IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5625 OF 2005 Dr. Nav Jeevan, Son of Late Narayan Prasad, resident of Hospital Road, Forbesganj, P.S.-Forbesganj, District-Araria, presently posted as Registrar, Department of Pediatrics, Jawaharlal Nehru Medical College, Bhagalpur. ................... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Secretary, Health, Medical, Education and Family Welfare, Government of Bihar, Patna. 3. The Deputy Secretary, Health, Medical, Education and Family Welfare, Government of Bihar, Patna. ................. Respondents For The Petitioner :Mr. Shailendra Kumar Singh, Advocate Mr. Mayank Rukhaiyar, Advocate For The Respondent :Mr. Government Pleader No. 6 P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA ---------------------- Mihir Kr. Jha, J. Heard Counsel for the parties. In this writ application the petitioner has sought following relief:- "(i) For a direction that petitioner belong to Bihar Medical Education Service Cadre and is deemed to be senior resident in terms of the Medical Education Services Cadre Rules, 1997 (hereinafter referred to as the 'Rules') and for a further declaration that the petitioner has acquired eligibility for consideration and grant of promotion as Assistant Professor in the respective Department and for a declaration that the out off notification dated 21.5.1997 is irrational and contrary to the scheme of the Rule. (ii) For a follow up direction to the Respondents to treat the petitioner as Senior Resident and for a further 2 consequential direction to the respondents to consider the case of the petitioner for grant of promotion as Assistant Professor from a date others have been given in terms of the promotion Rules Contained in the Rules 8 as petitioner has completed more than 7 years as lecturer in the Medical College. (iii) For commanding the Respondents to include the petitioner in the list of senior resident along with the persons notified vide notification dated 22.3.2004 contained in Memo no. 187(17). (iv) For restraining the respondents from interfering in any manner with the working of the petitioner as lecturers in the respective medical Colleges." The facts are not in dispute. The petitioner who had passed the MBBS Examination in the year 1974 and had also completed his Post Graduation by passing the MD Examination in the subject of Pediatrics in the year 1978, was initially appointed in the Bihar Health Services on 21.12.1977 and was posted as Medical Officer in the Primary Health Centre, Meharma (Santhal Pargana) where he had worked from 21.12.1977 to 08.03.1979. The bio-data of the petitioner as contained in Annexure-6 to the writ application would also go to show that the petitioner had worked in anon-clinical post of Teacher in the Department of Physiology in 3 Ranchi Medical Hospital, Ranchi between 10.03.1979 to 13.01.1983 and from 24.01.1983 to 17.10.1986, the petitioner had worked in the Nalanda Medical College and Hospital, Patna in the Department of Pediatrics as Assistant Medical Officer. The petitioner thereafter had worked in Goroul Referral Hospital, Vaishali as Medical Officer in between 05.12.1986 to 20.11.1988 and thereafter he had gone abroad. The petitioner having remained on extraordinary leave (whether sanctioned or not) between 20.11.1988 to 02.07.1993 has claimed that he had reported back on duty on 03.07.1993 in the health Department and after waiting for posting into 19.08.1993 had again gone abroad by filing an application for leave of three months. The petitioner has claimed that he continued on his assignment in abroad between 20.08.1993 to 20.09.1994 for which the application for leave was filed before the State Government. The petitioner claims that he had reported back on duty again in the Health Department on 20.09.1994 and remained waiting for his posting till 16.07.1997 and was ultimately posted as Registrar in Jawahar Lal Nehru Medical College & Hospital, Bhagalpur on 17.07.1997 on the basis of inclusion of his name in the 1993 penal. 4 In the writ application, the petitioner has stated that while he was continuing on the post of Registrar in Bhagalpur, the State Government had published a notice, dated 12th September, 2000 seeking option in terms of Rule 5(ii) of the Rules as to whether the teachers working in nine Medical Colleges and Hospitals would like to continue in the Bihar Medical Education Service Cadre or would prefer to return back to the cadre of doctors in Bihar Health Services and the petitioner, in response to the aforementioned notice, had submitted his option on 2.9.2000 for being retained in teaching cadre. The petitioner further claims that the cause of action however for filing this writ application arose when the State Government had issued a notification dated 22.03.2004 whereby and whereunder the respondent State of Bihar to the exclusion of the petitioner had issued a list of 166 doctors declaring them to be lecturers in Medical Education Cadre w.e.f. 21.05.1997 or the State of their joining in the panel of lecturer, which ever is later and senior Resident w.e.f. 21.02.2003. From the pleadings in this writ application, which was filed on 03.05.2005, it thus appears that when the name of the petitioner did not find place in the 5 aforesaid notification, dated 22.03.2004, the petitioner had initially filed representation to the Respondent and when the same did not yield any fruitful result he had moved this Court both for inclusion of his name in the list of Senior Resident as also for his promotion on the post of Lecturer. Mr. Shailendra Kumar Singh, learned counsel for the petitioner has submitted that the petitioner was all along in teaching cadre even before he had gone abroad and infact had also been posted as Tutor in Ranchi Medical College, Ranchi in the Department of Physiology between 10.03.1979 to 13.01.1983 and as a Resident Medical Officer in the Department of Pediatrics in Nalanda Medical College and Hospital, Patna and as such when the Rules were notified on 21.05.1997, he having been kept waiting for posting upon his return from foreign assignment could not be denied his being a member of the Bihar Medical Education Service Cadre in terms of Rule 5(GA) of the Rules specially his name had already been included in the penal of Registrar of the 1993. Mr. Singh in this context had further submitted that merely because his order of posting, on the post of Registrar, was issued on 16.07.1997 that by itself could not have 6 deprived him from getting the benefit of being declared as a Lecturer Resident with effect from 16.07.1997 and Senior Resident with effect from 21.01.2003 specially when the option in terms of Rule 5(GA) for the first time was solicited only in the month of September 2000. Learned Counsel in this context has also cited the instance of few of his follow colleagues, namely, Dr. Rajni Singh, Dr. Kripanath Mishra, Dr. Nageshwar Sharma, who according to the petitioner having been also posted on the post of Registrar and/or equivalent post had been given the benefit of being declared Lecturer with effect from 21.05.1997 and Senior Resident w.e.f. 21.02.1993. Learned Counsel for the petitioner has also submitted that during the pendency of this writ application, the State Government has issued a notification, dated 19.07.2006 whereby and whereunder the petitioner along with seven others have been given promotion on the post of lecturer (Assistant Professor) with effect from the date of joining in terms of the notification dated 19.07.2006. The contention of the petitioner, however, is that the respondents ought to have absorbed the petitioner on the post of Lecturer w.e.f. 7 21.05.1997 as was done in the cases of others vide notification dated 22.03.2004. Counsel for the petitioner infact also went to the extent of making a submission that in case the respondents taken a plea that the date of notification of the petitioner on the post of Registrar would be the date of his entry in the Bihar Medical Education Service Cadre i.e. 16.07.1997, as because of the provisions made in the Rules, this Court must hold the cut off date in the Rules being 21.05.1997/24.05.1997 to be arbitrary and irrational and accordingly the petitioner must be given the same benefit of being encadred in Bihar Medical Education Service Cadre along with other teachers as was done on 22.03.2004. Counsel for the State, however, on the basis of the averment made in the counter affidavit has submitted that admittedly the petitioner was posted on the post of Registrar on 21.07.1997 and, therefore, the date of entry in the cadre can not be any earlier date as was being claimed by the petitioner in this context counsel for the State has stated that the provisions made in the Rules are very clear that in order to be absorbed on the post of Lecturer (Assistant Professor) in the Bihar Medical Education 8 Service Cadre, one must be working as a Resident Surgeon Officer (RSO)/Resident Medical Officer (RMO)/Registrar as on 25.01.1997 apart from possession the requisite qualification besides submitting his option to be a member of the Bihar Medical Education Service Cadre. In this context, counsel for the State has also referred to an order of this Court, dated 14.01.1999 passed in C.W.J.C. No. 5577 of 1999 as also different provisions of the Rules. Counsel for the petitioner in reply had more or less reiterated his submissions and went to only add that the whole purpose of the Rules has would be frustrated that if the respondents adopt such a cut and dry approach by giving restricted meaning and interpretation of the expression "entry in the cadre" used in Rule 5 of the Rules which then would exclude meritorious persons like the petitioner who had served the Medical Colleges with a sense of sacrifice and for saving the medical colleges from being derecognized by the Indian Medical Council. This court having given anxious consideration to the pleadings on record as well as in the light of aforementioned submissions i.e. of the opinion that the 9 petitioner can not be declared to have become member of the Bihar Medical Education Service Cadre with effect from 21.05.1997 so as to bestowed the benefit of being a Lecturer (Assistant Professor) with effect from 21.05.1997. First of all this Court is conscious of the fact that the entry in the new teaching cadre is sought to be regulated by Rules framed under proviso to Article 309 of the Constitution of India. Envisaging a separate cadre for the teachers of the medical college, the Governor of Bihar had set out the object and purpose of the Rules has been in the notification dated 21.05.1997 which reads as follows : - ^^la0 171 , 2115193 162 ¼17½ pwafd egkefge jkT;iky larq"V gS fd jkT; ,oa tufgr esa ;g vko';d gS fd fpfdRlk egkfo|ky; ,oa vLirkyksa esa duh; ,oa ojh; 'kS{kf.kd inksa ij fu;qfDr@izksUufr esa lacaf/kr fu;e crk;s tkus] vr% lafo/kku dh vuqPNsn 309 ds ijUrqd dh 'kfDr;ksa dk mi;ksx djrs gq, jkT;iky vkns'k nsrs gS fd fcgkj fpfdRlk f'k{kk lsok laoxZ ,oa mlds laoxhZ; inksa ij HkrhZ fu;ekoyh] 1997 cuk;k tkrk gS tks vf/klwpuk ds izdk'ku dh frfFk ls izHkkoh ekuh tk;xhA 1- mn~ns'; ,oa gsrq& orZeku VsDpksj O;oLFkk ds dkj.k LFkk;h f'k{k.k laoxksaZ ¼orZeku esa lgk;d iz/;kid½ us vkus ds fy, LukdksRrj fMxzh izkIr djus dk Loklf; lsok esa vkus ds ckn lkekU;r% nl ¼10½ iUnzg ¼15½ o"kZ O;rhr gksrk gSA brus yEcs vUrjky ds dkj.k vusd leL;k;sa tks f'k{kd ds dSfj;j rFkk 'kS{kf.kd dk;Z ls tqM+h gS] mRiUu gks tkrh gSA muesa 'kks/k ,oa jk"Vz~h; Lrj ij izfrLi/kkZ dh Hkkouk lekIr gks tkrh gSA dSfj;j ds 'kq:vkr esa ;g lqfuf'pr gks tkus ij fd fdls f'k{k.k esa tkuk gS vkSj fdls lkekU; LokLF; lsok esa] fpfdRld 10 rnuqlkj vius dks <ky ldrs gSaA ;g fpfdRlk f'k{kk] fpfdRld tu lk/kkj.k ,oa jkT; lHkh ds fgr esa gSA ¼1½ vr% fcgkj ds fpfdRlk f'k{k.k esa vko';d ,oa vkisf{kr lq/kkj] ¼2½ fcgkj ds fpfdRlk egkfo|ky; vLirkyksa ds Lrj ,oa jksfx;ksa ds leqfpr bykt esa vko';d lq/kkj] ¼3½ jk"Vzh; ,oa vUrjkZ"Vzh; Lrj ds vuq:i fcgkj ds fpfdRlk f'k{kdksa dks f'k{k.k] 'kks/k ,oa rduhdh dh vfxze iafDr esa ykuk bl fu;ekoyh dk mn~ns'k gSA** From a bare perusal of the aforementioned object the Rules, it would be clear that a conscious decision was taken by the State of Bihar to have a separate cadre of teachers of medical colleges and such Rules were to be brought into force from the date of its publication. Consequently, when the notification dated 21.05.1997 containing the rules was published in Bihar Gazette on 24th May, 1997, the same came into force with effect from 24.05.1997. The submission on behalf of the petitioner that he would be deemed to be an Assistant Professor (Lecturer) from the date the said Rule dated 21.05.1997 came into force can not be accepted because on 21.05.1997/24.05.1997 the petitioner did not hold any teaching post in any medical college. As noted above, the petitioner was infact busy in his assignment, in foreign countries by proceeding on extraordinary 11 leave for a period of more than five years and infact his joining also upon return from abroad was not accepted on or before 21.05.1997. The analogy of the petitioner that he would be deemed to have been waiting for his posting because after return from abroad, he had submitted his joining report in the Health Department on 20.09.1994 and remained waiting for posting till 19.01.1997 does not inspire confidence specially when the petitioner has also not furnished any proof that his extraordinary leave for the period he had remained out of this country in connection with his assignment in the abroad had been sanctioned. His bio-data submitted even in the year 2000, being part of his option exercised on 22.9.2000 would itself go to show that even on that date his application for grant of extraordinary leave for the period 20.08.1993 to 20.09.1994 was still pending in such a situation, if the petitioner had never served or was part of any medical college of the State of Bihar in between 20.11.1988 to 15.07.1997, he can not claim for the benefit for being automatically absorbed on the post of Lecturer (Assistant professor) w.e.f. 21.05.1997. As a matter of fact, when the new cadre came to be created by the Rules, Rule 5 12 itself made it clear as to the persons who could become eligible to have deemed absorption on the post of Lecturer (Assistant Professor) in the teaching cadre of medical colleges. For a better appreciation of this aspect, Rule 5 as a whole is quoted hereinbelow : - 5- fcgkj fpfdRlk f'k{kk lsok laoxksZ dh jpuk ;k xBu ¼d½ fpfdRlk egkfo|ky;ks ,oa funs'kky; ds fuEu in blesa lEnsf"Br fd;s tk;saxs vkSj laoaxksaZ esa bu lHkh inksa dh la[;k 1 vizhy] 1997 dh frfFk esa miyC/k inksa ds lerqY; gksxhA ¼1½ vkoklh; fpfdRld ¼2½ fuca/kd ¼3½ lgk;d izk/;kid ¼4½ lg iz/kuk?;kid ¼5½ izk/;kid ¼6½ izkpk;Z ¼7½ funs'kky; ds fpfdRlk f'k{kk laoxZ ls Hkjs tkus okys in ¼d½ mi funs'kd ¼[k½ la;qDr funs'kd&lg&ijh{kk fuca/kd ¼x½ funs'kd ;k vij funs'kdA ¼[k½ vkoklh; fpfdRld ,oa fuca/kd ds in ^^O;k[;krk** ds :i esa leifjofrZr gks tk;sxs vU; in ;Fkkor jgsaxsA ¼x½ mijksDr inksa ij iwoZ esa dk;Zjr lHkh inkf/kdkfj;ksa dks fpfdRlk f'k{kk laoxZ esa lEnsf"Br jgus ds fy, vFkok eqy dksfV ^^fcgkj jkT; LokLF; lsok laoxZ** esa ykSVkus ds fy, ,d fuf'pr frfFk ,d viuh fyf[kr bPnk layXu i= ¼vuqyXud&1½ esa nsuh gksxh tks fyf[kr :i ls vkSi'ku (Option) ugha nsus mUgsa ewy laoxZ esa okil dj fn;k tk;sxkA lkFk gh] fcgkj fpfdRlk f'k{kk lsok laoxZ esa mfYyf[kr inksa ij lek;kstu ds fy;s vko';d ;ksX;rk ,oa 'kS{kf.kr vuqHko] fu;qfDr dh frfFk ds le; ugha jgus ij mu inkf/kdkfj;ksa dks Hkh ewy laoxZ ¼fcgkj LokLF; lsok laoxZ½ esa okil dj fn;k tk;sxkA** 13 A bare reading of the Rules and its harmonious construction would lead to one and the only one conclusion that non-teaching cadre had the post of Resident Medical Officer, Registrar, Assistant Professor, Associate Professor, Principal, Deputy Director, Joint Director cum Examination Controller and Director of Additional Director amongst those posts only the posts Resident Medical Officer and Registrar were deemed to be converted into the post of Lecturer. It is in this background that Rule 5(GA) of the Rules Assumes significance in which no uncertain terms envisaged that those persons who were working against the aforementioned posts as on 21.5.1997 as enumerated in rule 5(GA) had an opportunity to exercise option for being encadred in Bihar Medical Education Service Cadre after seeking their segregation from the cadre of Bihar Health Service and such of all those persons who would not submit their option for being retained in the new cadre were to be sent back to their existing cadre. Moreover being a member of new teaching cadre was also not automatic rather in respect of those persons holding any teaching post as on 21.5.1997 in any medical college, they could still be not taken in new teaching cadre if 14 they did not possess the requisite qualification and experience on the date of their appointment Rule 5 therefore when read together with Rule 6 gives a clear picture that the Government of Bihar had decided to create a separate cadre for teachers of medical colleges and for doing so, it had only given an option to those incumbents who originally belonged to Bihar Health Services Cadre and were holding the teaching posts in any medical college of Bihar as on 21.05.1997. This being the clear provision made under the Rules for constitution of the new teaching cadre at the inception, no person including the petitioner, who was as a matter of fact was not posted and working on any teaching post in any medical college, could have claimed for automatic absorption in the new teaching cadre with effect from 21.05.1997, the date on which the Rules were notified by the State Government and were brought into force by publishing it in the official Gazette on 24.05.1997. This Court would also find that apart from constitution of the cadre from the existing persons under Rule 5 Rule 8 thereof further provided for expansion of the new cadre by allowing entry in the new cadre only on the basis of a direct recruitment through 15 a competitive examination for which the prescribed minimum qualification was also laid down under Rule 8(KHA) (GA) (GHA) & (ANGA), Rule 8(ii) infact while laying down the norms of promotion had made it abundantly clear that promotion from the post of Lecturer to the post of Assistant Professor to Associate Professor as well as from the post of Associate Professor to Professor and thereafter on still higher posts could be made only from amongst the member of the new cadre with minimum qualifying service as prescribed for different posts. Thus in the light of the provisions made in the Rules, the stand of the petitioner that as because the posts of Registrar was sought to be converted as the post of Lecturer in the new cadre the same had automatically vested a right also in any person initially appointed on the post of Registrar to become Lecturer with effect from 21.05.1997, is itself misconceived. The petitioner infact did not hold the post of Registrar in any Medical College of Bihar as on 21.05.1997 and thus could not be given the benefit of becoming a Lecturer upon conversion of the post of the Registrar as that was never envisaged under the Rules. The right of the petitioner to be part of the teaching cadre emerged only with 16 effect from 16.07.1997 when he was posted as Registrar and had crystallized into a reality only after he had exercised his option in the month of September 2000 in light of the option exercised by him on 22.09.2000. Accordingly when the State Government by a notification dated 19.07.2006 had declared the petitioner to be a Lecturer, the same could not have been given a retrospective operation so as to confer the benefit of becoming Lecturer with effect from 21.05.1997, the date of which the petitioner was not even holding the post of Registrar, in any medical college of Bihar, which was converted as the post of Lecturer. In that view of the matter, the respondents are justified in taking their stand in the counter affidavit that the entry of the petitioner in the cadre of teachers in medical colleges under the Rules would be only with effect from 16.07.1997, the date on which he came to be posted as a Registrar in Jawahar Lal Nehru Medical College & Hospital, Bhagalpur and joined the same without any demour or protest. The prayer of the petitioner that the respondents should consider his case for grant of promotion on the post of Assistant Professor from the date he has completed 17 seven years as Lecturer in the Medical College can again be only decided in terms of Rule 8(ii) (KA) of the Rules which lays down as follows : - ^^¼AA½ izksUufr& ¼d½ O;k[;krk ls lgk;d izk/;kid ds in ij izksUufr O;k[;krk ds chp esa ojh;rk] 'kS[kf.kd vigRrkZ] ekud 'kks/k dk;ksZa tks lEcfU/kr fo"k; ds jk"Vhz; la?k ds vf/kd`r tuZy ;k vUrjkZ"Vzh; tuZy esa izdkf'kr gks] vkfn ds vk/kkj ij nh tk;sxhA bl in ds fy, O;k[;krk ds :i esa U;wure pkj o"kksZa dk 'kS{kf.kd vuqHko vko';d gksxkA** In terms of the aforementioned Rules the right of the petitioner to be considered for the promotion on the post of Assistant Professor itself required to be gone into separately as such promotion of the petitioner did not depend only on completion of seven years of service as Lecturer but also all other criteria including seniority, education qualification, publication in journals etc. Their being infact no averment in the writ application that petitioner's case for promotion on the post of Assistant Professor had ever been considered and rejected, the grievance of the petitioner as with regard to promotion on the post of Assistant Professor seems to be pre-mature such circumstance, all that this Court can observe is that when similarly situated persons like the petitioners would be 18 considered on the basis of their service history including seniority, educational qualification, publication in journals etc. the case of the petitioner would also be considered for such promotion on the post of Assistant Professor. The grievance of the petitioner that the State Government never made any distinction between the persons appointed on any teaching post including Registrar on or before 21.05.1997 and those including the petitioner appointed on 16.09.1997 has also no justification inasmuch as the petitioner has failed to point out that anyone who was posted as Resident Medical Officer vide notification no. 136 dated 21.05.1997 (Annexure-10) in the Department of Pediatrics, from 1993 panel was placed below him in the same panel. As a matter of fact, the petitioner has also not made any such claim by citing any specific example on the basis of said notification dated 21.05.1997. On the other hand, the notification dated 16.07.1997 as contained in Annexure-1 by which the petitioner was posted as Registrar would go to show that even one be Om Prakash in 1992 panel was posted as Registrar in Jamshedpur Medical College, and thus the grievance of the petitioner that the 19 Health Department ought to have issue notification for his being posted as Registrar on 21.05.1997 in stead of 16.07.1997 has also no justification. If such submissions is accepted the any cause of action for this purpose had become available to the petitioner way back in the month of July, 1997 but at that point of time he had accepted his posting as Registrar in Bhagalpur Medical College without any demour and/or protest. As noted above, the petitioner having remained out of the country in connection with his assignment is foreign countries from 1988 could not have availed the best of both worlds and in any view his being posted as Registrar on 16.07.1997 along with his seniors including Dr. Om Prakash can not now be assailed after eight years in this writ petition when the benefit of the absorption in the cadre on the post of