IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8050 of 1997 DR.VIDYAWATI PATHAK, wife of Dr. Ravindra Pathak, resident of Mohalla Chirayatand, P.S. Kankerbagh, District Patna, at present working as Reader in the Department of Physilogy, Govt. Ayurvedic College, Patna Kadam Kuan, Patna … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Health Medical Education and Family Welfare Department Vikash Bhawan, New Secretariat, Patna 2. The Special Secretary, Health Medical Education and Family Welfare Department, Vikash Bhawan, New Secretariat, Patna 3. The Bihar Public Service Commission through the Secretary of the said Commission, 15 Bailey Road, Patna 4. Deputy Secretary cum Director (DE-CHI) Health Medical Education and Family Welfare Department, Vikash Bhawan, Patna 5. Dr. B.N.Tiwary 6. Dr. Gopal Jee Upadhya, both are reader, Deptt. Of Physiology, Aurvedic Medical College, Ahrolli, District Buxar … Respondents ----------- 9. 20.7.2010 No one appears for the petitioner. Counsel for the State is present. The prayer of the petitioner in this writ application reads as follows: “By this writ application petitioner craves indulgence of this Hon’ble Court for issuance of a writ in the nature of mandamus for directing the State respondents to give promotion of the petitioner from the post of reader to the post of Professor in the Department of Physilogy, Govt. of Ayurvedic College, Patna from 7.3.1993 against vacant post with salary and 2 other ancillary benefit with retrospective effect in view of the notification dated 2.8.97 contained in Memo No. 546 (DE-CHI) issued by the Govt. of Bihar, Health Medical Education and Family Welfare Department by which Dr. Chandra Mohan Mishra has been given promotion from the post of Lecturer to the post of Reader and from the post of Reader to the post of Professor in the Department of Kai Chikitsa by the same aforesaid notification whereas Dr. Chandra Mohan Mishra was appointed on the post of Lecturer on 14.12.84 in the Department of Kai Chikitsa alongwith the petitioner by common notification dated 14.12.1984 vide Memo No. 810 (DE-Chi) issued by the Govt. of Bihar, Health Medical Education and Family Welfare Department and in the view of the resolution vide Memo No. 202 dated 4.3.1982 taken by the Govt. of Bihar and Central Council of Indian Medicine Act, 1986.” With regard to the aforementioned prayer the respondents in their counter affidavit have taken the following stand: “6. That the petitioner has filed the present writ application for her promotion to the post of Professor in the Physiology 3 Department from the post of Reader on the ground that she possess requisite ten years teaching experience for promotion to the above post. It is to be mentioned that the promotion in the teaching side in the Govt. Aur. Colleges are given on the basis of Departmental Inter Seniority on the availability of the post in the department. 7. That there are five Govt. Ayur. Colleges in Bihar in which there are only two posts of Professors in the Physiology Department in which the petitioner claims the promotion. Out of these two posts one will be reserved for SC and the another one is for general category. The petitioner is in general category. 8. That it is stated that an adhoc departmental inter seniority list have been prepared by the Govt. including all these five Ayur. Colleges. This list is being brought on record of this counter affidavit. On perusal of this list it will be apparent that the petitioner is on the fourth serial in the departmental seniority list and the available post of Professor is only one. So in view of the seniority and availability of this single post her claim for promotion to the post of Professor is not 4 acceptable and legal. So this writ application is not maintainable.” It has to be noted that the availability of only two posts for promotion and that too one being ear-marked for reserved category is not disputed by the petitioner in the rejoinder affidavit who has explained in paragraphs no. 6 and 7 of the counter affidavit in paragraphs 6 to 9 of the rejoinder affidavit. The stand of the petitioner in the rejoinder affidavit is that there was no concluded roaster clearance so as to deprive the petitioner from promotion on the basis of a tentative gradation list. None-the-less the petitioner has not been able to identify any person who according to her was junior and was yet given such promotion on the post of Professor. That being so, the claim of promotion of the petitioner in presence of her senior who too were not promoted cannot be sustained. This Court now is not aware of the present entitlement of the petitioner and therefore, while this Court would not find 5 any merit in this application, rejection of such prayer of the petitioner in this writ application would not stand in her way in the event she would have qualified for promotion in the interregnum period. With the aforementioned observation, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/