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2014 DIGILAW 128 (PAT)

Shambhu Mishra v. State of Bihar

2014-01-27

SHIVAJI PANDEY

body2014
ORDER Heard learned counsel for the petitioner and the State. 2. In this case, prayer has been made for quashing the Notification No.17/A1-18/10-516(17) dated 29th June 2010 to the extent whereby and whereunder the ad hoc promotion/ promotion under working arrangement granted to the petitioner to the post of Associate Professor has been regularized with effect from 18th October 2003 instead of 14th May 1997 and prayer has also been made to shift the date of promotion i.e. 18th October 2003 to 14th May 1997. A further prayer has been made for commanding the respondents to grant regular promotion to the post of Professor, General Surgery with effect from 1st December 2003, the date on which the petitioner joined the post of Professor in General Surgery at Patna Medical College Hospital, Patna with all consequential benefits, with 12 per cent annual interest from the due date till the date of actual a payment given to the petitioner in the event of shifting the date of promotion to the post of Associate Professor and granting the benefit of scale of Professor to the petitioner. 3. The Health Department carries checkered history in depriving persons of promotion at the proper time. It is one of such cases where the petitioner has been deprived of the substantive pay of Associate Professor from the appropriate date as well as petitioner has been deprived of altogether the benefit of the post of Professor, though he has officiated those posts having requisite qualification and experience. 4. It will be relevant to go into the facts of the case. The petitioner on completion of MBBS Course, was appointed vide Notification No. 2A/3-2013/71-1834(2) Swa. dated 29th April 1971 as Civil Assistant Surgeon, posted as Block Medical Officer at Katra, Muzaffarpur. Taking study leave, he completed P.G. Course and obtained Post Graduate decree in General Surgery in the year 1972 and from 29th April 1971 to 15th May 1986 he was posted at various places as Medical Officer. He was posted as Resident Medical Surgeon, Department of Surgery, Magadh Medical College, Gaya from 7th April 1977 to 13th February 1978 and 14th February 1978 to 7th April 1980 at P.M.C.H., Patna and as Registrar, Surgery Department of General Surgery, D.M.C.H., Laheriasarai, Darbhanga from 14th October 1980 to 15th January 1986. 5. He was posted as Resident Medical Surgeon, Department of Surgery, Magadh Medical College, Gaya from 7th April 1977 to 13th February 1978 and 14th February 1978 to 7th April 1980 at P.M.C.H., Patna and as Registrar, Surgery Department of General Surgery, D.M.C.H., Laheriasarai, Darbhanga from 14th October 1980 to 15th January 1986. 5. Thereafter vide Notification No. 275(17) dated 15th May 1986, petitioner was appointed as Assistant Professor, General Surgery in the Department of Surgery at P.M.C.H., Patna. Accordingly, on the same date, he joined the said post and remained upto 14th May 1997. Petitioner and others vide Notification No. 149(17) dated 14th May 1997were posted as Associate Professor in their own pay scale under the working arrangement in view of order passed in CWJC No.6815 of 1994 dated 12th June 1995 by which this Court has directed to abolish the ad hoc appointment and appoint qualified persons on regular basis. Petitioner remained on the post of Associate Professor, General Surgery at PMCH, Patna upto 30th November 2003. Thereafter vide Notification No. 1250(17) dated 1st December 2003 the petitioner and other Doctors of the State Medical Education Service Cadre were posted as Professors in different disciplines in their own pay scale of Assistant Professor, though they were officiating the post of Professor. The petitioner joined the said post at PMCH, Patna on 1st December 2003 and continued till his superannuation with effect from 31st December 2003 but the post of Associate Professor or Professor which the petitioner was officiating was not regularized rather he continued to get the salary of Assistant Professor. The meeting of Departmental Promotion Committee (in short, ‘DPC’) was held on 14th December 2007 and the said DPC found the petitioner fit for promotion to the post of Associate Professor, Department of Surgery from the date of his officiation i.e. 14th May 1997. Some similarly situated Doctors vide Notification No. 1078(17) dated 26th August 2008 were regularized to the post of Professor either from the date of Notification or from the dates mentioned in the Notification. 6. One Dr. Some similarly situated Doctors vide Notification No. 1078(17) dated 26th August 2008 were regularized to the post of Professor either from the date of Notification or from the dates mentioned in the Notification. 6. One Dr. Nirmal Prakash filed CWJC No. 1497 of 2003 and this Court has quashed the entire Notification dated 9th December 2013 and liberty was given to the respondents to proceed in accordance with law afresh after preparation of the gradation list in the discipline of General Surgery is finalized and thereafter another case was filed vide CWJC No. 2688 of 2005 in which vide order dated 26th November 2006, direction was given and in non-compliance, MJC No. 157 of 2007 was filed by Dr. M.K. Singh. When the Court had directed to file an affidavit showing compliance, thereafter in compliance of order, the Government has come up with Notification contained in Memo No. 17/A-28/07 – 419(17) dated 17th May 2010. The petitioner along with others was promoted substantively to the post of Associate Professor in the scale of Rs.12,000-16,500/- with effect from 12th August 2008 and thereafter the said Notification was substituted by another Notification No. 17/A1-18/10 – 517(17) dated 29th October 2010 whereby and whereunder the date of promotion to the post of Associate Professor has been shifted to 18.10.2003. 7. In this case contention has been raised that the ad hoc promotion system was abolished in pursuance of order passed in the case of Saryug Prasad Vs. State of Bihar (LPA No.1001 of 1999 and thereafter the petitioner was made Associate Professor in his own scale of pay under the working arrangement. In the year 1997, the Bihar Medical Education Service has been made a separate cadre from the Bihar Health Service and a separate Rule has been framed for those in Bihar Medical Education Service, the Service Conditions are regulated including promotion under the aforesaid Rule. 8. In the year 1997, the Bihar Medical Education Service has been made a separate cadre from the Bihar Health Service and a separate Rule has been framed for those in Bihar Medical Education Service, the Service Conditions are regulated including promotion under the aforesaid Rule. 8. Counsel for the petitioner submits that on the date the petitioner was promoted as Associate Professor under the working arrangement in the scale of Assistant Professor, he was having the requisite qualification and experience for substantive promotion and in all fairness he should have been granted the benefit of pay scale of Associate Professor from the day of his officiation, that too, in a situation when DPC has considered the case of petitioner and others, found the petitioner fit for promotion/ to hold the said post from the date of officiation and thereafter he should also be considered to the post of Professor on substantive basis though he was promoted under the working arrangement and having requisite qualification of the said post. There is no justification for the respondents to ignore the case of petitioner and to deprive him from the post of Professor and reliance has been placed on the judgments passed in CWJC No. 12453 of 2010 (Dr. Sachchidanand Sharma Vs. State of Bihar and others), CWJC No. 13132 of 2012 (Dr.(Mrs.) Geeta Singh Vs. State of Bihar and others), CWJC No. 5451 of 2006(Dr. Ajit Singh Vs. State of Bihar and others) and 2012(1) PLJR 424 (Dr. Dharni Kant Isser Vs. State of Bihar and others) 9. Petitioner claims that he should be given the benefit of promotion on substantive post of Associate Professor from the date of his first officiation to the post of Associate Professor and this Court should also direct the respondents to promote the petitioner substantively to the post of Professor along with pay as also the consequential benefits from the date of his officiation. 10. Counsel for the petitioner has further drawn attention of this Court to Annexures-11 & 12 and submitted that they were working as Associate Professor under the working arrangement and have been granted substantive promotion from the date of their officiation and, as such, the act of the State in not giving same benefit to the petitioner as has been given to the other amounts to hostile discrimination and violates the provisions of Article 14 &16 of the Constitution of India. 11. 11. The State has contradicted the argument of the petitioner, raised the issue that there is no allegation of promoting any junior to the petitioner before the due date so much so that Article 16 of the Constitution of India does not envisage to grant promotion, it only provides for consideration for promotion. 12. It has further been submitted by the counsel for the State that the judgment relied by the petitioner are completely not applicable so much so that the reliance that has been placed on the judgment of Saryug Prasad (supra) is misplaced as in that case no direction has been given to grant promotion substantively from the date of officiation. He has further submitted, on misplaced argument in Dr. Sachchidanand Sharma’s case was decided and, as such, petitioner is not entitled to any relief as has been sought in this petition. 13. In Saryug Prasad’s case this Court has criticized the action of the Government in the manner Saryug Prasad was promoted to the post of Associate Professor but was not given the scale of pay of Assistant Professor and directed to fill up the post in regular manner either by promotion or recruitment within four months even if the appointments are not made within four months from the date of order, ad hoc arrangement would be terminated. 14. Ajit Singh’s case (supra) has relied on the order of Saryug Prasad (supra) and specifically considered the manner, the Doctors having requisite qualification and experience are asked to discharge the work of higher post in the pay scale of lower post for years together and passed the order in favour of Ajit Singh (supra), in pursuance thereof their services were regularized with retrospective effect with consequential benefit. The Court has also taken note that in the year 1997, a separate Rule has been framed by the Government as Bihar Medical Education Service Rule 1997, a separate cadre completely bifurcating the Bihar Health Service. In the 1997 Rule, the eligibility criteria for promotion to the post of Associate Professor, experience of 5 years as Assistant Professor has been provided. The Court considered the facts and circumstances and directed regularization. Ajit Singh’s case (supra) was tested before the Division Bench and the Division Bench has approved the view of the single Judge and rejected the submission of the State. The same view has been taken in Dr. The Court considered the facts and circumstances and directed regularization. Ajit Singh’s case (supra) was tested before the Division Bench and the Division Bench has approved the view of the single Judge and rejected the submission of the State. The same view has been taken in Dr. Sachchidanand Sharma (supra) and Dr. (Mrs.) Geeta Singh (supra). 15. In the present case, the petitioner was asked to officiate the post of Associate Professor and on that date there is no dispute that the petitioner was possessing the requisite qualification and experience as Associate Professor. DPC found him fit for being promoted to the post of Associate Professor The impugned Notification does not disclose the reason and circumstances for granting benefit of promotion from 18th October 2003, not from the date of officiation when in identical cases, the Govt. granted promotion from the date of officiation. 16. This Court feels that the petitioner is entitled to the benefit of Associate Professor with effect from 14th May 1997 i.e. from the date of officiation and it is directed to shift the date of promotion of the petitioner from 18th October 2003 to 14th May 1997 and petitioner will be entitled to consequential benefit. It is also a fact that the petitioner was promoted to the post of Professor having found requisite qualification, including experience to the post of Professor. It will be in the ends of justice the case of petitioner be also placed before the next DPC which will consider the case of petitioner for promotion to the post of Professor and if he is found fit for promotion, he would be given all consequential benefits. 17. Accordingly, this petition is allowed with the aforesaid observations and direction. ?