IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6622 of 1996 1. DR.SHIO BACHCHAN PANDEY, son of late Lalo Pandey, resident of Vachaspati Nagar, Sandalpur, Post Office Mahendru, P.S. Sultanganj, District Patna 800006, at present posted as Lecturer in Health Education and Family Welfare, P.P. Programme, Patna Medical College and Hospital, Patna- 800004 2. Sri Girish Mohan Verma, son of late S.P.Verma, resident of Ranchi Medical College Hospital, Ranchi, P.S. Bariyatu, Ranchi, at present Lecturer in Ranchi Medical College and Hospital, P.P. Programme, Ranchi 3. Sri Vishwa Nath Jha, son of Sri Yogendra Jha, resident of at and Post Office Nikasi, P.S. Kamtaul (Darbhanga) at present Lecturer in Darbhanga Medical College and Hospital, P.P. Programme, Darbhanga 4. Sri Rajendra Prasad, son of late Neel Kanth Prasad, resident of Amera, P.O. Bhathan, P.S. Tharthari Chandi, (Nalanda), at present Lecturer in P.P. Programme, Nalanda Medical College and Hospital, Agamkuan, Patna-7 5. Sheo Yatan Singh, son of late Ganga Dayal Singh, resident of Shahabad, P.O. Mirzachaki, District Bhagalpur, at present Lecturer in P.P. Programme, Pataliputra Medical College, and Hospital, Dhanbad 6. Upendra Kumar Verma, son of Sri Dwarika Prasad, resident of village Sandalpur, P.O. Gopalpur, P.S. Harnaut, District Nalanda, at present Lecturer in Statics and Demograph, Nalanda Medical College Hospital, Patna-7 at present IPP-VII, I.G.I.M.S. Campus, Sheikhpura, Patna-14 7. Dr Bilash Singh, son of late Basudeo Singh, Sadikpur, Gujarbagh, Patna City, Patna- 900007, Lecturer in Statistics and Demography, Patna Medical College and Hospital, Patna at present Sate F.W.Bureau, Bihar, Patna … Petitioners Versus 1. THE STATE OF BIHAR through the Commissioner cum Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 2. Additional Commissioner cum Special Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 2 3. Additional Director (Family Welfare), Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna … Respondents ____ For the Petitioners : Mr. Banwari Sharma, Adv. For the State : Mr. Anil Kumar Jha, A.G.II ____ P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr.Jha,J. Heard Mr. Banwari Sharma, learned counsel for the petitioners and Mr. Anil Kumar Jha, learned Govt. Advocate No.II. The prayer of the petitioners in this writ application reads as follows: “The present application is for issuance of a writ in the nature of writ of mandamus directing the respondents to grant the same pay scale to the petitioners for which they are entitled as Lecturers posted in different subjects in P.P.Programme and also the petitioners be promoted to the post according to the University Grant Commission criteria as fixed by the University Grant Commission from time to time and which is existing today. The entire salary of the P.P. Programme is being paid by the Union of India, and accordingly the other states are also giving the scale of Lecturer as per the University Grant Commission criteria to the persons posted as Lecturer in P.P. Programme. And 3 also all the existing dues with due date be also paid to the petitioners as per the recommendation of Pay Anomalies Committee. And/or pass such other order or orders as your Lordships may think fit and proper.” With reference to the aforementioned relief Mr. Sharma would submit that in each and every Medical College of the Govt. of Bihar the Post Partum (P.P.) Programme being a mandatory curriculum in the courses studies in Department of Medicine, the person holding the post is such P.P.Programme, has been treated to be teachers and therefore, when the Government of India had also in its Scheme formulated by its letter dated 5.3.1985 has laid down certain norms for strengthening the P.P.Programme, the person assigned with the P.P.Programme has to be not kept stagnant on the post of Lecturer, rather they would be entitled to also promotion alike other faculties in the Medical College on the post of Reader and Professor. He would further submit that in terms of the Scheme of the Government of 4 India read with the report of the Pay Anomaly Removal Committee and the judgment of Aurangabad Bench of Bombay High Court the persons engaged in P.P.Programme have to be given U.G.C. pay scale alike the teachers of all other Universities. In this context he has also submitted that the representation filed by the petitioners seeking grant of U.G.C. pay scale as also promotional benefit has not been of any avail and therefore, this writ application has been filed. Mr. Jha, learned Govt. Advocate, on the other hand, would submit that the petitioners are the employees of the State of Bihar and for them the pay scales or condition of service has to be determined by the State Govt. of Bihar. He would submit that merely because the Government of India would provide certain post under a Scheme, that cannot alter the service conditions of grant of pay scale as determined by the Govt. of Bihar. He, however, has drawn attention of this Court to a document filed by the petitioners themselves in a supplementary affidavit which would go to show that the Govt. of India has 5 discontinued the Centrally Sponsored P.P. Programme Scheme with effect from 1.4.2002 and as a result thereof the persons working on the post of Lecturer in the Medical College P.P. Programme were sought to be adjusted in the offices of the Health Department. He, therefore, concludes his submissions by taking a plea that this writ application has become infructuous. Mr. Sharma in reply has submitted that the cause of action which was raised in this writ application in the year 1996 would still survive at least upto when P.P. Programme of Govt. of India was in force. In this context he has also placed reliance on the judgment of the Apex Court in the case of State of Madhya Pradesh and ors. vs. yogendra Shrivastava, reported in 2009(4) PLJR 221 (S.C.). In the light of the aforementioned submissions as also on a close perusal of the materials on record this Court would find that the relief of the petitioners as with regard to grant of same pay scale as given to other Lecturers in fact stands ventilated by the report of the Pay Anomaly 6 Removal Committee which had put pay scale of Lecturers in P.P. Programme as Rs. 2200- 4000. The moment this Court would find that the Govt. of Bihar has maintained an uniform pay scale for Lecturers in all the faculties including P.P. Programme and had granted the same pay scale of Rs. 2200-4000 as in the year 1981, at least the part of the grievance raised by the petitioners gets answered from the decision taken by the Government of Bihar pursuant to the recommendation of Pay Anomaly Removal Committee. It has always to be kept in mind that in none of the Medical College of the State of Bihar U.G.C. pay scale of the teachers have been implemented and therefore, no exception can be made only in the case of Lecturer in P.P. Programme. In absence of a statutory provision or by binding Government policy the petitioners cannot claim U.G.C. pay scale as a matter of right inasmuch as they are bound by the service conditions wherein the State Government has never adopted U.G.C. pay scale for persons like the petitioners. 7 The decision of the Govt. of India heavily relied by the learned counsel for the petitioners also does not say a word with regard to grant of UGC pay scale to the personnel engaged in P.P. Programme in a medical college and hospital, rather it only envisages channelising the future line of promotion alike other faculties. That question has now in fact become academic in view of the fact that the Govt. of India itself has discontinued the Centrally Sponsored P.P. Programme with effect from 1.4.2002. Once this position becomes clear that the petitioners while holding the post of Lecturer were also made entitled of the pay scales notified by the State Government in terms of the recommendation of Pay Revision Committee and were given the same pay scale as was extended to the other Lecturers of the Medical Colleges, the grievance of the petitioners of their pay fixation gets automatically answered and no interference at least would be required from this Court. Consequently this Court can direct the respondents to create a separate 8 class of Lecturers of P.P. Programme for their being made entitled for grant of UGC pay scale when their counter parts in Government Medical Colleges of Bihar are also not given their salary in the UGC pay scale. This Court is also mindful that the fixation of salary is job of expert and this is how the pay revision Committee’s report is not to be lightly interfered by a writ Court in exercise of power under Article 226 of the Constitution of India. Reference in this connection may be made to the judgment of the Apex Court in the case of Union of India vs. Tarit Ranjan Das, reported in (2003) 11 SCC 658. The next issue would be as with regard to grant of promotion to the Lecturers of P.P.Programme. In this context one may refer to the counter affidavit wherein the respondents have themselves stated that the Government has no intention to deprive the petitioners from their promotional benefit but at the same time their promotion cannot be given in accordance with the procedure laid down for U.G.C. The net impact of such stand of the 9 respondents in their counter affidavit would be that had P.P. Programme been continued and the petitioners could have continued on the post of Lecturer probably their promotion could have been considered. It is a well known concept in service jurisprudence that the promotion is not a matter of right and a consideration of promotion can only be claimed by the incumbent providing there are vacancies, sanctioned post cadre and fulfillment of eligibility conditions by the incumbent. In the present case when there is no longer the post of Lecturer in P.P. Programme after abolition of Scheme of the Govt. of India w.e.f. 1.4.1982, it would be difficult for this Court to direct the respondents now to consider the case of promotion of the petitioners with retrospective effect specially when no juniors to them were ever given such promotion at any point of time. The judgment of the Apex Court in the case of Yogendra Shrivastava (Supra) in fact also does not lay down a law to that extent, inasmuch as in that case the issue was with regard to grant of non-practicing 10 allowance (NPA) and there was statutory rules which clearly provided that the concerned Medical Colleges were entitled to NPA @ 25% of pay, in addition to the pay in pay scales. In that context the Apex Court had only held that irrespective of cut off date when the Pay Revision Committee had sought to do away provisions of mere executive instruction that could not have been affected the persons in getting their N.P.A. One fails to understand as to how the ratio of the aforesaid judgment can be made applicable to the facts of the present case where the Scheme i.e. P.P.Programme had itself been abolished. Thus, the petitioners’ right of promotion had automatically got wiped off and no mandamus can now be issued to give promotion to the petitioners some of whom continuing in service as on 1.4.2002 had to be in fact adjusted in equivalent post in other establishment of Health Department as is evidenced by notification No. 1324 dated 13.11.2003, Annexure 16 to the supplementary affidavit filed by the petitioners. 11 That being so, this Court does not find any merit in this application and the same is, accordingly, dismissed. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) PATNA HIGH COURT Dated1st July,2010 Surendra/A.F.R.