with C.A. of Respondent No.7 (P-114) This is the same Resolution no. 176(17) dated 20.6.1996 of the Government annexed as Annexure-B with the counter affidavit of Respondent nos.1 and 2. Annexure-R-13/ A dated 20.6.1996 with CA of Respondent nos.13.14& 15 (P-135) This is also another copy of same Resolution no. 176(17) dated 20.6.1996 already annexed as Annexure-B/7 by respondent no.7 in his counter affidavit and, Annexure-B by respondent nos.1 and 2 in their counter affidavit. Annexure-R-13/B dated 28.4.1999 with (the same CA (P-137), This is another copy of order dated 28.4.1999 passed by this Court in CW.J.C.No.4959 of 1997 already annexed by respondent nos.1 and 2 as Annexure-A and by the petitioner as Annexure-6. Annexure-R-13/C dated 29.4.1984 with the same CA (P-142) This is the same notification of posting of petitioner and others as Assistant Professors in different Medical Colleges already annexed by the petitioner as Annexure-2. Annexure-R-13/D dated 16.9.1998 with the same C.A. (P-144) This is a Degree of D.M. in Anesthesiology of respondent no.13 issued from L.N. Mithila University. Annexure-R-13/E dated 5.9.1990 with the same CA (P-145) , This is a notification issued from the Department posting Respondent no.13 and others as Assistant Professors in the Department of Anesthesiology in different Medical Colleges. Respondent no.13 was posted in S.K. Medical College, Muzaffarpur. Annexure-R-13/F dated 28.4.1989 with the same C.A. (P-147) This is a certificate issued from L.N. Mithila University in respect of award of Degree of D.M. to respondent no.14 of having passed the examination in 1986. Annexure-R-13/F dated 23.2.1996 with the same CA (P-148) This is a notification issued from L.N. Mithila University in respect of respondent no.14 having passed Ph.D. examination in the subject of Anesthesiology in the month of February, 1996. Annexure-R-13/F dated 23.2.1996 with the same CA (P-148) This is a notification issued from L.N. Mithila University in respect of respondent no.14 having passed Ph.D. examination in the subject of Anesthesiology in the month of February, 1996. Annexure-R-13/G dated 24.3.1994 with the same C.A. (P-149) This is a notification issue from the Department posting certain Medical Officers including respondent no.14 on the post of Assistant Professor in different Medical Colleges from different panel. Respondent no.14 has been shown to have been posted as Assistant Professor in the Department of Anesthesia in S.K. Medical College, Muzaffarpur from 1987 panel. Annexure-R-13/H dated 2.4.1985 with the same C.A. (P-151) This is a provisional certificate issued by Ranchi University in respect of respondent no.15 with regard to his passing examination of Diploma in Anesthesiology held by the University in the month of July, 1984. Annexure-R-13/H with the same C.A. (P-152) This is a Degree issued from Patna University in favour of respondent no.15 in respect of his having admitted to the Degree of Doctor in Medicine in Anesthesiology upon having passed the examination held in the month of June, 1986. Annexure-R-13/1 dated 16.7.1997 with the same C.A. (P-153) This is a notification issued from the Department in respect of posting on the post of Medical Officers in different Medical Colleges under different Departments. By this notification, respondent no.15, a Resident in the Department of Anesthesiology, Patna Medical College and Hospital, was posted on the post of Assistant Professor in the same College from 1994 panel. Annexure-8 dated 10.1.2008 with I.A.No.4898/08 of petitioner (P-166) This is a provisional combined seniority list of Doctors/Anesthetist of the Department of Anesthesiology inviting objections in respect of placement of their names in the list. Petitioner has been shown at serial no.1 in the provisional list of Anesthetist. Annexure-9 dated 22.1.2008 with the said I.A.(P-167) This is an objection petition of the petitioner submitted to the Superintendent of Patna Medical College and Hospital against placement of his name in the category of Anesthetist in the provisional gradation list. The objection also contains certificate from the Head of Department certifying that the petitioner is teaching Post Graduate and Under Graduate students, research work is done under him and that his name is listed as Assistant Professor in M.C.I. List. The objection also contains certificate from the Head of Department certifying that the petitioner is teaching Post Graduate and Under Graduate students, research work is done under him and that his name is listed as Assistant Professor in M.C.I. List. Annexure-10 dated 8.7.2008 with the said I.A.(P-170) This is a letter issued from the Department under the signature of Joint Secretary addressed to all the Principals and Superintendents of all Medical Colleges and Hospital publishing final seniority list of teachers of the Department of Anesthesiology in different Medical Colleges. On the back of the said letter, names of the incumbents have been shown as per seniority. Petitioner has been shown at serial no.5 in the category of Anesthetists showing his joining from 14.2.1986. Petitioner has challenged this final seniority list claiming that his name ought to have been at serial no.6 above Dr. Sri Niwas Roy in the category of teachers by virtue of his initial appointment on teaching post in 1984 and his joining as Assistant Professor in Patliputra Medical College, Dhanbad on 4.6.1984. Order on I.A. No. 4898/08 25. As noticed above, this I.A. has been filed by the petitioner bringing on record the provisional seniority list, his objection and the final list showing his name in the category of Anesthetists at serial no.5, as Annexures 8, 9& 10 respectively, with prayer for grant of leave to challenge the said final list. By this final list, even the status of petitioner as Assistant Professor bestowed upon him w.e.f. 4.6.1987 with benefit of teaching experience by impugned Annexure 5 has been taken away and he has been relegated to the category of Anesthetist. In the I.A. petitioner has not brought on record any new fact necessitating any opportunity to the respondents to file its reply. Since the said final list has further affected the status of the petitioner during the pendency of the writ application, the I.A. is hereby allowed and the petitioner is permitted to challenge the said final seniority list also as annexed as Annexure-10 Consideration 26. From the pleadings of the parties, the moot question which emerges in the case for consideration is with regard to nature of Annexure-3, the notification by which petitioner and others were posted on the post of Anesthetists in the Department of Anesthesia in different Medical Colleges, and the effect of such posting on the service career of the petitioner. From the pleadings of the parties, the moot question which emerges in the case for consideration is with regard to nature of Annexure-3, the notification by which petitioner and others were posted on the post of Anesthetists in the Department of Anesthesia in different Medical Colleges, and the effect of such posting on the service career of the petitioner. By this notification, petitioner was posted as Anesthetist in P.M.C.H. and by specific stipulation teaching allowance was made admissible to him as well as others so posted by this notification. Question which has to be considered is as to whether posting of the petitioner in P.M.C.H. as Anesthetist was by way of routine transfer or was a result of a fresh panel prepared in 1985 after due advertisement for posting of incumbents on vacant posts of Anesthetists in different medical colleges. In other words, it has to be examined whether petitioners posting in P.M.C.H. on the post of Anesthetist by Annexure-3 was in continuation of his employment by Annexure-2 on a teaching post in 1984 or was a fresh appointment on the basis of advertisement and preparation of panel. It has also to be examined whether, otherwise also, petitioner himself opted for this posting a the risk of losing the benefits of his posting on a teaching post in 1984. It is also to be considered whether the post of Anesthetist in the medical colleges of the State, during the relevant period, carried the same pay scale and teaching assignments just like Assistant Professors and was also a feeder post for promotion to the post of Associate Professor. 27. Respondents, more or less in one voice, have asserted that the post of Anesthetist, on which petitioner was posted, was a post of lower grade than that of the Assistant Professor on which admittedly petitioner was appointed in 1984 and posted in Patliputra Medical College, Dhanbad by dint of Annexure-2 on the basis of advertisement and panel prepared in 1983 for such selection and posting. They contend that posting of petitioner and others on the post of Anesthetists by Annexure-3 must have been pursuant to a fresh advertisement and a fresh panel prepared in 1985 for such selection and posting. They contend that posting of petitioner and others on the post of Anesthetists by Annexure-3 must have been pursuant to a fresh advertisement and a fresh panel prepared in 1985 for such selection and posting. Respondent nos.1 and 2 in paragraph 9 of their counter affidavit have made speculative pleading that petitioner must have applied for appointment on the post of Anesthetist pursuant to which he was empanelled and appointed by Annexure-3. Similarly, respondent no.7 has also made such statement in paragraph 9 of his counter affidavit speculating that the appointment of the petitioner on the post of Anesthetist by Annexure-3 must have been made on the basis of separate application and panel for lower post. Respondent nos.13, 14 and 15 also in paragraph 12 of the counter affidavit say that .to the best of the knowledge of the respondents. Annexure-3 was issued containing name of petitioner pursuant to his own request. These pleadings of the respondents show that they claim that the posting of petitioner by Annexure-3 was not by way of routine transfer but was on the basis of fresh advertisement and preparation of panel in 1985 for appointment on the post of Anesthetist in different Medical Colleges. They assert that, the petitioner not being satisfied with his job at Dhanbad, might have desired to shift to a premier Institution in the capital of the State and so he must have applied afresh in response to fresh advertisement and after getting empanelled in 1985 he got his fresh appointment in P.M.C.H. as Anesthetist by Annexure-3. They also assert that the post of Anesthetist was a lower post than the post of Assistant Professor which shows that the petitioner could not be transferred to a lower post by Annexure-3 and it was in fact an inferior posting. They also assert that the two posts are borne in different cadre and carry different pay scale and the post of anesthetist is not a teaching post. Therefore, petitioner could not get the benefit of teaching while a holding post of Anesthetist to make himself eligible for higher post of Associate Professor. They also assert that petitioner could not even be designated as Assistant Professor merely on completion of 3 years without re-qualifying for the same. 28. On the other hand, petitioner has asserted that the notification contained in Annexure-3 was in fact on the basis of routine transfer. They also assert that petitioner could not even be designated as Assistant Professor merely on completion of 3 years without re-qualifying for the same. 28. On the other hand, petitioner has asserted that the notification contained in Annexure-3 was in fact on the basis of routine transfer. He has asserted that the post of Anesthetist in P.M.C.H. was teaching post at that point of time and carried same pay scale as that of Assistant Professor. It is stated that on account of his transfer to an equivalent post by the respondents, petitioner had no option but to join his new place of posting in P.M.C.H. Petitioner did not find the same as demotion or change of service conditions and therefore he did not apprehend that later on in service he may have to adversely suffer on account of such posting. It has been asserted that petitioner never applied afresh for his empanelment in 1985 for the post of Anesthetist. It has been contended that Annexure-3 itself shows that the post of Anesthetist at that point of time was a teaching post on account of which teaching allowance was made admissible by express stipulation in Annexure-3 itself. It is also submitted that the fact that petitioner was found eligible and was empanelled and appointed as Assistant Professor pursuant to advertisement (Annexure-2) shows that requirement of three years teaching experience or minimum 15 points for empanelment was waived in his case in view of exception carved out under clause 3 of the advertisement in the matter of appointment in the Department of Anesthesiology and other Departments. Accordingly, petitioner was empanelled in 1983 and appointed as Assistant Professor, admittedly a teaching post, which he joined on 4.6.1984. Annexure3 itself shows that it was issued as a routine transfer as the word has been mentioned there. Hence petitioners transfer being against teaching post, he was entitled to the benefits of teaching experience from his initial date of joining as Assistant Professor on 4,6.1984 for the purposes of determination of his seniority and length of service for consideration for posting on higher post of Associate Professor. Hence petitioners transfer being against teaching post, he was entitled to the benefits of teaching experience from his initial date of joining as Assistant Professor on 4,6.1984 for the purposes of determination of his seniority and length of service for consideration for posting on higher post of Associate Professor. It was submitted that by Annexure-5, petitioner was designated as Assistant Professor with effect from 4.6.1987 which shows that his entire length of service from 4.6.1984 as Assistant Professor and the post held by him from 14.2.1986 as Anesthetist in P.M.C.H. was being taken into account for three years teaching experience normally required for designation/appointment of incumbents as Assistant Professor in respect of other faculties. It was also submitted that since under the exception carved out in the advertisement (Annexure-2) petitioner was not required to fulfill the requirement of three years teaching experience for his appointment as Assistant Professor, which stood admitted by the respondents, while posting him as Assistant Professor by Annexure-2, requirement of three years of teaching experience was not required to be enforced in his case. Hence, instead of designating him as Assistant Professor with effect from 4.6.1987, he ought to have been treated as Assistant Professor from 4.6.1984 itself and ought to have been placed at serial no.16 in Annexure-5 considering his length of service on teaching post. Accordingly, he has a right to be considered for his posting on the higher post of Associate Professor by taking into account his working against teaching post from his initial date of joining as Assistant Professor i.e. 4.6.1984. During the pendency of the writ application, petitioner remained ignored by the respondents for consideration of his case for posting against higher post of Associate Professor by treating him as working against teaching post with effect from 4.6.1984 and other incumbents were given the benefit of promotion to higher post by Annexure-7 which petitioner challenged by adding juniors to the petitioner as party respondents in this case. He has further challenged the notification dated 8.7.2008 (Annexure-10) by which, after more than 10 years of his re-designation as Assistant Professor by Annexure-5 (though from a wrong date), he has been again designated as Anesthetist, completely wiping out his previous service on teaching post from 4.6.1984 itself. 29. Respondents in support of their various contentions have not produced any relevant document with their any of the affidavits. 29. Respondents in support of their various contentions have not produced any relevant document with their any of the affidavits. There is only statement in their pleading that there was a fresh advertisement in 1985 for preparation of fresh panel for appointment on vacant post of different grade in different Medical Colleges. They also merely assert that panel was prepared afresh in 1985 from which postings were made. Except these assertions of fact in their affidavits, no respondent has produced any documentary evidence or has disclosed any further detail in respect of said assertions of advertisement and panel so claimed to have been prepared. On an earlier date during arguments, this question was raised and learned counsel for the State had sought for and was granted adjournments to file affidavit producing materials on record to show that in fact there was an advertisement in 1985 and a panel was prepared in which name of the petitioner figured, to support their presumptive statement that petitioner must have applied afresh for his fresh empanelment for appointment against vacant post of Anesthetist. In spite of said indulgence granted to learned counsel for the State, only a supplementary counter affidavit was filed without any document in which said stand was only reiterated. Learned counsel for the State in Support of the said stand only referred to stipulations made on the back of Annexure-3 with statement that the same may be treated by this Court as sufficient evidence with regard to empanelment of the petitioner in 1985 panel. Stipulation on the back of Annexure-3 is to the effect that if the incumbents who were being posted by the said notification do not join their post within the stipulated time, their posting order shall be cancelled and after that their cases for posting from 1985 panel of the subject shall not be considered. Except for this, there is absolutely no material on record and the respondents have totally failed to produce any evidence, whatsoever, before the Court in support of their stand that there was fresh advertisement in 1985 for preparation of fresh panel for posting on different vacant posts in different Medical Colleges, including some vacant posts of Anesthetists. Annexure-3 itself shows that on account of transfer the incumbents named therein were posted on the post of Anesthetist in different Medical Colleges. Annexure-3 itself shows that on account of transfer the incumbents named therein were posted on the post of Anesthetist in different Medical Colleges. It is also specifically mentioned therein that they shall be entitled to additional allowance (Teaching) apart from their pay. 30. Although respondent nos.1 and 2 have averred in their counter affidavit that the post of Anesthetist was a non-teaching post, on the contrary, respondent no.7 has accepted that the post of Anesthetist was in the category of junior teaching post along with Registrars and Residents. In support of the same, this respondent has also produced document annexed as Annexure A/7. However, respondent no.2 also in his counter affidavit to I.A.No.4495 of 2004 has accepted later on that the post of Anesthetist along with Registrar and Resident were benefited with teaching allowance. As against this, petitioner has placed on record documents to show that the post of Anesthetist and Assistant Professor were in the same pay scale and were treated as equal at the relevant point of time. The Expenditure Statement, enclosed with Annexure-8 produced by petitioner along with his rejoinder to the counter affidavit, shows that the pay scale of Anesthetists and Assistant Professors was same. The only difference appearing from this document is that Assistant Professor was entitled to teaching allowance of RS.75/- per month. It is significant to note that by Annexure-3 petitioner and others were also made entitled to teaching allowance. Therefore, reading Annexure-3 along with Expenditure statement enclosed with Annexure 8 issued from the Department clearly establishes that at that point of time post of Anesthetist and Assistant Professor were in the same pay scale and Anesthetists, at the relevant time, were also assigned with the duty of teaching in lieu of which teaching allowance was made admissible to them also, like Assistant Professors. It is significant to note that whereas Annexure-A/7 is dated 9.1.1963, i.e. of almost 20 years back Annexure-8 is dated 30.7.1986, of the 'same year the petitioner was posted on the post of Anesthetist. Further, statement of Head of Department of Anesthesiology in P.M.C.H. in the Medical Council of India Inspection Form (Form-B) submitted to the Principal of the College, vide Annexure-9, also shows that the petitioner and others posted in the Department were being treated as Anesthetist-cum-Assistant Professor, meaning thereby, that besides the duties of Anesthetist, they were also imparting teaching to the students in the Department. Moreover, a very important contemporaneous notification, dated 7.11.1985, has been produced by the petitioner by way of Annexure-7 with his rejoinder to counter affidavit of respondent nos. 1 &2, which clearly establishes that posts of both, Anesthetists and Assistant Professors, were being treated at the relevant time as feeder post for promotion to the post of Associate Professors. By this notification, respondents had promoted 3 Anesthetists and 6 Assistant professors to the post of Associate Professors. 31. It is significant to note that, by impugned Annexure-5 dated 6.4.1998 itself, petitioner was designated as Assistant Professor, wrongly as claimed by the petitioner with effect from 4.6.1987. He has cont !1ued as such for more than 10 years, till, by Annexure-10 dated 8.7.2008 (with I.A. 4898/ 08), he was designated back as Anesthetist, totally depriving him of the benefits of teaching experience of these 10 years also. Thus the petitioner has rightly challenged the said Annexure-10 also in this case itself. During this 10 years, the case of petitioner was not considered for promotion on the post of Associate professor, although he had acquired post-graduate qualification of D.M. in 1982 and stood designated as Assistant professor with effect from 4.6.1987 with teaching benefits, whereas respondent no. 13, who got the qualification of D.M. in 1998 and was posted as Assistant Professor in 1990; respondent no. 14, who got the qualification of D.M. in 1986, Ph.D. in 1996 and was posted as Assistant professor from 1987 panel on 24.3.1994; respondent no. 15, who got diploma in 1984, qualification of D.M. in 1986 and was posted as Assistant professor from 1994 panel, all have been promoted to the post of Associate Professors by the respondents, vide Annexure-7 dated 5.9.2004. It may be pointed out again at the risk of repetition that petitioners entry into teaching cadre was not as Anesthetist but as Assistant Professor. Hence the notification no.176(17) dated 20.6.1996 had no relevance in his case and as such the said interim order of this Court directing it to be kept in abeyance could not operate against him to deprive him for consideration even on the basis of his such designation by Annexure-5. 32. Hence the notification no.176(17) dated 20.6.1996 had no relevance in his case and as such the said interim order of this Court directing it to be kept in abeyance could not operate against him to deprive him for consideration even on the basis of his such designation by Annexure-5. 32. In view of the exception clause in the advertisement (Annexure-2) and in view of admitted benefit of the same having been granted to the petitioner by empanelling him in 1983 for his direct appointment as Assistant Professor and his appointment as such in Patliputra Medical College, Dhanbad, the plea of the respondents that the petitioner was lacking three years teaching experience for his designation as Assistant Professor has also no legs to stand. Once petitioner was found eligible and was appointed as such, it cannot be accepted that he had to acquire three years teaching experience afresh for his fresh designation as Assistant Professor. No respondent has challenged the selection and appointment of petitioner as Assistant Professor in 1984 in Patliputra Medical College, Dhanbad. The plea of three years teaching experience for appointment/designation as Assistant Professors may be valid in respect of Anesthetists who were directly appointed pursuant to an advertisement and empanelment. However, that situation does not arise for consideration here in this case as the petitioners initial appointment itself was on the post of Assistant Professor and thereafter on the orders of the respondents, he was made to join on the post of Anesthetist upon his transfer. The stand of the respondents that impugned Annexure-5 was issued in the light of the Government Notification No.176(17) dated 20.6.1996, , which was ordered to be kept in abeyance by interim order of this Court passed in . C.W.J.C.No.4959 of 1997 is also not relevant for the purpose of this case as the petitioner is not seeking advantage of his direct appointment and working on the post of Anesthetist. Moreover, as admitted by the respondent concerned, said notification has been upheld by this Court by judgment passed in the said case on 9.2.2009, against which aggrieved parties have moved in appeal. 33. Moreover, as admitted by the respondent concerned, said notification has been upheld by this Court by judgment passed in the said case on 9.2.2009, against which aggrieved parties have moved in appeal. 33. In view of the conclusions arrived at by this Court that at the relevant point of time post of Anesthetist and Assistant Professor were in same pay scale and were assigned with teaching duties equally, with grant of teaching allowance equally to both, and since petitioners initial appointment itself was on teaching post as Assistant Professor, which was admittedly a feeder post for posting to higher post of Associate Professor, and that promotions to the post of Associate professors were being made from the post of Anesthetists also during the relevant period, the •question of level jumping as claimed by the respondents on the basis of judgment of this Court in the case of Dr. Hare Ram Singh also does not arise in the case. The distinction to be kept in mind in this case is that petitioners initial entry in the Medical College in teaching cadre was not as Anesthetist Admittedly and validly he entered in the teaching cadre of Medical Colleges as Assistant Professor. Therefore, only question which is relevant for the purpose of petitioner is whether his posting on the post of Anesthetist by Annexure-3 upon his transfer could deprive him the benefits of his continuity in teaching cadre so as to disentitle him for consideration of his posting on higher post of Associate Professor by dint of length of service on teaching post and seniority. Since this Court has found, on the basis of the pleadings and materials available on the record, that petitioner was posted in P.M.C.H. by Annexure-3 on the post of Anesthetist on the basis of his transfer by respondents, and at that point of time the said post was being' treated equally in all respects with Assistant Professors, this Court is of the view that petitioner should not be deprived of his services being counted from initial date of joining as Assistant Professor i.e. 4.6.1984 for the purpose of counting his length of service and seniority for his posting on the higher post of Associate Professor and further. As such, the Notification (Annexure10) has wrongly shown petitioner in the category of Anesthetist by showing his joining on the post from 14.2.1986 completely wiping out his joining on the teaching post of Assistant Professor on 4.6.1984. Findings 34. In the circumstances, in absence of any material to the contrary, this Court has to accept stand of the petitioner that his posting by Annexure-3 in P.M.C.H. on the post of Anesthetist was by way of routine transfer, which is supported by the word mentioned in the notification. The wordings on the back of the said notification, as referred to by learned counsel for the State, are hardly indicative enough that the names in the notification traveled therein only from a fresh panel prepared in 1985 for such posting, and not otherwise. It is significant to note that in the notification Annexure-2, which was admittedly issued on the basis of 1983 panel, no such word as it has been mentioned. This word necessary denotes continuity of service, unless otherwise established, and hence petitioner is entitled for the benefits of continuity of his service from 4.6.1984, his initial date of his joining in Dhanbad. It is also to be held that there is nothing on record to suggest that petitioner had applied or opted for, in response to an advertisement or otherwise, resulting in his posting on P.M.C.H. by Annexure-3 as Anesthetist, which could deprive him of the benefits of his past service, as suggested by the respondents. 35. Further, in view of the materials, as noticed above, this Court finds that, during the relevant period, posts of Anesthetists and Assistant Professors, were being treated as equal by the respondents for' all practical purposes, with same pay, scale and teaching allowance, and holders of both posts were considered and promoted as Associate Professors. 36. 35. Further, in view of the materials, as noticed above, this Court finds that, during the relevant period, posts of Anesthetists and Assistant Professors, were being treated as equal by the respondents for' all practical purposes, with same pay, scale and teaching allowance, and holders of both posts were considered and promoted as Associate Professors. 36. In view of the discussions above, this Court further holds that petitioner was not required to complete the three years teaching experience for his designation as Assistant professors and, since this Court has already held that the post of Anesthetist, during the relevant period, was at par with the post of Assistant professor in all respect, on which petitioner was posted on his transfer and as such he was entitled for benefits of continuity of service, it is held that petitioner is entitled for counting of his services with effect from 4.6.1984, the day he joined as Assistant professor in Patliputra Medical College, Dhanbad, pursuant to notification issued by the respondents, for the purposes of determining his seniority in the rank of Assistant Professor and for consequential promotion to higher ranks in the teaching cadre of the department of Anesthesiology in a medical college. Result 37. In the result, this writ application is allowed. Annexures- 5 with the main writ application as well as Annexure-10 with I.A. No. 4898 of 2008, are quashed to the extent the case of petitioner has net been considered or has wrongly be considered by denying him the benefits of teaching experience from initial date of his appointment as Assistant Professor and joining on 4.6.1984 and he has been designated back as Anesthetist. Respondents are accordingly directed to consider petitioner as having worked against teaching post continuously from initial date of joining i.e. 4.6.1984 for the purposes of seniority and to consider his case for posting on the higher post of Associate Professor and above on the basis of such seniority and revise gradation list accordingly with grant of all consequential benefits to him on the basis of placement of his name in the gradation list with promotion/posting on the post of" Associate Professor and above from the dates his immediate junior was granted the same. Respondents shall complete the " exercise of revision and publication of fresh' gradation list and shall grant such consequential benefits to petitioner within a period of three months from the date of receipt/production of a copy of this order. 38. In view of the consideration as made in paragraph 31 above, this Court finds that the petitioner was, at least, illegally deprived of consideration of his case for promotion between the date of issue of Annexure-S, i.e. 6.4.1998 (by which he was designated as Assistant Professor with effect from 4.6.1987 with teaching benefits) till the date of issue of Annexure-1O, i.e. 8.7.2008 (by which he was designated back as Anesthetist), whereas his juniors, particularly respondents nos. 13, 14 & 15 were bestowed with such benefit of promotion, for no conceivable reasons. This Court has already found above that petitioners entry into the teaching cadre of medical colleges wag not as Anesthetist but as Assistant Professor. Hence notification no. 176(17) dated 20.6.1996 had no relevance in this case. As such the order of this Court directing the said notification to be kept in abeyance could not be a ground for non-consideration of case of petitioner while considering and promoting his juniors. Therefore this Court is of the opinion that the petitioner deserves to be compensated for non-consideration of his case for ten years, illegally, which is quantified at Rs.50,000/- which shall also be paid to the petitioner within the aforesaid period. The State Government shall be at liberty to realize the same from salary of the person concerned, after complying with the principles of Natural Justice, who may be found responsible in the matter.