IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.465 of 2006 IN CIVIL WRIT JURISDICTION CASE No. 11332 of 2004 ==================================================== Dr.Vishvendra Kumar Sinha, son of late Chakrapani Garain, Assistant Professor (Orthopaedics), Patna Medical College and Hospital, P.S.- Pirbahore, Town and District-Patna. …. …. Appellant/Not party in connected writ Versus 1. Dr. Narendra Narain Rai, son of Shri Laxmi Narain Rai, resident of Sunder Sadan, Pakri, Ara, District-Bhojpur, presently residing at Dharmshala Road, P.O. and P.S. Kadankuan, Town and District-Patna. …. …. Petitioner-Respondent 1st Set 2. The State of Bihar. 3. The Secretary, Department of Medical Education, Family Welfare and Indigenous Medicines, Government of Bihar, New Secretariat, Patna. 4. The Additional Secretary, Department of Medical Education, Government of Bihar, New Secretariat, Bihar, Patna. 5. The Deputy Secretary, Department of Medical Education, Family Welfare and Indigenous Medicines, Government of Bihar, Patna. 6. The Additional Director, Medical Education, Government of Bihar, Patna. 7. The Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna. 8. The Director-in-Chief, Health Services, Government of Bihar, Patna. …. …. Respondents-Respondents 2nd Set. ==================================================== WITH LETTERS PATENT APPEAL No.486 of 2006 IN CIVIL WRIT JURISDICTION CASE No. 11332 of 2004 ==================================================== 1. The State of Bihar. 2. The Secretary, Department of Medical Education, F.W. and Indigenous System of Medicines, Government of Bihar, New Secretariat, Patna. 3. The Additional Secretary, Department of Medical Education, Government of Bihar, New Secretariat, Patna. 4. The Deputy Secretary, Department of Medical Education, F.W. and Indigenous System of Medicines, Government of Bihar, Patna. 5. The Additional Director (Medical Education), Government of Bihar, Patna. 6. The Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna. 7. The Director-in-Chief, Health Services, Government of Bihar, Patna. …. …. Appellants/Respondents Versus Dr. Narendra Narain Rai, son of Shri Laxmi Narain Rai, resident of Sunder Sadan, Pakri, Ara, District-Bhojpur, presently residing at Dharmshala Road, P.O. and P.S. Kadankuan, Town and District-Patna. - 2 - …. …. Respondent/Petitioner ==================================================== Appearance : (In Letters Patent Appeal No.465 of 2006) For the Appellant: Mr. Rajendra Prasad Singh, Senior Advocate with Mr. Rakesh Kumar Singh, Advocate Mr. Mukesh Kumar Singh, Advocate Mr. Niranjan Kumar, Advocate For the Respondent No.1: Mr. Pushkar Narain Shahi, Advocate For the Respondents 2 to 8: Mr. D.K.Sinha, AAG-2 (In Letters Patent Appeal No. 486 of 2006) For the Appellants: Mr. D.K.Sinha, AAG-2 For the Respondent: Mr. Pushkar Narain Shahi, Advocate with Mr. Ritesh Kumar No.1, Advocate ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN JUDGMENT The 25th February 2011 (Per: HONOURABLE THE CHIEF JUSTICE) These two appeals preferred under Clause 10 of the Letters Patent arise from the judgment and order dated 26th April 2006 passed by the learned single Judge in above C.W.J.C. No. 11332 of 2004. The Letters Patent Appeal No. 465 of 2006 is preferred by one Dr. Vishvendra Kumar Sinha, at present Associate Professor (Orthopaedics), Patna Medical College and Hospital. It is the grievance of the said appellant that the impugned judgment and order, if implemented, would adversely affect his seniority as an Associate Professor and that the respondent no.1-the writ petitioner will gain undue advantage in the matter of seniority and further promotion. The Letters Patent Appeal No. 486 of 2006 has been preferred by the State Government. The Letters Patent Appeal No. 465 of 2006 is admitted to final hearing subject to its maintainability. The facts, shorn of unnecessary details, leading to the - 3 - present appeals are as under:- The respondent no.1 Dr. Narendra Narain Rai (hereinafter referred to as „the petitioner‟) was, under notification dated 4th August 1983 appointed by the State of Bihar as Civil Assistant Surgeon in Bihar State Health Services. On his joining the petitioner was posted in Sandesh Block of Bhojpur district. After joining as Civil Assistant Surgeon the petitioner availed of the study leave and pursued higher education to obtain a Diploma in Orthopaedics in the year 1985 and a degree of M.S. (Orthopaedics) in the year 1987. His service as Civil Assistant Surgeon was regularized on 31st December 1986. Once again the petitioner availed of ex-India study leave for three years from 1990 to 1993 and obtained the qualification of M.Ch. (Orthopaedics) and F.R.C.S. from England. Since his return from the study leave he was posted as Medical Officer at Referral Hospital, Paliganj, District-Patna on 21st October 1993. While serving as Medical Officer the petitioner applied for appointment to the post of Registrar in Orthopaedics as a direct recruit. Pursuant to his selection and appointment, the petitioner was posted as Registrar, Department of Orthopaedics at Jawaharlal Nehru Medical College and Hospital, Bhagalpur under Government Notification dated 9th May 1994. Pursuant to the said notification he reported for duty on 13th May 1994. On 14th May 1994 he proceeded on leave up to 20th May 1994. On expiry of the period of the said leave he did not report for duty at Bhagalpur. In view of his continuous absence without leave, under order dated 4th September 1996, the petitioner was placed under suspension. While under suspension his headquarter was kept at Patna. During the period of suspension he remained at Patna. Although the said suspension order was revoked on 17th February 1997 the petitioner did not report to - 4 - duty at Bhagalpur until 22nd December 1997. In the meantime, under Notification dated 21st May 1997, the State of Bihar, in exercise of powers conferred by proviso to Article 309 of the Constitution, framed The Bihar Medical Education Services Cadre and its Constituent Cadres Recruitment Rules, 1997 (hereinafter referred to as “the Rules”). Under Rule 5 of the said Rules the teaching cadres of Resident Doctor, Registrar, Assistant Professor, Associate Professor, Professor and Principal in the medical colleges and hospitals are consolidated under one service, namely, Bihar Medical Education Services. The said Rule further provided that the officers already serving on the aforesaid posts would be required to submit their option by the specified date either to continue in the Bihar Medical Education Service or to return to the Bihar Health Service. It is the case of the petitioner that pursuant to the aforesaid Rule 5, he being a Registrar in a Medical College and Hospital, he had the option to continue on the said post in the Bihar Medical Education services. He had accordingly submitted his option in the requisite form before the specified date. Photocopy of the said option form dated 10th July 2007 is annexed to the rejoinder affidavit dated 25th January 2011 filed by the petitioner. By virtue of Rule 5 (Kha) of the Rules the post of Registrar was converted into that of Lecturer. Thus, the petitioner became a Lecturer in the Bihar Medical Education Services by operation of law. As the petitioner failed to report for duty at Bhagalpur on revocation of the order of suspension, his joining report submitted on 23rd December 1997 was not accepted by the Superintendent, Jawaharlal Nehru Medical College and Hospital, Bhagalpur. On 19th January 1998 the petitioner made a representation to the State Government for suitable posting. The order of posting the petitioner as Orthopaedics Surgeon at Sadar Hospital, Dumka (now in the State of Jharkhand) was made on 30th - 5 - June 1998. The petitioner claimed that on receipt of the order of posting he reported for duty at Dumka on 30th June 1998 i.e. on the same day. The Civil Surgeon-cum-Chief Medical Officer, Dumka did not accept his joining report for want of vacancy. One Dr. Shesh Nath Jha was already functioning as an Orthopaedics Surgeon at Dumka. Since 1st July 1998 the petitioner continued to represent to the State Government to give him appropriate posting in the Medical Education Services. Nevertheless, in view of the bifurcation of the State of Bihar effective from 15th November 2000, the petitioner‟s service was deemed to be transferred to the State of Jharkhand. The petitioner protested and claimed to be the employee of the State of Bihar. A long drawn correspondence ensued until the petitioner‟s name was included in the list of Doctors allotted to the State of Bihar published in the month of June 2003. Once again the petitioner started representing for his posting in teaching cadre. In the meantime, the State Government under its Notification dated 22nd March 2004 declared that the Registrar and Resident Medical Officers of the Medical Colleges and Hospitals, who had opted to continue in the Bihar Medical Education Services, were deemed to be Lecturers from 21st May 1997 and Senior Residents with effect from 21st February 2003. The petitioner‟s name did not appear in the said Notification; nor did his name appear in the provisional seniority list of Senior Residents published under another Notification of 22nd March 2004. Under Notification dated 24th March 2004 the Lecturers/Senior Residents in different specialties were appointed as Assistant Professors. The petitioner‟s name was not included in the said Notification also. Feeling aggrieved the petitioner filed the above C.W.J.C. No. 11332 of 2004 under Article 226 of the Constitution for a direction to the respondents, “to forthwith post the petitioner on - 6 - any appropriate teaching post in the Department of Orthopaedics in any Medical College of the State of Bihar in terms of his seniority and choice and also after taking into account other relevant factors including the place of posting of the wife of the petitioner”; “to grant appropriate seniority to the petitioner as Lecturer in Orthopaedics after deeming him to automatically become a Lecturer in Orthopaedics upon coming into force of the Bihar Medical Education Service Cadre and Recruitment to its Cadre posts Rules, 1997 and to give consequential benefits to such seniority”; to grant any other incidental/consequential or other appropriate relief or reliefs to which the petitioner may be found entitled”. The petition was contested by the State of Bihar. The Additional Director, Medical Education and Health made counter affidavit on behalf of the State authorities. The State denied that the petitioner, pursuant to the posting at Dumka reported at Dumka on 30th June 1998 and that on 21st May 1997 the petitioner was holding the post of Registrar. It is denied that the petitioner became Lecturer by operation of law as alleged. Pending the writ petition, for his unauthorized absence from service from 1st July 1998 till the date, under Notification dated 24th September 2004, the petitioner was once again placed under suspension. We are informed that in the consequent disciplinary proceeding held against the petitioner, on 18th September 2008 the petitioner was ordered to be dismissed from service. The said order of dismissal has been set aside by this Court (Coram: J.N.Singh, J.) on 13th September 2010 in C.W.J.C. No. 1006 of 2008 [2010(4) PLJR 1012]. The above writ petition came up for hearing on 28th March 2006. The learned single Judge (Coram : Narayan Roy, J, as His Lordship then was) was pleased to direct the State Government, - 7 - “to take an appropriate decision in the matter on the basis of the enquiry report submitted at the earliest possible and within a period of two weeks from today. ……in case no appropriate decision is taken by the authorities within two weeks as directed, the order of suspension passed against the petitioner shall stand revoked automatically.” In view of the above order, under Notification dated 25th April 2006 the suspension order dated 24th September 2004 was revoked with immediate effect. The learned single Judge, under the impugned judgment and order, took note of the above referred order dated 25th April 2006 and observed, “it appears that the authorities are not proposing to take any decision against the petitioner.” The learned single Judge presumed that the state authorities had decided not to proceed against the petitioner and believed that the petitioner had served as Registrar at Bhagalpur till December 1997. In the premises, the learned single Judge was of the opinion that the petitioner was required to be considered for promotion to the post of Assistant Professor Orthopaedics and be restored seniority. The learned single Judge also observed that the petitioner was directed to report at the headquarter and thereby his status was restored at par with other persons who were made Registrars and subsequently promoted to the post of Assistant Professor, Orthopaedics. Consequently, the learned single Judge directed the State Government to consider the case of the petitioner for promotion and appropriate posting in the post of Assistant Professor, Orthopaedics as per 1997 Cadre Rules and to give all consequential benefits. Therefore, the present appeal. Learned advocates appearing for the appellants have assailed the judgment of the learned single Judge. In the submission of the learned advocates in the fact-situation recorded hereinabove - 8 - the petitioner could not have been ordered to be restored seniority nor his promotion can be governed by such seniority. The appellant in Letters Patent Appeal No. 465 of 2006 has been continuously serving in the Bihar State Medical Education Services as Lecturer, as Assistant Professor and now as Associate Professor. The petitioner, who has never rendered actual service cannot be given advantage over the said appellant. Learned advocate Mr. Pushkar Narain Shahi has appeared for the petitioner. He has supported the judgment of the learned single Judge. He has submitted that the petitioner is a highly qualified Orthopaedic Surgeon. If he is not allowed to work in the Medical Education Services as ordered by the learned single Judge it shall be a loss to the medical education. With his qualifications and the experience the petitioner should not be denied the teaching post in a Government Medical College and Hospital. He has submitted that it was the error of the Government in not allowing the petitioner to resume duty at Bhagalpur after revocation of the suspension order in the month of February 1997. Again it was the error of the State Government in posting the petitioner at Dumka on 30th June 1998 where there was no vacancy. Once again the State Government fell into error in treating the petitioner as an employee of the State of Jharkhand and not issuing the order posting the petitioner in the State of Bihar. The entire period, therefore, should be held to be a compulsory waiting period. The petitioner should not be made to suffer on account of the error on the part of the Government functionaries. On perusal of the preamble and the objects and reasons of the Notification dated 21st May 1997 it is apparent that what the State of Bihar intended was to bifurcate the then cadre of Bihar Health Services into two separate cadres to create a separate Bihar - 9 - State Medical Education Services. A hierarchy of teaching posts were consolidated under one cadre, namely, Bihar State Medical Education Services. The doctors who were already serving on the teaching posts were given option either to continue in the Medical Education Services or to revert back to the Health Services. The posts of Resident Doctors and the Registrars were with effect from 21st May 1997 converted into the posts of Lecturer, the lowest in the hierarchy of the teaching posts. Those who did not submit their option by the specified date were reverted to the parent cadre, namely, Bihar State Health Services. Rule 8(2) of the Rules provides for promotion. Clause (Ka) thereof provides for promotion of the Lecturer to the post of Assistant Professor on the basis of seniority, educational qualification, research papers published in the national or international journals etc. For such promotion a Lecturer must have the minimum four years of teaching experience as Lecturer. Clause (Kha) thereof provides for promotion to the post of Associate Professor from that of the Assistant Professor on the basis of seniority, teaching experience, research work etc. For such promotion an Assistant Professor must have a minimum five years of teaching experience as an Assistant Professor. The facts stated hereinabove are gathered from the record and are not disputed. Though the petitioner has made a categorical statement that he did opt for Medical Education Services within the specified date the said statement is not denied. We, therefore, proceed on the premise that the petitioner did opt for continuation in the Medical Education Services and that he submitted the option in the requisite form on or before the specified date. The glaring fact which has gone unnoticed by the learned single Judge is that though the petitioner was appointed as a Registrar, a teaching post, he never served as such. After joining duty - 10 - at Jawaharlal Nehru Medical College and Hospital, Bhagalpur on 13th May 1994, he proceeded on leave on 14th May 1994, never to return till December 1997. It is not believable that though the petitioner‟s headquarter was maintained at Patna while under suspension, the petitioner was not aware of the order dated 17th February 1997 of revocation of the order of suspension. On revocation of the order of suspension the petitioner was expected to immediately report for duty at Bhagalpur which he did not do for ten months. He reported for duty on 23rd December 1997 after the post was already filled in. It is undisputed that though he was posted at Dumka he did not serve at Dumka for a day. There is nothing on record to support that the petitioner did report for duty at Dumka on 30th June 1998 as averred by him. We are unable to believe that the petitioner could have reported for duty at Dumka on 30th June 1998 the date of his posting order. Further it is clear that the petitioner did not want to move out of Patna. He, therefore, did not serve either at Bhagalpur or at Dumka. The tenor of the writ petition and the relief prayed for also disclose his mind that he is not ready to serve at any place but at Patna. In the writ petition he has asked for suitable posting keeping in view the posting of his wife at Patna Medical College and Hospital. As we have already seen, the Rules of 1997 provides for four years‟ teaching experience as a Lecturer for promotion to the post of Assistant Professor and the teaching experience of five years as Assistant Professor for promotion to the post of Associate Professor. The petitioner‟s claim for promotion as Assistant Professor or Associate Professor is totally misconceived as the petitioner has not gained teaching experience either as a Lecturer or as an Assistant Professor. Even if we presume that the petitioner was restrained from performing his duty as Registrar, the fact remains that the petitioner has not gained requisite teaching experience. In our - 11 - opinion, the learned single Judge has erred in issuing directions to consider the case of petitioner for promotion and appropriate posting on the post of Assistant Professor (Orthopaedics). It may further be noted that it has now been placed on record that all along the petitioner was carrying on profession as an Orthopaedic Surgeon at Patna. As the petitioner was gainfully employed, the order for consequential benefits which would necessarily include the back wages, is erroneous. In our opinion, the above referred facts disclose that the petitioner was not willing to serve at Bhagalpur or at Dumka. Since his posting at Bhagalpur in the month of May, 1994 he has not served as Registrar or on any other post in the Medical Education Services for a single day. In absence of the actual teaching experience gained by the petitioner either as a Registrar/Lecturer or as an Assistant Professor, his claim for promotion cannot be countenanced. The petitioner is, therefore, not entitled to any relief. For the aforesaid reasons, we allow these appeals. The impugned judgment and order dated 26th April 2006 is set aside. C.W.J.C. No. 11332 of 2004 is dismissed. The parties will bear their own cost. Jyoti Saran, J. Patna High Court Dated 25th February 2011 NAFR/Pawan/- (R.M. Doshit, CJ) I, agree. (Jyoti Saran, J)