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2013 DIGILAW 111 (PAT)

Vishnu Kumari v. State of Bihar

2013-01-23

AJAY KUMAR TRIPATHI

body2013
ORAL ORDER There is an old saying, ‘show me the man I will give you the law’. That seems to be true in matters of decision making in the Department of Health, Government of Bihar. Present case is one of the living example. That is why the Court has opined as it has above. 2. The present writ has been filed by petitioner because there is no uniformity in matters of decision making, especially in grant of promotion on various posts including the post of Professor and the date from which a person is entitled to beget that benefit by virtue of holding the post as a working arrangement. This is not the first instance of the kind, which has come to the Court but the facts are glaring enough for this Court to comment that all is not well with the health of the Health Department in matters of administrative decisions, which are taken and there are instances of adhocism and arbitrariness emerging, writ large from records. 3. The Court is not required to trace the entire history of the present litigation or the timeframe when the petitioner came into service under the State. We are concerned with the first arrangement, which came to be made on the post of Associate Professor,by virtue of notification contained in Annexure-16, a post which the petitioner has held since 23.9.1987 but came to be regularized only on 3.9.2005. The reason for the long gap in this decision making is not evident from the counter affidavit of the State. The second aspect is with regard to timeframe from which the petitioner would be entitled to beget the benefit of promotion on a substantive basis as a Professor in Pharmacology when identically placed persons have been extended benefit from the date of working arrangement or date of joining. 4. Shorn of other details, while by virtue of notification dated 11.9.1998 contained in Annexure- 2, petitioner was posted as Professor in Pharmacology at Muzaffarpur, which is known as Sri Krishna Medical College. Some confusion was sought to be created when the petitioner was not permitted to join on the ground that there was no vacancy on that post. 4. Shorn of other details, while by virtue of notification dated 11.9.1998 contained in Annexure- 2, petitioner was posted as Professor in Pharmacology at Muzaffarpur, which is known as Sri Krishna Medical College. Some confusion was sought to be created when the petitioner was not permitted to join on the ground that there was no vacancy on that post. However, on the intervention of the High Court and the decision rendered by it accepting the position that the holder of the post of Professor Dr Saket Bihari had already died on 20.9.1997, petitioner joined and continued in that capacity. Right from that time, her claim or case for substantive promotion to the post remained pending consideration before the respondent authorities. A notification finally did emerge on 22.5.2008 when the Department did feel obliged enough to give her status of a regular Professor from the date of the notification. This notification is Annexure-3. A corrigendum to the same was issued in terms of Annexure- 3/1 because of a minor typographical mistake with regard to the Department mentioned in Annexure-3. 5. Petitioner would not have had any grievance provided equals were treated alike and benefit of promotion was extended in the same manner in which all the Professors were placed. But this is not so, which would be evident from reading of Annexure 4 dated 21.10.2005. Averment in the writ application is that Dr (Cap) Nageshwar Prasad Yadav who was immediate senior to the petitioner, a fact not in dispute, was also posted in the Department of Pharmacology in officiating capacity by virtue of an earlier notification dated 14.5.1997. He was permitted to join on 26.4.1998. Though the notification takes note of the above fact and granted Dr. Yadav benefit of promotion from the date of his joining on 15.9.1997 but the financial benefit was extended from the date of taking charge i.e. 26.4.1998. The notification contained in Annexure – 4 further indicates list of large number of other doctors, who have been given regular promotion from earlier dates mostly relating to the year 1996-97 relating to various departments from the date of working arrangement. 6. The notification contained in Annexure – 4 further indicates list of large number of other doctors, who have been given regular promotion from earlier dates mostly relating to the year 1996-97 relating to various departments from the date of working arrangement. 6. If prima facie the persons, whose name appear in Annexure- 4, had been extended the benefit of substantive promotion from the date of their working arrangement then why should another yardstick be adopted by the respondents in matter of grant of such benefit in case of the present petitioner is not evident. The Court was looking for some light on this aspect of the matter, at least some averment, to make out a case distinguishing the case of the petitioner from the rest. Unfortunately, there is none. 7. Attention of the Court has also been drawn to this kind of adhocism prevailing in cases relating to other doctors, who had also not been promoted on the substantive post despite being made to work in working arrangement for long period. Patna High Court in its decisions has deprecated the conduct and action of the respondents. However, it makes no difference to them because they continue to take decision case -wise according to their understanding or convenience. The Court is tempted to at least refer to two decisions of the Court rendered in the case of Dr Ajit Singh v. the State of Bihar & ors., reported in 2011 (3) PLJR 528 as well as the decision in the case of Dr. Dharani Kant Issar v. State of Bihar & ors., reported in 2012 (1) PLJR 424. 8. The discussions made in the two decisions also show similar kind of adhocism or arbitrariness in decision making and, therefore, the petitioner has made out a case in her favour for a direction. 9. Another aspect which has been pointed out to this Court by learned senior counsel representing the petitioner is that the State itself had brought about an amendment in the year 2003, a copy of which is Annexure- 14 to the rejoinder filed on behalf of the petitioner to the counter affidavit on behalf of the respondents. This notification dated 21.2.2003 brought about changes in the earlier rules of 1997 contemplating grant of benefit of promotion on a substantive basis prior to 21.2.1997. This notification dated 21.2.2003 brought about changes in the earlier rules of 1997 contemplating grant of benefit of promotion on a substantive basis prior to 21.2.1997. If the Government itself had amended the service rules and had thought of granting promotion from a prior date for such working arrangement, why was this rule ignored in the case of the petitioner is also not being explained by the State. 10. In totality, therefore, It is a clear cut case of discrimination, which has been practised by the respondents without there being any reasonable cause. It is a case of violation of Articles 14 and 16 of the Constitution of India per se. 11. The writ application is allowed. A direction is issued upon the respondents that the petitioner would be entitled to benefit of substantive promotion and consequential benefits of substantive promotion at least from the date of her joining by virtue of Annexure- 2 dated 11.9.1998 with effect from 21.9.1997. The concerned notification in this regard amending Annexure- 3 or 3/1 must accrue in favour of the petitioner within a period of two months from the date of production/ communication of a copy of this order.