IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.368 of 2009 1. Dr.Ashok Kumar Vatsyayan, s/o Sri Ram Shreshtha Prasad Singh, r/o-CH/20, Road No. 37, Shrikrishna Nagar, P.S.-Buddha Colony, Town +District-Patna, presently working as Professor, Department of Anaesthesiology, Nalanda Medical College, Patna 2. Dr. Shree Niwas Roy, s/o Sri Ram Charitra Roy, r/o-35 Doctors’ Colony, Alal Patti, P.S.-Laheriasarai, Darbhanga, presently working as Professor, Department of Anaesthesiology, Darbhanga Medical College,Darbhanga .. Petitioners.. Appellants 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 Additional Commissioner-cum-Special Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna 4. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna .. Respondents 1st Set… Respondents 5. Dr. Hari Narayan Jayaswal, Assistant Professor, Department of Anaesthesia, Patna Medical College, Patna(now retired 6. Dr. Sadashiv Yadav, Assistant Professor, Department of Anaesthesia, Patna Medical College, Patna (now retired) 7. Dr. Smt. Sushila Kumari, Department of Anaesthesia, Darbhanga Medical College, Laheriasarai, Darbhanga(now retired) 8. Dr. Vinod Kashyap, Assistant Professor, Department of Anaesthesia, Patna Medical College, Patna 9. Dr. Shashi Shekhar Narayan Ojha, s/o Prayambakeshwar Ojha, Anaesthetist, dept of Anaesthesia Darbhanga Medical College, and Hospital, Laheriasarai, Darbhanga 10. Dr. Arun Kumar, s/o Sri Ram Bahadur Singh, r/o boring Road, Patna, Previously Assistant Professor, Department of Anaesthesia, N.M.C.H., Patna now working as Director, I.G.I.M.S., Sheikhpura, Patna …. Respondent Nos. 5 to 8… Respondents 2nd Set 11. Dr. Ashok Kumar Singh, Department of Anaesthesia, S.K.Medical College, Muzaffarpur (now retired) 12. Dr. Ajit KUmar, Department of Anaesthesia, Rajendra Medical College Ranchi, Jharkhand 2 13. Dr. Kedar Prasad, Department of Anaesthesia, Darbhanga Medical College, Laherisarai, Darbhanga (now retired) 14. Dr. Smt. Nirmala Kumari Srivastava, Department of Anaesthesia, Darbhanga Medical College, Laherisarai, Darbhanga(now retired) 15. Dr. Yogendra Singh, Department of Anaesthesia, Patna Medical College, Patna (now retired) 16. Dr. Rajendra Prasad, s/o Sri Uma Shankar Prasad, r/o-403, Santosha Complex, Bandarbagicha, P.S.- Kotwali, Town+ District-Patna 17. Dr. B. K. Prasad, s/o Late L.L. Sah, Suvidha Lok, Naya Tola Road, Kumhrar, Patna … Intervenor Respondents-- Respondents with LPA No.417 of 2009 1. Dr.Gandhi Jha, s/o Late Raghav Jha, residing at 27- Doctor’s Colony, Darbhanga Medical College Campus, P.O &P.S. Laheriasarai, District Darbhanga, presently posted as Associate Professor Department of Anesthesia, D.M.C.H. Laheria Sarai, District Darbhanga 2. Dr. N. K. Verma, s/o late Nand Kishore Prasad, residing at Doctor’s Colony Mayaganj, Opposite Jawahar Lal Nehru Medical College, District Bhagalpur, presently posted as Associate Professor Department of Anesthesia, J.L.N.M.C.H., Bhagalpur 3. Dr. K.K.Verma, s/o late Binda Charan Verma, resident of Laxmi Bhawan, Pankha Toli, P.O. Ramna, District Muzaffarpur, presently posted as Associate Professor, department of Anesthesia, Bettiah Medical College and Hospital, Bettiah 4. Dr. D. K. Mishra, s/o late Janardan Mishra, resident of Vir Kunwar Singh Colony, P.O. Civil Aerodrome Gaya, District-Gaya, presently posted as associate Professor, Department of Anesthesia, Anugrah Narayan Medical College Hospital Gay, District-Gaya 5. Dr. Ashok Kumar, s/o Late Basudeo Lal Das, resident of village Dharhara, P.O Balbahat, P.S. Simri- Bakhtiyarpur, District Saharsa, presently posted as Associate Professor, Department of Anesthesia, Patna Medical College Hospital, Patna 6. Dr. Ajay Simba, s/o late Dr. J.N.Verma, resident of 7 H.F., 1/19, Bhootnath Ashram Road, Bahadurpur Housing Colony, Patna presently posted as Associate Professor, Department of Anesthesia, V.I.M.S. Pawapuri (Nalanda) 7. Dr.Shailesh Prasad, s/o Sri Sidheswer Prasad, resident of North of Nala, North Patel Nagar, Patna, 3 presently posted as Assistant Professor, Department of Anesthesia, A.N.M.C.H. Gaya 8. Dr. Vijay Kumar Sinha, S/o Sri Lame Narayan Singh, resident of C/204, Laxmi Villa Apartment, Mahesh Nagar, Patna, presently posted as Assistant Professor, Department of Anesthesia, Nalanda Medical College at Patna … Appellants Versus 1. Dr.Ashok Kumar Vatsayayan, son of Ram Shrestha Prasad Singh, resident of CH/20, Road No.27 Shrikrishna Nagar, P.S. Budha Colony, Town and District Patna, presently working as Associate Professor, department of Anesthesiology, S.K. Medical College, Muzaffarpur 2. Dr. Shree Niwas Roy, son of Sri Ram Charitra Roy, resident of 35, Doctor’s Colony Alalpatti, P.S. Laheria Sarai, District Darbhanga, presently working as Associate Professor, Department of Anesthesiology, Darbhanga Medical College, Laheria Sarai, District- Darbhanga (Petitioners in the writ petition/Respondent 1st Set 3. The State of Bihar 4. The Commissioner-cum-Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 5. The Additional Commissioner-cum-Special Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna 6. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna (Respondent 1st in the writ petition)Respondent 2nd set 7. Dr. Hari Narayan Jayaswal retired Assistant Professor, Department of Anesthesia, Patna Medical College, Patna 8. Dr. Sadashiv Pd. Yadav, retired Assistant Professor, Department of Anesthesia, Patna Medical College, Patna 9. Dr. (Smt.) Sushila KUmari retired from the department of Anesthesia, Darbhanga Medical College, Laheria Sarai, Darbhanga 10. Dr. Vinod Kashyap, Assistant Professor, Department of Anesthesia, Patna Medical College, Patna (Respondent 2nd Set in the writ petition)/Respondent 3rd set 11. Dr. Shashi Shekhar Nr. Ojha s/o Prayambkeshwer Ojha, Anesthetist, D.M.C.H. Laheria Sarai, District – Darbhanga 12. Dr. Arun Kumar s/o Sri Bam Bahadur Singh, resident of Boring Road, Patna, Asst Professor, anesthesia, N.M.C.H., Patna (presently posted as Director, I.G.I.M.S., Sheikhpura, Patna) 4 13. Dr. Ashok Kumar Singh retired Anesthetists, S.K.M.C.H., Muzaffarpur 14. Dr. Ajit Kumar, Department of Anesthetists, Rajendra Memorial Institute of Medical Science, Ranchi 15. Dr. Ram Naresh Sharma, Anesthetist, P.M.C.H., Patna 16. Dr. Kedar Prasad, retired anesthetist, D.M.C.H. at Laheria Sarai, Distt- Darbhanga 17. Dr. (smt) Nirmala Kumari Srivastava, retired anesthetist, D.M.C.H. at Laheriasarai, Distt- Darbhanga 18. Dr. Yogendra Singh, retired Anesthetist, P.M.C.H. at Patna 19. Dr. Rajendra Prasad, son of Sri Uma Shanker Prasad, resident of 403, Santosha Complex, Bander Bagicha, P.S. Kotwali, District-Patna 20. Dr. B.K. Prasad, son of late Sri L.L. Sah, Suvida Lok, Naya Tola, Road KUmhrar, District-Patna … Respondents ----------- For the appellant ( in L.P.A. No. 368 of 2009) :-Mr. PUshkar Narain Shahi, Advocate Mr. Sanjeet KUmar Singh, Advocate Mr. Patanjali Rishi, Advocate For the appellant ( in L.P.A. No.417 of 2009) :-Mr. Rajendra Prasad Singh, Senior Advocate For the State :-Mr. Devendra Kumar Sinha, A.A.G.-2 Mr. Alok Kr. Rahi, A.C. to A.A.G-2 For respondent no.5 :- Mr. Amit Prakash, Advocate For the State :- Mr. Kundan Bahadur Singh, Adv., S.C.-22 For Respondent No. 5 and 15 :- Mr. Jitendra Kishore Verma, Adv For respondent Nos. 7 & 11 :- Mr. Binodanand Mishra, Adv. 6 13.07.2011 The present appeal arises out of the common order dated 09.02.2009 passed in C.W.J.C. No.4959 of 1997 wherein Annexure-6 issued by the Government is sought to be quashed. It was the case of the appellants, who are the petitioners in the writ petition that the resolution dated 5 20.06.1996 issued by the State Government has been directed to be given retrospective effect by the learned Single Judge, as a result of which the unofficial respondents have become seniors to the appellant for the post of Assistant Professors even though they are not eligible to hold such posts in the capacity they are holding the present post. The learned Single Judge having heard both sides disposed off the writ petition observing that the resolution as contained in Memo No.176(17) dated 20.06.1996 (Annexure-6 to the writ petition) is in complete violation of the orders passed by this court in C.W.J.C. No. 2647 of 1996. But however, having held so the learned Single Judge directed that the unofficial respondents should be given the benefit with retrospective effect. The learned Single Judge further held that the policy which is beneficial to remove anomaly framed by the Govt. itself, even if adopted with retrospective effect cannot be held to be illegal. Learned counsel appearing on behalf 6 of the appellants has contended that by virtue of the retrospective effect, as has been held by the learned Single Judge, is not the intention on the part of the policy makers. The appellants are prejudicially affected for the reason that the respondent will come on the post of Associate Professor even without adopting the process of selection. The learned counsel appearing on behalf of the State has contended that because of the stagnation in the post of Professor of Anesthesia a policy has to be initiated by the State Government giving guidelines for effecting the promotion in the department of Anesthesia. Hence, the learned Single Judge is perfectly right in holding that the benefit of promotion should be given retrospectively. The learned counsel appearing on behalf of the respondent has contended that as there was a lot of stagnation among the Associate Professors in the matter of promotion, a policy had to be adopted and resolution has been issued by the Government. It has also been contended that 7 the State has brought the rule with effect from 15.05.1997 governing the promotions of the doctors. It is undisputed fact that all the appellants and the unofficial respondents are the doctors belonging to the Department of Anesthesia and some of them are the Associate Professors and some others are Assistant Professors. The controversy arose with regard to the effect of the retrospectivity of the promotion policy dated 20.06.1996. In absence of any intention on the part of the Govt. to give benefit of the policy with retrospective effect, we are of the opinion that this Court cannot direct that benefit of such policy should be given retrospectively as this is not the intention of the policy makers. In the absence of any such intention in the said policy for giving the promotion with retrospective effect, we are of the opinion that the learned Single Judge has erred in holding that there is no illegality in effecting the promotion retrospectively by which the policy has the effect of such 8 decision i.e., the person who already retired are to be considered if there is retrospectivity of the guidelines as contained in the memo dated 20.06.1996 because it will allow the respondent-state to open the Pandora box with regard to the promotion of the doctors who are holding such posts. In view of above, we are of the opinion that the order of learned Single Judge with reference to effecting the promotion with retrospective effect has to be set aside. Accordingly, it is set aside. However, having heard all the parties, we are of the opinion that in the interest of justice it would suffice if a direction is issued to the respondent -State to consider the cases of the doctors who are in service on 20.06.1996 in their respective posts by giving effect to their promotion as per the eligibility criteria and as per the guidelines contained in the policy dated 20.06.1996 prospectively. We also make it clear that as the rules came into force on 14.05.1997 the promotion of these persons and also other 9 doctors who have not come to this Court, should be considered as per the existing rules. With the aforesaid observations the order of learned Single Judge is modified and appeal is accordingly allowed to the extent modified above. However, we reject the cases of the appellants in L.P.A. No. 417 of 2009, who are all retired doctors and not in service on 20.06.1996. They had filed the appeal with liberty of this court. The record shows that leave of this Court has already been granted to them. Ashwini (T.Meena Kumari,J.) (Ahsanuddin Amanullah, J.)