IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.12988 OF 2007 GANDHI JHA, S/O LATE RAGHAV JHA, R/O VILLAGE BEL P.S. BARGAMIA, DISTRICT SITAMARHI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. 3.THE ADDL. COMMISSIONER CUM SPECIAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. 4.THE DEPUTY SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. ………………………RESPONDENTS. FOR THE PETITIONER: Mr. Baidyanath thakur and Mr. Shankar kumar thakur. FOR THE RESPONDENTS: Mr. Sunil kumar Mandal, s.c 24 and Mr. Bipin kumar, adv A.C to S.C 24. ----------- 02/ 17.11.2011 Heard counsel for the parties. The petitioner, an Associate Professor in the department of Anesthesia in Darbhanga Medical College and Hospital has a grievance as with regard to his seniority and the consequential promotion. Learned counsel for the petitioner has explained that the petitioner earlier in the seniority list, which was issued prior to 26.12.1996 had ranked senior to many persons including Dr. Arun Kumar, Dr. Sri Niwas Rai and in fact his earlier seniority placed at serial no. 10 for the 2 first time was changed by the tentative gradation list dated 26.12.1996, placing him at serial no. 21, when the post of Anesthetist was re-designated as Assistant Professor in the department of Anesthesia. He has also explained that as the said tentative gradation list dated 26.12.1996 had envisaged filing of an objection as with regard to seniority position, the petitioner has also filed a detailed representation on 06.01.1997(Annexure-8), but no final order was passed thereon and the Authorities had kept on promoting the persons from the same seniority list without even finalizing the tentative gradation list. He has also submitted that the petitioner’s promotion on the post of Associate Professor in the department of Anesthesia notified on 05.09.2004 was infact by way of humiliation to the petitioner, inasmuch as, several juniors including Dr. Sushila Kumari, Dr. Arun Kumar and Dr. Sriniwas Rai were allowed to steal march over the petitioner. The petitioner has also highlighted that the said Dr. Sriniwas Rai in fact was later on 3 notified as a Professor in the department of Anesthesia in Anugrah Narayan Magadh Medical College, Gaya, vide notification dated 17.05.2005 which again amounted to supersession of the petitioner. Mr. Shankar Thakur, learned counsel appearing on the behalf of the petitioner, therefore, while pressing the following relief as enumerated in paragraph no. 1 of the writ application:- “i.For direction to the respondents concerned to grant promotion to the petitioner on the post of associate professor, anesthesia, with effect from 20.01.1996 with all consequential benefits by modifying the letter dated 09.05.2004 issued by respondent no. 3 providing such promotion to the petitioner with effect from the date of resumption of charge of the promotional post i.e. 05.09.2004. ii. For direction to the respondents concerned to grant further promotion to the petitioner on the post of professor, Anesthesia, with effect from 06.09.2004 with all consequential benefits as similarly situated persons have already been granted such promotion from that date.” has submitted that the petitioner’s seniority and promotion should be reconsidered in the light of the facts stated by him in his two representations dated 06.01.1997(Annexure-8) and 02.07.2005 4 (Annexure-11) respectively. As usual there is no counter affidavit on behalf of the State and in fact, when an indulgence was given earlier to the counsel for the State to even seek instruction, the flat answer which has been given today by him is that the respondents have not responded to his query. In the absence of the counter affidavit, this Court would find it difficult to take any final decision specially when there is no answer to the specific averment of the petitioner that his representation against the tentative gradation list as contained in Annexure-8 had remained undecided. The tentative gradation list is to be only issued by way of inviting objection but if the objections submitted thereof is not considered and a final order is not communicated to the person concerned, the very object of issuance of tentative gradation list is frustrated. In the absence of any counter affidavit, this court will have to accept that the tentative gradation list issued by the respondents for the post of Assistant 5 Professor in the department of Anesthesia has neither been finalized nor even if it has been finalized, the objection raised by the petitioner was not disposed of before finalizing it, inasmuch as, there is no order of the Authority disposing of the objection of the petitioner. True it is that even a tentative gradation list can be acted upon for giving promotion but then if the seniority position would therefore, undergo a change in the final gradation list, any promotion notified will have to be revised keeping in view the seniority position in the final gradation list. This Court is not aware as to whether promotion of the petitioner on the post of Associate Professor was notified after finalization of the tentative gradation list on the post of Associate Professor or the tentative gradation list itself again acted upon for giving promotion to the petitioner. One thing, however, is clear that a person who was earlier junior to the petitioner namely, Dr. Sriniwas Rai was later on made senior in the tentative gradation list on the post of Associate 6 Professor and thereafter be allowed to steal march in the matter of promotion on the post of Associate Professor and Professor. The petitioner’s grievance in this regard, despite filing a representation by him has also gone unattended, inasmuch as, there is nothing to show that the petitioner’s last representation dated 02.07.2005 as contained in Annexure-11 was also ever disposed of. The petitioner also has done no favour to himself by not impleading his juniors as respondents to this writ application and when Dr. Sriniwas Rai has also not been made party in this writ petition, this Court cannot pass any adverse order affecting his interest. In such a situation, this Court would direct the Principal Secretary of the Health Department to consider the grievance of the petitioner as with regard to his seniority as specifically raised by him in his representation dated 06.01.1997 (Annexure-8) and also his claim for promotion on the post of Professor as raised by him in his representation dated 7 02.07.2005. It goes without saying that, if the petitioner’s seniority in the tentative gradation list is changed for the reasons highlighted in his representation dated 06.01.1997, he would also become entitled for his retrospective promotion on the post of Associate Professor and Professor w.e.f the date on which his juniors has been given such promotion. If on the other hand, the petitioner’s position is reiterated as shown in the tentative gradation list, the petitioner’s claim for promotion on the post of Professor will have to be considered in the light of the facts explained by him in his representation dated 02.07.2005. Considering all these aspects, this Court would direct the petitioner to file a fresh representation enclosing not only his two earlier representations dated 06.01.1997 and 02.07.2005 as contained in Annexure-8 and Annexure-11 to the writ application along but also a copy of this order and the Principal Secretary of the Health Department, thereafter would pass his final order both with regard to the 8 claim of seniority and consequential promotion on the post of Associate Professor and Professor from the due date i.e. the date on which juniors to the petitioner were promoted. This exercise must be completed by the Principal Secretary of the Health Department within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)