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Judgment
A.K. Ganguly, J.—This writ petition has been filed for quashing the notification dated 8th July, 1990, as contained in Annexure-6 to the writ petition, whereby Dr. (Mrs.) Shanti Singh (Respondent No. 3) has been declared as Assistant Professor, Obstetrics and Gynaecology and has been transferred to Patna Medical College & Hospital. There is a further prayer for a declaration that Respondent No. 3 cannot be considered for promotion to the post of Associate Professor, inter alia, on the ground that the promotion of Respondent No. 3 to the post of Assistant Professor is not valid.
The facts of the case, shortly put, are that the Petitioners applied for their appointment to the post of Assistant Professor pursuant to an advertisement and they were appointed in view of their qualification and experience to the post of Assistant Professor in various Medical Colleges with effect from 24th June, 1983. It has been stated that Respondent No. 3 is a member of Bihar Health Service cadre and in the year 1977 she. was posted as Civil Assistant Surgeon in Rajendra Nagar Hospital.
By letter dated 4.2.1977 the Principal of Nalanda Medical College, a Private Medical College at that point of time wrote to the State Government stating therein that Respondent No. 3 has applied for appointment as Tutor to the said college and as such a proposal was made that the College authorities may appoint her on the said post if the State Government grants a lien to her. It appears that on the basis of the said request of the Principal of the said College the matter was processed by the State Respondents who in exercise of the power under Rule 267(b) of the Bihar Service Code allowed the deputation of Respondent No. 3 on foreign service vide its communication dated 21st May, 1977 for one year from the date she is relieved from Rajendra Nagar Hospital but in respect of such employees who were sent on deputation to the said Nalanda Medical College, their joining including the joining of Respondent No. 3 in Nalanda Medical College was not accepted and it has been very categorically stated in paragraph 8 of the writ petition that no appointment letter was issued by the Nalanda Medical College authorities in favour of Respondent No. 3 by appointing her on any post in the said College. Therefore, the case of the Petitioners is that Respondent No. 3 continued as a Medical Officer in Rajendra Nagar Hospital, Patna. This fact could not be controverted by Respondent No. 3 in her counter affidavit filed in this case on the other hand Respondent No. 3 has accepted the position that there is a dispute about acceptance of her joining report in Nalanda Medical College in view of the letter written by the Principal of the said College. In dealing with the positive case of the Petitioners in paragraph 8 of the writ petition, the Respondent authorities relies on annexure-4 which is an order issued by the State Government after taking over of the said Nalanda Medical College under the provisions of the Bihar Private Medical Colleges (Taking Over) Act, 1978.
In fact the said Nalanda Medical College (hereinafter called the said College) was taken over vide notification dated 22-1-1979 under the said Act and the said take over was with effect from the date of the said notification dated 22.1.1979.
From a perusal of annexure-4 it appears that the State accepted the joining report of Respondent No. 3 on foreign service basis with effect from 21.5.1977. In any event the said joining report of Respondent No. 3 was accepted as a Medi cal Officer. The case of the Petitioners is that they are not aggrieved by Annexure-4 and they were not even aware of the same. As such the same was not challenged by them but the Petitioners became aggrieved to find the notification dated 8-7-1990 (Annexure-6) by which the State authorities described Respondent No. 3 as Assistant Professor of Obstetrics and Gynaecology in the said College and proceeded to transfer her along with the post to the P.M.C.H. The said order is impugned in this writ petition, inter alia, on the ground that treating of Respondent No. 3 as Assistant Professor of the said College vitally affects the case of the Petitioners who are Assistant Professors and whose next promotional channel is to that of Associate Professor. The said challenge is primarily based on the ground that Respondent No. 3 was never appointed as Assistant Professor either by the State Government or by the said College. As such she cannot be treated as an Assistant Professor. Further challenge to the appointment of Respondent No. 3 is that after the take over of the said College under the provisions of the said Take Over legislation, the service of Respondent No. 3 must have to be absorbed u/s 6 of the said Act. Section 6 of the said Act is relevant in; this connection. The said Section 6 of the Bihar Private Medical Colleges (Taking Over) Act, 1978 (hereinafter referred to as. the said Act) is set out below:
Determination of terms of the teaching staff and other employees of the College-(1) As from the date of the notified order all the State employees in the college shall cease to be employees of the College body:
Provided that they shall continue to serve the College on ad hoc basis till a decision under Sub-sections (3) and (4) is taken by the State Government.
(2) The State Government will set up one or more Committees of experts and knowledgeable persons which will examine the bio-data of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and take into consideration all other relevant materials including length of service in the College, and submit its report to the State Government.
(3) The State Government on receipt of the report of the Committee or Committees, as the case may be, will decide in respect of each member of teaching staff on the merits of each case, whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed period or on contract and shall, where necessary predetermine the rank, pay, allowances and other conditions of service.
(4) The State Government shall similarly determine the term of appointment and other conditions of service, of other categories of staff of the College on the basis of facts to be ascertained either by a Committee or by an Officer entrusted with the task and the provisions of Sub-section (2) and (3) shall apply mutatis mutandis to such cases.
From a perusal of the said Act it appears that from the date of the notification i.e. in this case on 21.1.1979 all State employees in the College, in the instant case Respondent No. 3 was a State employee in a Private Medical College, shall cease to be the employee of the College and shall continue to serve the College on an ad hoc basis. Sub-section (2) of Section 6 of the said Act provides that the State Government will set up one or more Committees of experts and knowledgeable persons which will examine the bio-data of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and after taking into consideration all other relevant factors submit its report to the State Government. Thereafter the State Government on receipt of the said report of the Committee will decide in respect of each member of the teaching staff on the merits of each case whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed period or on contract.
Relying on the said provisions, the contention raised before this Court is that no decision was taken in respect of Respondent No. 3 by the State Government u/s 6(3) after the said College was taken over. It is stated by the Petitioners that Respondent No. 3, prior to her deputation in the said Medical College, was a member of the Bihar Health Service as a Medical Officer in Rajendra Nagar Hospital. After she was placed on deputation in the said College, her joining was not accepted by the Principal and no order was ever issued by the Principal of the said Private College appointing her to the post of Assistant Professor. Thereafter no order has been passed in respect of Respondent No. 3 u/s 6(3) of the said Act by absorbing Respondent No. 3 as Assistant Professor in the said College.
In view of the aforesaid position, the case of the Petitioners is that Respondent No. 3 cannot be treated by the State Government to as absorbed or appointed as Assistant Professor, as has been sought to be done under the impugned order at Annexure-6. It has been further stated that in any event the order dated 27-5-1981 (Annexure-4) shows that Respondent No. 3 was a Medical Officer in Rajendra Nagar Hospital and she was deputed as a Medical Officer in the said College. In the background of these facts, the apprehension of the Petitioners is that they have come to know that the State Respondents are processing the case of Assistant Professor including Respondent No. 3 for promotion to the post of Associate Professor and they are further contemplating to promote Respondent No. 3 as Associate Professor from some date earlier than the Petitioners. In view of such apprehension, this writ petition was filed.
The Petitioners have also filed a supplementary affidavit during the pendency of the writ petition enclosing a copy of the provisional gradation list dated 30-7-1991 which was published by the State Respondents by its order dated 26-8-1991. From the said list it appears that the name of Respondent No. 3 is placed at serial No. 2 but it has been stated in the supplementary affidavit that in the gradation list there is a provision for mentioning the notification by which the persons in the list have been appointed as Assistant Professor. But in so far as Respondent No. 3 is concerned against her name the said column is totally left blank. This, according to the Petitioners, shows that there is no order appointing Respondent No. 3 to the post of Assistant Professor. It has been further stated in the said supplementary affidavit that so far as Respondent No. 3 is concerned, she was never appointed by any order of the State Government to the post of Assistant Professor nor was she appointed by the management of the erstwhile private Medical College to the post of Assistant Professor and her case was never placed before the Screening Committee which was constituted u/s 6(2) of the said Act and, therefore, there has been no order in her favour for her appointment to the post of Assistant Professor u/s 6(3) of the said Act. Therefore, the said gradation list putting Respondent No. 3 at serial No. 2 was challenged.
A counter affidavit has been filed in this case by the State Respondents. In the said counter affidavit, the stand which has been taken by the State Respondents, is that the Department of Obstetrics and Gynaecology is one of the clinical department and is a part of the teaching wing in which the post of Assistant Professor is a Junior teaching post and it has been admitted that the appointment to such posts are done from the panel prepared after inviting advertisement and on the basis of the criteria fixed for that purpose. In the said counter affidavit a list of four State owned Medical Colleges has been mentioned and the list of five private Medical Colleges has also been mentioned and it has been also stated that they were taken over under the provisions of the aforesaid Act. In the said counter affidavit the stand which has been taken is that there are three categories of teachers of the erstwhile private Medical Colleges. It has not been stated that in which category Respondent No. 3 belongs. However, this Court finds that Respondent No. 3 does not belong to any of the three categories inasmuch as Respondent No. 3 was not directly recruited to the teaching post by the erstwhile private Medical College. The second category is in respect of Medical Officers who belong to State Service and who had Post Graduate degrees. It is no where stated that Respondent No. 3 had a post graduate degree in 1977 when She was put on deputation nor was Respondent No. 3 ever appointed as a Tutor in different subjects by the erstwhile private Medical College. The third category is about those Medical Officers who belong to the Bihar State Health Service whose names find place in the teaching cadre of the State and are deputed to the erstwhile private Medical College. In fact Respondent No. 3''s name never finds place in the teaching panel of the State Government and as such there is no question of deputing her to the erstwhile private Medical College to undertake the duty of tutor. It is an admitted position that Respondent No. 3 was deputed in the erstwhile private Medical College as a Medical Officer. In the said counter affidavit nothing has been stated to dispel the challenge of the writ Petitioner that Respondent No. 3 was never appointed as Assistant Professor either by the State Government or by the erstwhile Private Madical College nor was the case of Respondent No. 3 ever placed before the screening committee u/s 6(2) of the said Act and no order was passed by the State Government u/s 6(3) of the said Act in the case of the Respondent No. 3. Therefore, the case in the writ petition has not been controverted in the said counter affidavit. In paragraph 11 of the counter affidavit it has been stated that the appointment of Respondent No. 3 in the said College by the erstwhile private management related to the teaching post of tutor in Obstetrics and Gynaecology but no such appointment letter has been disclosed either by the State Government or by Respondent No. 3 in her affidavit. In the counter affidavit it has not been stated anywhere that the case of Respondent No. 3 was placed before the State Government, u/s 3(3) of the said Act. The case made out by the Petitioners in the supplementary affidavit has not even been dealt with in the counter affidavit of the State.
In the counter affidavit filed by Respondent No. 3 reference has been made to a writ petition filed by one Dr. Dharamshila Sharma, an Assistant Professor of Gynaecology, Sri Krishna Medical College, Muzaffarpur which was numbered as C.W.J.C. No. 3085 of 1984. The said writ petition was disposed of by a Division Bench of this Court and the said Division Bench judgment dated 31-3-1984 has been annexed as Annexure-A to the counter affidavit. This Court has perused the order passed by the Division Bench. The Division Bench has taken note of the case made by Dr. Dharamshila Sharma against Respondent No. 3 but the Division Bench has not decided any matter and remanded the matter to the Health Commissioner for an enquiry. Therefore, none of the points which had been raised before the Division Bench has been decided by the said Division Bench. Therefore, the order passed by the Division Bench is not an order on merits on the points raised here. As such the said reference has no bearing on the issue. The case which is sought to be made out by Respondent No. 3 in the counter affidavit is that she was appointed in the said College on 21-5-1977 to the post of Tutor. The said assertion is not correct. It appears from the record that Respondent No. 3 was sent on deputation in the said College as a Medical Officer. Apart from that from Annexure-1 it appears that the Respondent No. 3 was appointed in the said College as a Civil Assistant Surgeon which is not a teaching post. The post of Tutor is equivalent to the post of Assistant Professor which is a teaching post. In fact, Respondent No. 3 could not have been appointed on 21-5-1977 to the post of Tutor inasmuch as Respondent No. 3 on that date did not have any post graduate qualification. Apart from that the main case made out in para 17 of the writ petition that Respondent No. 3 was never appointed to the post of Assistant Professor has not been denied by Respondent No. 3 on affidavit. Paragraph 17 of the writ petition has been dealt with in paragraph 24 of the coutner affidavit but the aforesaid assertion made by the Petitioners has remained un-controverted.
The fact that the case of Respondent No. 3 was never placed before the(sic) never absorced as an Assistant Professor of the said College or any of the Colleges in the State of Bihar u/s 6(3) of the said Act has also not been denied. This averment made in paragraphs 19 and 20 of the writ petition and which has been dealt with in paragraph 25 of the counter affidavit filed by Respondent No. 3shows that the main case against Respondent No. 3 has not been denied.
Learned Counsel for the State Respondents, however, stated that since on the date of take over of the College Respondent No. 3 was already a Government employee there is no case of application of the Take. Over Act to Respondent No. 3.
But this stand taken by the learned Counsel for the Respondents State is contrary to the stand taken in the counter affidavit. Apart from that this Court finds that on the proper interpretation of Section 6, the case of Respondent No. 3 has to be considered u/s 6(2) of the said Act by the Screening Committee if the claim of Respondent No. 3 that she was subsequently absorbed as an Assistant Professor in Nalanda Medical College to be accepted.
Without going through the process under Sections 6(2) and 6(3) of the said Act, Respondent No. 3 cannot claim that her services have been absorbed as an Assistant Professor in the said College.
Learned Counsel for the respond dents has, however, raised the question of delay. This Court does not find that there is any delay in the matter. The name of Respondent No. 3 came in the provisional gradation list of the Assistant Professor only in the year 1991 and the Writ Petitioner (sic) Annexure-6 which is an order dated 8th July, 1990, this writ petition has been filed on 18-3-1991. Therefore, this Court does not find that there is any delay on the part of the Petitioners.
This Court finds that in view of the objection and representation made by the Petitioners about the provisional gradation list in 1991, the name of Respondent No. 3 does not find place in the final gradation list which has been prepared in 1993 vide Government Memo No. 446(17) dated 24-9-1993 nor does the name of Respondent No. 3 finds place in the subsequent panel of Assistant Professor in the department of Obstetrics and Gynaecology vide notification No. 108(17) dated 5-4-1997. This Court is of the opinion that having regard to the facts of this case, as discussed above, the name of the Respondent No. 3 cannot be included in the panel of Assistant Professor in the department of Obstetrics and Gynaecology. The post of Assistant Professor is a selection post and the same is a teaching post and Respondent No. 3 was never appointed to the said post. There is no valid appointment of Respondent No. 3 to the said post of Assistant Professor as nothing to that effect has been (sic) in This (sic) either by the State Respondents or by Respondent No. 3. It is also not the case of either Respondent State or Respondent No. 3 that her case was scrutinised u/s 6(2) of the said Act by the Screening Committee or that she has been absorbed as an Assistant Professor u/s 6(3) of the said Act. There is nothing on the record to show that Respondent No. 3 was ever appointed to a teaching post by the management of the erstwhile private Medical College.
Taking all these facts into account, this Court is of the view that the name of Respondent No. 3 has been rightly excluded from the panel of Assistant Professor in the department of Obstetrics and Gynaecology as this Court holds that she is not entitled to have her name included in the said gradation list.
For the discussions made above, this writ petition is allowed with the aforesaid declaration. Annexure-6 in so far as it treats, Respondent No. 3 as an Assistant Professor in Obstetrics and Gynaecology is hereby quashed. There will be no order as to cost.