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2014 DIGILAW 129 (PAT)

Ramesh Prasad Singh v. State of Bihar

2014-01-27

SHIVAJI PANDEY

body2014
ORDER Heard learned counsel for the petitioner and the State. 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 15th 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 quashing the Notification vide Memo No. 17/A1-01/07 – 1078(17) dated 26th August 2008 to the extent whereby and whereunder ad hoc promotion to the post of Professor, Department of Surgery has been regularized with effect from 31st July 2007 i.e. the date of superannuation, prayer has been made to shift the date to 12th December 2003 i.e. the date the petitioner joined the post of Professor with all consequential relief and also to squash letter No. 17/A1 – 17/2010 – 285(17) dated 17th March 2011 written by Deputy Secretary whereby request to shift the date of Associate Professor and Professor has been rejected. 2. 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. 3. It will be relevant to go into the facts of the case. The petitioner on completion of MBBS Course, was appointed vide Notification No. 7746(2) date d 10th December 1973 as Civil Assistant Surgeon in Bihar Health Service Cadre, posted in Patna Medical College Hospital, Patna, accordingly, joined on 15th December 1973. He worked as Assistant Civil Surgeon at different places. Petitioner was posted as Resident Surgeon vide Notification No. 827(1) dated 28th January 1979 at Nalanda Medical College Hospital, Patna where he joined on 17th March 1979.. Taking study leave, during 26th September 1979 to 7th August 1980, he completed P.G. Course and obtained Post Graduate decree in General Surgery in the year 1980 and again joined the aforesaid post and later on study leave was regularized. Taking study leave, during 26th September 1979 to 7th August 1980, he completed P.G. Course and obtained Post Graduate decree in General Surgery in the year 1980 and again joined the aforesaid post and later on study leave was regularized. Petitioner was posted as Administrative Officer, P.M.C.H., Patna vide Notification No. 1008(2) dated 24th September 1992, joined on the same day. 4. Thereafter vide Notification No. 375 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 Jawahar Lal Nehru Medical College & Hospital, Bhagalpur on 12th December 2003 and continued till his superannuation with effect from 31st July 2007 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. 5. One Dr. 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. 5. 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 – 516(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. The petitioner was promoted to the post of Professor with effect from 31st July 2007 vide Notification dated 26th August 2008 but he should have been given the promotion to the post of Professor from 12th December 2003. The petitioner had filed representation dated 20th May 2010 for granting promotion from the date of officiation as has been given to others but his representation was rejected vide letter dated 17th March 2011. 6. 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 was 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. 7. In the year 1997, the Bihar Medical Education Service was 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. 7. 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. Similarly, petitioner should have been given promotion to the post of Professor from the date of officiation in stead of 31st July 2007 as on the date of his officiation to the post of Professor he was fulfilling all requisite qualification for the said post. 8. In support of his case, petitioner placed reliance 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 basis to the 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 along with pay of Professor from the date of officiation, as also the consequential benefits of the post of Associate Professor and Professor. 10. 10. Counsel for the petitioner has further drawn attention of this Court to Annexures-14 & 15 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. 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. It is 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 from 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. 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. Similarly petitioner was posted as Professor officiating basis with effect from 1st December 2003 and later the petitioner was promoted on substantive basis vide Notification dated 26th August 2008 with effect from 31st July 2007 not from the date of officiation when on that date he was fulfilling all the requisite qualification to the post of Professor. 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 date of promotion to the post of Professor be shifted from 31st July 2007 to the date of officiation subject to the condition availability of post of Professor with all consequential benefit. 17. Accordingly, this petition is allowed with the aforesaid observations and direction. ?