IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6151 of 2005 DR.RAMESH CHANDRA JHA Versus THE STATE OF BIHAR & ORS ----------- 9 10.12.2008 In this writ application, the sole petitioner has prayed for issuance following directions to the respondent State of Bihar and its officials “to act upon the recommendation made by the Departmental Promotional Committee presided over by Public Bureau of Enterprises vide proceeding dated 04.08.2004 whereby and whereunder the petitioner and Dr. Azmat Hussain Ansari, Lecturer in Surgery Department Razkiya Ayurvedic College, Patna have been recommended for promotion on the vacant posts of Reader in the Pay Scale of Rs. 10,000/- to 15,200/- and further the respondents may be directed to pay him the consequential arrears of salary and other benefits to the petitioner with effect from 19.7.1991”. Mr. Rajani Kant Pathak, learned counsel with reference to the aforementioned prayer has submitted that there should have been no impediment in promoting the petitioner on the post of Reader inasmuch as his eligibility for such promotion had already been gone into, considered and adjudicated by the Departmental Promotional Committee (hereinafter to be referred to as “D.P.C.”) which had in its recommendation dated 4.8.2004 had already found the petitioner fit for promotion. Referring to the said recommendation dated 4.8.2004 contained in Annexure-4, he has also strongly relied to the findings recorded there in that there were clear two vacancies on the post of Reader in Rajkiya Ayurvedic College, Patna and Begusarai. He has also drawn attention of this Court towards the facts recorded in the proceedings of the D.P.C. that the petitioner was admittedly working - 2 - on the post of Lecturer and had also acquired the desired experience of minimum five years on the post of Lecturer including teaching experience of three years as a Lecturer. In view of the aforesaid admitted fact, there should not have been any difficulty in notifying the promotion of the petitioner after the recommendation was already made by the D.P.C. but then the respondent Nos. 1,2 and 3 in their counter affidavit have taken a plea that Central Council of Indian Medicine (CCIM) by a resolution dated 16.8.1989 with the prior approval of the Government of India had notified IMCC (Minimum Standard of Indian Medicine) Regulation 1989 whereby and whereunder qualification of Post Graduation in the subject of Ayurveda was made compulsory for all recruitments in teaching post to be made compulsory on/or after 1.7.1989. It is therefore this decision which is said to be coming in the way of the petitioner of being promoted because the petitioner is admittedly not holding any post graduate decree in any of the subject of Ayurved. The counsel for the State in this context, has also referred the circular of the State Government dated 19.6.1991 whereby and whereunder the State of Bihar had also adopted the said norms for filling of the post of Professor/Reader/Lecturer making the post graduate qualification as a condition precedent with effect from 1st of July, 1989. The respondents however have given a justification that even after issuance of the circular of the State Government dated 19.6.1991 adopting the norms of the CCIM dated 16.8.1989, the case of the promotion of the petitioner was considered because subsequently the - 3 - CCIM vide its letter dated 29.3.1996 (Annexure-B to the counter affidavit) had clarified that the requirement of a post graduate decree will not be essential for further promotion of those teachers who had been appointed on or before 1.7.1989. The Government, therefore, have taken a plea in the counter affidavit that it was in the light of the aforementioned decision of the CCIM dated 29.3.1996 that the Government of Bihar had initiated steps for giving promotion to those teachers who had not obtained post graduate degree but were appointed and working before 1.7.1989. it is however, claimed by the respondents that when in terms of the aforementioned decision the D.P.C. had recommended the case of the promotion of the petitioner and one another person in the meeting held on 4.8.2004, and the same was being processed for its being notified, a letter of the Director of the Ministry of Health and Family Welfare of the Government of India dated 01.02.2006 (Annexure-D to the counter affidavit) was received by the Government of Bihar wherein it was mentioned that the provisions made by the CCIM in the circular dated 29.3.1996 making post graduate qualification not essential for teachers appointed on or before 1.7.1989 was contrary to the decision and notification issued by the Government of India and in fact the said circular of the CCIM dated 29.3.1996 had been issued by the CCIM even without complying the provisions of Section 36 of the CCIM Act 1970 requiring prior approval of the Government of India and its being notified in official gazette. The respondents therefore, have taken a plea that it is this decision of the Government of India which has come - 4 - in the way of the petitioner of being promoted on the post of Reader and accordingly, the State Government has not notified the promotion of the petitioner despite their being a recommendation of the D.P.C. Counsel for the petitioner in reply had submitted that any service rule if not framed by the State Government under the legislative power under proviso to Article 309 laying down qualification can only be prospective in nature and therefore, the resolution issued by the Government of Bihar dated 19.6.1991 could at best be made effective from the date of its issue as no vested rights prior to that date could be taken away from a retrospective effect. In this context he had also relied on the earlier decision of the Government of Bihar dated 4.3.1982 laying down the norms of promotion on the post of Reader which would go to show that the only requirement for promotion on the post of Reader was having completed five years tenure in the cadre including three years teaching experience on the post of lecturer and therefore, when the petitioner had been appointed as Demonstrator in the year 1982 which post was upgraded by the Government of Bihar as Lecturer by a resolution dated 24.1.1991 with a clear provision therein that the teaching experience acquired on the post of Demonstrator would qualify as teaching experience for the post of Lecturer, there would be little doubt that the petitioner was a Lecturer since 1982 and had completed a period of 9 years service even on the date of issuance of revised criteria/rules by the resolution of the Government of Bihar dated 19.6.1991 prescribing qualification of post graduation as a condition - 5 - precedent for grant of promotion. In this context, counsel for the petitioner has referred to different judgments of the Apex Court in the case of A.A. Calton Vs. Director of Education & Anr. reported in AIR 1983 SC 1143, Dr. Asim Kumar Bose Vs. Union of India & Ors. reported in AIR 1983 SC 509, P. Mahendran & Ors. Vs. State of Karnataka & Ors. reported in AIR 1990 SC 405 and Y.V. Rangaiah & Ors. Vs. J. Sreenivasa Rao & Ors. reported in AIR 1983 SC 852 respectively. Having given anxious consideration to the aforementioned submissions, this Court is of the view that even if it is accepted that the requirement of port graduation for promotion on the post of Reader/Professor in the discipline of Ayurved was made compulsory, the same would affect and could be made applicable only with effect from 19.6.1991 as prior to that date the earlier resolution of the Government of Bihar dated 4.3.1982 would govern the field. There is no dispute that the petitioner in view of the upgradation of the post of Demonstrator had acquired teaching experience on the post of Lecturer from 28.8.1982 inasmuch as he was holding the post of Demonstrator from the said date and had thus also acquired teaching experience. Eventually, when the Government of Bihar had upgraded the post of Demonstrator as Lecturer by a resolution dated 24.1.1991 and had also clearly provided therein that whatever teaching experience was acquired by a Demonstrator would be counted towards his teaching experience as Lecturer, the petitioner can justifiably claim to have acquired teaching experience on the post of Lecturer for a - 6 - period nearly nine years even on 19.6.1991, the day on which the modified qualification in the resolution dated 19.6.1991 was introduced. Such experience of the petitioner against the post of Lecturer could be validly counted for the purpose of his promotion as was held by the Apex Court in the case of Dr. Asim Kumar Bose (supra) that teaching experience gained either on a cadre post or even on an ex-cadre post could hardly make any difference so far teaching experience was concerned. In the present case also the 1982 resolution only required acquiring of teaching experience on the post of Lecturer for a period of three years out of total service of five years and that the petitioner has successfully completed way back in the year 1987 itself. The eligibility of the petitioner being not in doubt as he had completed both a total tenure of 5 years of as Lecturer and teaching experience of more than three years in the year 1987 at a point of time when the vacancy on the post of Reader was already existing, the next question would be, could the subsequent amendment in the rules introduced by resolution of the Government of Bihar dated 19.6.1991 affect the right of consideration and grant of consequential promotion to the petitioner on the post of Reader ? An obvious answer in view of the settled position in law will be in negative. This aspect of the matter has been also settled by the Apex Court in the case of Y.V. Rangaiah (supra) where the law was laid down in the following terms:- “….The vacancies which occurred prior to the amended rules would be governed by the old rules and not - 7 - by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filing the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.” The aforesaid judgment of the Apex Court in the Rangaiah’s case has also been approved subsequently in the case of P. Mahendran (supra). That being so, the recommendation of the Departmental Promotion Committee cannot be faulted with in any manner nor would the resolution of the Government dated 19.6.1991 or its subsequent clarification made by the Government of India dated 1st of February, 2006 would come in the way of the petitioner for being promoted on the post of Reader. This Court would accordingly, direct the respondents to notify the promotion of the petitioner on the post of Reader in keeping with the recommendation of the D.P.C. dated 4.8.2004 and in view of the fact that the petitioner was found eligible for such promotion by the D.P.C. on 4.8.2004, his such promotion should be notified with effect from the date the D.P.C. had found him eligible for such promotion. The petitioner would also be entitled for financial benefit of the post of Reader from the date of such promotion keeping in view that the matter had remained pending before this Court at least from - 8 - 12.5.2005, when this writ application was filed. This Court would further direct that all steps for notifying promotion of the petitioner in the aforementioned terms and its consequential financial benefit must be completed within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this writ application is allowed to the extent indicated above. Bibhash (Mihir Kumar Jha, J.)