Patna High Court
Dr.Chittaranjan Roy vs The State Of Bihar & Ors on 21 April, 2011
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
CIVIL WRIT JURISDICTION CASE NO.4 OF 1997
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IN THE MATTER OF APPLICATIONS UNDER ARTICLE-
226 OF THE CONSTITUTION OF INDIA
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Dr.Suraj Nayak, S/o-Late Kumar Nayak, at present posted as Professor
& Head of Department of Preventive & Social Medicine in Darbhanga
Medical College, Laheriasarai, Darbhanga. -Petitioner.
VERSUS
1. The State of Bihar.
2. The Commissioner & Secretary to Government, Department of Health,
Medicine, Education and Family Welfare, New Secretariat, Bihar,
Patna.
3. The Additional Commissioner & Secretary to Government,
Department of Health, Medicine, Education and Family Welfare, New
Secretariat, Bihar, Patna.
4. The Dy. Secretary to Government, Department of Health, Medicine,
Education and Family Welfare, New Secretariat, Bihar, Patna.
5. The Additional Director (Medical Education) Department of Health,
Medical Education, New Secretariat, Bihar, Patna.
6. Dr. Chittranjan Roy, S/o-Sri Braj Kishroe Roy, Associate Professor,
Department of P.S.M., D.M.C.H., Laheriasarai, Darbhanga.
7. Dr. Anil Kumar Jaiswal.
8. Dr. Binod Prasad.
9. Dr. Prakash Chawla.
10. Dr. Arun Kumar, respondent nos.7,8710 are Assistant Professors of
Jawahar Medical College, Bhagalpur and respondent no.9 is the
Assistant Professor A.N. Magadh medical College, Gaya.
-Respondents.
WITH
CWJC No.7126 of 1997
Dr. Chittaranjan Roy, S/o-Sri Braj Kishore Roy, at present posted as
Associatae Professor, Department of P.S.M., Darbhanga Medical
College & Hospital, Laheriasarai, District-Darbhanga. --Petitioner.
VERSUS
1. The State of Bihar.
2. Commissioner-cum-Secretary, Department of Health, Medical
Education and Family Welfare, Government of Bihar, Patna.
3. Additional Commissioner-cum-Special Secretary, Department of
Health, Medical Education and Family Welfare, Government of Bihar,
Patna.
4. Dr. Suraj Nayak, Associate Professor, at present acting as ad hoc
Professor, in the Department of Preventive and Social Medicine,
Darbhanga Medical College & Hospital, Darbhanga.
5. Additional Secretary, Department of Health Medical Education and
Family Welfare, Government of Bihar, Patna.
6. Deputy Secretary, Department of Health Medical Education and Family
Welfare, Government of Bihar, Patna. -Respondents.
WITH
CWJC No.10628 of 1997
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Dr.Suraj Nayak, S/o-Late Kumar Nayak, at present posted as Professor
& Head of Department of Preventive & Social Medicine in Darbhanga
Medical College, Laheriasarai, Darbhanga. --Petitioner.
VERSUS
1. The State of Bihar.
2. The Commissioner & Secretary to Government, Department of Health,
Medicine, Education and Family Welfare, New Secretariat, Bihar,
Patna.
3. The Additional Commissioner & Secretary to Government,
Department of Health, Medicine, Education and Family Welfare, New
Secretariat, Bihar, Patna.
4. The Joint Secretary to Government, Department of Health, Medicine,
Education and Family Welfare, New Secretariat, Bihar, Patna.
5. Dr. Chittranjan Roy, S/o-Sri Braj Kishroe Roy, Associate Professor,
Department of P.S.M., D.M.C.H., Laheriasarai, Darbhanga.
6. Dr. Anil Kumar Jaiswal, son of not known, Assistant Professor of
P.S.M. Department, J.L.N. Medical College, Bhagalpur.
7. Dr. Binod Prasad, son of not known, Assistant Professor of P.S.M.
Department, J.L.N. Medical College, Bhagalpur.
8. Dr. Prakash Chandra, son of not known, Assistant Professor, P.S.M.
Department, A.N. Medical College, Gaya.
9. Dr. Arun Kumar, son of not known, Assistant Professor of P.S.M.
Department, J.L.N. Medical College, Bhagalpur. -Respondents.
**********
For the Petitioners : M/s Ram Balak Mahto, Sr. Adv. with
Harish Kumar, Adv.
For the State : M/s Shyam Kishore Sharma, GA-5 with
Himanshu Kr. Akela, AC to GA-5.
For the private-Respondents : M/s Chittaranjan Sinha, Sr. Adv.,
Rajesh Prasad Choudhary &
Bal Bhushan Choudhary, Advocates.
**********
PRESENT
THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH *********** Navaniti Prasad Singh, J. In the set of three writ petitions the basic dispute is the question of inter se seniority as between Dr. Suraj Nayak on one side and Dr. Chittaranjan Roy and others on the other side who are all in the Department of Preventive Social Medicine (PSM) as teachers.
All parties have appeared, filed counter affidavits, rejoinders and pleadings being complete, have been heard at length for final disposal.
The facts are not in dispute. What is in dispute is the implication of various notifications issued by the State Government -3- affecting inter se seniority and, as such, I would first consider the notifications and their implications and then apply it to the facts.
The parties being doctors are in teaching posts in the Department of Preventive Social Medicine, which is a non-clinical subject. The basic legal issue as put forth by the parties is with regard to the legality of appointment and consequential promotions inter se the parties. I may note here that the pleadings of parties both the writ petitioners and the private-respondents are rather scattered in the three writ petitions, but for the purposes of decision with assistance of learned counsels I have been able to consolidate these notifications in an appropriate manner from various pleadings on record.
On 23.11.1976 the State Government resolved and notified its decision to re-designate the teaching posts. This notification was issued in the name of Governor and in absence of any other Rules on the subject would be deemed to be Rules within the meaning of Article-309 of the Constitution as also other such notifications issued subsequently and, thus, have force of statute. In these rules, in so far as it concerns the present litigation, it was, inter alia, provided that the first teaching posts would be re-designated as tutors whose basic qualification was to be M.B.B.S. It further provided that a tutor who had Post Graduate degree and teaching experience as tutor of not less than three years would be eligible for promotion to the post of Assistant Professor. It further provided that a person, who was Assistant Professor, and had teaching experience as such for five years, would be considered for promotion to the post of Associate Professor.
On 24.05.1978 State Government decided to amend the earlier resolution dated 23.11.1976 and, as such, a fresh resolution amending the earlier notification was issued under the authority of the Governor. The changes that were made in so far as relevant to the present -4- case is concerned, inter alia, provided that a tutor having Post Graduate degree and who had worked as teacher for three years, but less than six years would be considered for promotion as Assistant Professor, whereas tutors who had Post Graduate degree and had teaching experience as such for more than six years were to be directly considered for promotion to the post of Associate Professor. This was apparently so done because large number of teaching doctors continued to work with Post Graduate degrees as tutors for a considerable period without being granted promotion and, as such, considering their teaching experience, they were sought to be given recognition and promotion.
I may note here that this is what is commonly referred to level jumping. This is so because a person would become Associate Professor without being made Assistant Professor and as would be discussed later was criticized and disapproved by this Court.
Then comes the notification of resolution dated 29.01.1990 which provided for "Kal Awadhi", that is, specified period for special purposes. This notification, inter alia, provided that Assistant Professor, who had three years teaching experience, as such, would be considered for promotion to Associate Professor and Associate Professor having minimum four years teaching experience as such would be considered for promotion as Professor. Persons who have been Professors for minimum 10 years would be eligible for being made Principals of Medical Colleges. It would, thus, be noticed that the departure to the rule of step by step promotion by level jumping, as was contemplated in the notification dated 24.05.1978, was effectively taken away.
It appears that notification dated 29.01.1990, as referred to above, providing for "Kal Awadhi", the minimum periods created problems and had become controversial in the opinion of the State and, as such, on 20.10.1990 another notification was issued. Clause-3 thereof -5- noticed that it was giving rise to controversies in relation to inter se seniority and, as such, State Government once again provided that tutors having Post Graduate degree and minimum six years teaching experience, as such, would be considered for direct promotion to the post of Associate Professor. In effect level jumping over Assistant Professor was once again introduced.
It appears that soon thereafter State realizing problems again issued a clarificatory notification on 30.10.1990. It clarified that the provisions of earlier notifications providing for promotion to tutors with Post Graduate degree and teaching experience of minimum six years to the post of Associate Professor directly would be available for determining seniority only up to 29.01.1990, when the earlier notification providing for "Kal Awadhi" was issued. In other words, this notification dated 30.10.1990 clarified that level jumping would be permissible only up to 29.01.1990, whereafter the step by step promotion would be applicable as provided in the notification dated 29.01.1990.
Now, we come to the yet another controversial notification, being notification dated 17.12.1990, issued by the State Government with regard to promotion of teachers in Medical College Hospitals. In this notification, it was noticed that criteria of promotions were laid down by the State in the notification dated 23.11.1976 and 24.05.1978, which had given rise to various disputes. It further noticed that so far as non-clinical subjects are concerned, giving experience of teaching for long period as laid down and promoting them straight to Associate Professor, was treated as level jumping, which had been disapproved by this Court in C.W.J.C. No.3917 of 1978. It may be noted here that the said decision of this Court is in the case of Dr. Hari Ram Singh versus The State of Bihar and others and is dated 28.11.1979. It was belatedly reported as 1995(1) PLJR 462 wherein in 1979 itself this Court had deprecated the grant of -6- promotion to teachers directly to the post of Associate Professor and held that there should be step by step promotion and in effect no level jumping.
Apparently, even though, State was in the knowledge of aforesaid judgment right from 1979, it had ignored the same and created confusion after confusion and now by this notification dated 17.12.1990, referred to above, tried to correct the position. But again, while doing so, it made it applicable only prospectively, that is, with effect from 17.12.1990 as onwards. The new criteria laid down was that in so far as non-clinical subjects are concerned, tutors having Post Graduate Degree and minimum three years teaching experience would be considered for promotion to the post of Assistant Professor and such Assistant Professor who had minimum three years teaching experience would be considered for promotion as per seniority to the post of Associate Professor and those Associate Professors having teaching experience of minimum four years would be considered for promotion to the post of Professor. But again, there was yet another catch. So far as non-clinical subjects are concerned, the State Government reserved to itself the right to relax the conditions if sufficient number of persons were not available for appointment as Assistant professors. As noted above, this notification had only prospective application. Thus, the criteria and the power to relax, in so far as this case is concerned, was limited to its application prospectively with effect from 17.12.1990.
Now, on 05.06.1991 again the State government gave a re- look to the promotional policy, in so far non-clinical subjects, Preventive Social Medicine (PSM) is concerned, and for relaxation of criteria as earlier laid down in notifications dated 29.01.1990, 20.10.1990, 30.10.1990 and 17.12.1990.
It now notices in the notification dated 05.06.1991 that the Medical Council of India (MCI) had now provided that for appointment to the post of Assistant Professor only a Post Graduate degree was sufficient, -7- but by the notifications of the State Government, as noticed above, the State Government had provided for minimum three years teaching experience as tutor as also Post Graduate degree. It noticed that in 1988 when an inspection was due from the MCI then a high powered committee of the State Government had taken a decision to appoint Post Graduate doctors straight as Assistant Professors and persons in non-clinical subject who had Post Graduate degrees were directly appointed as Assistant Professors. In view of the aforesaid situations, the State Government decided that so far as PSM department is concerned, persons could be appointed directly as Assistant Professor, who had Post Graduate degree in PSM, whether they were earlier tutors or not. Those tutors who had been tutors for five years but had not acquired Post Graduate degree should be removed. Those tutors in PSM department whose panel was prepared in 1990 and who had Post Graduate degree in PSM should be posted directly as Assistant Professor ignoring the rule that Assistant Professor was promotional post for tutors. The power to relax as was granted by notification dated 17.12.1990 was thus being exercised retrospectively in cases where to fill up the post of Assistant Professor, tutor with requisite qualification and experience were not available at this stage.
One must notice here the case of Dr. Shashi Bhushan Pandey versus the State of Bihar and others, being C.W.J.C. No.2054 of 1983 disposed of on 18.01.1993, since reported in 1993(1) PLJR 446. Here, this Court while dealing with the case of tutors in clinical subject had occasioned to examine the scheme of promotion in teaching posts. It noticed the case of Dr. Hari Ram Singh's case (supra) and noticed that apparently subsequent notification of the State Government dated 17.12.1990 was issued in order to implement the judgment in Dr. Hari Ram Singh's case (supra), but curiously enough the decision of the State has been made prospective, which was not correct. It was held that if the -8- Government had taken a decision to implement the judgment of this Court in Dr. Hari Ram Singh's case (supra), which was settled as far back as on 28.11.1979, then there was no purpose in making the notification dated 17.12.1990 prospective only creating two classes in respect of similarly situated persons. This decision also held that no body should jump levels and that would also apply mutatis mutandis in respect of non-clinical subject as well.
Now, the State Government again woke up. Noting some conflict arising from promotion to be granted to the post of Assistant Professor, as between teacher working in Government Medical Colleges as tutors, where there were earlier no post of Assistant Professor and those working in private taken over Medical Colleges as Assistant Professors and noticing the judgment of this Court in the case of Dr. Hari Ram Singh's case (supra) decided in 1979 State Government decided to rescind the notifications dated 23.11.1976, 24.05.1978, 20.10.1990 and 30.10.1990. It issued another notification on 20.06.1996 and provided that those tutors/Registrars who had teaching experience of three years and had Post Graduate degree in the subject would be immediately re-designated as Assistant Professors. They would not be entitled to any financial benefits as a consequence of the re-designation. The inter se seniority between such designated Assistant Professors would be determined on basis of teaching experience as tutor/Registrar after obtaining Post Graduate degree. So far as direct appointees to the post of Assistant Professors and those promoted from the post of tutor/Registrar their inter se seniority would be decided as per the decision of this Court, which is said to be pending. Thus, apparently it was now clearly provided that there would be no level jumping.
Now, on 15.05.1997 the State Government suddenly realized its responsibility for implementing judgment of this Court in Dr. -9- Hari Ram Singh's case (supra). It issued another notification. It noticed that in pursuant to judgment of this Court in Dr. Hari Ram Singh's case (supra) decided on 28.11.1979, State Government had issued notification on 17.12.1990, which was made effective from 29.01.1990, but this was disapproved by this Court in the case of Dr. Shashi Bhushan Pandey (supra) in the year 1993 in which later case it was observed that effect to Dr. Hari Ram Singh's case (supra) must be given from the date of its judgment. Accordingly, it was notified that the notification dated 17.12.1990 would be effective retrospectively with effect from 28.11.1979, the day when Dr. Hari Ram Singh's case (supra) was decided by this Court. All aspects of the seniority would be determined according to the present notification treating earlier notification as provisional.
This is so far as the maze of Government notifications providing for qualifications, promotion and determination of inter se seniority is concerned. It would be noticed that it was always a knee jerk attitude of the State Government which resulted in notifications, rescinding and modifying them without there being a clear cut consistent policy in the matter. Ad hoc decisions were taken to suit the contingency which was created by the Government. When there was inspection scheduled by the Medical Council of India (MCI) of Government Medical Colleges ad hoc decisions were taken to fill up posts directly instead of filling it up by promotion to avoid de-recognition which was not proper. As would be seen, mindless confusions were created by the State to the detriment of the teaching faculty who were left to continuously litigate for their rights and confusions prevailed. Government could well have avoided all this only if they had acted with sense of responsibility to fill up the posts and give timely promotions which never came about.
From this maze of notifications taking one step forward then two steps backwards we have a series of gradation lists prepared from
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time to time which are appropriately matters of challenge in the present set of writ petitions.
The first in the series is the gradation list prepared at the end of 1990 in respect of Assistant Professors in PSM department. Here Dr. Suraj Nayak was positioned at serial no.3, whereas Dr. Chittaranjan Roy was placed at serial no.10 along with other persons who are directly appointed as Assistant Professors just above Dr. Chittaranjan Roy, but, admittedly, below Dr. Suraj Nayak. In the said gradation list, it was pointed out that Dr. Suraj Nayak had joined the post of tutor on 07.09.1983 and having acquired PG degree was designated as Assistant Professor on 02.11.1988. So far as Dr. Chittaranjan Roy and others are concerned, as noted above, they had no previous teaching experience and were directly appointed as Assistant Professor on various dates in 1988 with Dr. Chittaranjan Roy having been appointed on 28.03.1988. I may note here the justification given for this gradation was that Dr. Suraj Nayak had five years teaching experience and had got his Post Graduate degree on 02.11.1988 and was, thus, qualified for appointment as Assistant Professor but though Dr. Chittaranjan Roy had Post Graduation qualification since 1985, he had no teaching experience and was appointed directly as Assistant Professor. The seniority was, thus, determined on the basis of continuous officiation in teaching posts.
It may be noted here that Dr. Suraj Nayak was then allegedly promoted to the post of Associate Professor, upon the promotion being approved by Council of Ministers and was duly notified, as such on 02.08.1991. He was at Nalanda Medical College & Hospital, Patna and was transferred as Associate Professor to Darbhanga Medical College & Hospital where he joined.
Here, it may also be noticed that the said gradation list of 1990 said to be final gradation list was challenged by Dr. Chittaranjan Roy
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in C.W.J.C. No.7041 of 1996 in which Dr. Suraj Nayak was a respondent, which was dismissed as withdrawn by order dated 04.12.1996, upon prayer of Dr. Chittaranjan Roy to withdraw the writ petition, but he was given no other liberty.
Now comes the second gradation list, which was published on 18.09.1996 said to be provisional gradation list. This was apparently necessitated as a consequence of the State Government notification dated 20.06.1996 whereby earlier notifications of the year 1976, 1978 and some of 1990 were rescinded. Now, Dr. Chittaranjan Roy and others were given seniority over Dr. Suraj Nayak, apparently, on the basis of their acquiring Post Graduate qualification earlier and their appointment though directly to Assistant Professor being earlier. Thus, the position of seniority stood totally reversed on basis of change in policy determining seniority.
The gradation list of 1990, showing Dr. Suraj Nayak senior to Dr. Chittaranjan Roy and others, has been challenged by Dr. Chittaranjan Roy. The gradation list of 1996, showing Dr. Chittaranjan Roy and others senior to Dr. Suraj Nayak, has been challenged by Dr. Suraj Nayak.
Now comes the final gradation list purportedly made after considering objections to the gradation list as earlier published on 19.09.1996, this is dated 21.05.1997. Here as in the earlier gradation list of 1996 Dr. Chittaranjan Roy is at serial no.3 with others who were directly appointed as Assistant Professors on 25.01.1988 and Dr. Suraj Nayak is at serial no.8 showing him to be tutor since 07.02.1983 and Assistant Professor with effect from 02.11.1988, the day he got his Post Graduate degree. This is challenged by Dr. Suraj Nayak. The change in inter se seniority is because of change in policy rather than change in additional qualifications or special experience. As noted above, the earlier policy in 1990 was of continuous officiation as teacher now it was changed to
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continuous officiation as Assistant Professor or date of appointment as Assistant Professor.
Now we come to the facts in relation to Dr. Suraj Nayak and Dr. Chittaranjan Roy and his like. Dr. Suraj Nayak did his M.B.B.S. in 1976 from Patna Medical College & Hospital and joined Bihar State Health Service as Medical Officer in 1979. In 1981 he obtained diploma in Child Health from Darbhanga Medical College & Hospital and did his MD (PSM) from the Darbhanga Medical College & Hospital on 02.11.1988. In the meantime, on 02.09.1983 he was selected as tutor and joined as such at Darbhanga Medical College & Hospital on 07.09.1983. He was designated as Assistant Professor (PSM) on attaining Post Graduate qualification with effect from 02.11.1988 as by then he had five years teaching experience as tutor and a Post Graduate Degree. Dr. Suraj Nayak was then given ad hoc promotion with effect from 02.08.1991 as Associate Professor on the recommendation of the Departmental Promotion Committee and with the approval of the Council of Ministers, apparently on the ground that he had teaching experience as a tutor of over six years with Post Graduate qualification and had been Assistant Professor. Dr. Suraj Nayak was then made ad hoc Professor on the recommendation of the Departmental Promotion Committee vide notification dated 05.08.1996 as by then apparently he had four years teaching experience as Associate Professor in a Medical College.
So far as Dr. Chittaranjan Roy is concerned, he passed M.B.B.S. in 1977 from Nalanda Medical College & Hospital and joined Bihar State Health Service as Medical Officer in 1979. He obtained diploma in Tropical medicine from Darbhanga Medical College & Hospital in 1991 and in 1985 he obtained his Post Graduate degree being MD (PSM) from Darbhanga Medical College & Hospital. He remained in Bihar Health Service till pursuant to advertisement issued in 1987 for
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appointment to teaching posts, he applied and was directly appointed as Assistant Professor on 25.01.1988. It is not in dispute that at the time of his appointment as Assistant Professor he had no teaching experience. Dr. Chittaranjan Roy was made Associate Professor though in the pay scale of Assistant Professor with effect from 19.01.1996 and posted as Professor under working arrangement on 03.12.2003.
So far as other persons are concerned who along with Dr. Chittaranjan Roy were directly appointed as Assistant Professor in the year 1988 and their fate would be the same as that of Dr. Chittaranjan Roy and as such their facts are not being individually noted.
The first consideration which I think this Court is called upon to decide is, what was, at the relevant period, the entry point in service of a teaching post in Government Medical College & Hospital. The relevant period for consideration would be up to 1988 for the purposes of present case. From the maze of notifications, as noticed earlier, one thing is consistent. The entry point is tutor or its equivalent. All notifications of the State Government consistently provided that tutor was the lowest rung from which upon gaining educational qualifications like Post Graduate degree and teaching experience one would be promoted to Assistant Professor. There is no notification of the State Government which provides that the post of Assistant Professor would be filled by direct recruitment as well as by promotion from tutor. To the contrary, notifications and resolutions are consistent that tutors with Post Graduate degree and requisite minimum teaching experience as such would be promoted to Assistant Professor. As has been noticed above, while discussing the notifications, the power to relax was assumed by the State Government for the first time by notification dated 17.12.1990 and, as such, up to and inclusive of 1988, tutor with Post Graduate qualification
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and necessary minimum teaching experience as such was the basic qualification for the post of Assistant Professor.
This assumes importance in the present case, inasmuch as in 1987 and to be precise on 12.09.1987, when advertisement was issued by the State Government for appointment of teachers in non-clinical subjects including PSM holding Post Graduate degree. The said appointment in absence of any other specifications or relaxations could be valid only to the post of tutor. It may be noticed that a reference to the advertisement would show that it no where mentions that the appointment would be made to the post of Assistant Professor which it could not have mentioned even otherwise as per existing Rules and Resolutions. Notwithstanding the aforesaid, Dr. Chittaranjan Roy and others, who had the Post Graduate qualifications, applied and, as noted earlier, were appointed as Assistant Professor on 25.01.1988, even though they had not a single day teaching experience much less as tutors.
Here I may note that as per MCI regulation of the year 1970, which had the necessary approval of the Government of India for appointment to the post of Assistant Professor, teaching experience was a pre-requisite qualification. It may also be noted here that there were subsequent regulations of the MCI but they had for the relevant period not the approval of the Central Government.
In fairness to the learned counsel for Dr. Chittaranjan Roy, I must at this stage notice the judgment of the Apex Court as relied upon by him in the case of Dr. R.K. Goyal Vs. State of U.P and others since reported in AIR 1997 Supreme Court 1567, which case went from the State of Uttar Pradesh. Learned counsel for Dr. Chittaranjan Roy submits that the Apex Court in that case held that appointment of Lecturer in Medical Colleges (which is equivalent to Assistant Professor) without teaching experience is legal even though MCI has prescribed teaching
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experience as a necessity. I am afraid that the said proposition does not apply to the present case. In the judgment itself, the Apex Court has noticed that there were no statutory rules framed by the State Government and appointments were made on basis of executive instructions issued from time to time and there were no executive instructions laying down the conditions of three years teaching experience for appointment of Lecturers in Medical College. It further noted that recommendations of the MCI were directory. It noted that subsequent MCI regulations of 1974 and thereafter which had done away with the requirement of teaching experience at the stage of appointment but those regulations had yet to be approved by the Central Government whereas 1970 regulations of MCI had the approval of Central Government. In case at hand from the notifications, as referred to above, it is clear that the State Government vide its notifications and resolutions clearly specified the minimum requirement of teaching experience as tutor for being considered for appointment to the post of Assistant Professor. Thus, the basic facts are totally different and the judgment of the Apex Court aforesaid would have no application to the present case.
On behalf of Dr. Suraj Nayak, it is submitted that the appointment of Dr. Chittaranjan Roy directly as Assistant Professor at that stage was, thus, in valid and, when the gradation list was changed in 1996 showing Dr. Chittaranjan Roy senior to Dr. Suraj Nayak for the first time, he acquired the right to challenge the appointment and, as such, filed the writ petition.
Learned counsel for Dr. Chittaranjan Roy submitted that State Government vide notification dated 17.12.1990 acquired power to relax conditions, where adequate number of tutors were not available for promotion to Assistant Professor and, as such, the power had been exercised. This is begging the question as the appointment was made on
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25.01.1988 and the power to relax as per notification dated 17.12.1990 was made effective as per the said notification itself from 29.01.1990. It could not be used to validate appointments made in 1988. In fact, it is clear that the State realized this irregularity as committed by it. It is in that view of the matter that it issued the notification dated 05.06.1991. As noticed earlier, that notification dated 05.06.1991 clearly gave out that it is to meet the emergent situation that had arisen in 1988 when the MCI was to inspect the Medical Colleges and there was urgent need to fill up the post of Assistant Professors direct appointments were made without looking to their teaching experience as tutors and in order to overcome that irregularity that notification was being issued on 05.06.1991 exercising the power to relax with retrospective effect as was available to the State Government vide notification dated 17.12.1990.
In this regard, Mr. Ram Balak Mahto, learned Senior Counsel appearing in support of Dr. Suraj Nayak rightly relied upon the Full Bench judgment of this Court in the case of Project Uchcha Vidyalaya Shikshak Sangh and others versus the State of Bihar and others since reported in 2000(1) PLJR 287 and, in particular, what is said in paragraph-15 thereof. This Court held that circular cannot be applied retrospectively as it is well settled that the Government cannot and should not alter or modify any circular retrospectively which may affect and prejudice the right of the Government servants. Their Lordships referred to various judgment of the Apex Court therein in support of the propositions. Here two things may be noted. Firstly, the notification which gave power to relax to the State Government was itself issued on 17.12.1990 and it itself states that it would be effective from 29.01.1990. It had limited retrospective operation but by the notification issued on 05.06.1991 this power to relax which was available under the earlier notification effective from 29.01.1990 was taken back even further to
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1988. It not only validated the appointments as made but directly affected inter se seniority. For clarity, I can exemplify the same. Dr. Suraj Nayak was regularly appointed as Assistant Professor with effect from 02.11.1988, whereas the appointment of Dr. Chittaranjan Roy and others were directly appointed as Assistant Professors without teaching experience on 25.01.1988, now being the legalized would give him seniority as being earlier appointed as Assistant Professor though he was not eligible. Mr. Ram Balak Mahto, learned Senior Counsel appearing for Dr. Suraj Nayak rightly submits that the appointment of Dr. Chittaranjan Roy being irregular, it would be deemed to be regularized after he had gained minimum three years teaching experience. That would come only in 1991. He rightly points out that this was the understanding of the State Government also when the 1990 gradation list was published which showed Dr. Suraj Nayak senior to Dr. Chittaranjan Roy and such other appointees till then. It is also rightly submitted that the Government also understood the situation, accordingly, but by this act of retrospective relaxation in condition the vested right of Dr. Suraj Nayak was taken away and the whole situation was reversed.
In my view, there is yet another reason to accept the submissions of Mr. Mahto. In the case of Dr. Hari Ram Singh (supra) as well as Dr. Shashi Bhushan Pandey (supra) this Court has held that the promotion has to be step by step. Thus, as per situation obtaining at the relevant time, there was no scope for direct appointment to the post of Assistant Professor but the matter does not end here. There are further confusions created by the State Government.
As has been noticed earlier in the case of Dr. Hari Ram Singh (supra) and Dr. Shashi Bhushan Pandey (supra), first decided in 1979 and the later in 1992, this Court deprecated the practice of the State in promoting or sanctifying "level jumping". It was held in the case of Dr.
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Hari Ram Singh (supra) that promotion had to go step by step. The reason was obvious. Teaching experience of different level at different stages was a pre-requisite for promotion at different stages. This is what this Court held that it had to be done, but even though the judgment in the case of Dr. Hari Ram Singh (supra) came in 1979, it was left in cold storage till the decision in Dr. Shashi Bhushan Pandey's case (supra) in 1992. It was again noticed by this Court with a further observation that the practice had to be abolished with effect from the earlier judgment, that is, since 1979. As noticed earlier, first by notification dated 17.12.1990, an effort to correct the position was made, but it was made effective from the date of earlier notification, that is, notification dated 29.01.1990. It was only by notification dated 15.05.1997 that this notification dated 17.12.1990 was made effective retrospectively from 28.11.1979, which is the date of judgment in Dr. Hari Ram Singh's case (supra). It took almost 20 years for the State to give effect to the judgment of this Court and, in the interregnum, it created enough chaos and problems for itself and others.
Now, we come to the notification dated 20.06.1996. As noticed earlier, this notification rescinded earlier notifications of the year 1976, 1978 and two of the earlier notifications of 1990. The effect of this was ostensibly to remove level jumping but what followed was more confusion and dispute. Once the notification was issued on 20.06.1996, the Government then decided to revise the gradation list of 1990 on basis of this notification. It is a consequence of this that the position in the gradation list of Dr. Suraj Nayak vis-à-vis Dr. Chittaranjan Roy and others was turned upside down. As noticed earlier, in the 1990 gradation list Dr. Suraj Nayak was much above Dr. Chittaranjan Roy and others on the basis of continuous teaching experience, but now the position changed and the seniority was determined on basis of length of officiation as Assistant
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Professor. Dr. Chittaranjan Roy and others having been appointed on 25.01.1988 were brought up and Dr. Suraj Nayak, who was appointed as Assistant Professor, on 02.11.1988 was consequently pushed down. Thus, seniority determined in 1990 was drastically altered by subsequent notification, which, in my view, ought not to have been done. Once the seniority had been finally determined in 1990 then for the purposes of seniority any subsequent change should have been made effective only prospectively otherwise it would give rise to anomalous situation where a person senior and recognized as such would suddenly become junior without any change in his qualification or his other particulars. That would not only be arbitrary but unreasonable. In a cadre once principles for determining seniority are laid down then unless there are very exceptional compelling reasons those principles should not be altered, much less when they adversely affect the vested right of various persons and cause the great prejudice.
Here, I may once again notice that when the State Government took a decision to appoint Dr. Chittaranjan Roy and others directly as Assistant Professor no notification was issued or resolution taken much less brought on record before the advertisement or before their appointment on 25.01.1988 altering the situation to enable State Government to make such an appointment. The appointments, as indicated earlier, were thus irregular which was only sought to be regularized subsequently by the notification issued on 05.06.1991 and that notification it may be noted was being issued after 1990 when the gradation list was finally published. This again shows that the State also considered Dr. Chittaranjan Roy and others rightly to be junior to Dr. Suraj Nayak, which position was being altered in 1996 by fresh notifications, as noticed above.
The net result is that this Court would maintain the seniority list as published in 1990, but so far as individual promotions are
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concerned, the position would be slightly different. The reason being that for promotion to the post of Associate Professor, avoiding level jumping, a person had to have three years minimum teaching experience as an Assistant Professor. Surely, when Dr. Suraj Nayak was given promotion as Associate Professor on 02.08.1991, he had not completed three years as Assistant Professor, which post he had been put on 02.11.1988. His date of promotion to the post of Associate Professor would, accordingly, shift. Dr. Suraj Nayak would then be eligible for being considered to the post of Professor as per his experience as Associate Professor in due course.
So far as Dr. Chittaranjan Roy and others are concerned, as noticed above, their appointments were made irregularly as Assistant Professor on the excuse of emergent situation arising out of impending MCI inspection, but, in law it would be that they were appointed as tutors, though designated and entitled to financial benefits of Assistant Professors because at that time it was not possible under the existing Government notifications to appoint a person as an Assistant Professor directly without minimum three years teaching experience as tutor. On completion of three years from 25.01.1988, they would deemed to be confirmed as Assistant Professor and then they would be entitled to be considered for promotion to the post of Associate Professor and hence forth. This is how even the Government understood the situation, till it was materially altered it in 1996 and, without any special qualification acquired by any of the parties, the seniority was turned upside down. The State would be advised to revise the seniority list, accordingly, as well as the time of promotions.
Before parting with the judgment, I would like to clarify that as the mess was created by the State Government because of its fluctuating decisions no party would suffer any monetary loss and no recoveries can be made upon readjustments. It is further clarified that this
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judgment would operate only inter-parties notwithstanding generality of statements contained therein.
A word of caution before closing. State through various Medical Colleges as established by it and maintained by it has the responsibility of complying with the Medical Council of India regulations in that regards. It should make permanent provisions and provide for appointments in due time accordingly and not take knee jerk decisions, when Medical Council of India inspection arrives, to save the Colleges from de-recognition. The State should give up the practice of ad hocism when due promotions ought to be granted. It should evolve a consistant long term policy and follow it.
With the aforesaid observations and directions, the three writ petitions are disposed of.
(Navaniti Prasad Singh, J.) Patna High Court The 25th April, 2011 Trivedi/AFR