Dr. Sharda Nand Sinha vs The State of Bihar and Others

Honourable Mr. Justice Jayanandan Singh

Petitioner has filed this writ application for quashing of part of the notification, contained in memo no. 669(17) dated 23.05.2008 of the Department of Health (Annexure-1), to the extent he has been granted promotion on the post of Professor, Department of Physiology in Anugrah Naryan Medical College and Hospital, Gaya (hereinafter referred to as ''A.N.M.C.H.''), from the date of his joining, instead of from 1997. In effect, he has prayed for shifting of his date of promotion as Professor to 1997 with all consequential benefits.

The facts of the case are that petitioner was appointed on 10.11.1971 as Tutor in the Department of Physiology in A.N.M.C.H. and he joined accordingly. Subsequently, he was designated as Assistant Professor on the basis of merit-cum-choice. In 1984, he passed the M.D. examination and hence became eligible for posting/promotion as Associate Professor in June 1985 on completion of 10 years of service as Assistant Professor. His case was thereafter considered for promotion as Associate Professor and, vide notification no. 685(17) dated 03.09.1987 (Annexure-2), he was promoted as Associate Professor and was posted at Rajendra Medical College and Hospital, Ranchi (hereinafter referred to as ''R.M.C.H.''). However, he refused to join and hence, as per Government resolution, he was debarred from promotion for three years. The said three years period ended in September, 1990 and as such he again became eligible for promotion on the post of Associate Professor. However, as per his case, he was not considered for promotion as Associate Professor whereas many juniors in the Department were promoted as Associate Professors by notification no. 149(17) dated 14.05.1997 (Annexure-3 with the Supplementary Affidavit) and later on as Professors. Petitioner has given the names of such juniors promoted by the said Annexure-3 as well as names of many other junior doctors of the Department, who were also promoted as Associate Professors and subsequently as Professors.

In such circumstances, petitioner moved this Court through CWJC No.2605 of 1999 which was heard and disposed of by order dated 03.05.2000. Petitioner filed an L.P.A. against the said order vide L.P.A. No.1024 of 2000 which was disposed of on 27.07.2000 with liberty to him to file a representation before the competent authority. Accordingly he filed a representation which was rejected by order dated 31.01.2001 (Annexure-5 with the supplementary affidavit). Hence, he filed another writ application in this Court, namely, CWJC No.3315 of 2001 challenging the said order which was heard and disposed of by order dated 13.07.2006, by which the said impugned order dated 31.01.2006 was set aside and the respondents were directed to re-consider the case of the petitioner. Accordingly, petitioner filed a fresh representation for consideration of his case along with a copy of the order. Ultimately, the impugned notification was issued granting promotion to the petitioner to the post of Professor with effect from the date of his joining. The contention of the petitioner is that, since period of three years for which he was debarred from consideration had expired in 1990, he ought to have been promoted as Associate Professor with effect from 03.09.1990 itself and accordingly to the post of Professor since 1997 itself, instead of from the date of his joining.

Petitioner has filed supplementary affidavit along with which he has produced a notification of promotion of his juniors in the Department dated 14.05.1997 as Annexure-3; a tentative gradation list of Assistant Professors of the Department dated 05.11.1996 as Annexure-4 showing the petitioner as serial no.3 instead of serial no.1; the order dated 31.01.2001 rejecting his representation as Annexure-5; a notification dated 19.01.1996 transferring and posting Assistant Professors on the posts of Associate Professors under working arrangement in their own pay scale as Annexure-6 and the order of this Hon''ble Court dated 13.07.2006 passed in his writ application, namely, CWJC No.3315 of 2001 as Annexure-7. Petitioner has filed another supplementary affidavit bringing on record a copy of the Notification dated 14.05.1997 transferring and posting some more Assistant Professors on the post of Associate Professors under working arrangement in their own pay scale as Annexure-8.

Respondents have filed counter affidavit in this case. Their stand is that the petitioner was posted as Associate Professor in the Department under working arrangement, vide notification no. 1304(17) dated 13.12.2003 (Annexure-A), on which post he joined on 14.12.2003 and, subsequently, vide notification no.968(17) dated 22.10.2005 (Annexure-B), his posting on the post of Associate Professor under working arrangement was regularized. Hence, after fulfillment of required ''kalawadhi'', petitioner was granted regular promotion on the post of Professor, Physiology, from the date of assuming charge by the impugned Notification. Hence, he was not entitled for promotion to the post of Professor with effect from 1997 as he was granted regular promotion as Associate Professor only with effect from 14.12.2003. It is stated in the counter affidavit that no junior of the petitioner was granted regular promotion with effect from 1997. It is also stated that the Notification (Annexure-2) (also annexed as Annexure-D with the counter affidavit) was not effective as there was no provision to promotion on the post of Associate Professor from the post of Tutor. It is also stated that the first writ application of the petitioner was dismissed against which he filed L.P.A. which was disposed of as withdrawn by the petitioner. By the order passed in the second writ application, this Court had directed his case for promotion to be considered in accordance with law. Hence, petitioner was posted as Associate Professor under working arrangement by the said Notification dated 13.12.2003 which was subsequently regularized.

From the pleadings of the parties, it appears that petitioner''s claim for his promotion as Associate Professor was with effect from 1990 and as Professor from 1997, whereas, as per the stand of the respondents, he was granted promotion as Associate Professor from 2003 and Professor from 2008, i.e., from his date of joining. From the pleadings the reasons for this difference of date of promotion of the petitioner as Associate Professor is not clear. However, from the order passed by the respondents rejecting his earlier representation, as contained in memo no.58(17) dated 31.01.2001 (Annexure-5), it appears that on account of non-joining on the post of Associate Professor in R.M.C.H. pursuant to the notification dated 03.09.1987, petitioner was debarred from promotion. Subsequently, vide notification no.26(17) dated 19.01.1996 (Annexure-6), petitioner was again promoted as Associate Professor, again in R.M.C.H., but, he again did not join. Hence, this time he was debarred from consideration for promotion for five years. This order dated 31.01.2001, rejecting his representation, was under challenge in the subsequent writ application of the petitioner.

The order passed on 13.07.2006 in the said writ application is Annexure-7. From the order it appears that respondents had appeared in the case and had taken a stand that since the petitioner had not availed the opportunity of his promotion in 1996 by joining on the post, he was not entitled for promotion. The Notification of the government was considered by the Court for its true import and effect, which was produced in the case as Annexure-5. The observations and findings of the Court in respect of said Notification are as follows:-

From Annexure 5, it appears that the petitioner along with others was considered for promotion purely on ad hoc basis and the petitioner was promoted on temporary basis on the post of Associate Professor in his own pay scale by way of stop gap arrangement. This appears to be the arrangement of the respondent authorities to man the post of Associate Professor and in no way, it can be said to be a promotion in the eye of law as the petitioner was promoted in his own pay scale.

The word "Promotion" connots promotion with all consequential benefits. The order passed by the authorities as contained in Annexure-1, therefore, appears to be wholly erroneous and without any basis and pursuant to the direction of this Court as referred to above, the authorities were duty bound to re-consider the case of the petitioner for his promotion. It is another question as to whether the petitioner had joined the post in R.M.C.H., Ranchi and if he had not done so, the authorities were competent enough to proceed in the matter against the petitioner which, admittedly, was not done. At the same time, it appears from Annexure 1 that the petitioner was debarred from promotion for five years. This appears to be by way of punishment and it is held to be wholly without jurisdiction.

The Rule for debarment of a Medical Officer from consideration for promotion for certain period, in case of his non-joining on the promoted post, is in vogue in the Health Department and is well known. The respondents have taken shelter behind this Rule for non-consideration of the case of the petitioner for promotion earlier to 2003. This Court in many cases has held the Rule as valid and has upheld the action of the respondents debarring an incumbent from consideration for promotion under the said Rule. This Court, in many cases has also considered notifications like the said notification dated 19.01.1996 (Annexure-6), by which doctors of different Departments were transferred and posted under working arrangement in their own pay scale, under the threat of de-recognition of the concerned Medical College by the Indian Medical Council, and has held that such type of transfer and posting, under working arrangement in their own pay scale, was in fact a promotion and the transferees were entitled to the benefits of the pay scale etc. of the post on which they were being transferred and posted.

But the said notification dated 19.01.1996 (Annexure-6), by which petitioner, designated as Assistant Professor, was posted as Associate Professor in R.M.C.H., Ranchi, was specifically considered by this Court in the said order dated 13.07.2006. On contest, this Court considered the true effect and import of the notification and held that in no way it could be a promotion in the eye of law. This Court also held that, if the petitioner had not joined in R.M.C.H. they could proceed against him, but debarring him from promotion for five years was by way of punishment and without jurisdiction. As per the office report, this order of the Court, in between the petitioner and the respondents, has remained unchallenged by the respondents. In the circumstances, the findings of this Court contained in the said order, as in between the petitioner and the respondents, has become final and binding on the parties. Since this Court had held that posting of the petitioner on the post of Associate Professor under working arrangement in his own pay scale by the said Notification dated 19.01.1996 (Annexure-6) was not a promotion and therefore debarring him for five years from consideration for promotion was a punishment and hence without jurisdiction, the respondents were obliged to consider the case of the petitioner for promotion to the post of Associate Professor without holding him debarred from consideration on account of his non-joining in R.M.C.H. pursuant to the said notification dated 19.01.1996. In view of the concluded findings of this Court between the petitioner and respondents, the respondents could not legally deny consideration of the case of the petitioner for his promotion as Associate Professor at the first opportunity subsequent to 1996 holding him debarred for five years on account of non-joining.

In the circumstances, this Court finds that, in view of the said earlier order of this Court, petitioner was entitled for consideration for his promotion to the post of Associate Professor, at least after 19.01.1996, at the very next opportunity and against the next available vacancy in the Department of the post of Associate Professor. Petitioner has also pleaded and cited some example that his juniors in the Department were promoted to the post of Associate Professor earlier, after 1990 itself. This pleading of the petitioner has been denied by the respondents in their counter affidavits only in one sentence. They have not specifically dealt with the cases of examples cited by the petitioner. Hence, an enquiry is required to be made as to whether, in fact, any junior to the petitioner in the Department was promoted as Associate Professor after 1990 and prior 1996, or not. If it was done, petitioner is definitely entitled for promotion to the post of Associate Professor from that very date and consequent promotion to the post of Professor accordingly.

In the circumstances, this writ application is allowed with a direction to the respondents to consider the case of the petitioner for grant of promotion to him on the post of Associate Professor after 1990 and definitely from the date any of his juniors in the Department had been promoted on any vacant post of Associate Professor and in any case to grant him promotion to the post of Associate Professor in the Department made in the next transaction after 19.01.1996 and grant him consequential promotion on the post of Professor after completion of ''kalavadhi'' from the date any of his juniors had been granted such promotion. Petitioner shall be entitled for all benefits of such promotion except monetary benefits of the concerned period since he had refused to join on the post of Associate Professor in R.M.C.H. pursuant to Notification dated 19.01.1996 (Annexure-6). The directions as above shall be complied with and necessary orders/notifications shifting back the dates of promotions of the petitioner to the post of Associate Professor as well as Professor shall be issued by the respondents positively within three months from the date of receipt/production of a copy of this order.