IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5451 of 2006 DR.AJIT SINGH s/o Sri Nagendra Prasad Singh, resident of “ Mayur”,Road No.6, Rajendra Nagar,, P.S. Kadam Kuan, Town & District-Patna, presently working as Associate Professor (Urology) in the department of Surgery, Patna Medical College and Hospital,Patna. Versus 1. THE STATE OF BIHAR . 2. The Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 3. The Deputy Secretary Department of health (Medical Education), Family Welfare and Indigenous Medicines), Government of Bihar, New Secretariat, Patna. 4. The Principal, Patna Medical College, Patna. 5. The Head of the Department of Surgery, Patna Medical College, Patna. ----------- For the Petitioner : M/s Pushkar Narain Shahi,Ritesh Kumar no.1 and Patanjali Rishi. For the State : Mr. Vinay Kirti Singh, S.C.V and Mr. Vijay Kumar Verma, A.C. to S.C.V For Intervenors : Mr. Ashok Kumar Singh,Sr.Advocate and Mr. Pravin Kumar Verma. 7 19.4.2011 With consent of all the parties this writ petition has been heard at length for final disposal at this stage itself. The petitioner by this writ application which was filed in the year 2006, and in view of subsequent events, essentially prays for two reliefs. The first relief he claims is that he should be notified as Associate Professor, (Urology) from the day when he became entitled to such a promotion and the post being available which would be with effect from 1.1.1998, secondly for his promotion to the post of Professor from due date. Intervention application having been filed and having been allowed, the intervenors oppose the same primarily feeling threatened that petitioner may upset their applecart by getting undue promotion as Professor in General Surgery. As usual the 2 master mind behind this litigation is the State, which creates more problems than remedying it and as is usual, leaves it to this court to resolve the confusion it creates. It leaves to the High Court to give medicine to the Health Department for its recovery. Basic facts are not in dispute. The legal implications are disputed because of the apprehension of the respondent intervenor as noted above. Petitioner’s claim is that on 9.7.1991 he was duly appointed as Assistant Professor,( Urology). No one disputes the correctness of this appointment. This is so because the appointment was challenged on an earlier occasion and has been upheld by Division Bench of this Court in the case of Dr. Ranbir Prasad Singh –v- The Sate of Bihar since reported in 2000(3) PLJR 618 which judgment has attained finality. As per government decision then prevailing and notifications in respect thereof, the petitioner having requisite Post Graduate Degree and teaching experience as Assistant Professor of five years became entitled to be considered for promotion to the post of Associate Professor, Urology with effect from 9.7.1996. At that time there was only one sanctioned post of Associate Professor, Urology which was occupied by Dr. Akhileshwar Prasad Sinha, therefore, petitioner’s consideration had to be deferred till superannuation of Dr. Akhileshwar Prasad Sinha. The post fell vacant on 1998 and the only person available with due qualification of teaching experience and 3 educational qualification was the petitioner. Petitioner asserts that he had to be considered for grant of regular promotion as Associate Professor, (Urology) with effect from 1.1.1998. The intervenor respondent has no problem with that. As is usual, more often that not, it is advantageous for the State not to grant due promotions and leave people seeking promotion to regularly visit Secretariat for claiming the same so is the case here. Instead of petitioner being considered and being regularly promoted as Associate Professor, (Urology) in a knee jerk decision only to avoid adverse findings from Medical Council of India admit, petitioner was promoted to the post of Associate Professor, (Urology) on working arrangement basis on the substantive pay scale of Assistant professor with effect from 25.4.1998. At the cost of repetition in, normal course, which should have been followed, this ought to have been substantive promotion but State preferred to act otherwise. The result is that from 25.4.1998 though substantively petitioner continued to be Assistant Professor, (Urology) he was functioning and teaching as Associate Professor,( Urology). This continued till this Court in the case of Saryug Prasad and others versus State of Bihar being L.P.A No. 1001 of 1999 and MJC no. 3140 of 2000 in Division Bench held that this ad hocism by the State in granting ad hoc promotion/ working arrangements in Medical Colleges must end. It was further held, that wherever promotions are due regular promotions must be made. This Court wonders where was the occasion for a Division Bench to say so because that is 4 an accepted Principal, but this court was forced to say it because in this State the normal norm is to do what is not to be done for the reasons, which this Court is not competent to discuss. As a consequence of this judgment in the case of Saryug Prasad (supra) petitioner who was earlier working was on working arrangement as Associate Professor, (Urology) was notified of being reverted back to his substantive post of Assistant Professor. This notification was issued on 24.6.2003. Here starts a bit of controversy Petitioner asserts that this notification was not communicated either to him or his department and was not acted upon inasmuch as one Dr. Ashok Kumar Malviya was posted as Assistant Professor,( Urology) on 24.3.2004 when there was only one post of Assistant Professor, (Urology) available. This could have happened only if the State was treating to post was vacant as a consequence was petitioner having been working on the higher post of Associate Professor, (Urology) Secondly petitioner has annexed his pay slip which was counter assigned by the Head of the Department by the Parent Department and the certificate granted by the Patna Medical College, Hospital on 30th November 2005, that petitioner had been working as Associate Professor, (Urology) all the time. From these facts at least one thing is clear that from 25.4.1998 to 24.6.2003, petitioner in fact worked as Associate professor, (Urology) duly performing his duties as such. While the writ petition was pending a notification now has been issued by the Health Department on 29.6.2010 5 granting petitioner notional/ regular Promotion to the post of Associate professor, ( Urology) with effect from 13.12.2003. Petitioner’s objection is to this notification. Mr. Pushkar Narain Shahi learned Advocate in support of the writ petition in this regard submits that a decade back in the case of Saryug Prasad (supra) this Court held two things, first it abolished the system of ad hoc/ working promotion and then to grant substantive promotion where it is due. But when it came to cancelling the petitioner’s appointment on working basis as Associate professor that is done on 24.6.2003 but when it came to giving petitioner his substantive promotion it took a decade and that too from a date which is five years off the mark. As noted above, petitioner had become entitled to be substantively appointed Associate professor, (Urology) with effect from 1.1.1998. State is not in a position to substantiate their action except that the financial implications would be grave because of their inaction .What in plain language State wants to say is that no dought it ought to have granted substantive promotion to the petitioner as Associate Professor, (Urology) with effect from 1.1.1998 but it slept over it, because of which petitioner lost his right. Now if the State were to grant promotion, State would have to pay substantial amount of additional remuneration .Thus because the State slept over the matter, the right of the petitioner is lost. The answer to the stand of the State ,in my view, is what Chief Justice Chagla said over five decades back in the 6 case of All India Groundnut Syndicate Ltd. –v- Commissioner of Income Tax, Bombay City since reported in A.I.R 1954 Bombay 232: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub- section 2 of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income-tax Department is included in that definition-can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “ I have committed a default and the right is lost because of that default” As I have noted above, the intervenor respondents have no quarrel with the petitioner so far as his entitlement to be made an Associate Professor of Urology with effect from 1.1.1998 is concerned and this Court in view of above State of affairs is of the view that the petitioner was wrongly denied the substantive promotion to the post of Associate Professor,(Urology) with effect from 1.1.1998. In fact the petitioner was notified under working arrangement as Associate Professor of( Urology) with effect from 25.4.1998. In my view, I accordingly hold as such .He would thus be entitled to be Associate Professor, ( Urology) with effect from 25.4.1998 as the petitioner, had earlier been found fit in all respect for promotion and appointment to the post of Associate professor, (Urology) from that day, though on working arrangement but 7 continued to work in the substantive post of Assistant professor. He would be granted such financial benefits with effect from 25.4.1998 with all consequential benefits. The notification issued by the State Government on 29.6.2010, in so far as it relates to the petitioner, is accordingly set aside with appropriate direction to immediately re- notify the position of the petitioner in accordance with the directions as contained herein above. Now we come to the second part of petitioner’s grievance and the part that troubles the interveners –respondents. Petitioner submits that undisputedly he had worked as an Associate Professor, Urology, though on working arrangement , between 25.4.1998 to 24.6.2003 ,which is over five years apart from continuing as such till date. He was thus entitled to be considered for the post of Professor as he had full requisite qualification and experience thereof. Petitioner asserts that though he had not obtained the qualification and degree of M.Ch Hospital, he has virtually Headed the Department of Urology at P.M.C.H since 1.1.1998 and without dispute since 25.4.1998, he must, thus, be considered for promotion to the post of Professor. But the problem is that though Urology has been declared to be super specialilties for reasons best known to the State. It has not made it into an independent department in terms of the 2008 Rules.It continues to be under the General Surgery Department though declared super speciality. There being no post of Professor of Urology, the State must make it an independent super speciality department or provide a post of 8 Professor Urology in accordance with the M.C.I Regulation or consider the petitioner for promotion to the post of Professor General Surgery. This is where intervenors are in trouble because the interveners are in the department of General Surgery .They have objections in petitioner’s climbing over their head to gain the position of Professor General Surgery. In my view, the solution is simple. Till date and it is not disputed that there is no cadre bifurcation even though super speciallities departments have been notified. As noticed above so far as Urology is concerned, though it has been notified as Super Specialities Department, it has not been notified as an independent department for reason best known to the State .Thus the inter- se -seniority is governed by common Joint Gradation List, which has been finally notified on 8.7.2008. The basic seniority in the said gradation list cannot be upset. If there is any person senior to the petitioner having requisite qualification, then in no case, petitioner can jump over him to claim the post of Professor General Surgery. That is, the minimal requirement of adhering to the joint gradation list. All this litigation/ complication and surgery by this Court could have been avoided, if in due time State itself created separate independent departments of super specialilties with full cadre bifurcation of the teaching faculty in that regard there would never have been any conflict between the doctors. In paragraph 14 of the State’s counter affidavit it has clearly been stated that the case of petitioner for the purposes of 9 promotion to the post of professor had been considered on 23.12.2010 by the Departmental Promotion Committee and its decision would be shortlyhardly notified. We are almost four months since that day. The notification is yet to see the light of the day. In that view of the matter, I do not pass any positive direction in regards to the claim of the petitioner to the post of Professor either in General Surgery or in Urology but leave this matter with a direction to the Departmental Promotion Committee and the State to keep the judgment of this Court delivered today and the law including Rules and Regulations concerning this issue in mind while issuing final notification and to ensure that no person is denied of his due promotion and due remuneration from his due date under any circumstances and decision in this regard be taken at the earliest not later than one month from today. This application is thus disposed of. Namita ( Navaniti Prasad Singh, J.)