Dr. Anil Kumar Sinha vs The State of Bihar and Others

N.P. Singh, J.—This application has been filed on behalf of the Petitioner for a writ of mandamus directing the Respondent-State to count the teaching experience of the Petitioner between the period 19.1.1971 to 21.4.1971 and to appoint him as Associate Professor in the Department of Paediatrics, Darbhanga Medical College Hospital. At present the Petitioner is posted as Assistant Professor, Paediatrics at the said Medical College.

The Petitioner was appointed as a Civil Assistant Surgeon on 7.7.1962. An order dated 13.1.1971 was issued by the Department of Health saying that Petitioner, who was posted as Demonstrator in the Physiology Department at Darbhanga Medical College Hospital, was being transferred from that post and was being posted in the Paediatrics Department of the same Hospital on supernumerary duty. It is the case of the Petitioner that pursuant to the aforesaid order he joined the Paediatrics Department and was put on supernumerary duty. Yet another order was issued by the Department of Health on 16.10.1971 in respect of the Petitioner saying that permission was being granted to the Petitioner to do the duty of Resident Medical Officer in the Paediatrics Department of the Darbhanga Medical College Hospital where he had been posted on supernumerary duty. According to the Petitioner, he did the teaching work in the Paediatrics Department of the aforesaid Medical College Hospital from 19-1-1971 to 21.4.1978.

The post of Medical Officer on supernumerary duty in different Medical Colleges was abolished with effect from 22.4.1978, because of which the Petitioner ceased to hold the post of Medical Officer on supernumerary duty in the Department of Paediatrics at the said Medical College Hospital with effect from 22.4.1978. Later, in the year 1979, the Petitioner was appointed as Registrar and according to him, he continued on the said post till 14.4.1982. On 28.5.1986, he was appointed as Assistant Professor, Paediatrics which post he is holding till the date of the filing of the writ application.

The grievance which has been made on behalf of the Petitioner is that if the teaching experience gained by the Petitioner between the period 19.1.1971 to 21.4.1978 had been taken into account towards the total teaching experience of the Petitioner then he would have been appointed as Associate Professor instead of Assistant Professor.

Counter affidavit has been filed on behalf of the State. According to the Respondents, the post of Associate professor in a Medical College in the State of Bihar is a teaching post which is filled up by promotion from amongst the Assistant Professors in the Department after preparation of a seniority list on the basis of total length of teaching experience acquired against junior teaching posts of Resident, Registrar and Assistant Professor in the speciality in question, it has been asserted that the Petitioner did not hold any teaching post during the period 19.1.1971 to 21.4.1978; he had been posted on supernumerary duty during the said period and, in view of Government order dated 7.9.1973, teaching experience can be given only to a Medical Officer, who has been posted against a regular teaching post. In that connection it has been pointed out that the junior teaching posts consist of Resident Medical Officer and Registrar which arc tenure posts for a period of three years, i.e., any person posted as Resident Medical Officer or Registrar shall be entitled to a teaching experience for a period of three years only. For the purpose of selection for the posts of Resident Medical Officer and Registrar in different specialities applications are invited from the officers of Bihar Health Services by advertisement and a panel is prepared on the basis of the criteria laid down for the purpose. From the aforesaid panel, which is really a merit list of the applicants, Medical Officers are posted as Resident Medical Officers and Registrars in different specialities. It has been stated on behalf of the State that the name of the Petitioner was never included in any such panel and he was never appointed against any regular, post of Resident Medical Officer. It has been pointed out that as early as on 7.9.1973 a firm and final decision has been taken by the State Government which was notified as Government order saying that only persons posted against regular teaching posts shall be entitled to the teaching experience for the period in question and any Medical Officer posted on supernumerary duty in any Medical College shall not be entitled to teaching experience. A copy of that Government order has been annexed to the counter affidavit. The relevant part of the said order is as follows:

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In the aforesaid Government order dated 7.9.1973, which has been issued in the name of the Governor, it has been said that in past teaching experience had been given to Medical Officers who had not been posted against the regular teaching posts but had been posted on supernumerary duty which had affected the future prospect of more meritorious Medical Officers who had been posted against regular teaching posts; for examining that problem a committee under the Chairmanship of the Chief Secretary was constituted which submitted its recommendation. After taking into consideration the recommendation of the said committee, a decision had been taken by the State Government that except the orders issued before 24.11.1971 recognising teaching experience of Medical Officers posted on supernumerary duty, no teaching experience shall be given to Medical Officers posted against supernumerary duty'' after 24.11.1971. It was reiterated that teaching experience shall be given only to such Medical Officers who had been posted against regular teaching posts. That order was published in the Bihar Gazette also.

There is no dispute that the Department of Health has not framed any statutory Rule on question aforesaid and the aforesaid Government order in absence of the statutory Rule is being treated as an order/rule in respect of awarding teaching experience to the Medical Officers of the Health Services posted in different Medical Colleges.

On behalf of the Petitioner it was submitted that after the judgment of the Supreme Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. AIR 1983 S C509 saying that for getting teaching experience there should not be any nexus with the posting of the Medical Officer concerned against a regular teaching post the teaching experience of the Petitioner has to be recognised if, in fact, the Petitioner has done the actual teaching (sic) of the fact that while doing the teaching he was posted on a regular post or on a supernumerary post. In this connection reference was made to the following observations:

It is necessary to emphasise that the recruitment rules no where provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the (sic) teaching experience There is no provision made in the rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the Appellant while holding the post of Radio-logist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College.

In that case the Appellant before the Supreme Court while holding a non-clinical post in a teaching hospital like Irwin Hospital had been actually teaching the students of Maulana Azad Medical College to which it was affiliated and there being no bar on acquiring teaching experience the Supreme Court permitted that the period during which the Appellant before the Supreme Court did actual teaching in the Maulana Azad Medical College to be recognised.

From the facts of the aforesaid judgment it appears that there was no Rule in existence saying that only such teaching experience shall be recognised which has been acquired while being posted to a regular teaching post. That is, why the Supreme Court emphasised this aspect by saying that "as the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count, towards the requisite teaching experience, the teaching experience gained by the Appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College". So far the State of Bihar is concerned, if the aforesaid Government order dated 7.9.1973 is held to be a binding order in absence of a statutory rule, then, in my view, the position in the State of Bihar shall be different.

The learned Standing Counsel appearing for the Respondent-State urged that in absence of a statutory Rule the said order be treated as a Rule having been issued in the name of the Governor. In this connection references were made to the well-known judgments of the Supreme Court in the cases of Sant Ram Sharma v. State of Rajasthan and Ors. AIR 1967 Supreme Court 1910 and Union of India (UOI) Vs. K.P. Joseph and Others, where it was pointed out that on questions where no statutory rules have been framed it is open to the State Government to issue administrative orders regarding the principles to be followed in matters of promotion and selection of officers. In the case of Sant Ram Sharma v. State of Rajasthan and Ors. {supra) it was observed:

It is true that there is no specific provision in the Rule''s laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules arc silent on any particular point Government can fill up the gaps and supplement the Rule and issue instructions not inconsistent with the rules already framed.

In B.N. Nagarajan and Others Vs. State of Mysore and Others, , it was pointed out by this Court that it is not obligatory under the proviso to Article 309 of the Constitution to make rules of recruitment, etc., before a service can be constituted or a post created or filled, and secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws.

In the case of Union of India v. K.P. Joseph and Ors. (supra), it was pointed out:

Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma Vs. State of Rajasthan and Another, that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 30) of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.

In view of the aforesaid authoritative pronouncements, in my view, it is difficult to hold that the Government order dated 7.9.1973 in respect of recognising teaching experience of Medical Officers only when they have been posted against regular teaching posts and not to recognise the teaching experience of Medical Officers posted on supernumerary duty can be held to be just an administrative instruction which has no binding effect. Till rules are framed under Article 309 of the Constitution containing provisions to the contrary the aforesaid order shall be deemed to be a binding order governing the conditions of service of the Medical Officers posted against teaching posts in the different Medical Colleges.

The learned Counsel appearing for the Petitioner submitted that even if there is a Government order dated 7.9.1973 which recognises teaching experience of Medical Officers only when they are posted against regular teaching posts, neither the State Government nor the Court should shut their eyes to the actual teaching experience gained by a Medical Officer even while being posted against a supernumerary post or a non-teaching post. According to the decision taken by the State Government, the junior teaching posts like the posts of Resident Medical Officer/Resident Surgical Officer and Registrar are advertised and applications are invited; such applications are processed on the basis of the criteria laid down by the State Government for evaluation of the academic qualification and experience of the applicants concerned. After evaluation on the basis of the criteria fixed a merit list of the applicants is prepared which is known as ''panel for the speciality in question. Thereafter from the panel appointments against the posts of Resident Medical Officer/Resident Surgical Officer and Registrar in different specialities are made. A person who has not been included in the panel so prepared cannot be posted as a Resident-Medical Officer/Resident Surgical Officer or Registrar. The posts of Resident Medical Officer/Resident Surgical Officer and Registrar are tenure posts, i.e., for a period of three years. A person who has been appointed as a Resident Medical Officer/Resident Surgical Officer of Registrar in any speciality can get teaching experience only for a period of three years although the might be holding that post under exigency of situation even for a longer period. In this background, if teaching experience is given to Medical Officers posted against supernumerary posts for which no tenure is fixed, it will lead to an anomalous position. As in the case of the Petitioner himself his name could not be included in the panel prepared for Resident Medical Officer and as such he could not be appointed as Resident Medical Officer in the Department of Paediatrics in any of the Medical Colleges, whereas persons who had better academic achievements and experience in terms of the criteria fixed by the State Government were selected and appointed as Resident Medical Officers in the Department of Paediatrics of different Medical Colleges. Such persons who had been selected on merit and posted as Resident Medical Officers in the Department of Paediatrics in different Medical Colleges shall acquire only three years of teaching experience as Resident Medical Officer whereas the Petitioner having been posted from Department of Physiology to the Department of Paediatrics in the Darbhanga Medical College Hospital on supernumerary duties claims teaching experience from 19.1.1971 to 21.4.1978, i.e., for more then Seven years. If the posts of Medical Officer on supernumerary duty in Medical Colleges had not been abolished with effect from 22.4.1978, then in normal course, the Petitioner would have continued on that supernumerary duty till 26 3.1979 when he was appointed as Registrar. By this process he would have acquired teaching experience of more than eight years whereas persons who had better academic qualifications and experience and who had been selected in preference to the Petitioner for being posted as Resident Medical Officer would have got only three years of teaching experience against the regular posts of Resident Medical Officers. In spite of repeated querries the learned Counsel for the Petitioner could not resolve this anomalous position.

It appears that the State Government became conscious of this anomaly ,recognising the teaching experience of persons posted against non-teaching posts and supernumerary duties and that is why in the Government order dated 7.9.1973 it was said that grunting of teaching experience to Medical Officers posted against non-leaching posts or on supernumerary duties was affecting the prospects and future of persons posted against regular teaching posts and because of which a committee headed by the then Chief Secretary had to be constituted and on the basis of the recommendation, made by such committee a firm decision was being taken that no teaching experience shall be given to persons posted on supernumerary duties in any of the Medical Colleges after 24.11.1971. It is true that if that decision is held to be irrational, arbitrary and violative of Article 14 of the Constitution, this Court can ignore the same But, in my view, the decision cannot be held to be irrational or arbitrary. If actual teaching has to be recognised irrespective of the nature; of the post held by the Medical Officer concerned, as was done in the aforesaid Supreme Court case, then the decision of the State Government fixing the tenure of three years for the junior teaching posts like the Resident Medical Officer/Resident. Surgical Officer and Registrar has also to be knocked down, because it cannot be imagined that more meritorious Medical Officers who had been posted after evaluation of their (sic) se academic achievements and experience should acquire teaching experience for three years only whereas the persons who could not be included in that merit list known as ''panel'' shall acquire teaching experience for period like anything from five years to ten years or till they are appointed to some other teaching posts.

On behalf of the State it was pointed out that fixing of the tenure of the junior teaching posts was not a special feature in the State of Bihar. Even i\\n Medical Colleges outside the State of Bihar for junior teaching posts like the Resident Medical Officer/Resident Surgical Officer and Registrar, tenure of three years has been fixed; the purpose being that more Medical Officers of different batches should get opportunity to have experience of Resident Medical Officers/Resident Surgical Officers and Registrars in different specialities in the different Medical Colleges. If no tenure had been fixed for such posts, then the persons initially appointed against those posts would have continued for years together till they get some other teaching posts. In this background, if the teaching experience acquired by the Medical Officers having been posted on supernumerary duties for which no tenure is fixed is recognised, then it is bound to cause injustice and hardship to more meritorious Medical Officers who had been selected for being posted against regular posts of Resident Medical Officer/Resident Surgical Officer and Registrar. It need not be pointed out that if persons posted against regular junior teaching posts are allowed only three years teaching experience whereas persons posted against supernumerary duties are allowed to acquire teaching experience for five to ten years or more by this process persons posted on supernumerary duties shall have later a better claim for the posts of Assistant Professor, Associate Professor and Professor in the different departments of the Medical Colleges. In my view, the Government order dated (sic) has a rational basis and it cannot be held to be violative of Article 14 or 16 of the Constitution so as to be ignored.

It was then submitted that State Government itself has recognised teaching experience of some of the Medical Officers for period when they were posted on supernumerary duties which is against the aforesaid Government order. In this connection our attention was drawn to an order dated 2.7.1982 of the Department of Health by which the teaching experience of one Dr. K.P. Mahuseth, the Dental Surgeon in Darbhanga Medical College Hospital, for the period between 22.6.1966 to 23.11.1971 was recognised. In my view, this is of no help to the Petitioner because, by the aforesaid Government order dated 7.9.1973, 24.11.1971 has been fixed as the cut of date after which no teaching experience is to be recognised in respect of any Medical Officer who is posted on supernumerary duty. Reference was then made to an order dated 14.12.1977 issued by the Department of Health in respect of Dr. K.P. Yadav by which the Department of Health recognised the teaching experience of Dr. K.P. Yadav'' between the period 3.1.1972 to 2.1.1975. From bare reference to the order aforesaid it shall appear that during that period Dr. K.P. Yadav was posted as Resident Surgical Officer, Thoracic Surgery which is a regular junior teaching post.

On behalf of the Petitioner it was pointed out that State Government, by an order dated 11.2.1987, has recognised the teaching experience of Dr. Ram Janam Singh for the period when he was not posted against a regular teaching post. From the order aforesaid it appears that it had been issued on the basis of some direction given by the Supreme Court in that order, it has been further mentioned that for the purpose of giving teaching experiencs to said Dr. Ram Janam Singh the Government order aforesaid dated 7.9.1973 was being relaxed. If teaching experience of aforesaid Dr. Ram Janam Singh had been recognised after relaxing the aforesaid Government order on the basis of some direction given by the Supreme Court, of India that cannot be used as a precedent and cannot form the basis for a right to say that the aforesaid Government order dated 7.9.1973 be either ignored or relaxed even in case of the Petitioner. The order passed by the Supreme Court in respect of Dr. Ram Janam Singh is as follows:

Heard learned Counsel for the parties. We are of the view that the legal position to be applied to the facts and circumstances of the case, has been properly settled by this Court in the case of Dr. Asim Kumar Bose v. Union of India and ors. The order and judgment of the High Court is set aside and the Respondent-State of Bihar is directed to dispose of the Appellant''s claim for regularisation of his service and the other reliefs in accordance with the principle indicated by this Court''s judgment referred to above. The direction given in that case will be taken as given here. The appeal is disposed of accordingly with no order as to costs.

In view of the disposal of the appeal today, writ petition is not pressed and is dismissed.

The learned Standing Counsel pointed out that the attention of the Supreme Court was never drawn to the aforesaid Government order dated 7.9. 1973 and as such the question as to whether the principle laid down in the case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra) shall be applicable even in the State of Bihar, in view of Government order dated 7.9.1975, was not considered. In my view, there is force in this contention. Perhaps, that is why, while recognising teaching experience of Dr. Ram Janam Singh, the State Government had to relax the Government order dated 7.9.1973 which power the State Government has under Rule framed under Article 309 of the Counstitution of India which was notified by a notification dated 28th November 1956 vide low of Seniority Promotion Appointment, Transfer & Posting published by Malhotra Bros, at page 5). The said Rule is as follows:

Where the State Government are satisfied that the operation of any Rule regulating the conditions of service of State Government servants, or any class of such Government servants, causes undue hardship in any particular case, they may by order dispense with or relax the requirements of that Rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.

It may be pointed out that by a letter dated 20th November, 1959 State Government informed all Departments concerned that the aforesaid Rule for relaxation of any Rule should be involved "only in very exceptional cases where the operation of any Rule causes undue hardship to any Government servant". In that very letter it was further said that before any order of relaxation is passed, the Department concerned should consult the Appointment Department and the Finance Department and also take the approval of the Council of Ministers (vide Laws of Seniority, Promotion, Appointment, Transfer & Posting published by Malhotra Bros, at page 5). In cases of extreme hardship the State Government can relax any Rule including the aforesaid Government order dated 7.9.1973. But it need not be pointed out that it should be a case of real hardship and any such relaxation of the order should not be for extraneous considerations. The learned Standing Counsel further pointed out that the aforesaid order of the Supreme Court cannot be held to be a judgment which is binding under Article 141 of the Constitution because the different questions involved including the applicability of the Government order dated 7.9.1973 were not considered. In this connection he made a reference to a Full Bench decision of this Court in the case of The Commissioner of Income Tax, Bihar, Patna Sheo Kumari Devi (1986 PLJR 743) where it has been pointed out that the judgments of the Supreme Court are binding on this Court; any order which is not a judgment cannot be held to be a binding precedent and it is binding only between the parties to that case.

Our attention was also drawn to an order passed by a Bench at Ranchi in Second Appeal No. 5 of 1981 (R) State of Bihar and Ors. v. Sri Rai Chandi Nath Sahay and Ors. Even in that case it has been simply mentioned that the Counsel for the Appellants states that the case of the Appellants was covered by the aforesaid judgment of the Supreme Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra); accordingly, the appeal was being disposed of in terms of the decision of the aforesaid case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra).

One behalf of the Petitioner reference was also made to a Government order dated 12.7.1978 issued in respect of Dr. Mahendra Prasad recognising his teaching experience between the priod 16 8.1965 to 12.5 1976. Then he was posted on supernumerary duty. From that order it also appears that the State Government had recognised the teaching experience for period after 24.11.1971 on the basis of some observation given by a learned Judge of this Court in the case of Dr Mahendra Prasad v. The Stale of Bihar and Ors. (C.W.J.C. No. 643 of 1978) disposed of on 22nd February, 1985. The learned Judge had directed the State Government to consider the question of recognising the teaching experience of said Dr. Mahendra Prasad in the light of the aforesaid judgment of the Supreme Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra). In my view, on the basis of aforesaid orders, it cannot be held that Supreme Court or this Court has decided that after the judgment of the Supreme Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra), the Government order dated 7.9.1973 has lost its binding force and as such has to be ignorded while counting the teaching experience of the Medical Officers posted against the non-teaching posts or on supernumerary duly.

Once it is held that the decision of the State Government which was notified as a Government order dated 7.9.1973 aforesaid is binding in nature which is not irrational or arbitrary then that order cannot be ignored on the basis of the judgment of the Supreme Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. (supra). As I have already pointed out that the Supreme Court before recognising the teaching experience of the Appellant of that case during the period when he was not posted against any regular post, has emphasised that "the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the rules that the teaching experience must be gained on a regular appointment." So far the State of Bihar is concerned, althogh no Rule has been framed under Article 309 of the Constitution on that question, in absence of any such statutory rule, the Government order dated 7.9.1973 has to be held to be an order of binding nature. If the Government order has been relaxed in respect of any Medical Officer, that cannot be basis for a claim by other Medical Officers that the order be relaxed even in their cases unless they establish a case of extreme hardship. It is well-known that no one can plead discrimination on the basis of an order issued in favour of any other person on extraneous considerations.

In the light of the view taken above, there is no necessity to examine as to whether while being posted on supernumerary duty during the period aforesaid any actual teaching was done by the Petitioner. But assuming that that question can be examined by this Court, it may be mentioned that in support of the claim that the Petitioner had been doing the actual teaching between the period 1.9.1971 to 21.4.1978, reference has been made first to a time table which was put on the notice board dated 6.4.1978. It was pointed out that the Petitioner used to take classes on Tuesday. A copy of another notice has been annexed to the writ application showing that the, Petitioner used to take classes of 3rd Year in the year 1973. Another notice issued in May, 1973 has also been produced. Copies of some other similar notices for the year 1973 have been produced. The Petitioner has also produced a certificate dated 31.12.1985 given by the Principal, Darbhanga Medical College Hospital, saying that this Petitioner while being posted as the Medical Officer on supernumerary duty in the Department of Paediatrics of Darbhanga Medical College Hospital from 19.1.1971 to 22.4.1978 was regularly teaching the under graduate and post graduate students. In spite of repeated querries the learned Counsel for the Petitioner could not explain as to why the certificate was granted in December, 1985 by the then Principal of the College in respect of teaching work done by the Petitioner between 19.1.1971 to 22.4.1978. The Petitioner was posted against a supernumerary post; as such if he did actual teaching on the basis of some valid orders, then he should have produced certificate granted by the Head of Department or the Principal posted during the period the Petitioner was actually teaching in the aforesaid College. Only on the basis of some copies of the notice said to have been put on the notice board in the year 1973 and the certificate granted in. the year 1985 for the period 19.1.1971 to 22 4.1978 it is difficult to hold that even if it was necessary to decide this question for the purpose of the case the, Petitioner has proved to the satisfaction of this Court that although he was posted on supernumerary duty he was doing actual teaching between 1.9.1971 to 22.4.1978.

In the result, this writ application fails and it is dismissed. But, in the circumstances of the case, there will be no order as to costs.

S. Hoda, J.

I entirely agree.