Dr. Shashi Bhusan Pandey vs The State of Bihar and others

S.N. Jha, J.—This writ application has been filed for direction for payment of salary as Assistant Professor in Pathology in Nalanda Medical College to the petitioner as also for consideration of his case for promotion to the post of Associate Professor. The petitioner was appointed by the then Board of Management, Nalanda Medical College as tutor in the department of Bio-chemistry on 15.3.70. He was re-appointed as tutor in the department of Pathology on 14.7.75. The College was taken over under the Bihar Private Medical College (Taking Over of Management) Ordinance 1976, later, enacted into Bihar Act 5 of 1978. The petitioner was appointed as assistant professor by order of the Chairman, Board of Control on 2.2.78. It is said that the Screening Committee constituted u/s 6 (2) of the Act, vide resolution dated 23.1.79, submitted its report according to which the petitioner was found eligible for promotion as assistant professor with effect from 14.6.78. Since his claim for payment of salary as Assistant Professor remained outstanding, he filed the instant writ application on 9.5.83 making a further prayer for his promotion as Associate Professor. It appears that during the pendency of the writ application, the petitioner was promoted as Associate Professor on 20.11.83.

The petitioner has asserted that he is entitled to reckon his appointment as an Assistant Professor with effect from 2.2.78 when the Chairman, Board of Control, the competent authority, passed an order to that effect or, alternatively, with effect from 14.6.78 from which date he was found to be eligible for such appointment by the Screening Committee. He has also made a grievance that several persons who were not Assistant Professors on 2.2.78 have been placed above the petitioner in the list and shown senior to him as Associate Professor.

The respondents accept the appointment of the petitioner as tutor in Pathology on 14.7.75. They also do not dispute the fact that the petitioner had been found eligible for appointment as Assistant Professor with effect from 14.6.78 by the Screening Committee. According to them however, the Screening Committee only decided the eligibility of the petitioner but he was never appointed to the post of Assistant Professor. According to the respondents further, appointment of the petitioner as Associate Professor on 20.11.83 was in terms of the norms laid down in the Government Resolution contained in Memo Nos. 3277 (1) dated 23.11.76 and 1990 (1) dated 24.5.78 of the Health Department.

There does not appear to be any dispute that, unlike clinical subjects, the aforesaid resolutions did not provide for automatic redesignation of the incumbents of the post of tutors in non-clinical subjects, like Pathology, as Assistant Professor. As a matter of fact, as would appear from the resolution dated 23-11-76, the erstwhile post of demonstrator in non-clinical subjects was made equivalent to tutor''s post. There also does not appear to be any dispute that, as regards non-clinical subjects, the post of tutor is lower in the heirarchy carrying lower scale of pay than Assistant Professor In these premises, it is difficult to appreciate as to how a person supposedly holding the post of tutor could be straightway appointed as an associate professor. Reliance placed by the respondents on resolutions dated 23.11.76 and 24.5.78 appears to be somewhat misconceived. From perusal of the two resolutions, in so far as relevant, it would appear that they provide for criteria of redesignation of different posts and lay down the eligibility for appointment. They do not provide that a tutor in non-clinical subject will be redesignated as assistant professor, unlike clinical subjects, or that a tutor on attaining certain teaching experience will be eligible for appointment as an associate professor. As a matter of fact, the resolution dated 23.11.76 provides that three years'' teaching experience (in non-clinical subjects) will make the person eligible for the post of assistant professor. It also provides for redesignation of lecturers in such subject as assistant or associate professors depending upon length of teaching experience as lecturer.

this Court while dealing with the case of promotion to higher teaching posts in clinical subjects in the case of Dr. Hari Ram Singh vs. The State of Bihar (C.W.J.C. No. 1977 of 1978 disposed of on 28.11.79), inter alia, held that a Professor should be appointed from amongst the senior most Associate Professor or Lecturer in particular subject and similarly Associate Professor (Lecturer) should be appointed from the seniormost tutor i.e. Assistant Professors in particular subject. It was also held that any promotion bypassing the next level of promotion would amount to ''jumping'' which cannot be said to be proper. Accordingly, a general direction was issued to the effect that nobody should jump as Lecturer without being the senior most Tutor. In my opinion, the same principle should be followed mutatis mutandis in respect of non-clinical subjects as well. It appears that the State Government has since taken a decision vide memo no. 1110(17) dated 17.12.90, paragraph 2 (Kha) of which states that the prevailing practice of giving jumping promotion as per the resolutions dated 23.11.76 and 24.5.78 has created serious anomalies. And, accordingly, new criteria/guidelines have been laid down for giving promotion to higher teaching posts in non-clinical subjects. This has been done in order to implement the aforementioned decision of this Court in Dr. Hari Ram Singh''s case (supra), as would be evident from paragraph 3 of the resolution dated 17.12.90. Curiously enough, however, the decision has been made prospective. This cannot be said to be correct. If the Government has taken the decision in order to implement judgment of this Court given way back on 28.11.79, there can be no justification for making it applicable prospectively and thereby creating two classes in respect of similarly situate persons. In my view, the case of the petitioner is covered by paragraph 2 (Kha) of the resolution of the State Government dated 17.12.90.

It is true, as contended by the learned Government Pleader, that the Petitioner has not challenged the order of the State Government giving him promotion as Associate Professor with effect from 20.11.83. However, in view of the admitted position that at no stage the case of the petitioner for appointment/promotion to the post of Assistant Professor was considered, his promotion as Associate Professor effective from 20.11.83 cannot be said to be final. In my opinion, his case for appointment/promotion as Assistant Professor has to be decided first. The question of payment of salary admissible to that post will naturally abide by that decision. This application is, accordingly, allowed. The respondents are directed to consider the case of the petitioner for appointment/promotion as Assistant Professor in Pathology and, consequentially, the question of payment of salary admissible to that post and further promotion to the post of Associate Professor in accordance with law. Having regard to the fact that considerable time has elapsed, an appropriate decision must be taken and communicated within six months from the date of receipt of a copy of this order. There will be no order as to costs.