CIVIL WRIT JURISDICTION CASE No.2390 OF 1996 In the matter of an application under Articles 226 and 227 of the Constitution of India. DR.SUDHANSHU SHEKHAR MALLIK-----------------------(Petitioner) Versus STATE OF BIHAR & ORS-------------------------------------------(Respondents) For The Petitioner :MR. AMIT UPADHYAY, ADV0CATE For The Respondent :MR. PANKAJ KUMAR, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This petitioner has moved for the third time before this Court as he has been deprived from promotion to the post of Senior Chemist since the year 1977. The petitioner was working as an Assistant Chemist in the Public Health Laboratory at Patna. He moved this Court vide CWJC No. 6252 of 1991 and this Court took into account that the vacancy was of the year 1977, would not be available in the office at the time when the writ application was filed nevertheless directed that the Health Commissioner should hear the petitioner or - 2 - refer the matter to the Departmental Promotion Committee or any other suitable competent authority. While hearing the writ application this Court also observed that “one fact that emerges however in this case is that the petitioner has been serving for the past 22 years on the same post without having been given any promotion. This is, rather, unusual and it is bound to cause great frustration to the petitioner and to greatly reduces his potential for efficient working. It does not also appear from the record that at any time his claim for promotion received due consideration by a competent authority”. The story did not end here. Again the petitioner being dissatisfied by the order passed by the Additional Secretary to the Government dated 12.5.1994 filed another writ application. This led to another order of remand as according to the Hon‟ble Judge the competent authority had not considered the case of the petitioner as per directions given in the writ application aforesaid. In the present case the petitioner has challenged annexure-1 which is the order passed - 3 - by the Commissioner-cum-Secretary, Health Department. The petitioner‟s claim has been rejected on two grounds. It is firstly said that the petitioner does not possess the qualification of M.Sc. in Organic Chemistry. Secondly, the reason stated is that the petitioner has not passed the Hindi Noting and Drafting Examination and lastly it is said that as per the reservation roster for the post the second vacancy would go to reserved category. These points were raised earlier in all the writ applications and it was precisely this reason that this Court had remanded the matter to be considered as the petitioner had produced a notification/letter of the Government dated 15.10.1990 issued by the Additional Secretary to the State Government in which it has been stated that apart from Accountant and Clerk the need to pass Hindi Noting and Drafting Examination was not essential. With respect to the qualification of the petitioner I fail to understand how the Commissioner-cum-Secretary of the Health Department could reject the case of the petitioner because he did not have a M.Sc. in Organic Chemistry. The petitioner had - 4 - the due qualification of being a M.Sc., Graduate in Physical Chemistry. The petitioner also claims that he is Ph.D. in the subject. The impugned order rejecting the claim of the petitioner does not specify or deal with any notification which requires that the qualification for the post of Senior Chemist should be Organic Chemistry except a circular/letter issued in 1958. This letter dated 30.9.1958 requires that the qualification for the post of Analyst should be M.Sc. in Organic Chemistry. Learned counsel submits that the advertisement issued thereafter does not refer to the qualification as required by the letter dated 30.9.1958. This Court had already observed that the vacancy of the year 1977 could not have been made available to the petitioner in 1991 and it is quite clear from the order passed by this Court in CWJC No. 6252 of 1991 which is annexed asannexure-12 to the brief at page 237 that the Court has surprised that the petitioner has not been given any monetary benefits for 22 years although he would be entitled perhaps to two Time Bound Promotion. - 5 - Unfortunate as it would be fore the petitioner that during the pendency of this writ application it appears that the petitioner was transferred to Muzaffarpur which has also been challenged by filing an I.A. application in this writ. The Court had passed an order that the transfer would be subject to the decision of this case. The facts that have emerged in this case, that after the transfer of the petitioner and the order of this Court the petitioner was absent from 16.5.1994 to 18.4.1997. The counsel for the petitioner contends that he had filed a representation informing the authorities that he was unwell and unable to join because he was suffering from certain physical ailments. The fact of the matter is that the petitioner did not join at Muzaffarpur and was absent from work for the aforesaid period. However, the petitioner went to rejoin on his post but was not allowed to do so and in fact did not receive his salary since 1994. The petitioner has now retired in 2004 and his pension has been fixed at Rs. 2,750 per month. These entire gamuts of facts are disputed and are required to be considered by - 6 - the authorities if and when the petitioner files the proper representation. This Court at this stage cannot pass any order regarding the correctness of the transfer order in the present writ application. Before parting with the order, I may say that it is surprising that from the year 1977 to 1994 the petitioner has been deprived of monetary benefits by virtue of being in service for a considerable length of time. This aspect of the matter has not been considered in the impugned order t all. For the reasons aforesaid, the petitioner may approach the Secretary-cum- Commissioner, Health Department, if so advised, within a period of 3 weeks on receipt of this order. The Health Secretary should consider all aspects of the matter and pass an appropriate order within 4 months of the receipt of the representation. I may also clarify that the petitioner„s case to be considered for promotion against the 1977 vacancies as stated in the earlier order of this Court is time barred. In the result the only remedy for the petitioner would be either to file a fresh writ - 7 - or file a representation before the authorities with respect to his payments if any due to him. Keeping in view the fact that the authorities ought to consider the fact that the petitioner has not been granted any monetary benefits since the time he joined his services. This writ application is disposed of with the aforesaid observations. Patna High Court, September 12 , 2008, Sanjay / N.A.F.R (Sheema Ali Khan, J.)