Case: Dr. Umakant Saran Vs. State of Bihar &amp; Others

2. Dr. Saran had been appointed a Civil Assistant Surgeon in Bihar State Medical Service in 1954. He was confirmed in that post in 1957 and was appointed a Tutor in Surgery at Rajendra Medical College, Ranchi on. He held that post till he filed the petitions3. Respondent No. 5 was appointed as a Civil Assistant Surgeon in the Bihar State Medical Service in 1956 and was confirmed in that post in 1961. He worked as a Casualty Officer in the Darbhanga Medical College Hospital from9 to3 and thereafter on4. Respondent No. 6 was initially appointed to a Gazetted post as Anti Malaria Officer on April 16, 1953 and was subsequently absorbed in the cadre of the State Medical Service with effect from May 1, 1957. On a representation made by him regarding his previous service an order was passed by the Government on April 19, 1963 (Annexure VI) declaring that he will be treated as the junior most temporary direct recruit of 1953 in the cadre of the State Medical Service for the purpose of determining his seniority. By this order, therefore, he was to be regarded as appointed in 1953 and accordingly, he was senior both to Dr. Saran who was appointed in 1954 and Dr. Sinha who was appointed in 1956. It appears that by some mistake he was shown as confirmed in the post on2 but on his representation based on the Order of the Government dated July 19, 1963 referred to above he was later in 1967 confirmed with effect from a date prior to that of Dr. Saran. From9 to3 and again from3 to4 he held a supernumerary post of Civil Assistant Surgeon, at the Patna Medical College Hospital and from4 he was appointed ad hoc Surgical Registrar which post he held till he was appointed lecturer in the Rajendra Medical College Ranchi on5 along with respondent No. 5 Dr. Sinha5. It will thus be seen that Dr. Saran the appellant, and Dr. Sinha and Dr. Verma, respondents 5 and 6, belonged to the same service at the time when respondents 5 and 6 were deputed as lecturers in Surgery to the Rajendra Medical College on. Dr. Saran was already in that College working as a Tutor from. His chief contention was that not only was he senior in service but had also the necessary qualification of teaching experience of three years which the other two did not have and, hence, their appointment to the higher post of lecturer in disregard of his own claim was illegal and unconstitutional6. It must be mentioned at this stage that shortly before these appointments were made there had been a reorganisation of the Medical Service. The State Government had two separate cadres known as the Medical cadre and the Public Health cadre in Bihar. Both these cadres were merged into one cadre known as the Health Service by Government Resolution dated July 17, 1965 published in the Bihar Gazette Extraordinary on July 22, 1965. The amalgamated cadre consisted of (i) Duty posts on the Administrative side and (ii) teaching posts. All posts in the new. Health service were borne on the administrative side and the teaching posts were filled on an officiating basis from amongst those who were borne on the administrative side after having due regard to their teaching experience. The permanent posts on the administrative side were divided into four classes (i) Civil Assistant Surgeons and equivalent posts including some selection grade posts in that class (ii) senior posts including posts of Civil Surgeons, (iii)e posts of Deputy Directors and equivalent posts and (iv) Directors of Health Services. On the teaching side also, there were four Classes (i) junior teachers (ii) lecturers. (iii) Professors and (iv) Principles, Junior teachers were of the same grade as the Civil Assistant Surgeons in theg scale of Rs. 415/to Rs.. The lecturers were analogous to the selection grade posts in the scale of Rs. 800/to Rs.. The Professors got a scale of pay as those who are included in Classes (ii) and (iii) on the administrative side, while the principles held a position slightly inferior to that of the Director of Health Services. It will be thus seen that the several posts on both sides ran almost on parallel lines and it is the case of the State Government that the teaching posts are filled on an officiating basis by deputation of officers borne on the administrative side. As the teachers are always regarded as on deputation, they could be withdrawn to the administrative side. The salary of those who were deputed to the teachding side was protected by the application of the "next below rule."

Reasoning: 13. It is not disputed that respondents 5 and 6 had the necessary academic medical qualifications for appointment and if they also had the necessary teaching experience, as held by the Government, they would be eligible for appointment as lecturers in Surgery. The Medical Council had recommended that a lecturer in Surgery should be a Registrar or should have held an equivalent post in Surgery or like Clinical Department for at least 3 years in a teaching institution. It is clear from what has been already stated about respondents 5 and 6 that they were holding a post equivalent to the Registrar or Resident Medical Officer for much more than 3 years in the Medical College Hospital and hence they were eligible for appointment as lecturers14. Even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There can be no doubt that he was senior to respondent No. 5 but the same cannot be said with regard to respondent No. 6. It is true that respondent No. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran pointed out, respondent No. 6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria Officer i.e. 1953. He cannot, therefore, be regarded as junior to Dr. Saran. Therefore, the latter cannot question the appointment of respondent No. 6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturers posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellants contention is correct that the lecturers posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other words, the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on5 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Government that the decision had been taken to make the appointments on March 31, 1965. But we do not think there is any substance in that contention. It would, thus follow that while respondents 5 and 6 were eligible for appointment as lecturers on5 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him.