IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11951 of 2001 DR.V.K.SRIVASTAVA, S/O LATE BISHWANATH PRASAD, R/O PARK ROAD, P.S.-KADAMKUAN, DISTRICT AND TOWN-PATNA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE DEPUTY SECRETARY TO THE GOVERNMENT, HEALTH, MEDICAL EDUCATION AND WELFARE DEPARTMENT, PATNA. 3. THE COMMISSIONER-CUM-SPECIAL SECRETARY, HEALTH, MEDICAL EDUCATION AND WELFARE DEPARTMENT, PATNA. 4. THE ACCOUNTANT GENERAL, BIHAR, BEER CHAND PATEL PATH, PATNA. ………………RESPONDENTS. For the petitioner : Mr. Madhuresh Prasad and Mr. Ravi Verma, Advocates. For the A.G. : Mr. J.P.Karn, Sr. Adv. ----------- P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Petitioner, in this writ application, has prayed for a direction to the respondents to grant him pay scales of Associate Professor and Professor, and pay his salary and arrears, as may be admissible to him from the dates when he became eligible for promotion to the said posts (i.e. from the dates when his juniors were promoted to the said posts) and for a further direction to the respondents to recalculate his pensionary benefits on the ground of grant such scale and pay his arrears on that count also. Petitioner’s case, in short, is that he was appointed as Assistant Professor in the department of Surgery in Nalanda Medical College and Hospital 2 (hereinafter referred to as ‘the College’) in the year 1975 and accordingly, he joined on 25.7.1975. At that time the College was under private management. Subsequently an Act was promulgated for take over of the private Medical Colleges of the State known as Bihar Private Medical Colleges (Taking Over) Act, 1978. For the purposes of take over of the College and for take over of the services of teaching and non-teaching staff working therein, a Screening committee was constituted under the provisions of the Act. While the final take over of services of the incumbents working in the College was pending with the Government, in terms of the Act, petitioner and all other teaching and non-teaching staff of the College continued in service in the College on ad hoc basis. Finally Screening Committee submitted its report which was accepted by the Government and a notification was issued, vide letter of the Joint Secretary, Department of Medical Education and Family Welfare dated 14.6.1990, which was communicated to the petitioner and others, vide Anneuxre-1 Series (P-21). As per the recommendation of the Screening Committee and approved by the State Government, petitioner was found eligible for take over of his services as Assistant Professor, Surgery, with effect from 10.2.1978. For the period of his service prior to the said date, a note was made in the last column against his name that the validity of his earlier appointment as Associate Professor will be examined after advice is received from the Medical Council of India regarding his experience 3 abroad. In the report of the Committee, it was mentioned that the private management of the College had given the designation of Associate Professor to the petitioner and others which was not accepted by the State Government as their period spent abroad for higher studies was not admissible for counting of their teaching experience. Therefore, the report mentioned that, it would not be appropriate to give them seniority and teaching experience on the basis of said designation of Associate Professor, given to them by the private management. It was also noticed in the report that the juniors to the petitioner in the rank of Assistant Professor had not been promoted to the post of Associate Professor as yet. However, this report mentioned that petitioner’s case could be considered for promotion to the post of Associate Professor if and when the juniors to him were promoted. It is contended that the juniors to the petitioner were indeed promoted to the rank of Associate Professor in 1992, ignoring the case of the petitioner. Later on, a notification by the State Government dated 20.6.1994 (Annexure-2) was issued, by which, petitioner in the College, and some other teachers in other Medical Colleges, were posted on the post of Incharge Associate Professor in the department of Surgery in their own pay scale. The back of the notification showed that all the incumbents were to draw their salary against the vacant post of Associate Professor of the concerned Medical College and, it was also mentioned that, if they do not 4 joined their post within the time fixed, they shall be debarred from consideration for promotion for the next five years. In compliance to the said notification petitioner joined against the said vacant post of Associate Professor in the department of Surgery on the same day, although as per his claim he was entitled for promotion to the post of Professor itself, by dint of his length of service. Later on, by notification dated 20.10.1997 (Annexure-3) petitioner was posted as Professor. But, it was made clear in this notification that, he will not be entitled to the pay scale etc. of the post. It was also made clear in that notification itself that, this notification of posting of petitioner on the post of Professor has been issued in the light of his date of superannuation, which was on 31.10.1997, ten days after, and was only a symbolic promotion. It was also mentioned that, after determination of inter se seniority, the benefits of the post shall be given to him in accordance with seniority. Petitioner superannuated from service on 31.10.1997, holding the post of Professor in the College, and designated as such, but all through, after take over of his services, he remained in the scale of Assistant Professor, and was paid his salary as such, depriving him the benefits of the post of Associate Professor as well as the post of Professor. Hence, this writ. Learned counsel for the petitioner has submitted that, the notifications of the Government do not show in any manner, that the posting of the 5 petitioner as Associate Professor, and thereafter as Professor, was, in any way, a stop gap arrangement or on ad hoc basis or due to exigencies of the situation and for a short period. He submitted that, in fact, prior to take over of the College and take over of his services, petitioner had already been designated as Associate Professor by the management of the College and he was holding the post and discharging his duties as such which was in full knowledge of the respondents. His designation and posting as Associate Professor was not accepted by the respondents at that time only on account of the fact that respondents had not received any guidelines from the Medical Council of India till then with regard to the period spent by the petitioner abroad for higher studies. He submitted that, even as per the seniority of the teachers working in the College and accepted by the respondents, his juniors were promoted in 1992. In view of the said fact the respondents had granted promotion to the petitioner by posting him on the post of Associate Professor in 1994, vide Annexure-2. But he was illegally deprived of the pecuniary benefits of the same for no conceivable reasons. Further, he was promoted to the rank of Professor also by posting, vide Annexure-3, but that too without pecuniary benefits. He submitted that once the petitioner was posted on higher posts and was made to work against those higher posts, he was entitled to all the benefits of the post, and the respondents having not made out a case for depriving him of the same, it is only fit and proper that this Court issues a mandamus to the 6 respondents to grant him all consequential benefits, including the pay scale and salary of the said higher posts. In this context, learned counsel for the petitioner has referred to the judgments of the Apex Court and this Court in the case of Secretary-Cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and others 1998 (5) SCC 87; Dr. Sachita Kumar Sinha Vs. The State of Bihar and others 1995 (1) PLJR 362 and Jamal Ahmad Vs. The Administrator, Patna 2001 (1) PLJR 241. Counter affidavit has been filed in the case by the respondents. In the counter affidavit, it has been admitted that petitioner was appointed by the Managing Committee of the College prior to the take over of his services. It is also admitted that on the recommendation of the Screening Committee his services were taken over with effect from 10.2.1978. However, it is contended that petitioner was never promoted as Professor, and the said arrangement made by Annexure-3, a notification of 1997, was only by way of stop gap arrangement. It is contended that after coming of the Rules in force with effect from 21st May, 1997, the post of Professors in Medical Colleges could be filled-up only by direct appointment through B.P.S.C. and not by promotion. Therefore, petitioner’s so-called promotion to the post of Professor was against the Rules. In fact, as mentioned in the notification itself, in view of his approaching date of superannuation, he was merely designated as such. In respect of the claim of the petitioner for the benefits of the post of Associate Professor with effect from 1992, 7 it has been contended that pleadings of the petitioner are too vague in this respect, and petitioner has not given the details of the juniors who are said to have been promoted to the post of Associate Professor in 1992. It is also contended that petitioner was merely designated as Associate Professor, and not promoted. Therefore, he was not entitled to the benefits of the post. Petitioner has filed reply to the counter affidavit. Along with the reply, he has enclosed a copy of the Rules as Anneuxre-5 and the seniority list as Anneuxre-6. In the seniority list name of the petitioner is mentioned at serial no. 28. The seniority list also shows that the incumbents mentioned therein were asked by letter dated 3.4.1986 to present themselves in the office of Director-in-Chief, Health Services for according their consent for promotion and posting on the post of Associate Professor in the department of Surgery in different Medical Colleges. Petitioner has also annexed two notifications of the Department, as Anneuxre-7 and 7/1, to show that two incumbents, shown senior to him in the said seniority list, did not accept their promotion and posting as Associate Professor and, therefore, they were debarred from consideration for promotion for the next three years. He has also enclosed a notification dated 26.2.1992 as Anneuxre-8 to show that, along with the said two seniors, who were lateron debarred, one junior to the petitioner, whose name appeared at serial no. 35 of the said seniority list, was also promoted on 8 the post of Associate Professor. He has also annexed a notification dated 27.8.1993 as Anneuxre-9 to show that, seniors upto immediate serial above him in the said seniority list were promoted to the post of Professor. Thus, it is contended that petitioner was next in line for promotion to the post of Professor and, therefore, in view of his seniority in the grade, he was promoted on the post of Professor on regular basis. Petitioner has also annexed a final seniority list dated 15.9.1993 wherein his name figures at serial no. 1. By producing documents with his reply petitioner has shown that, his at least one junior was promoted as Associate Professor in 1992 itself. He has also shown that, two of his seniors, who were promoted, did not accept their posting and, therefore, they were debarred. Thus, two posts of Associate Professor fell vacant in 1992 itself in the Department. However, he was not promoted in 1992, but in 1994. Respondents in their counter affidavit, to deny the claim of petitioner for the benefits of the post of Associate Professor, have merely pleaded that he was only designated as Associate Professor and not promoted. This pleading of the respondents is contrary to the records. The notification, Anneuxre-2, shows that petitioner was posted on the post of Incharge Associate Professor of Surgery on the basis of his transfer. It also shows that he was entitled to the payment of his salary etc. against the vacant post of Associate Professor of Surgery in the College. The stipulation at the bottom of the back page 9 of the said notification, to the effect that, the incumbents, who would not take charge of the post, shall be debarred from consideration for promotion for the next five years, makes it amply clear that his posting on transfer was a promotion. It also makes it clear that a vacant sanctioned post of Associate Professor of Surgery in the College was available against which he had been posted. Thus, it is clear that this posting was neither a stop gap arrangement nor an ad hoc arrangement nor for exigencies of the situation and nor due to any fortuitous circumstances. Petitioner has shown that one of his junior had already been promoted to the post of Associate Professor in 1992 and two posts had remained vacant due to non-joining of his two seniors. Hence, obviously the petitioner was in line for such promotion which was made by Anneuxre-2 by posting him against a sanctioned vacant post of Associate Professor. In the circumstances, in view of the settled law emanating from the judgments relied upon by learned counsel for the petitioner, it is clear that petitioner could not be deprived of the benefits of higher post, at least from the date of issue of Anneuxre-2. So far as posting of the petitioner as Professor, vide Anneuxre-3, is concerned, it was issued only about ten days prior to his superannuation. It is an admitted position that the Rules had came into force from 31.5.1997. There is no denial of the fact that, as per the Rules, the post of Professor in Government Medical Colleges could be filled-up only on the recommendation of 10 B.P.S.C. pursuant to an open advertisement and by adopting a selection process. The notification, Annexure- 3, itself mentions that petitioner was merely designated as Professor and it was a symbolic act in view of his superannuation 10 days after. It was also made clear that petitioner will be entitled to any benefit of the same only after finalization of inter se seniority of the incumbents working under the Department in the Medical Colleges of the State. Thus, it is apparent that this designation of petitioner as Professor was not a promotion in any manner so as to give any monetary benefit to him, and the same was in teeth of the provisions of the Rules also. It is also clear that, petitioner could derive any benefit of the same only in case, after finalization of seniority by the Department, he became entitled to it, and in that case, the respondent may be legally obliged to grant him the pay scale, salary etc of the post of Professor also. As this Court has found earlier, petitioner was promoted on the post of Associate Professor by notification dated 20.6.1994. He later on superannuated on 31.10.1997, and he has filed this writ application in 2001. Therefore, at this stage it is not possible for this Court to consider the claim of the petitioner for his promotion to the post of Associate Professor from the date his junior was granted the same in 1992. The facts and the documents in this respect, which petitioner has brought on record now, by way of reply to the counter affidavit, were not brought on record with the main writ 11 application, giving any opportunity to the respondents to reply to the same. Therefore, the claim of the petitioner for grant of promotion to the post of Associate Professor with effect from 1992 is rejected. However, as this Court has found that the petitioner was indeed promoted on a regular basis, against a vacant sanctioned post of Associate Professor, by notification dated 20.6.1994, this Court holds that he shall be entitled to all pecuniary benefits with increments, revisions of pay scale etc. in respect of the said post throughout his remaining service period and shall also be entitled to revision of his all retrial benefits accordingly and payment of all differential amount on this count. In the result, this writ application is allowed in part. Respondents are directed to grant all the benefits of pay scale, increments, revision etc. connected with the post of Associate Professor to the petitioner with effect from 20.6.1994, i.e. the date of issue of the notification Annexure-2, throughout his remaining period of service and till his superannuation on 31.10.1997 and also to recalculate his all retrial benefits accordingly, and pay all the differential amount of arrears of salary and retrial benefits within a period of three months from the date of receipt/production of a copy of this order. It is made clear that, in case respondents do not pay the arrears of salary and arrears of retrial benefits to the petitioner as directed, within the time 12 stipulated above, he will be entitled to interest on the same, at the rate of 10% yearly compoundable, from the next day of expiry of the said three months till the day of its actual payment. The writ application is thus allowed in part with the aforesaid observations and directions. Patna High Court The 18th December, 2009 N.A.F.R./Arvind (J. N. Singh, J.)