IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9223 of 2001 ---------- In the matter of an application under Article 226 Of the Constitution of India. ---------- Dr.Vijay Kumar Gupta, Aged about 48 years, son of Dr. Ram Kumar Sahu, Resident of 9, Sri Krishna Puri, Panta. ………………Petitioner. Versus 1. The State Of Bihar. 2. Secretary, Medical Education, Government of Bihar, Patna. 3. Deputy Secretary, Health Education and Family Welfare, Government of Bihar, Patna. 4. Dr. Kedar Prasad, son of name not known, Anesthetist, Darbhanga Medical College, Laheriasarai. 5. Dr. (Smt.) Nirmala Kumar Shrivastava, wife of name not known, Anesthetist, Darbhanga Medical College, Darbhanga. 6. Dr. Yogendra Singh, son of name not known, Anesthetist, Patna Medical College, Patna. 7. Dr. Shrinivas Roy, son of name not known, Asstt. Professor, Darbhanga Medical College, Laheriasarai. 8. Dr. Gandhi Jha, son of name not known, Asstt. Professor, Darbhanga Medical College, Laheriasarai. 9. Dr. Niranjan Kumar Verma, son of name not known, Asstt. Professor, Bhagalpur Medical College, Bhagalpur. 10.Dr. Dev Kumar Mishra, son of name not known, Asstt. Professor, Anugrah Narain Medical College, Gaya. 11.Dr. Rajendra Prasad, son of name not known, Asstt. Professory, Patliputra Medical College, Dhanbad. 12.Shri S.K. Singh, son of name not known to the petitioner, Deputy Secretary, Govt. of Bihar in the Department of Health (Health Education, Family Welfare I.S.M.,Patna 13.Dr. K.K. Verma, son of name not known to the petitioners, Department of Anesthesiology, Shri Krishna Medical College, Muzaffarpur. 14.Dr. Ashok Kumar, son of name not known to the petitioners, Department of Anesthesiology, Patna Medical College Hospital, Patna 15.Dr.Ajay Sinha, son of name not known to the petitioners, Department of Anesthesiology, Patna Medical College Hospital, Patna. …………..Respondents ----------- For the Petitioner : Mr.Alok Kumar Sinha,Adv. For the State : Mr.Nirmal Kumar Sinha,Adv. - 2 - For Respondent No.7: M/s Pushkar Narain Shahi, Rakesh Kr. No.1 and Nishant Choudhary, Adv. For Respondent Nos.13 to 15:Mr.Amrendra Narayan,Adv. ----------- P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Pleadings Filed Petitioner filed this writ application on 20.7.2001 praying therein for issue of writ in the nature of writ of certiorari for quashing of the final gradation list contained in Memo No.160(17)/Health, Patna dated 6.4.1998 (Annexure-5) of teaching staff of the rank of Tutors/Associate Professors working under the Department of Anesthesiology in various Medical Colleges, wherein petitioner was placed at serial no.24 showing him appointed as Assistant Professor on 4.6.1987 in Patna Medical College & Hospital, Patna (hereinafter referred to as `P.M.C.H.‟), instead of placing him at serial no.16 as per initial date of his appointment and joining as Assistant Professor on 4.6.1984. Petitioner also prayed for a direction to the respondents to prepare a fresh gradation list counting his services in the Department of Anesthesiology with effect from his initial appointment and joining on 4.6.1984 as Assistant Professor in Patliputra Medical College, Dhanbad, vide Notification dated 29.4.1984 (Annexture-2). By amendments applications, petitioner has also sought to challenge two subsequent notifications containing - 3 - gradation list issued by the respondents during the pendency of this writ application (Annexure-7 dated 5.9.2004 with I.A.No. 4495/2004 and Annexure-10 dated 8.7.2008 with I.A.No. 4898/2008). 2. Besides official respondents, petitioner also made the incumbents, shown in the impugned gradation list above him and upto serial no.16, as respondent nos. 4 to 11 in the case. Petitioner also filed supplementary affidavit on 23.7.2001 bringing on record an order dated 28.4.1999 passed by this Court in C.W.J.C.No.4959 of 1997 whereby, a policy decision of the Government contained in memo no.176(17) dated 20.6.1996, which was issued in the matter of promotion to the post of Associate Professor (Anesthesia) and on the basis of which promotion had been granted to respondent no.7 to the post of Associate Professor at that time and was challenged by the petitioner of that case in the writ, was directed to be kept in abeyance. 3. By order dated 23.7.2001 official respondents were directed to file counter affidavit in the case and notices were ordered to be issued to the private respondents. Subsequently, respondents came up with the notification dated 5.9.2004 promoting certain Assistant Professors, including three incumbents junior to the petitioner, to the post of Associate Professors in the Department of Anesthesiology. Accordingly, petitioner filed I.A.No.4495 of 2004 on 8.9.2004, annexing the said notification as Annexure-7, for amendment in the writ application by adding the said incumbents, so promoted, - 4 - as respondents and for adding grounds for challenge of the said notification and prayer for quashing of the same also. The said I.A. was allowed by order no.5 dated 12.7.2007 passed by this Court and the said incumbents, as mentioned in paragraph 7(a) of the I.A., were allowed to be added as party respondent nos. 13, 14 & 15. Notices were also directed to be issued to the newly added respondents. The signatory to the said notification, a Deputy Secretary of the Department was also added as respondent no. 12. 4. In the meanwhile, pursuant to earlier direction of this Court, official respondent nos.1 and 2 filed their counter affidavit on 5.4.2005 sworn by one Dr.S.N.Sharma on their behalf, an Officer on Special Duty in the Department. In a nutshell, the official respondents disputed the claim of the petitioner, primarily on the ground that, subsequent to his appointment as Assistant Professor of Anesthesiology in Patliputra Medical College, Dhanbad, petitioner had joined as Anesthetist in P.M.C.H. willingly, pursuant to a notification, Annexure-3, which was a non-teaching post. Therefore, his earlier service on teaching post could not be counted from initial date of his appointment as Assistant Professor for fixing his eligibility for promotion to the post of Associate Professor. It was said that impugned Annexure-5 was prepared in the light of the said policy decision dated 20.6.1996 which was stayed by this Court. 5. Petitioner filed rejoinder to the counter - 5 - affidavit of respondent nos.1 and 2 on 7.4.2005 in which he mainly claimed that the post of Anesthetist was also a teaching post carrying the same pay-scale and therefore he was entitled for counting of his entire period from 4.6.1984 for deciding his eligibility for promotion to the post of Associate Professor. 6. After service of notice, respondent no.7 also appeared in the case and filed his counter affidavit on 12.7.2007. He disputed the claim of petitioner by asserting that the posting of petitioner as Anesthetist in Patna Medical College and Hospital was made on the basis of his separate application and preparation of fresh panel. Respondent nos.13,14 and 15 also appeared in the case and filed their separate counter affidavit on 10.10.2007 in which, in brief, they also contended that petitioner, on his own volition had opted for a lower posting on a non-teaching post. Hence, they asserted that, he could not be given benefit of the period during which he was posted as Anesthetist and these respondents have longer length of teaching experience with better claim for their promotion to the post of Associate Professor. 7. In the meanwhile, respondents prepared another final gradation list of doctors working in the Department of Anesthesiology in the Medical Colleges and notified the same through letter dated 18.7.2008 in which petitioner was shown at serial no.5 in the category of Anesthetists. - 6 - 8. Accordingly, petitioner filed I.A.No.4898 of 2008 for necessary amendment in the writ application by adding prayer to challenge this gradation list also. In the I.A. he pleaded that a provisional gradation list was published earlier inviting objections, which he filed. However, without considering the same, final gradation list has been published, reverting him back to the category of Anesthetist, instead of retaining his name in the category of teaching staff of the Department, a position already accepted by the Department through Annexure-5. Petitioner placed all the three documents on record with the I.A. as Annexures – 8, 9 & 10. 9. It appears that after I.A. No.4495 of 2004 was allowed by this Court by order dated 12.7.2007, respondent no.2 filed a counter affidavit to the said I.A. in Court on 23.6.2009 sworn by same Dr.S.N.Sharma on 26.11.2007, now posted as Additional Director Health (Medical Education). Respondent nos.13,14 and 15 also filed supplementary counter affidavit on 9.7.2009. Respondent nos.1 and 2 also filed supplementary counter affidavit on 13.7.2009 sworn by the same Dr.S.N.Sharma under the authority of the competent authority and now posted as Professor Head of the Department, Physiology, P.M.C.H.. 10. On 13.7.2009 itself, Petitioner filed a common reply to the supplementary counter affidavits of respondent nos.13, 14 and 15 as well as supplementary - 7 - counter affidavit of respondent nos.1 and 2. Notices on all the parties having been served validly and parties appearing in the case having filed their pleadings, case was finally heard on 13.7.2009 and orders were reserved. Cases of the Parties 11. As per the pleadings, petitioner was initially appointed in the Bihar Health Services and joined as Medical Officer, Gopalganj on 31.5.1979. During this period, he was pursuing his course of Doctor of Medicine in Anesthesiology under Patna University, examination of which was held in September, 1981 and he was awarded degree of D.M. in Anesthesiology vide Annexure-1 dated 12.1.1982. 12. In the extra-ordinary Gazette of the State dated 9.6.1983 (Annexure-2), an advertisement was published inviting applications for appointment on various teaching posts and on posts of medical officers in the Medical Colleges of the State. For appointment on the post of Assistant Professor, in paragraph 3 of the advertisement, besides subject qualification, three years experience on the post of Resident/Registrar in the concerned subject was made an essential requirement. However, an exception was made in cases of candidates in the subject of Radiology, Radiotherapy, Skin and V.D., Anesthesia, Neurology, Neuro-Surgery, Plastic-Surgery, as also in cases of specialization which may be created later on, with the stipulation that neither the said requirement of experience of three years on the post of - 8 - Resident/Registrar nor the requirement of minimum 15 points shall be necessary. As the petitioner, otherwise, had the requisite qualification for the post of Assistant Professor of Anesthesiology, he applied for the same, and having been selected, he was empanelled, appointed and posted as Assistant Professor in the Department of Anesthesiology in Patliputra Medical College, Dhanbad, vide Notification No.444(17) dated 29.5.1984 (Annexure-2 series). He joined the post in the College concerned on 4.6.1984. Thereafter, vide Annexure-3, the Notification dated 7.2.1986 his services were transferred on the post of Anesthetist in P.M.C.H.. By the said notification, other teachers and Medical Officers were also transferred on the post of Anesthetist in other Medical Colleges. The Notification made it clear that besides their pay, they shall also be entitled for other admissible (teaching) allowance. Accordingly, petitioner joined his post in Patna Medical College and Hospital on 14.2.1986 and has continued in the institution since then. 13. It appears that a Notification No.176(17) dated 20.6.1996 was issued by the Department notifying certain policy decision in respect of criteria for filling up of higher post of Associate Professor. Pursuant to the said notification, State Government published a provisional combined gradation list of Assistant Professors and Anesthetists now designated as Assistant Professors of Anesthesiology Department, for their promotion to the post of Associate Professor, vide - 9 - Annexure-4 dated 26.12.1996. The letter enclosing the list made it clear that Anesthetists having post graduate degree are being designated as Assistant Professors and have been clubbed together with them in the gradation list for their inter-se seniority. In the list petitioner was shown at serial no.30 and was shown as having joined the post of Anesthetist on 14.2.1986 and designated as Assistant Professor on 14.2.1989 and entitled for grant of teaching experience with effect from the same date. Representations/objections were invited against the said list from the aggrieved parties. Accordingly, petitioner filed his representation for correction of placement of his name in the gradation list claiming to be entitled for grant of teaching experience with effect from 4.6.1984, the date on which he had joined the post of Assistant Professor in the Department of Anesthesiology in Patliputra Medical College, Dhanbad. Respondents, thereafter, published final gradation list vide letter no.160(17) dated 6.4.1998 (Annexure-5). In the said gradation list petitioner was shown at serial no.24. Against the name of petitioner his initial appointment was shown on 4.6.1984 as Assistant Professor but in column 5 he was shown to have been posted on the post of Assistant Professor on 4.6.1987 and in column 7 shown to be entitled for teaching experience from the said date. 14. Not satisfied with the said placement of his name at serial no.24 on account of the fact that although he had joined as Assistant Professor on - 10 - 4.6.1984 but was granted benefit of the same after three years i.e. 4.6.1987. Petitioner filed present writ application challenging the same primarily on the ground that at that point of time post of Anesthetist was also a teaching post and equivalent to the post of Assistant Professor and the petitioner was transferred to that post on the orders of the respondents without any representation or request on his part for the same. Therefore, he could not be denied teaching experience while holding post of Anesthetist in Patna Medical College and Hospital on the orders of the respondents. He also made the incumbents above him and upto serial no. 16 as party respondents in the case. By order dated 23.7.2001 State counsel was directed to seek instructions and file counter affidavit in the case and notices were ordered to issue to private respondents. 15. However, during the pendency of the writ application and in spite of order dated 23.7.2001, respondents acted upon the said gradation list and issued Notification No.638(17) dated 5.9.2004 by which some of the Assistant Professors working in the Department of Anesthesiology in different Medical Colleges in the State of Bihar were posted on the post of Associate Professor under working arrangement till further orders. Since some of such Associate Professors were appointed as Assistant Professor later than the petitioner, petitioner challenged the said notification by filing I.A.No.4494 of 2004 in this writ application which was allowed by this Court as stated above and such - 11 - persons were allowed to be added as party respondents. 16. In the first counter affidavit filed on behalf of respondent nos.1 and 2, it was contended that the petitioner was transferred to a non-teaching post of Anesthetist by Annexure-3 and he worked in such capacity upto 3.6.1987, whereafter he was designated again as Assistant Professor with effect from 4.6.1987. Therefore, seniority granted to the petitioner by counting his service on teaching post with effect from 4.6.1987 by placing him at serial no.24 in the impugned Annexure-5 was perfectly justified and valid. It was also averred that by joining the post of Anesthetist petitioner had forgone his seniority on the basis of his service rendered as Assistant Professor in Patliputra Medical College, Dhanbad and therefore his claim on that basis stood forfeited. It was again said that the post of Anesthetist was a non-teaching post whereas post of Assistant Professor was a teaching post. However, in paragraph 7 of the counter affidavit it has been contended that by counting the service of petitioner from 4.6.1984, the day on which he joined the post of Assistant Professor in Patliputra Medical College, Dhanbad, he was designated as Assistant Professor with effect from 4.6.1987, on completion of three years of experience on a junior post, as required under the law. The stand of the respondents in paragraph 9 of the counter affidavit is to the effect that though Annexure- 3 mentions the word transfer, no such transfers are done unless the person concerned opts for inclusion of his - 12 - name in the new panel. It is said that „the explanation for such transfers in case of petitioner can only be that he was not satisfied with his posting at Dhanbad and so he might have applied for appointment as Anesthetist and after getting a posting of his choice at Patna he relinquished his posting as Assistant Professor which carried a higher pay scale and joined as Anesthetist which carried a lower pay scale.‟ It is also said that petitioner did not protest to such demotion. Lastly, it was contended that the impugned Annexure-5 was prepared in the light of the said policy decision of the Government dated 20.6.1996 which was stayed by this Court. 17. Petitioner filed rejoinder to the counter affidavit of respondent nos.1 and 2 in which he asserted that posting of petitioner as Anesthetist in Patna Medical College and Hospital by Annexure-3 was on account of routine transfer. He also asserted that the post of Anesthetist in Patna Medical College and Hospital at that point of time was a teaching post which is established from the fact that by the said notification, in express terms, teaching allowance was made admissible to the persons being posted on the post of Anesthetist in different Medical Colleges. Petitioner produced documents as Annexures-7 and 8 with his rejoinder to show that pay scale of the post of Anesthetist and Assistant Professor was same with additional teaching allowance for teaching duties and both posts were being considered as feeder post for - 13 - promotion to the post of Associate Professor and that Anesthetists were also engaged in teaching in the Colleges. Hence, it was reiterated that petitioner was entitled to be placed at serial no.16 in the impugned Annexure-5 by counting his services on teaching post from 4.6.1984, which has been acknowledged by the respondents in their counter affidavit as they have accepted that counting his three years teaching experience from 4.6.1984 he has been designated as Assistant Professor with effect from 4.6.1987 by the impugned notification. 18. Respondent no.7 has also appeared in the case and has filed counter affidavit. Besides taking stand that petitioner had challenged the said notification belatedly, it is contended in the counter affidavit that post of Anesthetists, Registrars and Residents are lower posts but have been bestowed with the benefit of teaching experience. On the basis of letter of the Government No.110 dated 9.1.1963 addressed to the Accountant General, it was contended that the post of Anesthetist was placed in the category of junior teachers whereas tutors (Now Assistant Professors) were shown in different category. Similar to the stand of respondent nos.1 and 2, respondent no.7 also contended in his counter affidavit that pay scale of the two posts were different and it was evident from Annexure-A/7 itself that separate panels used to be prepared for Anesthetist and Assistant Professors. In paragraph 9 of his counter affidavit also, it has been said that - 14 - posting of petitioner on the post of Anesthetist in Patna Medical College and Hospital `must have been made on the basis of separate application and separate panel prepared for the same‟, against which petitioner did not raise any grievance. It is said that earlier total teaching experience used to be counted for promotion to the Associate Professor and it was only after judgment of this Court in the case of Dr. Hare Ram Singh that teaching experience of the post of Assistant Professor was separately started to be taken into account for such promotions to Associate Professors. Finally, it was contended that petitioner got himself posted against a junior post and therefore, he cannot complain about the same. It was stated that answering respondent was working on promotional post of Associate Professor with effect from 19.6.1986 itself which was sought to be cancelled later on and the dispute is pending before this Court in C.W.J.C.No.4959 of 1997. 19. Respondent nos.13,14 and 15 also appeared in the case and filed their common counter affidavit. Apart from raising the ground of delay, they have taken a stand somewhat similar to the stand taken by respondent nos.1 and 2 and respondent no.7. It is contended that petitioner was holding teaching post in Dhanbad for one year eight months only. It is also contended that the post of Anesthetist and Assistant Professor belong to two different cadre with two different pay scales and required different qualifications for appointment on the same. It is stated - 15 - that the claim of petitioner for his posting as Associate Professor on the basis of counting his services as Anesthetist will amount to a case of level jumping as noticed by this Court in the case of Dr. Hare Ram Singh. It is contended that posting of petitioner on the post of Assistant Professor in Patliputra Medical College, Dhanbad by Annexure-2 was withdrawn after petitioner availed his posting on the post of lower grade and therefore, he cannot claim the benefit of his previous posting at Dhanbad. In this counter affidavit also, in paragraph 12, it is said that „To the best of the knowledge of the answering respondents, this posting on inferior post of Anesthetist was made pursuant to the petitioner‟s request for choice posting at his desired place at Patna.‟ These respondents have also questioned the counting of three years of continuous service of the petitioner from 4.6.1984 for his designation as Assistant Professor on the ground that as in 1986 petitioner was reverted to a junior post, his past services on teaching post could not be reckoned for the purpose and he was required to qualify in selection test afresh for posting as Assistant Professor. Giving comparative teaching experience, it is said that the petitioner had teaching experience of only one year eight months, whereas respondent no.13 had teaching experience of 14 years, respondent no.14 had teaching experience of 13 years and respondent no.15 had teaching experience of seven years, and therefore, they were rightly posted on the higher post of Associate Professor - 16 - by the said notification dated 5.9.2004. 20. During the pendency of this writ application, yet another gradation list was published through letter no.866(17) dated 8.7.2008 in which, contrary to Annexure-5, petitioner has been shown as still in the grade of Anesthetist with joining date as 14.2.1986. Petitioner has challenged this notification also through I.A. No.4898 of 2008 praying therein for necessary amendments in the writ application. In the said I.A. it has been contended that provisional gradation list was published earlier against which petitioner had filed objections, still without considering his objection, he has been kept in the category of Anesthetist and his date of joining is shown as 4.6.1986 in the final gradation list. It is contended in the I.A. that upon their own showing, vide Annexure- 5, petitioner had been designated as Assistant Professor with effect from 4.6.1987 although wrongly adjusting three years of his service against requisite teaching experience, which was not applicable in the case of the petitioner. Now by this notification petitioner has been reverted back to the cadre of Anesthetist which is highly arbitrary, illegal and shows absolute non- application of mind by the respondents. 21. Respondent no.2 has filed a belated counter affidavit to I.A.No.4495 of 2004. In this counter affidavit stand of respondent no.2 is that though Anesthetists, Registrars and Residents have been benefited with the teaching allowance, but the same are - 17 - ex-cadre posts. It is also said in the counter affidavit that petitioner was not comfortable at his posting in Dhanbad and therefore upon his transfer to the post of Anesthetist in Patna Medical College and Hospital from Patliputra Medical College, Dhanbad, he joined the post and thus forfeited his claim for being treated as Assistant Professor with teaching experience. It is claimed that out of the seven incumbents, who were posted on the post of Anesthetist vide Annexure-3 from panel of 1985, petitioner was the single person who was included in this notification. In respect of equal pay, it is contended that several posts may be in one pay scale but that does not necessarily establish that they are all in one cadre. Lastly, it is acknowledged in the counter affidavit that petitioner was posted as Assistant