IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6642 of 2003 DR.NAWAL KISHORE SINGH Son of Late Jagdish Narayan Singh, resident of Village- Rajajan, Police Station Mohiuddin Nagar, District Samastipur, and at present posted as Lecturer in the department of Oral Surgery in Patna Dental College and Hospital, Ashok Raj Path, Police Station Pirbahore, District Patna. Versus 1. THE STATE OF BIHAR through the Secretary, Health Medical Education and Family Welfare Department, New Secretariat, Vikash Bhawan, Patna. 2. Additional Secretary, Health, Medical Education and Family Welfare Department, Government of Bihar, New Secretariat, Vikash Bhawan Patna. 3. Mr. N.P. Singh, Deputy Secretary, Health and Medical Education and Family Welfare Department, Government of Bihar, New Secretariat, Patna. 4. The Bihar Public Service Commission, through the Chairman of the said Commission, 15 Bailey Road, Patna. 5. Dr. D.K. Singh, son of Late H.P. Singh, resident of village Harnatha, Police Station Patahi, District East Champaran, posted in Dental College, Patna. ----------- 7 20.09.2010 Counsel for the petitioner at the out set seeks permission and is allowed to delete the name of Dr. Jyoti Prasad respondent no.6 at the risk of the petitioner. Heard Mr. Ashok Kumar Singh, learned senior counsel appearing on behalf of the petitioner, Mr. R.N. Mukhopadhayay, learned counsel appearing on behalf of contesting respondent no.5 as also counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ in the nature of Certiorari for quashing of the Notification dated 11.4.1998 as contained in Annexure-4 issued vide Memo No.171 (17) H by the Respondent no.3 by which the Respondent no.5 has been given promotion to the post of Lecturer, Prosthetic with effect from 12.8.1991 and also quash the order dated 28.6.2002 as contained in Annexure-7 by which the Respondent No.5 has been appointed as Professor in Patna Dental College and Hospital (herein referred as „College‟) ignoring the seniority of the petitioner and further for issuance of a writ in the nature of Mandamus directing and commanding 2 the Respondents to promote the petitioner on the post of Lecturer/Professor in the said College with effect from 1985 and further a direction to the Respondents not to interfere with the Seniority of the petitioner while the junior has been given promotion ignoring the claim of the petitioner save and except in accordance with law.” As noted above the petitioner has subsequently filed I.A. No. 7452 of 2010, wherein he has also assailed the two subsequent notifications dated 13th October, 2004 and the Notification dated 26.5.2008 by which promotion of respondent no.5 had been regularized on the post of Professor as also he has been made ad-hoc Principal of the College. Mr. Singh has submitted that while the seniority in the different departments in Patna Dental College on the respective teaching posts by itself could not have prejudiced any one including the petitioner because every one has been assigned separate post of Lecturer or Professor in his respective department in Patna Dental College and Hospital hereinafter referred to as the College and as such little to do with intra departmental seniority or teaching assignment to the incumbent, but then when a question would arise for filing up the post of Principal, inter-se seniority of the teaching personnel in the different departments acquires its significance and that is how the present dispute as with regard to inter-se seniority between the petitioner who is working as Lecturer and Incharge Professor in the department of Oral Surgery and respondent no.5 illegally made Professor in the department of Denstry Prosthetic needs to be resolved inasmuch as on the basis 3 of such illegal promotion of Respondent no. 5 he has been treated to be senior to the petitioner and also made principal of the college. In this context two things have been mainly highlighted by Mr. Singh, namely, that the petitioner had earlier entered in the service as a Dental Surgeon in Bihar Dental Health Service in 1977, whereas, respondent no.5 was appointed as a Denstry Prosthetic on 20.12.1979 and therefore the petitioner by virtue of his earlier initial entry in the Government service is senior. He has further laid stress on the aspect that on 2.8.1996 while the petitioner was holding the substantive post of tutor he was also assigned the work of the post of Lecturer in the academic interest of the College which at the point of time was facing problem of its being de-recognised and from 2.8.1996 the petitioner continued to hold the post of Lecturer till he was made the Incharge Principal on 8.12.2004 on the basis of his admitted seniority over all other teachers including Respondent no. 5. He would therefore submit that when respondent no.5 was given retrospective promotion by notification dated 11.4.1998 w.e.f. 12.8.1991 on the post of lecturer the same had the effect of making him senior to the petitioner, Thus according to learned counsel for the petitioner the date of effective promotion of respondent no.5 on the post of Lecturer assumes significance, inasmuch as, if it is held that the petitioner‟s promotion on the post of lecturer is given effect to w.e.f. 2.8.1996 on the post of Lecturer he would be still 4 senior to respondent no.5 whose promotion on the post of lecturer can be 11.4.1998 only. In this context he relies on this Court‟s direction in L.P.A. No.930 of 1998 in the order dated 20th May, 2005 which according to him has to be still given effect to for reckoning the date of promotion of respondent no.5 on the post of Lecturer. He would therefore submit that the official respondents should not be allowed to continue with their decision on the ad- hoc interse seniority rather they are required to take a final considered decision with regard to the effective date of promotion of the petitioner vis-à-vis respondent no.5 and other teaching personnel of the college on the post of Lecturer and Professor so that the senior most among them could be assigned the post of Principal of the college as per existing norms, precedent and policy of appointing only the senior most teaching personnel as a Principal of the college. Counsel appearing on behalf of the respondent no.5, on the other hand, has tried to explain that all said and done when this Court had quashed the order of the learned Single Judge dated 3rd August, 1998 in C.W.J.C. NO.8106 of 1997 and its analogous cases by which promotion given to the petitioner on the post of Lecturer dated 11.4.1998 had been set aside, the effect thereof will be that respondent no.5 will deemed to have got back the post of Lecturer w.e.f. 22.6.1991 as per notification dated 11.4.1998 and on that basis he proceeds to claim that as petitioner‟s promotion on the post of Lecturer is yet to be notified, inasmuch as, on 2.8.1996 5 he was only given current charge on the post of Lecturer, there could be hardly anything to compare the seniority between two. He would therefore submit that when the D.P.C. also pursuant to the direction of this Court in its order dated 20th May, 2005 in L.P.A. No. 930 of 1998 has found him fit for grant of promotion on the post of Lecturer, the petitioner cannot be heard to make any complaint as with regard to either respondent no.5‟s promotion on the post of Professor or his being made Incharge Principal of the College. Counsel for the State with the help of his counter affidavit has tried to explain that the issue of promotion of the petitioner as per direction of this Court was gone into by the D.P.C. but no final notification in terms of the decision of the D.P.C. has yet been taken and therefore it would be difficult for the State to take a firm stand with regard to inter-se seniority between the petitioner and respondent no.5. He would however submit that the issue as raised in this writ application is more or less academic because the petitioner during the pendency of this writ application has already been posted on the post of Principal in the Government Dental College, Pawapuri which should have satisfied him as both of them are holding post of Principal. He would therefore submit that the respondent no.5 should be allowed to continue on the post of Principal of the college as per Government decision contained in the order dated 26.5.2008. In the opinion of this Court, even if submission of the 6 learned Counsel for private respondent no. 5 is accepted for a minute that the petitioner on account of his being made principal in another Government Dental College has not been left with any existing grievance, inasmuch as, the earlier inter-se seniority between the petitioner a lecturer in department of oral surgery and the Respondent no. 5 lecturer in department of Denstry Prosthetic has got now no relevance because every department of the college is absolutely separate in its functioning and existence, the issue which would still make the seniority relevant is filling up the post of principal of the college which has to be occupied by the senior most faculty of the College. This is because the senior most teaching personnel in any of the ten departments of Patna Dental College can be appointed as a Principal of the College and therefore the State Government cannot close its eyes on the issue of deciding the relevant date of promotion of the petitioner as also respondent no.5 specially when it has decided to fill up the post of Principal by way of promotion from the teaching personnel of the Patna Dental College. This Court, in fact, is also not impressed with the submission of Mr. Mukhopadhayay that in terms of direction given by the Division Bench in L.P.A. No.930 of 1998 disposed of by an order dated 20th May, 2005, when the D.P.C. in its meeting held on 3.3.2006 had found respondent no.5 fit for promotion on the post of Lecturer, his earlier notification of promotion dated 11.4.1998 w.e.f. June, 1991 had automatically stood restored. In 7 fact, the direction of the Division Bench was to actually fix a firm date of promotion of respondent no.5 on the post of Lecturer inasmuch as paragraph 11 of the aforesaid interparte judgment reads as follows:- “While, therefore, we set aside the judgment and order under appeal but at the same time direct Dr. Singh not to function in the said post until the cases of Dr. Singh and Dr. Verma for promotion to the said post is considered simultaneously on their merits. In the event it is held that Dr. Verma is to be preferred for the promotion, sealed cover method should be adopted and only after the disciplinary proceeding against her reach its finality, the decision in the sealed cover shall be given effect to in the manner as is required to be given effect to on the basis of the out come of the disciplinary proceeding and in such case the post shall remain vacant until disciplinary proceeding against Dr. Verma reaches its finality. In the event it is found that Dr. Singh and Dr. Verma are not fit to be promoted, then the cases of the other doctor should be considered for promotion to the post in question and in that case appointment shall be given not from 1991 but from a subsequent date when the chosen incumbent acquired necessary qualification to be appointed.” In the opinion of this Court the division bench had still left the issue open as to whether the retrospective appointment/promotion of respondent no.5 given from 1991 could be made effective if he was not even fit for promotion. As a matter of fact, when the issue went to the departmental promotion committee the same also did not choose to recommend the case of respondent no.5 for promotion on the post of Lecturer w.e.f. 12.8.1991 rather its suggested date of recommendation was 12.8.2001. Therefore, when this recommendation of the D.P.C. has also not been given effect to by issuing consequential 8 notification, the mere recommendation of D.P.C. cannot go to the benefit of respondent no.5 at least to claim his promotion on the post of Lecturer w.e.f. 12.8.1991. At this stage, this Court must also notice the submission of Mr. Mukhopadhayay that the inter-se seniority or the issue of effective date of promotion at the earlier occasion was between respondent no.5 and one Smt. Mirdula Verma and therefore the petitioner of this case cannot claim any benefit on its basis for any purpose. In view of this Court the issue probably could have been different if there was no inter party order between the petitioner and respondent no.5. It is however found that in C.W.J.C. No. 762 of 1987 this petitioner had directly questioned the retrospective appointment/absorption of respondent no.5 on the post of Tutor and the said judgment of the learned Single Judge in favour of the petitioner directly affecting the promotion of respondent no.5 w.e.f. 12.8.91 in the order dated 26th September, 1988 in C.W.J.C. NO.762 of 1987, stands affirmed even by the Division Bench in the resultant appeal filed by respondent no.5. Therefore, it would be clear that there has been a lis between the petitioner and respondent no.5 for the purpose or seniority as with regard to appointment on the post of Tutor right from the date of appointment/absorption/promotion on the post of Tutor lecturer and Professor and therefore, now when the issue for filling up the post of Principal, the highest post of the College, is in question the petitioner‟s right cannot altogether brushed aside by holding that 9 the inter-se seniority as decided by this Court in L.P.A. No.930 of 1998 and its analogous cases was confined between respondent no.5 and Smt. Mirdula Verma and its decision would not affect the petitioner or other teaching personnel, inasmuch as, the effective date of promotion of respondent no.5 on the post of Lecturer and Professor eventually will be the factor for determining the seniority between him and other teaching personnel and would become determining factor for filling up the post of Principal. In the light of the aforementioned observations and findings it becomes clear that the official respondents in order to give finality to the decision in question need to decide the status of the petitioner, respondent no.5 and other teaching personnel of the Patna Dental College as with regard to their substantive appointment/promotion right from the post of Tutor onwards. If such exercise is made for all the teachers of the different departments of the college separately, one who would emerge as senior most on the teaching post of Professor can definitely claim his appointment/promotion on the post of Principal of the College as per existing norms, practiced and precedent of appointing the senior most teacher as the Principal of the College. This Court, therefore, would direct the respondent- Principal Secretary of the Health Department to decide the inter-se seniority of not only the petitioner and respondent no.5 but all other teaching personnel of Patna Dental College by giving them the effective date of their appointment/promotion on the teaching 10 post of Tutor/Lecturer/Professor and if such exercise would require notifying the regular promotion of the person concerned upon fulfillment of eligibility criteria by him that will be also undergone by the Principal Secretary of the Health Department strictly in accordance with law. Once such a decision is taken by the Principal Secretary of the Health Department, he will issue a tentative gradation list of the teachers of different department of the college which shall be circulated and any person seeking any modification or change therein will have a right to file a representation and at that stage the petitioner and respondent no.5 being two contesting persons will additionally have a right of personal hearing before the Principal Secretary of the Health Department. It will, however, he open for the Principal Secretary to afford opportunity of personal hearing to any other persons as well, inasmuch as, fixation of final seniority will have a direct bearing on the filling up the post of Principal of the college. Till such a exercise is completed by the Principal Secretary neither the petitioner nor the respondent no.5 will be eligible to hold the post of Principal of Patna Dental College and for this intervening period the Principal of Patna Medical College as in past shall also additionally look after the work of Principal of Patna Dental college and Hospital. As the matter has remained pending before this Court for a long not only in this round of litigation but even in course of earlier litigation for a very substantial period, this Court would 11 expect that the Principal Secretary of the Health Department would do the needful within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)