IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.274 of 2004 Dr. Awadh Kumar, son of late Kauleshwar Ram, Resident of Village Pachaukhar, P.O. Pachaukhar, P.S. Deo, District Aurangabad, at present working as of Principal, Health and Family Welfare Training Centre, Bhagalpur. ------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Health Services, Bihar, Patna. 3. The Secretary, Health, Medical Education, Family Welfare and Indigenous Secretary, Health, Medical Medicine Department, Bihar, Patna. 4. The Additional Secretary, Health, Medical Education, Family Welfare and Indigenous Medicine Deptt., Bihar, Patna. 5. The Additional Director, Health, Medical Education, Family Welfare and Indigenous Medicine Department, Bihar, Patna. ------- Respondents ----------- 27 29.10.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the writ petitioner in this writ petition reads as follows:- “1. That this is an application for issuance of appropriate writ(s)/ direction(s) for quashing of the order contained in Memo No. 820(17) dtd. 21.10.02 passed and issued by the respondent no.4, whereby and whereunder, the applications of the petitioner dtd. 23.12.01 and 22.1.02 with regard to his claim for appointment as Assistant Professor (General Surgery) in Medical college of Bihar, has been rejected. Further the respondents be directed to appoint the petitioner to the post of Assistant Professor 2 (General Surgery) in any Medical college of the state of Bihar and give him all service benefit for same with effect from 16.5.90 and further to grant him notional promotion to the post of Associate Professor (general Surgery) since, 1997. And/or for any other appropriate relief(s) to the petitioner for which he may be found entitled in the eye of law.” From reading of the impugned order dated 21.10.2002, it would be clear that the petitioner’s request for appointment/ promotion on the post of Assistant Professor in Surgery was rejected primarily in view of the provisions made in the Rules framed by the Department of Health dated 21st of May, 1997 known as “fcgkj fpfdRlk f'k{kk lsok laoxZ ,oa blds laoxhZ; inksa ij HkrhZ fu;ekoyh] 1997**. In view of the provisions made in the said Rule, the respondents, having examined the case of the claim of the petitioner, had held that there can be no direct appointment on the post of Assistant Professor, a post, being claimed by the petitioner. During pendency of this writ application, the respondents had taken certain decision in the light of the 3 observations made by this Court and the resultant stand of the respondents in their counter affidavit has also been brought on record by the Secretary of the Health, Education and Family Welfare Department, wherein, it has been stated that:- “5. That it is submitted by the deponent that in the light of the direction given by the Hon’ble court in the above mentioned order dated 4.10.2004 it is to be stated that a Rule was framed by the department under Articles 309 of the constitution of India. The rule referred subsequently as Rule 1997 was notified vide notification no. 162(17) dated 21.05.1997. 6. That it is submitted by the deponent that after notification of the above mentioned Rule 1997 the posts of Assistant professors are to be filled by promotion from senior Residents/Tutors by following the criteria fixed for promotion. Now the earlier provision of appointment by preparation of Panel is no more in existence. 7. That it is submitted by the deponent that it is clear that according to the rule 1997 now inforce there is no provision for entry in the teaching cadre by way of appointment directly to the post of Assistant professor. Now as per 4 the provision of rule 8(1)(Ka) of rule, 1997 entry to the teaching cadre can only be through appointment on the post of Senior Resident/Tutor through a written examination conducted by the Bihar Public Service Commission. 8. That the post of Assistant Professor in a department is to be filled up by way of promotion from the post of Senior Resident/Tutor as provided in Rule 8(ii)(Ka) of 1997 Rules. 9. That is also stated that the state Govt. is following the provisions of Rule, 1997 and the promotions on working arrangement basis has already been given to the eligible teachers. 10. That in the facts and circumstances as stated above the instant writ application has no merit consideration and is fit to be rejected.” Though the petitioner has filed rejoinder but, there is no denial to the fact mentioned above. Additionally, this Court would find that on 7.4.2005, the Secretary of the Health Department was directed to consider the case of the petitioner, whereafter, an order was passed by the Secretary to the Health Department on 28.4.2005 and in course of such 5 consideration, the Secretary had held as follows:- ^^Mk0 dqekj dk nkok ;g gS fd 1992 ds iSuy ls lgk;d izk/;kid ltZjh ds in ij budh inLFkkiuk@fu;qfDr dh tk;sA fnukad 21&5&97 ls fu;ekoyh 1997 ykxw gksus ds ckn iwoZ dh fjfDr;kW ,oa fu;ekoyh ds ckn dh fjfDr;ksa ij fu;qfDr@izksUufr bl fu;ekoyh esa fufgr izko/kkuksa ds vUrxZr fd;k tkuk gSA fu;ekoyh ds iwoZ lgk;d izk/;kid ds in ij fu;qfDr gksrh Fkh ysfdu vc ;g in izksUufr dk gks x;k gSA flfu;j jsftMs.V@V`;wVj laoxZ ls ojh;rk] vgRrkZ] vkj{k.k foUnq ,oa fjfDr ds vkyksd esa lgk;d izk/;kid ds in ij izksUufr nh tkrh gSA bl fLFkfr esa vkosnd dk vc lgk;d izk/;kid ds in ij fu;qfDr@inLFkkiu dk nkok fu;ekoyh esa fufgr izko/kkuksa ds vuqdwy ugha jgus ds dkj.k Lohdkj ;ksX; ugha jg x;k gSA** It thus becomes clear that the case of the petitioner was considered and the respondents have found that the petitioner did not qualify for the post of Assistant Professor, inasmuch as, he, on his own volition, had chosen to become member of the general health cadre of Bihar Health Services. As a matter of fact, the respondents have also produced a notification dated 3.9.2005, which will go to show that all the posts of Assistant Professor have been filled up in terms of the 1997 Rules. Consequently, this Court would find that now no relief can be given to the petitioner, who admittedly is not working in 6 the Medical Education Cadre for last fifteen years. Accordingly, this Court would find no merit in this writ application and the same is hereby dismissed. Rsh (Mihir Kumar Jha, J.)