IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.1804 OF 1997 DR.SHAMBHU NATH CHAUDHARY, DR. SHAMBHU NATH CHAUDHARY, S/O LATE KISHORE CHAUDHARY, RETIRED PROFESSOR AND HEAD OF UPGRADED DEPARTMENT OF SURGERY OF DARBHANGA MEDICAL COLLEGE AND HOSPITAL, AT PRESENT RESIDES AT MOHALLA BALBHADRAPUR, P.O. LAHERIASARAI, P.S. LAHERIA, DISTRICT DARBHANGA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER & SECRETARY CUM DIRECTOR IN CHIEF, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, HEALTH SERVICES, GOVT. OF BIHAR, PATNA. ………………………RESPONDENTS. ----------- 07/ 14.10.2011 The prayer of the petitioner in this writ application is to quash the order dated 06.08.1996 passed by the Copmmissioner/Secretary of the department of Health and Family Welfare, whereby and whereunder, the date of promotion of the petitioner on the post of Professor of Surgery in Darbhanga Medical College and Hospital has been held as 23.04.1970 as against 28.08.1967, claimed by the petitioner. From the averments made in the writ application, it becomes clear that the petitioner has claimed the date of promotion on the post of Professor in Surgery on the basis of completing his Kalawadhi of five years on the post 2 associate Professor on 28.08.1967. It is the case of the petitioner that as he became eligible for promotion on the post of Professor on 28.08.1967, he too should have been notified as Professor from that date and not from 23.04.1970. In this regard, emphasis has also been given on the aspect that the petitioner being the senior most teaching faculty in Darbhanga Medical College and Hospital was assigned the post of Professor by way of working arrangement w.e.f., 01.07.1967 and as such in view of the vacancy also being available on the post of Professor, there was no justifiable reason for not allowing the promotion of the petitioner immediately after completion of a period of five years of his eligibility and on the lower post of associate Professor, which he had completed on 28.08.1967. In this case a counter affidavit has been filed, wherein, it has been explained that in case of regular promotion, the petitioner alone could not have been promoted merely on completion of the period of Kalawadhi, inasmuch as, the promotional 3 post of Professor is a State cadre post in which all the Associate Professors have to be considered after following the prescribed procedure and formalities including obtaining clearance from Personnel Department. It has also been explained that a person senior to the petitioner on the post of Associate Professor namely Dr. R.N. Tiwary was in service and posted in Ranchi Medical College and Hospital and therefore, even after emergence of the first vacancy, the petitioner could not have been straightway promoted on the post of Professor in the department of Surgery in Darbhanga Medical College and Hospital. As with regard to the local working arrangement on the post of Professor in the department of Surgery in Darbhanga Medical College and Hospital on retirement of Dr. Baldev Prasad Singh, erstwhile Professor in the department of Surgery, it has been explained that it was purely adhoc arrangement and that by itself could not give any right to the petitioner to claim promotion on the post of Professor immediately after completion of five years 4 period of Kalawadhi. When the case was last heard on 04.11.2010, counsel for the petitioner was allowed four weeks time to produce a copy of the order by which he was directed to officiate on the post of Professor in the department of Surgery after superannuation of Dr. Baldev Prasad Singh on 01.06.1967. From the records it is clear that no such supplementary counter affidavit has been filed and therefore, it also becomes clear that the local arrangement made after the retirement of Dr. Baldev Prasad Singh by authorizing the petitioner to work on the post of Professor in Darbhanga Medical College and Hospital being fortuous in nature, could not have vested any right to the petitioner to claim promotion from the date of his such acting arrangement. That apart once this aspect becomes clear that a person senior to the petitioner namely Dr. R.N Tiwary in the department of Surgery in Ranchi Medical College and Hospital was also not given such retrospective promotion, there would be no question of the petitioner being junior person to be 5 given promotion on the post of Professor w.e.f 22.08.1967, merely because he had completed the period of ten years of Kalawadhi. There is a clear distinction in law between a regular promotion and time bound promotion. Any person claiming regular promotion can at best seek a retrospective date of promotion on which his juniors are given such promotion, whereas, in the case of time bound promotion, it has to be notified from the date, the prescribed period is completed. Here in the present case when the required procedure was yet to be completed and a person senior to the petitioner was still waiting for his promotion, there could have been no question of granting promotion to the petitioner merely because he had completed the period of Kalawadhi of five years on the post of Associate Professor. This aspect of the matter in fact stands settled by the judgment of the Apex Court in the case of Bihar State Electricity Board Vs. Chittranjan Kumar Birnavay reported in 2003(10) SCC 237. 6 Additionally, this Court would find that the respondents in a very fair manner have notified the promotion of the petitioner immediately after vacating/ clarifying the order of injunction which was passed by the Civil Court in Title Suit No. 405 of 1969 filed by Dr. R.N. Tiwary. From the records, it also transpires that initially Title Suit No. 1227 of 1967 was filed making the post of Professor in the department of Surgery and sub-judice and after the same was withdrawn, Title Suit No. 405 of 1969 was filed in the Court of Munsif at Ranchi by Dr. Tiwary. It was in this Title Suit that the Civil Court had passed the order of injunction restraining giving promotion on the post of Professor and after the said order of injunction was modified/explained in the order dated 23.04.1970 in Civil Review No. 15 of 1970 (Annexure-1) holding as follows: “Heard learned counsel for the petitioner. The petition has been filed for clarification of the order passed in Title Suit No. 1227 of 1967 which was withdrawn and in its place Title Suit No. 405 of 1969 was filed in the Court of the learned Munsif at Ranchi. The short facts of the case are that five doctors attached to the 7 Rajendra Medical College at Ranchi were transferred by the State Government. Their grievance was that they were in the teaching line and they should not have been transferred to hospitals where they will not be called upon to teach students. In other words, they did not like to be transferred from the teaching section to the administrative section of the Health Department. With this end in view, those five doctors filed Title Suit Nos. 1226, 1227, 1228, 1229 and 1243 of 1967. They had prayed for issue of an injunction restraining the Government from giving effect to the orders of transfer. In one suit, namely, Title Suit No. 1227 of 1967 (now Title Suit No. 405 of 1969), another petition was filed praying to restrain the Government from making any appointment of Professor in Surgery in the colleges located at Ranchi and Darbhanga. The learned Munsif allowed injunction in all those five cases. On appeal, the order of injunction were confirmed by the Judicial Commissioner of Ranchi. The State Government then came in Civil Revision No. 1587 of 1968 and others for getting the orders of injunction set aside. The matter was put up before Hon’ble Mr Justice K.K Dutta on the 3rd November, 1969 and it was stated before him that the suit has been withdrawn and so the civil revisions had become infructuous. On this statement, he allowed the civil revision applications to be dismissed as having become infructuous. In one of those revisions, Dr. S.N Chaudhary, the present petitioner, had been added as a party because it is said that he is the next senior man to be appointed as Professor of Surgery and his prospects had been jeopardized by the issue of “universal” injunction order restraining the State Government in making appointments of any Professor of Surgery till the decision of Title Suits. His application was also not considered in Civil Revision No. 1592 8 of 1968. The matter is now for admission and it is urged before me that this petition should be admitted and the injunction order should be clearly interpreted to find out whether his prospect was to be affected or not so that he may take proper legal action to safeguard his interest. Only one doctor Dr. R.N. Tiwary, had filed the petition for restraining the State Government from making appointment of Professor in Surgery because he was the senior most lecturer in that line and if any appointment had been made his prospect might be jeopardized. In my opinion, therefor, this injunction order will give relief to the party who is aggrieved and will not create trouble to all other persons who are not parties to the suit. If the prayer of Dr. Tiwary is allowed, but other posts which may fall vacant from time to time should be filled up according to seniority, or merit, or whatever criteria the State Government may lay down, and appointments to other posts may not await the decision of the title suit. There may be appeals against the decision of the decision in the title suits and it is no known when final decision will come, say after five or ten years. So, I interpret the order of injunction passed by the learned Munsif that it had been passed for the benefit of Dr. R.N.Tiwary and not to the detriment of all other doctors who may be affected by that order. The State Government may consider the case of Dr. S.N Choudhary, the present petitioner, on merit and, after keeping one post of Professor of Surgery vacant, give him the appointment, if he deserves it.” It has to be noted that the said order was passed on an application filed by the petitioner himself and therefore, once 9 a direction was given to the State Government for considering the case of the petitioner on merit after keeping one post of Professor in Surgery vacant, there could not have been a more fair determination of the issue by notifying the promotion of the petitioner on the post of Professor w.e.f 23.04.1970 itself. In any event the first post of Professor having been kept reserved for Dr. Tiwary, the petitioner’s promotion on the post of Professor in the department of Surgery could have been only notified on availability of the second post as was directed in the clarifying/vacating the order of injunction dated 23.04.1970. Thus for the reasons mentioned above, this Court does not find any merit in the application and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)