Patna High Court
Dr. Hari Prasad vs The State Of Bihar And Ors. on 6 January, 1971
Equivalent citations: AIR1972PAT4, AIR 1972 PATNA 4, ILR (1971) 50 PAT 912
JUDGMENT Untwalia, J.
1. These two writ applications by the same petitioner Dr. Hari Prasad have been heard together and are being disposed of by a common judgment.
2. In relation to doctors and medical men there were in the State of Bihar two cadres of Services previously, known as the Bihar Medical Service and the Bihar Health Service. The two Services were combined and amalgamated in the year 1967, and the combined Service is now called the Bihar Health Service; it was so done by a resolution of the Finance Department of the Government of Bihar. The petitioner claims that he was senior to many of the respondents who were subsequently added in C.W.J.C. 908 of 1968 and surely he was senior to Dr. Y.K. Sinha, respondent 5 in C. W. J. C. 83 of 1969, in the cadre of the Service even in the combined cadre. His grievance in the former case is that in view of certain resolutions of the Finance Department of the Government of Bihar the Health Department, all of a sudden, arbitrarily decided to adopt certain principles to be followed by the Government in the matter of promotion of officers to the selection grade post of Professors. A true copy of a letter written by the Under-Secretary to the Government to the Accountant-General on the 28th of May, 1968 embodying those principles is Annexure 1 to both the writ applications. Although in C. W. J. C. 908 of 1968 the fact to found the main ground of attack on Annexure 1 is not stated, in the other case it is specifically made out and not disputed by the State. The fact is that the said principles were issued by the Government without consulting the Bihar Public Service Commission. The petitioner's further case is that on the basis of the said principles Professors of the Medical Colleges were put in the selection grade of Professors in the scale of Rs. 1,700-50-1,850; a copy of the relevant letter is Annexure 2 to each of the writ applications. In this Annexure 2 the petitioners name does not find place. His grievance is that he had more teaching experience than many who were included in that list, and on the basis of the arbitrary and illegal principles embodied in Annexure 1 their names were included while the name of the petitioner was not included. The prayer in C.W.J.C. 908 of 1968 is to quash Annexures 1 and 2 and to restrain the State of Bihar, respondent No. 1, and their officers in the Health Department, Respondents 2 to 4, from interfering with the relative seniority of the petitioner on the basis of the impugned annexures.
3. During the pendency of C.W.J.C. 908 of 1968, it appears that Dr. Y.K. Sinha was appointed Principal of the Darbhanga Medical College and hence the petitioner filed C. W. J. C. 83 of 1969 to challenge his appointment on the ground of violation of Article 16 of the Constitution by stating very many facts.
4. Counter-affidavits have been filed by the State in both the cases and by Dr. Y. K. Sinha in case No. 83. Affidavits in reply and further affidavits have been filed by the parties.
5. Learned Advocate for the petitioner has urged the following points in support of the two writ applications--
(i) That the principles laid down by the State Government in exercise of their executive power as embodied in Annexure 1 are invalid because they were laid down in infraction of the mandatory requirement of Sub-clause (b) of Clause 3 of Article 320 of the Constitution.
(ii) That the principles laid down are arbitrary and have no probative value or reasonable nexus with the object to be achieved.
(iii) That the State Government had no power to lay down any such principles in absence of a rule to that effect framed by the Governor under Article 309 of the Constitution.
(iv) That the petitioner's case was not considered when respondent No. 5, Dr. Y.K. Sinha was appointed to the post of Principal of the Darbhanga Medical College, and he too was appointed to that post without consulting the Public Service Commission.
(v) That Dr. Y.K. Sinha was not qualified to be a Professor and, therefore, could not be appointed to the post of Principal.
(vi) That the petitioner was more meritorious than respondent No. 5 and, therefore, he being senior to him in the cadre of the Service ought to have been appointed Principal.
6. In case No. 83, as I have said above, the definite case of the petitioner is that the State Government laid down the principles for promoting the Professors to the selection grade without consulting the Public Service Commission. The fact that Public Service Commission was not consulted is not disputed by any of the respondents; rather, tacitly, it is admitted. But what is asserted on their behalf is that under the law it was not necessary to consult the Public Service Commission. I do not accept this assertion as correct.
7. The marginal note of Article 320 of the Constitution is 'Functions of Public Service Commissions", but the Article also deals with the duties and obligations of the Government concerned. In that connection, it would be useful to read the relevant words of Clause 3 of that Article. They are as follows--
"The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted--
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(b) On the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;" Annexure 1 in terms states--
"that Government have been pleased to decide that merit and length of teaching experience as Professor should be the principles for promotion of Professors to the selection grade post of Professor in the scale of Rs. 1700-50-1850." (underlining by me).
The Government, therefore, were laying down the principles to be followed in making promotions and on the suitability of candidates for such promotions within the meaning of Sub-clause (b) aforesaid. The argument put forward on behalf of the State by learned Standing Counsel No. 1 is that Sub-clause (b) in the matter of promotion is attracted only when it concerns promotion from one service to another. I think such an interpretation will not carry any meaning. The expression "from one service to another" is in relation to the word "transfers" in the said sub-clause; it has its meaning then. It does not govern the word 'promotions' and will not carry any meaning by saying "promotion from one service to another". In my opinion, therefore, in regard to the principles as embodied in Annexure 1, Article 320 required the consultation with the State Public Service Commission before laying down the principles. Undisputedly this was not done. The principles were, therefore, laid down in violation of the requirement of the constitutional law. But that by itself will neither invalidate Annexure 1 nor Annexure 2 or, as a matter of that, the appointment of Dr. Y. K. Sinha to the post of Principal, as, it is well settled by now that the requirement of Article 320 or in any event of the kind in question is not mandatory but is directory. That being so, action taken in violation of the requirement cannot be nullified simply on that account. Nonetheless, it must be emphasised that the requirement is meant to be observed and not to be violated. The State Government, therefore should not act on the principles as embodied in Annexure 1 henceforward until and unless fresh principles are laid down by following the requirement of Sub-clause (b) of Clause 3 of Article 320 of the Constitution.
8. The principles embodied in Annexure 1 cannot be knocked down on the second ground urged on behalf of the petitioner. To my mind the principles are not arbitrary. It is for the authorities to decide what are the correct principles for promoting Professors to the selection grade. It is undoubtedly a matter of promotion from the rank of Professors to the rank of selection grade post in that line. Authorities in their wisdom may not think it right and proper to take into account the entire teaching experience for putting a Professor in the selection grade; they may confine it to such an experience as a Professor. Moreover, the criterion laid down is not only the length of teaching experience as a Professor but also the merit. It is beyond any debate that merit counts foremost in the matter of pro-motion to the selection grade posts. That being so, I do not think that the principles embodied in Annexure 1 can be struck down as being violative of Article 14 or 16 of the Constitution on the grounds urged on behalf of the petitioner. I, however, must hasten to add that this decision does not take away the effect of my earlier judgment in relation to the requirement of Article 320 of the Constitution.
9. The third point urged on behalf of the petitioner can better be answered by quoting a paragraph from the decision of the Supreme Court in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910. The 7th paragraph at column 2 on page 1914 reads as follows:--
"We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules 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 are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
I may also add that the executive power of the State Government is co-extensive with the legislative power of the State Legislature, and in absence of any Act or Rule framed under Article 309 of the Constitution, they have always the power to lay down principles or issue executive instructions in all matters relating to Service, of course, subject to the requirement of Article 320, wherever necessary.
10. Coming to the fourth point urged on behalf of the petitioner it is to be mentioned first that there is no rule or executive instruction brought to our notice, under which it can be said that it was necessary for the State Government to consult the Bihar Public Service Commission in the matter of appointment of any person to the post of Principal of the Darbhanga Medical College. In that view of the matter, appointment of respondent 5 cannot be said to be irregular or illegal on that account. Apropos the main grievance of the petitioner that his case was not considered when the appointment was made, in the counter it is asserted on behalf of the State in Paragraph 12 that the petitioner's statement in the writ petition that his claim was ignored and never considered is incorrect and that "The petitioner was not appointed principal because he was not considered suitable for the post". Petitioner has stated very many facts to show that he was more meritorious and suitable for the post, and these facts have been refuted on behalf of the State. Respondent 5 in his counter has stated facts to show that the petitioner was not at all suitable for the post; on the other hand, he (Respondent 5) was much more meritorious than the petitioner. It is not necessary for me to go into this contentious question as to who was more meritorious and suitable for the post. It is not for this Court to judge the comparative merit of the two contesting claimants. It was for the State Government to do so and they, in their wisdom, decided that Respondent 5, from the merit point of view as also from other points of view, was fit to be appointed the Principal and not the petitioner. I may add one thing here that Respondent 5 was appointed Professor in the year 1953 while the petitioner was appointed to such a post in the year 1962. The former, therefore, had more teaching experience as Professor. In accordance with the principles laid down in annexure 1, respondent 5 was promoted to the selection grade of Professors while the petitioner was not. If annexure 1 or 2 is not liable to be quashed, it is plain that the appointment of respondent 5 to the post of Principal chiefly made, as is the petitioner's case, on the basis of annexures 1 and 2 cannot also be quashed.
11. Parties have also endeavoured to state very many facts to show as to what are the principles and criteria for appointment to the post of Principal. Petitioner asserts that seniority has always been the criterion while the respondents state that this is not so: Professors have been appointed to the post of the Principal on the basis of merit and suitability. From the various examples given either in the petition or in other affidavits, it is not possible for us to cull out any principle. No principle is laid down either by any rule under Article 309 or by any other executive instruction. It is, however, admitted that the post of the Principal is a selection post. It is the power of the State Government to appoint any professor to such post, who, in their opinion, is most suitable. I am not satisfied that while making the appointment of respondent 5 to the post of the Principal of the Darbhanga Medical College the petitioner's case was not considered.
12. We have not examined the correctness or incorrectness of the petitioner's stand in respect of the appointment of respondent 5 to the post of Professor as that event happened long ago--in the year 1953. It is too late to attack the appointment of respondent 5 as Professor. Petitioner has come to this Court only when he has been promoted to the selection grade after respondent 5 had served as Professor for about 15 years.
13. Learned counsel for the petitioner urged that in clinical subjects doctors get professorship late as there is a long queue in which they have to wait and, therefore, the petitioner got chance to become Professor late because he belonged to a clinical subject; on the other hand, respondent 5 became a Professor soon as he belonged to a non-clinical subject. In my opinion, this argument is not at all relevant. Neither the appointment of respondent 5 to the post of Professor nor his promotion to the selection grade or his appointment to the post of Principal can be challenged on this ground. I have already stated with reference to the last point urged on behalf of the petitioner that this Court cannot go into the question of relative merit of the contesting claimants.
14. In the result, C.W.T.C. 908 of 1968 is allowed only to this extent that respondents 1 to 4 are restrained from giving effect to annexure 1 so that the petitioner's claim to promotion to the selection grade of Professors on the basis of the principles embodied in annexure 1 may not be ignored. If the State Government want to lay down any similar or identical principles or any other principles, it is their duty as the law stands at present, to consult the Bihar Public Service Commission in accordance with Article 320 (3) (b) of the Constitution. C.WJ.C. 83 of 1969 is dismissed. There will be no order as to cost in either.
Sarwar Ali, J.
15. I agree.