IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.7976 OF 2007 DR.MAYA SHANKAR, S/O LATE BACHHU NARAYAN SINGH, R/O MOHALLA JAITPUR CAMPUS, MARIPUR, P.S KAZI MOHAMMADPUR, DISTT. MUXAFFARPUR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY, DEPARTMENT OF HEALTH (MEDICAL EDUCATION AND FAMILY WELFARE), GOVT. OF BIHAR, PATNA. 3.THE SPECIAL SECRETARY, DEPARTMENT OF HEALTH (MEDICAL EDUCATION AND FAMILY WELFARE), GOVT. OF BIHAR, PATNA. 4.THE JOINT SECRETARY, DEPARTMENT OF HEALTH (MEDICAL EDUCATION AND FAMILY WELFARE), GOVT. OF BIHAR, PATNA. ………………………RESPONDENTS. ----------- 02/ 26.09.2011 Heard Mr. Shekhar Singh, learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(a). For a direction to the respondent autorities to grant all the due A.C.Ps and regular promotion to the higher posts of Bihar Health Services Cadre along with the consequential benefits to the petitioner.” Mr. Singh would explain that the petitioner’s services were taken over when S.K Medical College, Muzaffarpur became the Government Medical College but then as the petitioner did not possess the requisite qualification of the post of tutor in the 2 Medical College, his services were absorbed in terms of Section-6 of the take over Act only as a Medical Officer in the general cadre of Doctors. He would therefore, submit that the petitioner will be entitled for grant of all his promotion treating him to be the member of the general cadre of Doctors. In the considered opinion of this Court, this aspect of the matter has been clarified by the respondents in paragraph no. 5 and 6 of their counter affidavit which reads as follows:- “5.That it is pertinent to mention here that the petitioner belongs to General Category and only medical officer of the General Category having up to Seniority No. 2988 are at present posted against the promotional posts i.e. Deputy Superintendent and District Programme Officer in his own pay scale in the working arrangements. 6.That it is further submitted that petitioner’s seniority no. is 3751/05 but as per Roster clearance promotional posts of Deputy Superintendent or its equivalent post’s are available Medical Officers having up to seniority no. 3129/3115/2005 are being considered for promotion and it is expected that all the formalities will be completed very soon. It is clear from the above facts that the petitioner’s case of promotion is not coming in the zone of consideration.” 3 From the reading of the aforementioned stand, which has not been controverted by the petitioner by filing any rejoinder to the counter affidavit, it would be clear that as per the seniority position of the petitioner none being junior to the petitioner was ever promoted at least till the date of filing of the counter affidavit. The petitioner, in fact, had also retired from service on 30.11.2009. If therefore, he could not bring on record any document to show that the persons junior to him in the State seniority list were given such regular promotion, his claim for regular promotion must be held to be wholly misconceived. This Court however, would not like to put a full stop to his such claim and in the event the petitioner can even now demonstrate that any person junior to him was given a regular promotion, the competent Authority of the State Government would be under an obligation to consider such claim of the promotion of the petitioner. As with regard to remaining claim of 4 the petitioner for grant of A.C.P, since, the respondents in their paragraph no. 7 and 8 of the counter affidavit have themselves admitted that the case of the petitioner is under ....... consideration and such counter affidavit was sworn on 02.04.2008, this Court hopes and believes that the consideration for grant of A.C.P to the petitioner in terms of the following stand of the respondents in paragraph no. 7 and 8 reading as follows:- “7. That it is submitted that the petitioner has completed 24 years of service and he will be given the benefit of ACP, if he is found otherwise fit. 8. That it is submitted that all Civil Surgeons have been requested vide Health Department letter no. 410(3) dated 08.06.2007, to submit the required documents for ACP benefit and it is expected that all the formalities in this regard will be completed very soon. “ must have been completed. Counsel for the Petitioner, however, has take categorical stand before this Court that even till date the petitioner has not been granted A.C.P. This Court however is not aware of this aspect of the matter, inasmuch as, if the case of the petitioner was considered and not found fit for grant of A.C.P that 5 may not mean that the stand taken in paragraph no. 7 and 8 of the counter affidavit already quoted above is incorrect, because it has not been stated therein that the petitioner will be granted A.C.P rather there is only limited assurance that his case for grant of A.C.P. will be considered. Since nothing more has been brought on record in this regard by either party, this Court would only direct the Principal Secretary of the health department to look into this grievance of the petitioner as with regard to grant of A.C.P and if no decision in his case has been taken till date, the Principal Secretary of health department would do all the needful for obtaining the Government order for grant of A.C.P to the petitioner, if he is actually eligible for such A.C.P. In view of the fact that the petitioner has already retired from service on 30.11.2009, this Court would hope and believe that the Principal Secretary of the health department would do the needful in this regard within a period of four months from 6 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.)