IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.62 of 2010 IN Civil Writ Jurisdiction Case No. 9223 of 2001 =========================================================== 1. Dr.Shrinivas Roy S/o Late Ram Charitra Roy R/O 35, Doctor's Colony, Alalpatti, P.S. Laheria Sarai, Distt.- Darbhanga, presently posted as Professor and Head, Department of Anesthesiology, Darbhanga Medical College, Laheria Sarai, Distt.- Darbhanga 2. Dr. Gandhi Jha S/O Late Raghav Jha residing at 27-Doctor’s Colony, Darbhanga Medical College Campus, P.O. & P.S. Laheria Sarai, Distt.- Darbhanga, presently posted as Associate Professor Department Of Anesthesia, D.M.C.H. 3. Dr. Deb Kumar Mishra S/O Late Janardan Mishra R/O Vir Kunwar Singh Colony, P.O. Civil Aerodrome Gaya, Distt. Gaya, presently posted as Associate Professor, Department Of Anesthesia, Anugrah Narayan Medical College Hospital Gaya, Distt.- Gaya 4. Dr. K.K.Verma S/O Late Binda Charan Verma R/O Laxmi Bhawan, Pankha Toli, P.O. Ramna, Distt.- Muzaffarpur, presently posted as Associate Professor, Department Of Anesthesia, S.K.M.C.H., Muzaffarpur 5. Dr. Ashok Kumar S/O Late Basudeo Lal Das R/O Vill.- Dharhara, P.O.- Balbahat, P.S. Simri-Bakhtiyarpur, Distt.- Saharsa, presently posted as Associate Professor, Department Of Anesthesia, Patna Medical College, Patna 6. Dr. Ajay Simba S/O Late Dr. J.N.Verma R/O 7 H.F., 1/19, Bhootnath Ashram Road, Bahadurpur Housing Colony, Patna, presently posted as Associate Professor, Department Of Anesthesia, N.M.C.H., Patna .... .... Appellants Versus 1. Dr.Vijay Kumar Gupta S/O Dr. Ram Kumar Sahu R/O 9, Sri Krishna Puri, Patna (petitioner in the writ petition) 2. The State Of Bihar 3. The Secretary Medical Education, Govt. Of Bihar, Patna 4. The Deputy Secretary, Health Education and Family Welfare, Govt. Of Bihar, Patna 5. Dr. Kedar Prasad S/O not known, Anesthetist, Darbhanga Medical College, Laheria Sarai, Darbhanga 6. Dr. (Smt.) Nirmala Kumar Srivastava W/O not known Anesthetist, Darbhanga Medical College, Darbhanga 7. Dr. Yogendra Singh S/O not known, Anesthetists Patna Medical College, Patna (Respondent No. 1 to 6 in the writ petition) 8. Dr. Niranjan Kumar Verma S/O not known Asstt. Professor, Bhagalpur Medical College, Bhagalpur 9. Dr. Rajendra Prasad S/O not known Asstt. Professor, Patliputra Medical College, Dhanbad 10. Shri S.K.Singh S/O not known to the petitioner Deputy Secretary, Govt. Of Bihar in the Department Of Health Education, Family Welfare ISM, Patna (Respondent No. 12 in the writ petition) .... .... Respondents With Patna High Court LPA No.62 of 2010 dt.24-09-2014 2/11 =========================================================== Letters Patent Appeal No. 1301 of 2010 IN Civil Writ Jurisdiction Case No. 9223 of 2001 =========================================================== 1. The State Of Bihar 2. The Secretary, Medical Education Government of Bihar, Patna 3. The Deputy Secretary Health Education and Family Welfare, Government of Bihar, Patna .... .... Appellants Versus 1. Dr. Vijay Kumar Gupta S/O Dr. Ram Kumar Sah R/O 9- Sri Krishnapuri, Distt.- Patna 2. Dr. Kedar Prasad S/O not known to the Appellant, Anesthetist, Darbhanga Medical College, Laheriasarai, Distt.- Darbhanga 3. Dr. (Smt.) Nirmala Kumar Srivastava W/O not known to the Appellant Anesthetist, Darbhanga Medical College, Laheriasarai, Distt.- Darbhanga 4. Dr. Jogendra Singh S/O not known to the Appellant Anesthetist, Patna Medical College, Patna, Distt.- Patna 5. Dr. Sri Niwas Roy S/O Late Ram Charita Roy Assistant Professor, Darbhanga Medical College, Laheriasarai, Distt.- Darbhanga, R/O 35 - Doctors' Colony, Alalpatti, P.S.- Laheriasarai, Distt.- Darbhanga 6. Dr. Gandhi Jha S/O Late Raghav Jha presently posted as Associate Professor, Department Of Anesthesia, Darbhanga Medical College & Hospital, Laheriasarai, Distt.- Darbhanga, R/O 27- Doctors' Colony, Darbhanga Medical College Campus, P.O. & P.S.- Laheriasarai, Distt.- Darbhanga 7. Dr. Niranjan Kumar Verma S/O not known to the Appellant, Assistant Professor, Bhagalpur Medical College, Bhagalpur, Distt.- Bhagalpur 8. Dr. Dev Kumar Mishra S/O Late Janardan Mishra presently posted as Associate Professor, Department Of Anesthesia, Anugrah Narayan Magadh Medical College & Hospital, Gaya, R/O Veer Kunwar Singh Colony, P.O.- Civil Line Aerodrum, Gaya, Distt.-Gaya 9. Dr. Rajendra Prasad S/O not known to the Appellant Assistant Professor, Patliputra Medical College, Dhanbad, Distt.- Dhanbad 10. S.K. Singh S/O not known to the Appellant Deputy Secretary, Health, Medical Education And Family Welfare, Government Of Bihar, Ism, Patna 11. Dr. K.K. Verma S/O Late Binda Charan Verma presently posted as Associate Professor, Department Of Anesthesia, Sri Krishna Medical College & Hospital, Muzaffarpur, R/O Laxami Bhawan, Pankha Toli, P.O.- Ramna, Distt.- Muzaffarpur 12. Dr. Ashok Kumar S/O Late Basudeo Lal Das presently posted as Associate Professor, Department Of Anesthesia, Patna Medical College & Hospital, Patna, Distt.- Patna, R/O Vill.- Dharhara, P.O.- Balbahaat, P.S.- Simri Bakhtiyarpur, Distt.- Saharsa 13. Dr. Ajay Simba S/O Late Dr. J.N. Verma presently posted as Associate Professor, Department Of Anesthesia, Nalanda Medical College & Hospital, Patna, Distt.- Patna, R/O House No.- 7hf-1/19, Bhootnath Ashram Road, Bahadurpur Housing Colony, P.S.- Bahadurpur, Distt.- Patna .... .... Respondents Patna High Court LPA No.62 of 2010 dt.24-09-2014 3/11 =========================================================== Appearance : (In LPA No. 62 of 2010) For the Appellants : Mr. Amarendra Narayan, Advocate For the Respondents State : Mr. Devendra Kumar Sinha, AA-2 Mr. Sudhir Kumar, AC to AAG-2 For the pvt. Respondents : Mr. Alok Kumar Sinha, Mr. Manish Kumar & Mr. Indrajeet Bhushan, Advocates (In LPA No. 1301 of 2010) For the Appellants-State : Mr. Devendra Kumar Sinha, AA-2 & Mr. Biresh Kr. Sinha, AC to AAG-2 For the Respondents : Mr. Mr. Alok Kumar Sinha, Mr. Manish Kumar & Mr. Indrajeet Bhushan, Advocates =========================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA and HONOURABLE DR. JUSTICE RAVI RANJAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) Date: 24-09-2014 Heard learned counsels for the parties. Both the appeals arise out of the judgment and order dated 27.10.2009 passed by a learned Single Judge of this Court in CWJC No. 9223/2001 by which the writ petition had been allowed and the impugned annexures dated 6.4.1998 and 8.7.2008 had been quashed and the authorities of the State were directed to consider the writ petitioner as having worked continuously from initial date of joining, i.e., 4.6.1984 as Assistant Professor for the purpose of seniority and to consider his case for posting on the higher post of Associate Professor and above on the basis of such seniority and Patna High Court LPA No.62 of 2010 dt.24-09-2014 4/11 revise gradation list accordingly with grant of all consequential benefits to him on the basis of placement of his name in the gradation list with promotion/posting on the post of Associate Professor and above from the dates his immediate junior was granted the same which exercise must be completed within a period of three months from the date of receipt/production of a copy of the said order. LPA No. 62/2014 has been filed by the private respondents in the writ petition, whereas LPA No. 1301/2010 has been filed by the State of Bihar. Both the appeals have accordingly been heard together and are being disposed of by this common order. The facts of the case including the different documents annexed in the pleadings as also the submissions of learned counsels for the parties have been noted in great detail in the judgment and order under appeal and accordingly, we are not repeating them. For the purpose of this appeal it may suffice to note that undisputedly the writ petitioner was appointed as Assistant Professor in the Department of Anesthesiology in Patliputra Medical College, Dhanbad by notification dated 29.4.1984 and he joined the said post on 4.6.1984. The writ petitioner has the requisite qualification of post graduate degree in Anesthesiology. The writ petitioner was subsequently transferred on the post of Anesthetist in the Patna Medical College and Hospital (PMCH) by a notification Patna High Court LPA No.62 of 2010 dt.24-09-2014 5/11 dated 7.2.1986 along with other similarly situated persons. The order of transfer was issued by the order of the Governor and in the copy of the same for information and action a mention was made of the fact that if the persons concerned did not assume charge of their posts within two weeks then after the said period their joining application shall not be accepted and the concerned authorities were to immediately inform the Department so that their posting would be cancelled and other Doctors from the panel should be notified. From the materials on the record it is evident that the post of Assistant Professor and that of Anesthetist at the relevant time carried the same pay scale and same teaching allowance also. It is also not in dispute that at the relevant time Anesthetists with post graduate degree in Anesthesiology were eligible for promotion as Associate Professor after having six years experience on the said post along with the Assistant Professors. The dispute having arisen with regard to such direct promotions of Anesthetist on the post of Associate Professor contrary to the regulation of the Indian Medical Council, the same was resolved by a Division Bench of this Court in the case of Dr. Hari Ram Singh Vs. The State of Bihar & Ors.: 1995(1) PLJR 462. The said Division Bench decision was in fact rendered on 28.11.1979 but it appears that only upon its being reported in the year 1995, further steps in that regard were taken by Patna High Court LPA No.62 of 2010 dt.24-09-2014 6/11 the State Government by issuing a Resolution dated 20.6.1996 by which Anesthetist with post graduate degree who had completed three years of service as such were to be designated as Assistant Professors and after a further three years on the post of Assistant Professor to be eligible for promotion as Associate Professor. The said resolution was again challenged in a writ petition, CWJC No. 4959/1997 (Dr. Ashok Kumar Vatsyayan & another (the another being the appellant no. 1 in LPA No. 62/2010) Vs. The State of Bihar & Ors. in which by order dated 9.2.2009 the resolution dated 20.6.1996 was held to be not arbitrary nor violative of any statutory provisions. However, in LPA No. 368/2009 against the order dated 9.2.2009, by order dated 13.7.2011 it was held that the resolution in question shall not apply retrospectively. The case of the writ petitioner got embodied in the fight between the Anesthetists and the directly appointed Assistant Professors, the writ petitioner being treated as Anesthetist and by a notification dated 6.4.1998 the writ petitioner while being shown as having been appointed on 4.6.1984 as Assistant Professor and on 14.2.1986 as an Anesthetist was treated as having been appointed on the post of Assistant Professor from 4.6.1987, i.e., three years after his initial appointment on 4.6.1984. Thereafter by another notification dated 8.7.2008 a final gradation list was published in Patna High Court LPA No.62 of 2010 dt.24-09-2014 7/11 which the writ petitioner was shown as an Anesthetist who had joined on 14.2.1986 and the said final gradation list had separated the Assistant Professor from the Anesthetist. Both the notifications have been challenged by the writ petitioner in the writ petition. During the pendency of the writ petition by another notification dated 5.9.2004 the private respondents (now the appellants) were promoted to the post of Associate Professors which has also been challenged by filing an amendment petition. While the matter had already been heard in part on several dates, an interlocutory application being I.A. No. 7289/2014 was filed by the appellants on 22.9.2014 praying to bring on record certain documents. The same has to be rejected outright specially considering the fact that the same do not relate to any application filed by the writ petitioner for empanelment in the panel of 1985 and at this belated stage in the midst of hearing of the appeal no such document is fit to be accepted. Before us the appellants- doctors have reiterated the submissions which have been made and considered at length by the learned writ court. The burden of the submissions of learned counsels for the private respondents (appellants before us) has been that though the writ petitioner was appointed by notification dated 29.5.1984 as an Assistant Professor but when the 1985 panel was Patna High Court LPA No.62 of 2010 dt.24-09-2014 8/11 being prepared he had again applied for empanelment therein as Anesthetist in order to get the benefit of posting at Patna Medical College and Hospital and the notification dated 7.2.1986 by which he was being shown as transferred to the post of Anesthetist in PMCH, was in fact not really a transfer order but on the basis of empanelment of the writ petitioner to the post of Anesthetist and thus the writ petitioner cannot rely upon his earlier appointment as Assistant Professor when he has chosen to join on lower post of Anesthetist in the year 1986 and thus all the consequences of such joining on the said post which, according to the private appellants is also a non-teaching post, the writ petitioner would have to take his place in terms of the judgment of this Court in the aforesaid writ petition and Letters Patent Appeal with regard to resolution dated 20.6.1996. The writ court has considered the said issue in detail and has also mentioned the fact that there was nothing in the pleadings or the documents produced before the Court in support of the said stand and several adjournments were granted to the respondents to produce any material in support of the said stand that the writ petitioner had in fact applied for empanelment again in the year 1985 and that upon selection from such panel the notification dated 7.2.1986 had been issued. It is clearly mentioned that despite Patna High Court LPA No.62 of 2010 dt.24-09-2014 9/11 several opportunities granted to the respondents they were unable to come up with any such document. Thus, the fact remained that the writ petitioner was appointed as an Assistant Professor by notification dated 29.5.1984 and the subsequent transfer order dated 7.2.1986 posting him on the post of Anesthetist in Patna Medical College and Hospital on the same pay scale and with the same teaching allowance, cannot have the effect of the writ petitioner becoming reduced in rank to Anesthetist despite availability of various posts of Assistant Professor to which he had been initially appointed. In the said circumstances, the learned single Judge rightly came to the conclusion that the case of the writ petitioner would not fall in the category of Anesthetist and the dispute between the Anesthetist and the Assistant Professor (Anesthesiology) cannot have any effect upon the case of the petitioner. Having considered the submissions of learned counsels for the parties who have taken us to the findings of the writ court on this point, we are of the view that the same is unassailable. It is trite law that under the Constitutional protection provided by Article 311 of the Constitution no person in the service of the Government or holding a civil post can be reduced in rank without a proper departmental proceedings being held against him. The writ petitioner having been appointed as Assistant Professor would be Patna High Court LPA No.62 of 2010 dt.24-09-2014 10/11 presumed to have continued to hold the said rank. The fact that he was posted as Anesthetist in the PMCH and having joined on the said post without any demur cannot be held against him as during the relevant period that appears to have been a normal practice in the State Government and moreover, the same being on the basis of a transfer order to which he had complied, it cannot be held against him. Any such transfer order cannot be treated to be by implication, an order of reduction in rank. Thus, we are in full agreement with the findings of the learned single Judge and see no reason to disagree with the same. Learned Additional Advocate General No.2 appearing for the State however submits that in view of the confusion prevailing in the Department itself with regard to the seniority and promotion between the Anesthetists and the Assistant Professors for which several rounds of litigation had also taken place, the matter could be finally resolved only on the order of the LPA Bench on 13.7.2011, and therefore the cost of Rs. 50,000/- ought not to be imposed upon the State; because in the case of the writ petitioner although he was appointed as Assistant Professor but subsequently he had continued all through on the post of Anesthetist after the notification dated 7.2.1986 and accordingly treated at par with the Anesthetist. Patna High Court LPA No.62 of 2010 dt.24-09-2014 11/11 Considering the history of litigations in the matter, we are also of the view that no cost need be imposed upon the State. The order directing imposition of cost in the judgment and order under appeal is, accordingly, set aside. Learned counsel for the writ petitioner-respondent points out that even after nearly more than 30 years the writ petitioner-respondent has not yet received any promotion. We direct that the directions of the writ Court be carried out within a period of one month from the date of receipt/production of a copy of this order. LPA No. 62/2010 is, accordingly, dismissed and LPA No. 1301/2010 is partly allowed to the extent indicated above. S.Pandey/- (Ramesh Kumar Datta, J) (Dr. Ravi Ranjan, J) U