IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1967 of 2001 DR. BHARTENDU JHA Versus THE STATE OF BIHAR & ORS -With- CWJC No. 10000 of 2007 DR.BHARTENDU JHA Versus THE STATE OF BIHAR & ORS -With- MJC No.2755 of 2007 DR. BHARTENDU JHA Versus STATE OF BIHAR & ORS ----------- 9. 01.7.2008 Heard learned counsel for the petitioner and learned counsel for the state-respondents. Petitioner in both the writ applications as well as the contempt application is Dr. Bhartendu Jha. Relief prayed in all three applications are interlinked, as such, they were taken up for hearing analogous and are being disposed of by a common order. C.W.J.C. No. 1967/01 was filed by the petitioner for commanding the respondents to adjust/absorb his services on the post of lecturer instead of on the post of Medical Officer and to quash part of the notification No. 345 dated 20.5.2007 absorbing services of the petitioner as Medical Officer “PADNAMIT VYAKHYATA” instead on the post of lecturer. - 2 - The ground for challenging the Notification relating to petitioner’s absorption is that persons similarly situated or junior in service working as Medical Officer have got absorbed on the post of lecturer but the case of the petitioner has been ignored irrespective of the fact that he has requisite qualification and working experience for being absorbed against the post of lecturer. Petitioner’s further prayer in this writ application is for a direction to the respondents to remove discrepancy in his pay scale on account of Pay Certificate issued by the Finance Department contained in Memo No. 3138 dated 22.2.2000 and for restraining the authorities from fixing his basic pay after absorption at the lower pay scale than what was being paid to him at the time of taken over of the institution in which he was working and the service of the staffs working therein. Other prayer was to release increments which are not being allowed to him in spite of service for more than 15 years and to make payment of arrears of salary along with interest on account of refixation of his basic pay scale allowing increments. - 3 - This writ application was taken up for admission on 12.2.2001 and the counsel appearing for the state was directed to file counter- affidavit. Thereafter, the writ application was again taken up on 06.10.2007 but no counter affidavit was filed till that date on behalf of the state, as such, it was again adjourned for four months for filing counter-affidavit. In the meantime, the State Government on account of bifurcation of the state of Bihar and Jharkhand allocated service of the petitioner to the state of Jharkhand under the provisions of Bihar Re- organization Act, 2000 by Notification No. 1034(5) dated 06.7.2007. The Notification was issued from the office of Deputy Secretary –cum-Nodel Officer, Department of Health, State of Bihar. The petitioner then filed CWJC No. 10000 of 2007 for quashing the order canceling part of the Notification which related to the petitioner only and whereby his services were allocated to the state of Jharkhand. The Notification was challenged on the ground that petitioner’s service has been allocated to the state of Jharkhand de hores the provisions under the Bihar Reorganization Act, 2000 and in violation of the - 4 - principle of natural justice. Another ground was that when petitioner’s application for absorption of his services on the post of lecturer in the Ayurvedic College was sub-judice before the High Court in CWJC Bi, 1967/01 no such Notification should have been issued against him. This was also one of the grounds that no provisional list of allocation in reference to the name of the petitioner had ever been served either to the petitioner or in the office of Ayurvedic College where he works, as such, he could not get any opportunity to give his option, objection or represent at initial state which is mandatory for allocating service of any Government employee under the provisions of Bihar Reorganization Act, 2000. This is also one of the grounds for challenging the impugned notification allocating services of the petitioner to the State of Jharkhand that the post of lecturer in Ayurvedic College against which he is claiming his absorption did not exist in the state of Jharkhand. C.W.J.C. No. 10000 of 2007 was taken up for admission on 27.8.2007 on that very date, notices were issued to the respondents asking to - 5 - file counter affidavit and an order was passed to maintain status quo as existing on the date of passing of the order. Petitioner, thereafter, filed MJC No. 2755 of 2007 for initiating a proceeding of contempt against the opposite party (contemnors), specially the Principal of Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga as in violation of the interim order of status quo passed on 27.8.2007 in CWJC No. 10000/07, the petitioner was relieved from the post. He was not allowed to join on his post when he came to give joining on 10.9.2007 after remaining on medical leave from 28.7.2007 to 08.9.2007. The order of status quo produced by the petitioner , was deliberately ignored by the Principal of the college and instead of allowing the petitioner to give joining, a clarification was sought from the Director, (Deshi Chikitsa), Department of Health and Family Welfare, Govt. of Bihar, Patna. The principal of the college served letter No. MR/286/07 dated 19.9.2007 to the petitioner stating that he has sought instruction from the Director and only after receipt of the same; he would allow the petitioner to resume his work. It - 6 - has also been stated in the contempt petition that the Director intentionally mentioned wrong date of the order and wrong number of the writ application with a view to mislead the higher authority and due to that reason there was no response from the Director. The petitioner has not been allowed to join in the college where he was working. Considering the pendency of his writ applications, he has not joined at Jharkhand where his services have been allocated under the Provisions of Bihar Reorganization Act, 2000 Admitted facts are that petitioner was appointed on 01.8.1982 on the post of Medical Officer in Rajkiya Kameshwar Singh Ayurvedic Hospital, Darbhanga in pursuance to order contained in Memo No. 4876 dated 21.8.1982 issued by the Vice-Chancellor, Kameshwar Singh Sanskrit University, Darbhanga. The State Government by its notification No. 169(DE-CHI) dated 23.2.1985 took over the same Ayurvedic Medical College and Hospital in the state of Bihar including Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga where the petitioner was working and other college namely Shree Yatindra Narain Astang Ayurved Mehavidyalaya, Bhagalpur and - 7 - its associated hospital namely Daya Ram Poddar Astang Ayurvedic Hospital Nathnagar, Bhagalpur. A five-men Screening Committee was constituted (vide Notification No. 37 DE-CHI dated 24-01-2000) to review and examine cases of all employees of the Medical colleges and hospitals which were taken over. The Screening Committee submitted its report and recommendation on 20.5.1997 vide Notification No. 345 (DE-CHI) absorbing the services of the staffs working in those institutions. The service of petitioner was absorbed against the post of Medical Officer “PADNAMIT VYAKHYATA”. Petitioner’s case is that from very beginning, he was doing teaching job in the college in addition to the duties of Medical Officer. The Government Notification absorbing services of similarly situated persons indicated their absorption on the post of lecturer, but so far the petitioner is concerned, he was shown absorbed as Medical Officer “PADNAMIT VYAKHYATA” which created some confusion. The petitioner, as such, represented his case before the Screening Committee and other competent authorities to notify his services exclusively on a teaching post in the college. In the representation, - 8 - petitioner’s case was that there was no reason for not to absorb him on the teaching post as he had requisite qualification and experience for being absorbed against the teaching post in the college. It was discriminatory as persons having same qualification and junior to the petitioner have been absorbed on teaching posts. Since, no action was being taken by the authorities as such; he filed CWJC No. 1967/01 on the ground of discrimination and parity. In the counter-affidavit filed on behalf of the respondents in CWJC No. 1967/01 it has been stated that according to C.C.I.M. norms and departmental resolution No. 576 (DE-CHI) dated 19.6.1991, for appointment/promotion to the post of lecturer, post graduate decree is the requisite and essential qualification with effect from 01.7.1989. Since the petitioner has no requisite qualification for the post of lecturer, his name was not recommended by the Screening Committee for absorption on the post of lecturer. He was recommended for being absorbed on the post of Medical Officer. Bihar Public Service Commission has also recommended for regularization of his service on the post of Medical officer which has - 9 - been sent for approval of the Hon’ble Governor. The Departmental Resolution No. 576 (DE- CHI) dated 19.6.1991 which relates to C.C.I.M. norms has been annexed as Annexure-C to the counter affidavit. Clause 3 of this resolution relates to the requisite qualification and experience for appointment/promotion on the post of lecturer. Here it has specifically been mentioned that so far the qualification of post graduate degree for being appointed/promoted to the post of lecturer is concerned, will have application only in such appointments/promotions which has been made on or after Ist July, 1989. So far petitioner is concerned, he was appointed in the year, 1982 and his services have been absorbed on the post of Medical Officer cum “PADNAMIT VYAKHYATA” vide Notification dated 23.2.1985 with effect from the date of his appointment. In this circumstance, the ground which has been taken by the respondents for not considering the case of the petitioner to be absorbed on the post of lecturer is non-existent. The petitioner in his reply to the counter affidavit has given specific reference of the case of Dr. Bhanu Pratap Rai, Dr. Pawan Kumar Verma and Dr. Mahesh Singh who were - 10 - appointed on the post of Medical Officer subsequent to the petitioner on 11.3.1985 but have been adjusted against post of lecturer in different subjects. There is no denial on behalf of the respondent that these three persons appointed as Medical Officer have post-graduate degree and have not similar qualification as the petitioner, as such others have been absorbed against the post of lecturer in different subjects in different institutions by same notification. The petitioner has been able to make out a case of discrimination as well as non consideration for being absorbed on the post of lecturer. So far the ground taken by the respondents that petitioner had no requisite qualification for absorption against the post of lecturer is concerned, is also not sustainable. Accordingly, the part of the Notification dated 20.5.1997 whereby the service of the petitioner was absorbed as Medical Officer instead on the post of lecturer, is quashed. The respondents are directed to issue a fresh Notification relating to the petitioner notifying absorption of the petitioner’s service on the post of lecturer as he is senior to Dr. Bhanu Pratap - 11 - Rai, Dr. Pawan Kumar Verma and Dr. Mahesh Singh whose services have been notified and absorbed against the post of lecturer. The notification should be issued considering the seniority of Medical Officers having same notification; senior most should be absorbed on priority basis against teaching post. Petitioner admittedly being senior- most is required to be given preference. Another prayer of the petitioner in this writ application is that his basic pay has been fixed lower than the basic salary which he was receiving prior to take over of the institution in which he was working. There is no specific reply or denial in the counter affidavit. As such, the respondent No. 6 the Commissioner-cum-Secretary, Department of Finance, is directed to look into the claim of the petitioner and pass an appropriate order within four weeks from the date of production/communication of the order. The arrears of salary in case of enhancement should be paid to the petitioner within four weeks from the date of passing of such order. Further prayer of the petitioner relates to non-payment of increments. In reply to this in the supplementary counter affidavit, it has been - 12 - stated that since the petitioner has been absorbed on the post of Medical Officer, as such, payment of increments is subject to the passing of the departmental examination. It has further been stated that increments have already been allowed which is apparent from the pay slip of the petitioner. Considering the direction of this court that petitioner should be absorbed against the post of lecturer, passing of Hindi noting and drafting will not have any relevance in case of the petitioner. Increments for which petitioner is entitled, if already not paid, must be paid to him. So far C.W.J.C. No. 10000/07 is concerned; the relief which has been prayed by the petitioner in the present writ application will have direct impact of the order passed in CWJC No. 1967/01. The Post of Medical Officer can be allocated to the state of Jharkhand under the provisions of Bihar Reorganization Act, 2000 but so far the post of lecturer is concerned, it cannot be allocated to the state of Jharkhand under the provisions of Reorganization Act. CWJC No. 1967/01 has been allowed directing the respondents to absorb the services - 13 - of the petitioner on the post of lecturer. In this circumstance, service of the petitioner cannot be allocated to the state of Jharkhand. Counsel for the petitioner has rightly submitted that the respondents should not have passed any order allocating his service to the state of Jharkhand as his case was sub judice before the High Court where his prayer was for his absorption of his services on the post which is not transferable to the state of Jharkhand under the provisions of Reorganization Act. Ignoring the pendency of the writ application, the order allocating the petitioner’s service to the Jharkhand has been passed which is arbitrary and not sustainable in the eye of law. Other ground which has been taken by the petitioner challenging the Notification No. 1034(5) dated 06.7.2007 allocating his service to the state of Jharkhand , he has been deprived of his right of representation and its consideration by the Advisory Committee constituted u/S 75 of the Reorganization Act. Petitioner’s specific case is that he had no knowledge about any provisional list allocating his service to the state of Jharkhand. For the first time, by the impugned - 14 - order, he came to know that his name was there in the provisional list which was never supposed to the petitioner in the college where he worked and finally his service has been allocated to the state of Jharkhand. Two counter affidavits have been filed; one by respondents No. 2 to 5 and another on behalf of Chairman, State Advisory Committee. In none of these two counter affidavits, the statement of the petitioner regarding non-supply of provisional list has been denied. Simply it has been stated that since against the provisional list, neither any objection or option has been submitted by the petitioner, as such, his service has been allocated to the state of Jharkhand. It can be deemed to be an admission on the part of the respondents that the petitioner was not provided with the provisional list allocating services of the employees in the concerned department to the state of Jharkhand. This deemed admission indicates violation of rules of natural justice. Considering this, the impugned notification is fit to be quashed so far it relates to the petitioner. - 15 - Another ground which has been taken by the petitioner for challenging the impugned notification allocating his service to the state of Jharkhand is that the impugned notification so far it relates to the petitioner is bad in view of Section 74 of the Reorganization Act as it mandates allocation on the same post. So far the post of lecturer is concerned, it is not transferable and there is no post of lecturer neither there are any Government Ayurvedic Collect in the state of Jharkhand. This statement has also neither been denied nor replied by the respondents in their counter affidavits. Considering the pleadings as well as the submissions of the counsels, the Notification issued from the office of the Deputy Secretary- cum-Nodel Officer, Department of Health, Government of Bihar vide Notification No. 1034(5) dated 06.7.2007 so far it relates to the petitioner is quashed. The principal, Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga is directed to accept joining of the petitioner on the post of lecturer. The respondent, Commissioner-cum-Secretary, Department - 16 - of Health, Medical Education and family welfare, Government of Bihar and the Director, Deshi Chikitsa (Local Medicine) Department of Health, Medical Education and Family Welfare, Government of Bihar are directed to issue necessary notifications in this regard. The period for which the petitioner has not been allowed to give his joining should not be treated as leave, all consequential benefits including salary, increments should be allowed to the petitioner. However, the petitioner should make a representation to the Union of India through the Ministry of Pension (Department of Personnel and Training), Government of India as well as the State Advisory Committee through its Chairman bringing all these facts to their notice and for passing an appropriate order in this regard. MJC No. 2755/07 is disposed of as no further order is required to be passed considering the orders passed in CWJC Nos. 1967/01 and 10000/07. A.K.V ( Mridula Mishra, J.)