CIVIL WRIT JURISDICTION CASE No.15659 OF 2006 ----------- In the matter of an application under Article 226 of the Constitution of India ----------- Dr.Harihar Dikshit, son of Late Suryadeo Singh, resident of village Tiwari Tola, Maner, P.S. Maner, District- Patna. ----------- Petitioner Versus 1. The State Of Bihar through the Secretary, Department of Health, Medical Education, Family Welfare and Indigenous Medicine, Govt. of Bihar, Patna 2. Chief Secretary, Govt. of Bihar, Patna 3. Additional Secretary, Department of Health, Medical Education, Family Welfare and Indigenous Medicine, Govt. of Bihar, Patna 4. Dr.Rani Indra Sinha, wife of Sri A.K.Chauhan, I.A.S. at present Assistant Professor, Pharmacology, Patna Medical College, Patna ----------- Respondents With MJC No.3040 Of 2006 Dr.Harihar Dikshit, son of Late Suryadeo Singh, resident of village Tiwari Tola, Maner, P.S. Maner, District- Patna ------------ Petitioner Versus 1. The State Of Bihar 2. Mr.Deepak Kumar, Secretary, Deptt. Of Medical Education and Family Welfare, Govt. of Bihar, Patna 3. Dr.Amrendra Narayan Singh, Additional Secretary, Health, (Medical Education, Family Welfare and Indigenous Medicine) Depaprtment, Govt. of Bihar, Patna 4. Mr.Surendra KumarSingh, Under Secretary, Health (Medical Education Family Welfare and Indigenous Medicine) Department, Govt. of Bihar, Patna. --------- Opp.Parties ----------- For the Petitioner : M/s Banwari Sharma and Shiv Kumar,Adv. For the State : Mr.Shashi Bhushan Kumar, S.C.16 and Mr.Nirmal Kumar Sinha,Adv. For Respondent No.4: M/s Sunil Kumar Singh-1, Manoj Kumar Ambastha and Anjani Kr. Mishra, Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: It has been quite some time since the matter was finally heard and orders were reserved. Hence, this Court has got the matter listed under heading „to be mentioned‟ on 21.6.2011, 23.6.2011 as well as on 27.6.2011 to refresh itself with regard to the facts of the case, issues involved and submissions of the - 2 - respective learned counsels for the parties. They have been kind enough to do that, in brief, in respect of all relevant aspects of the matter arising before this Court in the matter. 2. Petitioner, who, at the time of filing of the writ application, was posted as Assistant Professor in the Department of Pharmacology in Patna Medical College and Hospital, Patna, (for short „PMCH‟), through his writ application, has challenged a Notification contained in Memo. No. 652(17) dated 30.8.2006 (Annexure-7, Page-36), issued from the Department of Health, Government of Bihar, by which, for reasons mentioned therein, in effect, the period of working of private respondent as Tutor in the Department of Anatomy in PMCH (from 31.12.1990 to 30.6.1995) has been accepted as notionally spent as Tutor, Pharmacology for the purposes of cadre seniority etc. Accordingly the final seniority list, published through Department‟s letter no. 1240(17) dated 29.11.2003 (An.-4, page-27), has been modified and private respondent‟s ranking has been fixed at 5„A‟, above serial no. 6 and below 5. However, it has been mentioned that the matter shall stand affected by the judgment in L.P.A. No. 74 of 2005. Petitioner has further prayed for a direction to the official respondents not to give effect to the said notification and not to give effect to it for the purposes of appointments on higher posts. Subsequently, petitioner has brought on record a notification contained in memo no. 599(17) dated 4.7.2007 (Annexure- 12, page-148), issued during the pendency of the - 3 - present writ application, by which, as a working arrangement, on provisional basis, in her own pay- scale, private respondent has been posted as Associate Professor in the Department of Pharmacology, PMCH. Through I.A. No. 7565 of 2009, he has also brought on record a provisional gradation list and a final gradation list, along with letters dated 10.1.2008 and 8.7.2008 respectively (Annexure-14, Page 161 and Annexure-16, Page 165), also published during the pendency of this writ application, putting the private respondent above the petitioner, with a prayer for liberty to challenge the said Annexures-12 & 16 also. The said I.A. of the petitioner was allowed by this Court by order dated 3.2.2010. 3. Facts of the case are hardly in dispute. Petitioner and the private Respondent, both are qualified doctors and did their post graduation in Pharmacology, in the year 1986 and 1989 respectively. Both were earlier appointed as medical officers in the State Health Service in different years. Before 1997 Rules came into force, appointments at the entry point in teaching cadre of Medical Colleges of the State used to be made from eligible and qualified medical officers of State Health Service, on the basis of subject-wise panels prepared, after inviting applications through advertisements. One such advertisement was issued on 29.12.1987. Admittedly petitioner was not an applicant at that time, whereas the private respondent, who was a simple MBBS at that point of time, was applicant for more than one subject-panel, and, there appears no - 4 - dispute that, she was included in the panels of Pharmacology as also of Anatomy, at least. It is admitted that she was appointed/posted as Tutor in the Department of Anatomy in PMCH by Notification dated 29.12.1990 (Annexure-R4/1, page 77 and also R4/17, page-243) on the basis of her placement in the 1987 panel for Anatomy, whereas one Dr.P.N.Pandit was appointed/posted as Tutor in the Department of Pharmacology in PMCH by Notification dated 31.12.1990 (Annexure-R4/16, page–241), on the basis of his placement in the 1987 panel for Pharmacology. The private respondent has claimed that, though she was senior to the said Dr.P.N.Pandit in the panel of Pharmacology, she was wrongly left out. This has been disputed by the petitioner asserting that she was, in fact, junior in the panel, hence she could not be appointed/posted as Tutor, Pharmacology and got appointment/posting as Tutor, Anatomy. Respondent has asserted that the said Dr.Pandit was not a post graduate in Pharmacology, hence he could not be senior to her in the panel. By referring to the respective points of Dr.Pandit and herself from the 1990 panel (Annexure-R4/2, page-82 and typed copy R4/24, page-83), she has tried to create an inference that the said Dr.Pandit „must have been junior‟ to her in the 1987 panel for Pharmacology. Hence his appointment as Tutor, Pharmacology, amounted to denial of her legitimate due. 4. But 1987 panel has not been brought on record either by the private respondent or by the official respondents. As will be noticed later on, there is also - 5 - no collateral evidence on record to support this claim of the private respondent. During the course of hearing, this Court requested the learned counsel for the official respondents to produce the relevant records of the Department, to make the picture clear in respect of this and some other aspects of the matters arising in this case. As will be evident from orders dated 15.3.2010 and 7.7.2010, repeated indulgence were granted for the purpose, but, ultimately, this Court was informed that the required relevant records were missing from the Department, for which a communication had been sent to the D.S.P., Secretariat Police Station on 17.4.2010 (i.e. after this Court requested for the records), with a request to register an F.I.R. in respect of disappearance of the records. This disappearance of records has been discovered in the Department after almost 30 years, is itself surprising. It was the official respondents who had to establish from the records, in view of the charge of the petitioner against the husband of the private respondent, who happens to be a senior I.A.S. officer in the State, of having exercised undue influence, that their subsequent acts were bonafide, in accordance with law and strictly with a view to remedy the wrong done to the private respondent in not appointing/posting her as Tutor, Pharmacology from 1990 or 1991 panel, although vacancies were available, as per her choice, in PMCH and/or in Nalanda Medical College and Hospital, Patna (for short „NMCH‟). In absence of the records, and in absence of the 1987 panel, these aspects of the - 6 - matter still remain shrouded in mystery. 5. A Division Bench of this Court noticed a virtual „tug of war‟ between rival interests when two doctors moved this Court in C.W.J.C. No. 9462 of 1989, raising grievance against appointments still being made from the said 1987 panel, on the ground that, subsequent to preparation of the said panel, they had also become eligible. The Bench found that this was happening because the panel was not being prepared on yearly basis. Hence, as agreed by the State Government also, this Court directed by its order dated 8.3.1990 [Dr.Rita Sinha vs. State of Bihar : 1990 (2) PLJR 243] that, for preparation of panel in respect of all teaching posts for the year 1990-91, application must be invited on or before 31st December, 1990; the date of eligibility should be fixed by 31st January, 1991, which should also be the last date for making applications; the applications so received, should be processed and panel in respect of different teaching posts be notified latest by 31st December, 1991, after completion of different formalities; appointments from that panel be made in respect of vacancies occurring from 1st January, 1992 to 31st December, 1992 and the same schedule should be followed onwards. The Bench found that appointments from 1987 panel, which was approved by the State Government in September 1988 itself, had not been made till 4.1.1990. Hence, to balance the rival interest, the Bench directed that, against different teaching posts for the year 1990, fresh advertisement should be issued, inviting applications, - 7 - latest by 31st May, 1990, fixing eligibility for making applications as on 30th June, 1990 and the panel on that basis be prepared and notified latest by 31st December, 1990. The Bench also directed that vacancies, which had become available and which were to become available up to 31st March 1990 was to be filled up from the panel of 1987, prepared on the basis of advertisement dated 31.12.1987. All teaching posts falling vacant between 1.4.1990 and 31st December, 1991, was to be filled up from advertisement to be published on or before 31st of May, 1990, as directed. 6. Therefore, in terms of the orders of the Division Bench, steps were taken and subject-wise panels were notified for the year 1990, including a panel for Pharmacology (Annexure-R4/2, page 82 and Annexure- R4/24 with rejoinder filed on 28.7.2010). In this panel private respondent was at serial no. 1(?), whereas petitioner was not within first 50. As per the directions of the Division Bench, vacancies arising only between 1.4.1990 to 31st December, 1991, had to be filled up from this panel. Petitioner has brought on record a notification dated 30.12.1991 (Annexure-21, page 231) by which, from 1990 panel, he, along with others were posted as Tutor, Pharmacology in different Medical Colleges, except PMCH and NMCH and has asserted that there was no vacancy of the post of Tutor, Pharmacology available during the period in PMCH and NMCH and hence the private respondent got herself posted as Tutor, Anatomy in PMCH from 1987 Panel itself, against a vacancy which was available there for - 8 - 1987 panel only, as per the directions of the Division Bench. 7. Private respondent has also brought on record a copy of relevant part of panel of Pharmacology of 1991 (Annexure-R4/3, page 84) to show that she was first in this panel, whereas petitioner was at serial no.6 therein. This may not be very relevant, as admittedly petitioner was appointed/posted by Annexure-21 from 1990 panel and accordingly he joined on 1.1.1992 at his place of posting. Inclusion of the name of petitioner in 1991 panel also, obviously may be because, while his application against advertisement dated 31.5.1990 may be pending, he may have applied also against advertisement dated 31.12.1990, both issued in terms of the Division Bench order. 8. In chronological order, next document is an application of the private respondent dated 30.7.1992 (Annexure-22/A, page 234 and its typed copy Annexure- R4/22 with her said rejoinder) addressed to the Commissioner-cum-Secretary of the Department. It appears that she also gave a copy of her said application to one Anil Kumar Singh, an Ex-Member of State Health Welfare Board, who forwarded the same, along with his recommendation letter dated 31.7.1992 (Annexure-22, page 233 and its typed copy Annexure- R4/23 with her said rejoinder) to the State Minister of the Department, who, in turn, on the same day, endorsed it to the Commissioner for action on it in the light of statement portion marked as „Ka‟ by giving justice in the matter. From reading of this application of the - 9 - private respondent it is clear that occasion arose to her to file it when she came to know that one post of Tutor in Pharmacology in NMCH had fallen vacant in September 1991. She says in the application that she had come to know that Establishment Committee had recently recommended name of some medical officer for his posting against that vacancy. She says that in the panel prepared for 1990, she was at first serial; she had done her M.D. in Pharmacology in 1989 and, as a first choice, she wanted to be posted in Pharmacology in PMCH/NMCH. In 1990 she was told that no post in Pharmacology was vacant, hence, under compulsion she had to join as Tutor in the Department of Anatomy in PMCH. In 1991 panel also she was at the first serial. Hence she prayed that she should be posted in NMCH against vacant post in the Department of Pharmacology. Thus, this application of private respondent makes it clear that her sole target was the reported vacancy in NMCH of the post of Tutor, Pharmacology, and no other post, and she became interested in her posting in the subject of Pharmacology from 1990 and 1991 panel only when she came to know about availability of such opportunity in Patna itself. Surprisingly there is no whisper even, in this application, about her placement in the 1987 panel and so called „injustice‟ caused to her due to posting of said Dr.P.N.Pandit in PMCH from that panel. This Court does not find the interpretation of her said application made by her learned Counsel, as an open request for her posting from 1990 or 1991 panel in any medical college in the subject, as correct. - 10 - Apparently, this request of the private respondent was not acceded to by the Department. Hence she moved this Court through C.W.J.C. No. 4668 of 1994. There is nothing on record to suggest that this writ application was ever taken up by this Court and any interim order was passed directing the respondents to file counter affidavit, or whatever. However, a notification was issued by the Department dated 12.6.1995 (Annexure-5, page 30 and Annexure-R4/4, page 88) notifying the posting of 11 teachers of different Medical Colleges of different faculties, which included the private respondent also, posting her in the capacity of Tutor, Pharmacology in PMCH. In the circumstances, she withdrew her writ application on 9.8.1995. 9. This notification dated 12.6.1995 deserves a little more notice. By this notification, 3 Professors, 3 Assistant Professors, 4 Tutors and one Medical Officer, on deputation as Assistant Professor, posted in different Medical Colleges in different faculties, were transferred and posted on different posts in different colleges. This included private respondent also. But, whereas all other persons were transferred and posted against available vacancies, it was only the private respondent who was posted in anticipation of a future vacancy of Tutor in Pharmacology in PMCH and till then she was designated only and was to draw her salary against a post of Associate Professor fallen vacant recently in the Department. It is worthwhile to reproduce the note made in her respect here itself for appreciation:- - 11 - 7. 10. It is true that by this notification one Dr. Anita Verma, Tutor in Pharmacology, posted in Ranchi Medical College, Ranchi (for short „RMCH‟), was also transferred and posted against a vacant post of Tutor, Pharmacology in NMCH, Patna. There is no material on the records of this case to show as to under what circumstances the said post of Tutor fell vacant in NMCH and under what circumstances the said Dr. Anita Verma was posted against it. Private respondent has alleged that this was also in ignorance of her preferential claim, as the said Dr. Anita Verma was junior to her in the panel of 1990 as well as of 1991. Private respondent has brought on record two documents, the notifications dated 8.1.1990 and 30.6.1990 (Annexure-R4/21 & R4/20 respectively with her said rejoinder) in support of her claim that vacancies of the post of Tutor in Pharmacology were, indeed, available in PMCH/NMCH, but her preferential right to either of them was overlooked by the Department. Hence „injustice‟ was done to her this time also. The first - 12 - notification is dated 8.1.1990. Apparently it covers a vacancy arising prior to 31st March 1990, the cut off date fixed by the Division Bench (judgment dated 8.3.1990) for filling up of vacancies from 1987 panel, and was in respect of posting of an already appointed Tutor waiting for posting. Therefore this notification is of no help to the case of private respondent that a vacancy was available in PMCH on which she could be posted. It may be pointed out that private respondent has not raised any grievance at any point of time before this Court in her either of the writ applications or in her application dated 30.7.1992 filed in the Department against her non-posting as Tutor, Pharmacology in PMCH from 1987 panel. Her entire claim, all the time, hinged upon her ranking in 1990 and 1991 panel, and her non-posting from either of those in PMCH or NMCH as Tutor in Pharmacology. The other notification is dated 30.6.1990. By this notification, one Dr. Sudhakar Singh, posted as Tutor, Pharmacology, NMCH, from the date of his posting itself, was posted as Assistant Professor, Radiotherapy in RMCH, Ranchi, against a vacant post of Associate Professor there and placed on deputation in PMCH, (Patna again) till further orders. This notification is strange in itself, for the manner in which the incumbent was posted from NMCH to a non-existent vacancy in RMCH of another department, against a higher post, and then brought back on deputation in PMCH, (Patna again) all by one order. However, from the last line of the last paragraph on the second page of the - 13 - notification, it is clear that the said Dr. Sudhakar Singh was also a 1987 panellist. Therefore, the vacancy of the post of Tutor, Pharmacology in NMCH, on which he was initially posted, appears to be of prior to 31st March, 1990. Therefore the private respondent could not lay any claim to it also, as her consistent claim was on the basis of her empanelment and ranking in the panel for 1990, which, as per the decision of the Division Bench, covered vacancies arising only between 1.4.1990 to 31.12.1991. As said earlier, in spite of being requested by this Court, the official respondents have not produced the relevant records from which further details in respect of the matter could be found out, nor any of the respondents have placed on record, or pleaded, anything more in respect of initial posting of said Dr. Sudhakar Singh as Tutor, Pharmacology in NMCH and his later change to Radiotherapy, nor have they produced a copy of the 1987 panel, from which the exact status of the said Dr. Sudhakar Singh or the status of the incumbent posted by the said notification dated 8.1.1990 could be found out. In the circumstances, this Court finds that, in absence of any claim raised by her at any point of time earlier and till 1995, in respect of her non-posting from 1987 panel, these notifications, on their own, do not lend support to the theory of „injustice‟, as being propounded by the private respondent now, to have been meted out to her on the basis of her ranking in 1987 panel itself. 11. But from the said notification dated 12.6.1995 - 14 - one thing is clear. The way the private respondent has been posted by it against a non-existent vacancy, to draw her salary against a vacancy of higher post, to be automatically absorbed on the next vacancy of the post of Tutor, Pharmacology in PMCH, becoming available in future, it is clear that the Department had bent over backwards to the maximum at that point of time to oblige her. The Department does not even appear to have cared to consider that the subsequent vacancy, arising in normal course, may fall in the quota of panellists of the subsequent year, as directed by the Division Bench, as referred to above. The records having not been made available to this Court, in spite of request, reasons for such type of posting of the private respondent could not be available to this Court. Therefore, at this stage, it is not possible for this Court to altogether rule out the allegation of the petitioner that this was all, in fact, done to oblige the IAS husband of the private respondent. As per her own admission, by notification dated 17.5.1996 (Annexure-R4/5, page-92 and R4/18, page-246), she was absorbed against a post of Tutor, Pharmacology in PMCH, falling vacant due to retirement of one Dr.S.K.Prasad. In absence of records, it is not clear whether anybody in the Department gave it a thought that the post falling vacant in normal course in 1996, due to retirement of the incumbent, had to be filled up from the panel for the year 1996, in terms of the said Division Bench judgment of this Court, or not. For justification of this action, it was stated in the - 15 - notification that, although being eligible in 1987 (which was not her case in the representation) and being first in the panel of 1990, due to some reasons ( ), she was not posted earlier on the post of Tutor, Pharmacology. However, later on, upon consideration of her representation, she was posted by notification dated 12.6.1995 (as discussed above) as Tutor in PMCH against a vacancy of Associate Professor on the basis that on the first vacancy of Tutor occurring in future, she will be automatically absorbed, which was now being done by this notification due to vacancy arising (in the circumstances already noticed above). 12. It appears that, the private respondent was still not satisfied and wanted her immediate re- designation and promotion as Assistant Professor in Pharmacology. Hence she again submitted an application dated 27.7.1996 (Annexure-R4/25A with her said rejoinder) with enclosures, through the Principal of PMCH, with a request to consider her earlier teaching experience (as Tutor in Anatomy) sufficient for the purpose, in the background of earlier such examples. In the meanwhile, in terms of some orders passed by this Court in C.W.J.C. No. 2028 of 1990 and in the light of some notification of the Department dated 20.6.1996, teachers working in the Department of Pharmacology, having post graduate degree, were re-designated as Assistant Professors and amalgamated with Assistant Professors working from before, and a provisional combined seniority list was drawn of 26 such Assistant - 16 - professors and forwarded to all the Principals/ Superintendents of all the Medical Colleges through Department‟s letter dated 12.12.1996 (Annexure-1, page- 19, Annexure-R4/6, page-96 and R4/19 with her said rejoinder), for information and inviting objections. Petitioner was at serial no. 25 in the list, whereas the name of private respondent did not find place therein. Hence she also filed her detail objection to it on 20.12.1996 (Annexure-R4/7, page 97 and R4/25, with her said rejoinder). In this objection petition, for the first time, she raised her protest in respect of posting of her juniors, Dr.P.N.Pandit from 1987 panel (as discussed earlier) and Dr.Anita Verma (she was posted in RMCH, in which private respondent did not appear to be interested) from 1990 panel, ignoring her claim. In her petition she, therefore, requested that, in