IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13180 of 2005 KUMAR DEO PUJAN s/o late Jagdhar Prasad Viyogi, resident of village Bajidpur, P.S. Biddupur, district- Vaishali, presently residing at Quarter no. 22 MC.P.W., P.M.C.H Campus, Bihar, Patna and at present Resident Surgical Officer,Department of Plastic Surgery, P.M.C.H.,Patna. Versus 1. THE STATE OF BIHAR . 2. The Secretary, Department of health ( Medical Education and Family Welfare), Government of Bihar, New Secretariat, Patna. 4. The Deputy Secretary, Department of Health ( Medical Education and Family Welfare), Government of Bihar, New Secretariat, Patna. ----------- For the Petitioner : Mr. Chitranjan Sinha, Sr. Adv Mr. Bishnukant Dubey. For the State : Mr. Pushkar Narain Shahi, AAG-XIV Mr. Vishwajeet Singh, A.c. to AAG XIV For Intervenor : Mr. R.R. Tiwari, Advocate. 6 4.4.2011 Intervention applications have been filed. They are allowed though their intervention serves little purpose. Intervenors have also filed applications for vacating the order of stay granted by this Court in the present case on 25.10.2005 staying the operation of the impugned order dated 30.9.2005, as contained in Annexure 22. Having considered the mater, in my view, as pleadings are complete with the consent of all the parties, the writ application itself is heard for disposal at this stage itself. By the impugned order, as contained in Annexure 22, being order dated 30.9.2005, passed in the Department of Health( Medical Education and Family Welfare), the Principal Secretary has directed the petitioner to be reverted to Bihar Health Services from the alleged teaching post of Resident Surgical Officer at Patna Medical College Hospital, Patna. In 2 fact, Annexure 22 is the out come or follow up of the order, as contained in Annexure 19, which was earlier issued on 27.3.2004 by the government reverting the petitioner to the Bihar Health Services. This order (Annexure 19) was challenged before this Court in CWJC No. 4299 of 2004, which was disposed of on 8.8.2005 directing the petitioner to represent against the said order to the government and in the meantime the said order was stayed . Upon representation being filed, the same was rejected and that is why Annexure 22 was passed, which is under challenge now. Having heard the parties, in my view, the facts necessary for decision in the present case lie in a very short compass. It appears that in 1996, one Dr. Ajay Kumar, by filing CWJC No. 1710 of 1996, challenged the notification dated 9th January, 1996 whereby the petitioner- Dr. Kumar Deo Pujan was appointed to the post of Resident Surgical Officer at Patna Medical College Hospital, Patna, a teaching post. This Court vide judgment and order dated 13.8.1996, after notice to the petitioner (who was respondent no.5 in the said writ application) and hearing him held that the said notification dated 9.1.1996 was illegal and could not be sustained and quashed the appointment of petitioner. Against the said judgment, State and the petitioner both preferred separate independent L.P.As. It appears that both L.P.As, as preferred by the State and as preferred by the petitioner, the later being L.P.A No.911 of 1996 3 was withdrawn on 11.8.1997 (Annexure 4 to the writ petition). A reference to the said order permitting withdrawal of L.P.A would show that it was a withdrawal simpliciter with nothing noted therein. Thus, in view of this Court, inter party judgment involving the State and the present petitioner, as passed in CWJC No. 1710/96 attained finality. It is, however, curious to note that notwithstanding quashing of petitioner’s appointment, as made in 1996 to the post of Resident Surgical Officer at Patna Medical College Hospital from Bihar Health Services, he continued to remain on the said post undisturbed by the State. It is only when in 2004 the State realizing the mistake having been committed, transferred him that the petitioner then challenged this order of transfer/reversion to the Health Services, which, as noted earlier, ultimately resulted in the order impugned ,as contained in Annexure 22 . Mr.Chitranjan Sinha, learned Senior Counsel appearing in support of the writ petition submits that the petitioner after suffering the adverse judgment of this Court was assured by the State of his absorption in the teaching cadre if he withdrew L.P.A. He may be correct but records do not support him because the order permitting withdrawal of L.P.A. does not note any such fact nor does it refer any such affidavit filed for withdrawal but the fact remains that notwithstanding the judgment declaring his appointment in teaching cadre to be illegal from 1996, he continued undisturbed at Patna Medical College Hospital in teaching post. 4 In my view, having considered the situation, once a judgment inter party and that too declaring petitioner’s appointment in teaching cadre to be illegal, had attained finality, it was not open either to the petitioner or to the State to ignore the judgment or to trash it. It was the obligation of the State to implement the judgment and if they had any mis- giving about it then it was for them or either of the parties to get the said judgment reviewed but no step was ever taken in that regard even though it was challenged in appeal but the appeal was withdrawn. The very induction of the petitioner in the teaching cadre became a non event. Now, in this writ application, the plea taken and canvassed by Mr. Chitranjan Sinha, learned Senior Counsel appearing for the petitioner is that in 1997 the new rules with regard to teaching cadre came into force. The Rules, as framed by the State , provided for giving an option to Doctors, who were earlier in the cadre of Bihar Health Services and had came into the teaching cadre to give an option to permanently stay in the teaching cadre, which cadre was being carved out from the Health Services for the first time on permanent basis. It is asserted that the petitioner being in the teaching cadre gave an option to continue in the teaching cadre and this exercise of option having been done now shifting the petitioner back to Health Services Cadre was not permissible. In my view, the argument is noted only for the purpose of rejection. The argument is based upon an invalid supposition that the 5 petitioner in 1997 was in the teaching cadre, which was a myth inasmuch as by the judgment of this Court in 1996 itself it was held that the petitioner’s migration and appointment in the teaching cadre from Health Service was wholly illegal and had been quashed. Thus, for all practical purposes after the said judgment, petitioner stood reverted in Health Service Cadre and was not to be considered or continued in teaching cadre. Thus, he had no right to exercise any such option. In my view, in terms of 1997 Rules that the option had to be exercised by the persons, who were in teaching post but belong to the Health Services Cadre as a permanent teaching cadre was being created. The option was to the people in the teaching post to give up their Health Services Cadre and get absorbed in the newly created teaching cadre. As noted above, this option was not available to a person, who was and continued to be in the Health Services Cadre as was the case of the petitioner consequent to setting aside his appointment therein. Thus, the net result is that the action, which the State Government ought to have taken in the year 1996 or soon thereafter, which is belatedly being taken in the year 2004/2005 cannot be questioned on any ground. The order, as contained in Annexures 19 and 22, thus, are nothing but follow up action of the judgment of this Court, as delivered in CWJC No. 1710 of 1996, dated 13.8.1996 and that judgment, as noted above, has attained finality as against this petitioner unless that judgment is varied, there cannot be any valid or legal challenge to 6 Annexures 19 and 22 in the writ petition. Thus, the reversion or sending back of the petitioner to the Bihar Health Services is beyond challenge and as such the writ petition merits no consideration and is dismissed. The stay order, as granted by this Court in this case, on 25.10.2005 is thus vacated. Before parting I may ,however, observe one thing that the petitioner’s posting as Resident Surgical Officer, Patna Medical College Hospital as done in 1996 was held to be illegal by this Court but because of lapses on the part of the government ,no order was issued thereafrter transferring and posting him in any position in Bihar Health Services because of which fault he continued at Patna Medical College Hospital till the actions were presently taken. As this Court holds that he continued in Bihar Health Services, his seniority, continuity in service in the Bihar Health Services Cadre would be maintained and continued uninterrupted. This judgment would not come in way of the petitioner in being transferred to the teaching cadre by a fresh notification upon legal statutory condition being satisfied upon petitioner’s representation in that regard but his continuance as of now cannot be allowed in the Patna Medical College Hospital, Patna at any cost. The Writ petition is accordingly dismissed. Singh ( Navaniti Prasad Singh, J.)