IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5225 of 1999 Sheo Narayan Ram, son of late Kunan Ram, Resident of Village Anjani, P.S. Jahanabad, Dist. Jahanabad at present working on the post of Dresser and officiating as Operating Theatre Assistant in O.T. No.3 of Rajendra Surgical Block of P.M.C.H. College Hospital situated at Bankipur, P.S. Pirbahore in the town and Dist. Patna. ----- Petitioner Versus 1. The State of Bihar. 2. Director-in-Chief, Department of Health, New Secretariat, Govt. of Bihar, Patna. 3. Examination Controller, Health Services, Bihar, Patna. 4. Administrator Superintendent, Patna Medical College Hospital, Bankipur, P.S. Pirbahore, Dist. Patna. ------- Respondents With CWJC No.7946 of 2000 1. Baleshwar Singh, son of late Ram Sewak Singh, resident of Village Aliganj, P.S. Ghosi, Dist. Jehanabad, at present posted as Operation Theatre Assistant, Paediatric Surgery Department, Patna Medical College Hospital, Patna. 2. Shiv Kumar Mali, son of Sri Ram Babu Mali, Resident of Mohalla Chak Mussalahpur, P.O. Mahendru, P.S. Kadamkuan, Dist. Patna at present posted as Operatin Theatre Asstt., Department of Gyanocology (F.O.T.), Patna Medical College & Hospital, Patna. 3. Kumod Kumar, son of Sri Ram Jeewan Prasad, Resident of South Chandmari Road, P.S. Kankarbagh, Patna-20, at present posted as Operation Theatre Assistant, Labour Room Operation Theatre, Patna Medical College Hospital, Patna. 4. Shatrughan Singh, son of late Sukhdeo Prasad Singh, resident of Village Birpur, P.S. Naubatpur, Dist. Patna, at present O.T. Assistant, Rajendra Surgical Block, O.T. No.2, Patna. -------- Petitioners Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Health Medical Education and Family Welfare Deptt., Government of Bihar, Patna. 3. The Director-in-Chief, Health Services, Bihar, Patna. 4. The Superintendent, Patna Medical College Hospital, Patna. --------- Respondents ----------- 9 06.09.2011 Heard Mr. Yogesh Chandra Verma, learned senior counsel for the petitioner and 2 counsel for the State. The prayer in these two writ applications, though somewhat different when they were filed in the year 1999 & 2000 respectively, have now remained confined to consideration of the cases of the petitioners holding substantive post of Dresser for their promotion on the post of Operation Theater Assistant. As a matter of fact, when the writ applications were filed by the petitioners assailing the advertisement seeking to fill up the post of O.T. Assistant both by way of direct recruitment as also by way of promotion, their grievance was that though they were qualified Dresser but, they could not acquire the requisite qualification of training for the post of O.T. Assistant, which was to be imparted by the Government and its officials by sending the petitioners to complete such training course. It was, therefore, impressed before this Court that if the Government has fixed a criteria for filling up the post of O.T. Assistant in which acquiring qualification of being 3 trained as O.T. Assistant is compulsory, the petitioners cannot be edged out from such consideration specially when they were not sent for such training by the officials of the Health department. In both the cases, a counter affidavit has been filed, wherein, it has been pointed out that the post of O.T. Assistant, being a technical post in the medical colleges, would also require an extensive training, which is to be again imparted in the medical colleges itself. It has, however, been admitted in the counter affidavit that after the year 1986, such facility of training of O.T. Assistant could not be extended. In the counter affidavit, the respondents have also tried to explain that the ad hoc arrangement made by the Superintendent/Principal of the medical college by taking work from these petitioners, holding the substantive post of Dresser by assigning them the duty of the O.T. Assistant, would not entitle them to claim promotion on the post of O.T. Assistant, specially when they do not possess the requisite qualification of being a 4 trained hand. In the considered opinion of this Court, the appointing authority had always liberty to make different rules/regulations for filling up the promotional post. Thus if in this case, the respondents have laid down the condition of being trained as O.T. Assistant as compulsory acquisition for promotion on the post of O.T. Assistant, this Court cannot interfere with such rules, which have the sanction under proviso to Article 309 of the Constitution of India. At the same time, though the respondents may be justified in making direct recruitment by putting the condition of training for the outsider candidates, the petitioners, being the Dressers for whom such acquiring of qualification of O.T. Assistant training was not necessary at the time of their initial appointment, they cannot be edged out from the zone of consideration for promotion if they were not sent on training after being appointed on the post of Dresser. The State Government and the Principal of the Medical College ought to have seen that growth of 5 career by way of promotion prospect, being the part of service condition of an employee, such facility of training had to be revived so as to facilitate the increasing need of filing up of the post of O.T. Assistant. From the communication of the Superintendent of P.M.C.H. addressed to the Director-in-Chief, it is clear that time and again the attention of the Director-in-Chief was drawn towards the lack of training facility for the filling up the post of O.T. Assistant and yet nothing was done by the Director-in-Chief to improve this condition. In that view of the matter, as the post of O.T. Assistant are said to be still lying vacant and in fact occupied by the petitioners by way of ad hoc arrangement for last twenty years or more, this Court would direct the Principal Secretary, Health and the Director-in-Chief of the Health Services to look into the grievances of the petitioners and if it is found that those amongst the petitioners who still continue to be in service are qualified and eligible for being sent for training, they should be 6 immediately sent for such training so that their cases of promotion for the post of O.T. Assistant is considered soon after completion of their training. It will be also open for the respondent Principal Secretary of the Health Department to evolve some mechanism if he would find that the petitioner’s long continuation on the post of O.T. Assistant by way of ad hoc arraignment made by the Superintendent of Patna Medical College and Hospital has made them sufficiently qualified and experienced to be promoted on the post of O.T. Assistant. It is, however, made clear that this Court has expressed no opinion on such claim of the petitioner nor it has found the submission of the learned counsel for the State unreasonable that it is not the responsibility of the department to train the working employees in the medical college for holding the post of O.T. Assistant and, therefore, any decision as with regard to the filling up the post of O.T. Assistant will have to be addressed to by the respondent officials strictly in accordance with law 7 and/or the statutory rules, if in existence for filling up the post of O.T. Assistant. It, however, goes without saying that if there is a provision for relaxation of any such rule, the competent authority will also look into this aspect for giving one time relaxation in the case of the petitioners. This Court hopes and believes that a sincere exercise in this regard in the light of the direction given above would be made by the Principal Secretary, Health and the Director-in-Chief within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)