IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1764 of 2011 In Civil Writ Jurisdiction Case No. 5451 of 2006 With Interlocutory Application No. 8020 of 2011 With Interlocutory Application No. 8021 of 2011 In Letters Patent Appeal No.1764 of 2011 ====================================================== 1. The State of Bihar 2. The Secretary, Department of Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna 3. The Deputy Secretary, Department of Medical Education & Family Welfare and Indigenous Medicines, Govt. of Bihar, New Secretariat, Patna 4. The Principal, Patna Medical College, Patna 5. The Head of Department of Surgery, Patna Medical College, Patna .... .... Respondents/Appellants Versus 1. Dr. Ajit Singh, S/o Sri Nagendra Prasad Singh, R/o Mayur Road No.6, Rajendra Nagar, P.S.- Kadamkuan, Town & District- Patna, presently working as Associate Professor, Urology in the Department of Surgery, Patna Medical College, Hospital, Patna. …. …. Petitioner/Respondent Ist Set 2. Dr. N.K. Singh, S/o Late Deep Narayan Singh, Associate Professor (Surgery), M.O. Flat No.7, P.S. –Pirbahore, P.M.C.H., Patna. 3. Dr. Rajendra Prasad Singh, S/o Late Ram Prasad Singh, Associate Professor, P.M.C.H. Deptt. of Surgery, P.S.- Pirbahore, District- Patna. 4. Dr. Binod Kumar, son of Sri R.R. Prasad, Assistant Professor, Surgery, I.P.W.2, P.M.C.H., P.S. Pirbahore, District-Patna. 5. Dr. Ajit Bahadur Singh, son of late Jai Narayan Singh, Associate Professor (Surgery), Resident of C.A./61 P.C. Colony, P.S. Kankarbagh, Patna High Court LPA No.1764 of 2011 (3) dt.25-11-2011 2 / 6 2 District-Patna. 6. Dr. Indra Shekhar Thakur, son of Sri Kapildeo Thakur Associate Professor (Surgery), Resident of M.O. Flat No.8, P.M.C.H., P.S. Pirbahore, District-Patna. 7. Dr. Bimal Mukesh, son of Sri Gaurishankar Srivastava, resident of Mukesh Villa, Boring Patliputra Road, P.S. S.K.Puri, District-Patna. 8. Dr. Rabindra Kumar son of late Saryug Mahto, Assistant Professor (Urology), resident of I.P.W. II P.M.C.H., P.S. Pirbahore, District-Patna. 9. Dr. Rabindra Kumar, son of late R.R. Prasad, Assistant Professor (Surgery) Quarter No.I.P.W.7, P.M.C.H., Pirbahore, District-Patna. .... .... Intervener-Respondents/Respondents IInd Set ====================================================== Appearance : For the Appellants : Mr. Vinay Kirti Singh, S.C.-5 Mr. Akhileshwar Singh, A.C. to S.C.-5 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3. 25-11-2011 Interlocutory Application No. 8020 of 2011: The delay of 126 days occurred in filing the Letters Patent Appeal is condoned. Interlocutory Application stands disposed of. Letters Patent Appeal No.1764 of 2011: Feeling aggrieved by the judgment and order dated 19th April 2011 passed by the learned single Judge in C.W.J.C. No. 5451 of 2006, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent. At the outset we may note that the impugned judgment dated 19th April 2011 was challenged by the affected Patna High Court LPA No.1764 of 2011 (3) dt.25-11-2011 3 / 6 3 parties in Letters Patent Appeal No.803 of 2011 in respect of the direction to consider the petitioner for promotion to the post of Professor, has been rejected by a Division Bench of this Court (Coram: Shiva Kirti Singh, J. and Ahsanuddin Amanullah, J.) on 22nd November 2011. The respondent, a Medical Officer, employed by the State of Bihar was appointed as Assistant Professor(Urology) in 1991 after going through the due selection process. After serving as Assistant Professor for nearly seven years, under Government Notification dated 25th April 1998, the petitioner was posted as Associate Professor in Urology in Patna Medical College, Patna. The said Notification was issued in respect of as many as 21 teachers employed in the Government Medical Colleges in the State of Bihar by way of ad-hoc arrangement. The said ad-hoc arrangement was discontinued under Government Notification dated 24th June 2003 issued pursuant to the judgment of this Court in the matter of Sarjoo Prasad v. State of Bihar & Ors, Letters Patent Appeal No.1001 of 1999 decided on 18th February 2000, [Coram: B.P.Singh, J. and A.K.Ganguly, J., (as they then were)]. Since then the petitioner filed C.W.J.C. No. 5451 of 2006 under Article 226 of the Constitution to assert his right to promotion as Associate Professor (Urology) with effect from 1998 and consequent promotion as Professor (Urology). It also appears that pending the petition, under Government Notification dated 29th June 2010, along with others the petitioner was promoted as Associate Professor (Urology) effective from 13th December 2003. The petition was contested by the State Government. According to the State Government the promotion made in 1998 was an ad-hoc arrangement and the concerned Associate Patna High Court LPA No.1764 of 2011 (3) dt.25-11-2011 4 / 6 4 Professors were posted as such in their own pay-scale. In other words, no regular promotions were made in 1998. The learned single Judge has upheld the claim of the petitioner. The learned single Judge has taken note of the fact that the appellant had become eligible for promotion as Associate Professor in 1997 on completion of five years’ service as Assistant Professor. However, the vacancy in the post of Associate Professor (Urology) occurred on account of retirement of Dr. Akhileshwar Prasad Sinha in 1998. The petitioner, therefore, became entitled to be considered for promotion as Associate Professor (Urology) in 1998. The learned single Judge has further observed that the petitioner was wrongly denied promotion as Associate Professor (Urology) with effect from 1st January 1998 as the petitioner was posted as Associate Professor (Urology) under Notification dated 25th April 1998. The learned single Judge has held that the petitioner was entitled to promotion from 25th April 1998 as he had earlier been found fit in all respect for promotion and appointment to the post of Associate Professor (Urology). The learned single Judge has, therefore, allowed the writ petition; has directed the State Government to treat the petitioner promoted as an Associate Professor with effect from 25th April 1998 and to grant consequential financial benefit. The learned single Judge has also directed that the petitioner be considered for promotion to the post of Professor (Urology) from the date he became eligible for such promotion keeping in view his promotion as Associate Professor on 25th April 1998. Learned advocate Mr. Vinay Kirti Singh has appeared for the appellant State of Bihar. He has submitted that the appointment to the teaching posts in Government Medical Patna High Court LPA No.1764 of 2011 (3) dt.25-11-2011 5 / 6 5 Colleges is governed by the Rules made under Government Notification dated 21st May 1997. The said Rules stipulate a minimum five years’ service as Assistant Professor in a given faculty for promotion to the post of Associate Professor in the concerned faculty. The petitioner, therefore, did not become eligible for promotion as Associate Professor for five years from the date of the Notification i.e. until 21st May 2003. Hence, the action of the State Government to grant promotion to the petitioner as an Associate Professor with effect from 13th December 2003 under Government Notification dated 29th June 2010 is legal and valid. Any other claim made by the petitioner is not justiceable. We are unable to agree with Mr. Vinay Kirti Singh. The Rules of 1997 envisage five years’ service as Assistant Professor. In our opinion, the total service rendered as Assistant Professor from the date of appointment as such shall be taken into consideration for further promotion. The submission that five years’ service should be counted from the date of the Notification is not supported by the Rules and is untenable. Learned advocate Mr. Vinay Kirti Singh has not disputed the finding recorded by the learned single Judge that prior to 25th April 1998 the petitioner was found suitable for promotion. In our opinion, the learned single Judge has rightly held that in the year 1998 the petitioner was eligible for promotion as Associate Professor (Urology) and that in view of the available vacancy he had a right to be considered for such promotion. He having been found to be suitable for promotion, the learned single Judge has rightly directed the appellant to promote the petitioner as Associate Professor (Urology) from 25th April 1998 and to grant him consequential financial benefits. Patna High Court LPA No.1764 of 2011 (3) dt.25-11-2011 6 / 6 6 No other contention is raised before us. For the aforesaid reason, Appeal is dismissed in limine. Interlocutory Application stands disposed of. Pawan/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)