IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2716 of 2007 MUKTI NATH JHA, son of late Medni Kant Jha, Resident of village Fulwaria, P.S. Akbar Nagar, District Bhagalpur. Versus 1. THE STATE OF BIHAR, through the Chief Secretary, Government of Bihar, old Secretariat, Pana. 2. The Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 3. The Additional Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Pana. 4. The Director, Deshi Chikitsa, Department of Health, Medical Education, Government of Bihar, Patna. ----------- 2 17.09.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(i)Issuance of an order, direction or writ in the nature of mandamus commanding the respondent authorities specially the respondent nos.2 and 4 to consider the case of petitioner’s promotion on the post of Professor with effect from 1.3.1986, and consequent upon such consideration, the respondents concerned may further be directed to grant regular promotion to the petitioner on the post of Professor in Dravya Guna Department in any of the Ayurvedic Medical College in the State of Bihar with effect from 1.3.1986 with all consequential benefits., OR IN THE ALTERNATIVE Command the respondent authorities concerned to grant first time bound promotion to the petitioner on the post of Professor, Dravya Guna Department of the College with effect from 10.1.1995. (ii)Issuance of an order, direction or writ in the nature of mandamus commanding the respondent authorities concerned to grant due promotion to the petitioner under Assured Career Progression Scheme, with effect from the due date along with all of its consequential benefits. (iii)For issuance of an appropriate order, direction or writ in the nature of mandamus commanding the respondent authorities to reckon the inter-se seniority in the cadre of Reader as well as in the cadre of Professor in the Ayurvedic Colleges, 2 belonging to the administrative control of Director, Deshi Chikitsa i.e. respondent no.4. (iv)For issuance of an appropriate order, direction or declaration that the petitioner is eligible and is fully entitled and qualified for being promoted to the post of Professor “Dravya Guna” with effect from 1.3.1986 and the action of the respondent authorities in non-grant of promotion to the petitioner on existing vacancy of Professor in Ayurvedic Colleges in Bihar is ab initio void, illegal and arbitrary tantamounting to violation of Articles 14 and 16 of the Constitution of India.” Counsel for the petitioner at the out set would submit that since the petitioner has retired w.e.f. 31.5.2007 he is not going to press the prayer made in Paragraph No.1 (iii) as noted above. Counsel for the petitioner would next submit that the petitioner’s prayer for promotion w.e.f. 1.3.1986 is based on the premises that the petitioner had earlier been given promotion on the post of Professor by the private management, namely, Jh ;rhUnz ukjk;.k v"Vkax vk;qosZn egkfo/kky;] pEikuxj] Hkkxyiqj on the post of Reader w.e.f. 1.3.1981, and as the petitioner fulfils the criteria as laid down by the Central Council of Indian Medicine (C.C.I.M.) dated 5th August, 1989 requiring the total period spent by the teacher including five years of experience as a Reader/Lecturer and the petitioner had completed this period on 1.3.1986, he was definitely entitled for grant of such promotion w.e.f. 1.3.1986. Counsel for the State, however, has filed no counter affidavit and has taken a plea that the matter should be either adjourned or remitted back to the authority for considering the case of promotion of the petitioner. 3 In the opinion of this Court, the first part of submission of Mr. Jha, learned counsel for the petitioner, that every employee must be given two promotions in his service career, does not get support from any statutory provision. In fact there is no law which lays down that the every employee has to be necessarily given two promotions. Had it been so, then the total concept of promotion either by way of time bound promotion or A.C.P. would not have been implemented by the State Government of Bihar. The only difference between the Time bound promotion and regular promotion is this much that while the time bound promotion has to be invariably notified even from the date it becomes due but the regular promotion can be claimed from a date only when any junior is given such promotion. Mr. Jha, however, could not point out that any junior to the petitioner had been given such promotion on the post of Professor in the department of Dravyagun in the College w.e.f. 1.3.1986 or even on a later date till he was in active service. As with regard to cut off date of promotion of the petitioner, this Court would find it difficult to accept the date of 1.3.1986, only on the basis of his fulfilment of eligibility criteria as laid down by the C.C.I.M. It is well settled that for earning promotion not only the person has to be qualified and eligible in all respect but there has also to be vacancy. In this regard it has to be noted that though the college of the petitioner was taken over by the State Government his services on being screened and found unsuitable was not absorbed in government service till the matter 4 was decided by this Court on 21.8.1997 in C.W.J.C. No. 1103 of 1995. Subsequently by government notification dated 20.4.1999 his services were taken over only on the post of Reader ofcourse with effect from 10.1.1985 whereafter necessary concurrence/approval of B.P.S.C. for regularizing his service was awaited. As noted above, the case of take over and regularization of services of the petitioner had itself remained pending before the State Government as is as evident from the facts noted in the connected writ application, C.W.J.C. No.2799 of 2007, explaining that the Government had sent a proposal to the Bihar Public Service Commission in the year 2001 for regularization of services of the petitioner on the post of Reader and the Commission also had conducted interview of the petitioner in the year 2004. There is however nothing on record to show as to what further decision was taken by the Commission and the Government and as to whether the services of the petitioner could be ultimately regularized on the post of Reader. There seems to also some sort of dispute in the matter of continuation of service in the college inasmuch as his payment of salary for the period 10.1.85 to 31.3.2000 is still toe be decided. Thus the claim of regular promotion of the petitioner on the post of Professor cannot be decided till his services are regularized on the post of Reader and that is how the petitioner himself has filed a separate writ petition C.W.J.C. No. 2799/2007 for his regularization of service. Thus the whole matter of the petitioner is dependent on regularization of his service. Once such a decision is taken it will also be necessary for 5 the competent authority to consider the case of promotion of the petitioner from the due date. It is, however, made clear that if for any reason the petitioner will not be granted regular promotion on the post of Professor the respondents will be duty bound to at least consider his case for the grant of first time bound promotion to the petitioner, inasmuch as, in terms of resolution of the Finance Department dated 30.12.1981 if the petitioner's service is regularized on the post of Reader w.e.f. 10.1.1985 he would be entitled for grant of time bound promotion w.e.f. 10.1.1995. Similarly since the petitioner had continued in service till 31.5.2007 by which time A.C.P. Scheme of the Government had also came into force and therefore if the petitioner’s 24 years of regularized service is completed and he would also fulfil criteria of A.C.P. Scheme, the respondents have to also consider his such grievance for grant of A.C.P. Such exercise, therefore, for grant of promotion/Time Bound Promotion/A.C.P. must be completed as early as possible preferably within a period of six months from the date of regularization of services of the petitioner for which a separate direction is being issued by this Court in the connected writ application, C.W.J.C. No. 2799/2007. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)