Patna High Court
Dr. Ramji Pandey And Ors. vs State Of Bihar And Ors. on 15 January, 1987
Equivalent citations: 1988(36)BLJR487
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT S. Ali Ahmad, J.
1. These four writ applications have been heard together as the points involved in these cases are the same. Although the volume of the brief has been made frighteningly bulky by filing unnecessary supplementary-affidavits, counter-affidavits, etc. but learned Counsels for the parties during the course of argument did not rightly refer to the unnecessary and irrelevant details which were brought on record. 1 also, therefore, will refer only to such facts and documents which have been referred to by learned Counsels for the parties and which have relevancy to the facts in issue.
2. Before I take up the individual writ applications, it will be better to first determine the legality and scope of the three documents. The first is a Notification dated 3-3-1975 issued by the State Government paragraph 2 of which inter alia, says that if any teacher attached to medical college within the State is promoted to a higher rank and is posted to another medical college in the State and in case he does not join then his case for promotion will not be considered for another three years. The next document is a Notification dated 24-6-1982 issued by the State Government inviting eligible doctors for interview for the purposes of promotion to the post of Professor in different departments. The last sentence of this Notification says that if any Associate Professor does not attend the meeting on the specified date and time then it will be deemed that he is not interested in his promotion and his case for promotion will not be considered for the next three years. Some of the Associate Professors did not attend the interview and their cases for promotion were not considered and persons junior to them were promoted by Notification dated 22-10-1982. The last portion of this Notification mentions about two doctors, who did not attend the interview/sitting and, therefore, their cases for promotion will not be considered for the next three years. Copies of this Notification were also sent to the two doctors whose cases were not to be considered for the next three years (as will appear from Annexure 1 itself).
3. Mr. A. B. Ojha, who appeared on behalf of the petitioner in C.W.J.C. No. 3937 of 1985 first contended that the resolution dated 3-3-1975 was violative of Articles 14, 16 and 311 of the Constitution of India. He said that since this Notification itself was bad, therefore, the Notification dated 24-6-1982 (Annexure 1) which was based on the earlier Notification was also bad. At the out set, I may mention here that it is not possible for me to appreciate as to now Article 311 of the Constitution will be attracted, This Article applies to cases of dismissal, removal and reduction in rank on account of misconduct. The Notification dated 3-3-1975 does not prescribe any punishment of dismissal, removal or reduction in rank on account of any misconduct. It only prescribes that if a teacher is given promotion and he does not join (sic.) on promotion then his case for promotion will not be considered for the next three years. According to the State, this Notification has been issued because the teachers in Government medical colleges were allowed private practice. It is said that some of the doctors established massive private practice and they did not like to be transferred from that place even on promotion. The result was that the services of the best teachers could not be properly utilised by the State, This Notification was, therefore, issued to discourage such teachers prescribing that for another three years their cases for promotion will not be considered even if a vacancy in the higher grade occurs in the medical college where be is serving. I do not agree with Mr. Ojha that the Notification, which really is an order under Article 162 of the Constitution of India, is violative of Articles 14 and 16 of the Constitution. The ban for considering the cases of promotion of doctors covered by the Notification for three years is quite reasonable and, in no way, discriminatory.
4. The next argument of Mr. Ojha is that the last part of the Notification dated 24-6-1982 is bad as it is not in terms of the Notification dated 3-3-1975 referred to above. According to Mr. Ojha the notification dated 3-3-1975 applies only to cases where promotion is offered and is not accepted. He says that the respondents had no authority to mention in the Notification dated 24-6-1982 that in case the concerned doctors do not attend the interview/sitting at the specified date and time then it will be deemed that they are not interested in promotion and their cases for promotion will not be considered for the next three years. Mr. Ojha says that the Notification dated 3-3-1975 does not apply to cases where doctors do not attend the interview for promotion. He is right. The Notification dated 3-3-1975 does not cover such cases and, therefore, the State had to cover this loophole by another order under Article 162 of the Constitution of India. If that was not done then the earlier order dated 3-3-1975 could easily be circumvented. The order, in my view, that the doctors, who do not attend the interview/sitting for promotion to the higher post is an independent order under Article 162 of the Constitution of India. Therefore, there is no substance in this argument also.
5. The next question that now arises for consideration is which should be the starting point for debarment; whether the date on which interview/ sitting is held or the date when promotion in pursuance of that interview is made. Mr. A. B, Ojha appearing for the petitioner in C.W.J.C. No. 3937 and Mr. Basudeva Prasad appearing in C.W.J.C. No. 4538 contended that the starting point should be the date when interview/sitting is held. In that connection, learned Counsels referred to the language of Annexure 1 to C.W.J.C. Nos. 3937 and 4538 of 1985, translated into English the relevant part of which reads as follows:
It will be deemed that those Associate Professors, who do not appear at the specified date and time in the sitting, are not interested in their promotion as Professors and they will be debarred from promotion for the next three years.
Learned Counsels say that since it has not been said in this Notification that, the period of debarment will commence from any future date, therefore, that period should commence on the date of the sitting itself. Learned Counsels further urge that in case the period of debarment is to start from any future date then that will be arbitrary and uncertain and without any guideline. Mr. Ghose, on the other hand, contends that what has been said in the Notification referred to and quoted above is only an order under Article 162 of the Constitution based on policy decision. He says that the period of debarment will commence only when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors. According to him, there can neither be any element of arbitrariness or uncertainty nor it can be said that there is no guideline. I think, Mr. Ghose is correct. After all, what is the purpose of such a provision. The purpose obviously is to discourage people from not taking up promotional post and continue to serve as Associate Professors at places of their choice. At the same time, its purpose is to give greater incentive to comparatively junior Associate Professors to join as Professors in case their seniors are not interested in it. This is in the interest of medical education and better medical care in the hospitals attached to the medical colleges. If the period of debarment is to commence from the date of interview/sitting then it may not be very difficult to get the actual promotion delayed by three years either by going to the right persons or through process of Court. This will frustrate the purpose and the post of professors will remain vacant to the disadvantage of the students and the ailing public. If the post remains vacant for three years then those very Associate Professors who did not attend the interview/sitting will again become eligible for promotion and the process will again start. But on the other hand, if the period of debarment is to commence from the actual date of promotion then there will be no such complication. Further, in my opinion, this Notification, which is an order under Article 162 of the Constitution of India is in the form of notice to the concerned persons that in case they do not appear in the interview then they will not be considered for promotion within the next three years. There is no arbitrariness or uncertainty attached to it. The guideline is also there and the process of debarment commences with the promotion and intimation to the concerned associate professors that they will not be considered for promotion for the next three years. Having decided these matters, I now proceed to take up individual cases.
6. C.W.J.C. No. 3937 of 1985:
The petitioner in this case is Dr. Ramji Pande. At the relevant time, he was posted as an Associate Professor in the Department of Ear, Nose and Throat (For short E. N. T.) in the Patna Medical College Hospital. He says that a query was made from him on 26-7-1980 if he was willing to go on promotion as a Professor to a medical college out of Patna-Vide Annexure 10. The query was answered by Annexure 11 dated 28-7-1980 stating that on account of certain personal and family reason he was not prepared for the present to leave the Patna Medical College. The grievance is that in spite of the fact that he had made it known to the authorities that he was not prepared to leave the Patna Medical College, yet he received an interview letter dated 24-6-1982 asking him to appear in the interview/ meeting on 2-7-1982 for promotion to the post of Professor in different medical colleges of the State. He say that alongwith the petitioner, respondent Nos. 6, 7 and Dr. Krishnanand Verma (Petitioner No. 1 of C.W. J. C. No. 209 of 1986) were also invited to attend the interview. It was mentioned in the interview letter that those, who do not attend the interview/sitting will not be considered for promotion for the next three years. It is said that on 2-7-1982, the date fixed for the interview, the petitioner was unwell and, as such, he could not attend the meeting. In support of the fact that the petitioner was unwell on 2-7-1982, a copy of the application for casual leave addressed to the Head of the Department and Professor of E. N. T. has been filed as Annexure 2 which shows that leave was sanctioned by the Head of the Department. The interview as scheduled was held which could not be attended by the petitioner. On the basis of that interview, some persons were promoted as Professors as will appear from Annexure 9 dated 22-10-1982, Copies of the order of promotion were also sent to the persons, who did not attend the interview and the petitioner was one of them. The last paragraph of this annexure shows that Dr. Ramji Pande, the petitioner, and Dr. S. K. Sahay will not be considered for promotion for the next three years. Although this Annexure shows that a copy of the same was sent to the petitioner but his grievance is that, in fact, he did not receive the same. The Professor and Head of the Department of E. N. T. in the Patna Medical College was promoted as Director of Health Services, Bihar and the petitioner being the senior-most Associate Professor was directed to take charge of the Department which he did on 27-6-1985. With the promotion of the head of the Department of E.N.T., a post of Professor in the Department of E.N.T. of the Patna Medical College fell vacant. The petitioner says that he came to know on 1-8-1985 that the respondent-authorities were going to hold interview for promotion to the post of Professor in the Department of E. N. T. on 13-8-1985, but the petitioner was not being called on account of debarment incurred on 22-10-1982. He, therefore, filed a representation to the Health Commissioner stating that he could not attend the interview on 2-7-1982 on account of his illness and that in any view of the matter, the period of debarment came to an end on 2-7-1985, much before 13-8-1985 when the interview was scheduled to be held. Pending consideration his representation, the interview scheduled for 13-3-1985 was postponed. Dr. Ramji Pande, the petitioner says that he came to know on 24-8-1985 that the respondent-authorities did not accept the representation made by him and that they had fixed 29-8-1985 as the next date for interview. The petitioner says that he is the senior-most Associate Professor in Bihar in the Discipline of E. N. T. and non-consideration of his case for promotion to the post of Professor is illegal. He, therefore, filed this application on 26-8-1985 for a direction that his case should be considered alongwith others for promotion to the post of Professor in the Discipline of E. N. T.
7. The application was listed on 28-8-1985, when this Court passed an interim order directing that the petitioner should be called for the test (interview or otherwise) for the future promotion in the Discipline of E.N.T. for the post of Professor but no selection could be finalised and notified so long as this writ application was not disposed of. The application after numerous adjournments was ultimately admitted on 20-12-1985 when this Court modified the earlier order of stay and allowed the State Government to make appointment on the basis of Interview already held, but the appointment was made subject to the result of this case.
8. According to the counter-affidavit filed on behalf of respondent Nos. 1 to 5, some posts of Professors in the Discipline of E. N. T. fell vacant in various medical colleges of the State In the year 1981-82. The petitioner, being the second senior-most Associate Professor was called for interview besides other eligible candidates which was held on 2nd July, 1982. It is said that the petitioner neither appeared in the interview nor sent any information regarding his absence to the Health Department although it was clearly mentioned 10 the interview letter that those who did not appear in the interview will not be considered for promotion for the next three years. Further, according to the counter-affidavit, since the petitioner did not appear Dr. M. P. Agrawal, who was junior to the petitioner was promoted to the post of Professor and a Notification to that effect was issued (Annexure 1). A copy of this Notification which clearly mentioned that the petitioner was debarred from consideration for promotion in terms of the notice dated 24-6-1982 was sent to the petitioner. According to the State, the debarment commenced with effect from the date of Notification, i.e., 22-10-1982, Stress has also been laid that although the petitioner was informed of debarment in October, 1982 itself but he did not challenge this order for nearly three years. On that account also, it is said that this application should not be entertained,
9. The petitioner, no doubt, has said in his application that the copy of the Notification dated 22-10-1982 which mentioned that the petitioner will not be considered for promotion for the next three years was not received by him and he did not know that he, in fact, has been debarred from consideration for promotion. This fact, as I have mentioned above, had been denied in the counter-affidavit and it has been specifically said that the copy of this Notification was sent to the petitioner. I could not persuade myself to accept what the petitioner says. The Notification (Annexure 9) itself shows that a copy of the same was sent to the petitioner. Under Section 114 of the Evidence Act, there is a presumption that official acts have been done in regular manner. Therefore, if the Notification (Annexure 2) says that a copy of the Notification had been sent to the petitioner then it will be presumed that the same was, in fact, posted and it was received by the petitioner. That apart, Dr. Agrawal was junior to the petitioner. He was promoted to the post of Professor after superseding the petitioner and it will be really too much to believe that the petitioner did not know of this promotion for about 2 1/2 years. In the circumstance, I am of the view that the petitioner did receive a copy of the Notification (Annexure 9) dated 22-10-1982 as said by the respondents. He should have, therefore, come to this Court in the year 1982 itself challenging his debarment But he did not do that. Now that order cannot be challenged in a collateral manner after a lapse of more than 2 1/2 years. On this ground his application should be dismissed.
10. Although I have held that the application should be dismissed on the ground of delay alone, yet I am considering his case on merit also. The first grievance of the petitioner is that when he already had informed the Health Department on 29-7-1980 by Annexure 11 that he was not interested in being promoted as Professor and posted outside the Patna Medical College, it was not proper for the Health Department to call him for interview that was to be held on 2-7-1981 He says that in that view of the matter, he should not have been called for interview and in case it is held to be so then he cannot be faced with the consequence of non-appearing in that interview. I do not think, there is any merit in this argument. Firstly I do not know as to under what circumstance the query (Annexure 10) was made. There appears to be no such provisions for such a query. Further the reply (Anuexure 11) is also significant. It says that for the present he is not in a position to go outside Patna Medical College on account of some personal and family reasons. The expression "for the present" clearly signifies that the reluctance to go outside Patna Medical College was a temporary factor. This reply was given on 29-7-1980 and the interview was held on 2-7-1982. "For the present" cannot be construed to extend for two years. Therefore, the petitioner, who was the second senior-most Associate Professor in the State was rightly called for interview.
11. The next grievance of the petitioner is that he was unwell on 2-7-1982 and, as such, he could not attend the interview on that day. In support of this plea he has filed Annexure 2, an application for casual leave on 2-7-1982 addressed to the Head of the Department on the ground of illness This shows that the Head of the Department had granted him casual leave for that day. Apart from the fact that the Head of the Department is not the competent authority to grant casual leave, I find it to be of no consequence. If the petitioner was unwell then he should have requested the Health Commissioner, who was holding the interview to fix some other date. He did not do that. He simply sent an application for casual leave to the Head of the Department, who had nothing to do with the interview. The result was that those who held interview were not informed at all about the alleged illness of the petitioner. They were, therefore, justified in coming to the conclusion that the petitioner did not attend the interview.
12. Mr. Ojha has also drawn our attention to a supplementary affidavit on behalf of the petitioner on 31-7-1986 saying that under similar circumstance one Dr. Sharda Sahay, Associate Professor in Obstetrics and Gynaecology has been promoted as a Professor in the Patna Medical College by the respondent-State Vide its Notification dated 25-6-1986. The petitioner on that account complains of hostile discrimination. Mr. Ojha argued the case of hostile discrimination with some vehemence But Mr. Basudeva Pd., who appeared at a later stage on behalf of the petitioner very fairly stated that the question of hostile discrimination does not arise. He only urged that the State has treated the period of debarment to commence from the date of interview in the case of Dr. Sharda Sahay and according to him that was the correct position in law. He, therefore, said that if the same principle is applied to the petitioner then the period of debarment came to an end on 2-7-1985 and, therefore, he should have been called for interview which was to be held in August, 1985. I find no substance in this argument. 1 have already held above that the period of debarment will commence from the date of promotion and not from the date of interview. If the State Government interpreted H differently that cannot be the basis for giving relief to the petitioner. Further the case of Dr. Sharda Sahay is also under challenge in this Court in C.W.J.C. No. 2660 of 1981. There is yet another lacuna in this argument of Mr. Prasad. Even if it be assumed that the process of debarment commenced from the date of interview, i.e., 2-74982, it will be of no avail to the petitioner because the process to fill up the post of Professor started much earlier as will appear from paragraph 10, (page 54 of the brief) of the counter-affidavit filed by the petitioner to the caveat petition of respondent No. 6, according to which the interview for the first time was scheduled to be held in the first week of June, 1985. Even on that score, the petitioner has no case.
13. I may also mention that Mr. Ojha has referred to the decisions in the case of E.P. Rayappa v. State of Tamil Nadu , and in the case of Smt. Maneka Gandhi v. Union of India , to show that the order of debarment is bad on account of want of notice. I fail to see how these cases can help the petitioner. So far the question of notice is concerned, I have already held that the debarment of the petitioner cannot be challenged for want of notice.
14. For the above reasons, t do not see any merit in the application which is dismissed ; but without costs.
15. C.W.J.C. No. 209 of 1986:
The petitioners in this application are Dr. Krishna Nand Verma and Dr. B.P. Saha, Associate Professors in the department of E, N. T. Their prayer is to issue a mandamus directing respondent Nos. 1 to 3 to proceed with the appointment of the petitioners as Professors in the department of E. N. T. of Nalanda Medical College and Patna Medical College without any delay and not to postpone and cancel the same and also to forbear them from making appointment of respondent Nos. 4 and 5, namely, Dr. L.K. Sahay and Dr. Ramji Pande, who are also Associate Professors in the same discipline and posted in the Bhagalpur Medical College and Patna Medical College respectively. Their case is that the posts of Professors fell vacant in the department of E, N. T, in the Nalanda Medical College on 9th April, 1984. They say that a memorandum was prepared for the appointment of Professors by promotion sometime in April, 1985. According to the memorandum respondent No. 5 was the senior-most associate professor whereas respondent No. 4 was the next senior-most. But these two respondents, according to the memorandum, were debarred from promotion for three years with effect from 22nd October, 1982. It was, therefore, recommended that petitioner No. 1, who was the next senior-most Associate Professor in the discipline should be appointed. Thereafter, on completion of necessary formalities petitioner No. 1 was to be called by the Health Commissioner for obtaining his consent to the appointment and consequential posting. In the meantime, a post of Professor in the department of E. N. T. fell vacant in the Patna Medical College also. Petitioner No. 2 was considered for that post and he received a letter dated 1st August, 1985 to appear before the Director of Health Services, Bihar, Patna for the purpose of taking his consent for promotion to the post of Professor in the Patna Medical College on 13th August, 1985. After this letter was issued respondent No. 5 submitted a representation to the Minister of Health, Government of Bihar, stating that his case has been illegally omitted from consideration. The Minister on receipt of this representation issued orders cancelling the interview fixed for 13th August, 1985. Thereafter, the petitioners say, respondent No. 5 approached this Court contending that his period of debarment expired in July, 1985 and, as such, he was eligible for appointment in August, 1985. This Court, on 28-8-1985 passed the following interim order :
...The petitioners should be called for the test interview or otherwise for the future promotion in the discipline of E. N. T. to the posts of Professor, but no selection shall be finalised and notified so long as this writ application was not disposed of.
The grievance is that after the interim order was passed by this Court, the State Government took steps to appoint respondent No. 5 on 29th August, 1985 and since then various steps have been taken for appointment of respondent No. 5 as Professor in the department of E. N. T. of the Patna Medical College. It is said that in fact the Minister for Health and Planning had passed orders on 2-11-1985 directing the appointment of respondent No. 5 with intimation to this Court. The petitioners contend that since respondent Nos. 4 and 5 were debarred for a period of three years with effect from 22nd October, 1982, therefore, they could not be considered for promotion prior to 21st October, 1985. In these circumstances, they pray for the reliefs as mentioned earlier.
16. A counter-affidavit has been filed on behalf of respondent No. 5. In this counter-affidavit, it has been stated that the period of debarment, if at all, expired on 1-7-1985. Therefore, he was entitled to be considered for promotion to the post of professor. This respondent was the petitioner in C.W.J.C. No. 3937 of 1985 and is paragraph 9 of the counter-affidavit filed in this case it has been said that this respondent adopts his reply filed in C.W.J.C. No. 3937 of 1985.
17. I have already held that respondent No. 5, Dr. Ramji Pande, was debarred from consideration for the purpose of promotion and the period of debarment commenced with effect from 22nd October, 1982 for three years. Respondent No. 5, therefore, continued to suffer on that account till 21st October, 1985. Undisputedly the process for promoting Associate Professor to the post of Professor in Nalanda Medical College and Patna Medical College was initiated before 21st October, 1985. Respondent No. 5 was, therefore, not eligible for consideration. Respondent Nos. 1 to 3, therefore, should now proceed to fill up the post of Professor in the department of E. N. T. in Nalanda Medical College and Patna Medical College without considering the case of Dr. Ramji Pande, respondent No. 5. This writ application is allowed with the direction mentioned above. But on the facts of this case, I would make no order as to costs.
18. C.W.J.C. No. 4538 of 1985 :
Dr. (Mrs.) Sharda Sahay was posted as an Associate Professor in the department of obstetrics and gynecology, Patna Medical College Hospital. She has come to this Court with a prayer for issuance of a writ of mandamus commanding the respondent-State not to promote anyone including respondent Nos. 6 and 7 superseding her to the post of Professor in the department of obstetrics and gynecology, Patna Medical College Hospital and also to make promotion to the post of Professor after considering the case of the petitioner. According to her Dr. (Mrs.) S. Rudra and Dr. (Mrs.) Jagdishwari Mishra were the only two persons senior to her in the cadre. It is said that in the year 1982, the petitioner along with the aforesaid two doctors were invited to attend the sitting on 17th July, 1982 for the purpose of promotion to the vacant post of professor in the department of obstetrics and gynecology. According to the notice, the petitioner says, she was required to give her choice for posting. It was also said in that notice that if there was no vacancy at the desired place or due to other administrative reason the posting could be done at a place other than that of choice. Further it was said that those who did not attend the sitting at the appointed date would be debarred from promotion for three years. The petitioner says that she attended the sitting and also gave Patna Medical College Hospital as her choice posting. On the basis of that interview/sitting, Dr. (Mrs.) S. Rudra and Dr. (Mrs.) Jagdishwari Mishra were promoted. The grievance of the petitioner is that she was arbitrarily discriminated and was denied promotion although a vacancy of professor in obstetrics and gynecology was available in the Patna Medical College Hospital. She complains that respondent Nos. 6 and 7 were invited by the respondent-State to an interview which was to be held sometime in the month of August, 1985 ignoring the petitioner. Her grievance is that her claim for consideration for promotion to the post of Professor cannot be ignored because she is the senior-most Associate Professor ; particularly when respondent Nos. 6 and 7 are not eligible for promotion. In paragraph 13 of the application, it has been specifically stated that the petitioner was never given a place of posting on promotion or otherwise and as such there was no question of refusal to join any place of posting neither she declined to go to any other place. In the circumstance, it is said that she cannot be kept under debarment for promotion. In paragraph 15 at the petition it has been stated that if at all the penalty of debarment was to apply to the petitioner then the same was for a period of three years from the date of sitting, namely, 17th July. 1982 and that period expired on 17th July, 1985. On that basis it was said that the petitioner could not be treated to be disqualified for promotion in August, 1985 when the promotion was to be made.
19. Counter-affidavits have been filed on behalf of respondent No. 6 and also on behalf of respondent-State. A supplementary counter-affidavit filed on behalf of respondent No. 6 is also on the record. Replies thereto have also been filed but very few facts mentioned in them have been referred to by learned Counsel for the parties and I think rightly because the other facts have absolutely no relevance to the facts in issue,
20. It appears that the petitioner, along with two other doctors was asked to give consent for posting after promotion in the chambers of the Health Commissioner on 17-7-1982--Vide Annexure 1. Annexure 'B' of the counter-affidavit filed on behalf of the State shows that the petitioner gave her consent only for P. M. C. H. on 17-7-1982. Annexure 'B/1' to the counter-affidavit filed on behalf of the State is dated 3-12-1982 This shows that no post of Professor was available in the Patna Medical College Hospital. She was, therefore, asked to give her consent for Nalanda Medical College Hospital. The petitioner refused to go to Nalanda Medical College Hospital on promotion, thereafter, Notification dated 17-12-1982 (Annexure 'A' to the counter-affidavit filed on behalf of the State) was issued promoting four persons to the post of Professors and debarring the petitioner for three years from the date of issuance of the Notification. Annexure 'A' to the supplementary counter-affidavit filed on behalf of respondent No. 6 shows that Dr. (Mrs.) Jagdishwari Mishra was relieved by the Principle of the Patna Medical College Hospital on 18-1-1983 to join Nalanda Medical College Hospital as Professor.
21. A reply to the counter-affidavit filed by the respondent-State and respondent No. 6 has also been filed on behalf of the petitioner. The only worth mentioning statement is stated in paragraph 5 of the reply. This paragraph, inter alia, states that the Notification No. 1504 (1) dated 17-12-1982 was never served on the petitioner and that in terms of the resolution dated 3-3-1975 the period of debarment came to an end at 10.30 a.m. on 16-7-1982. On that basis it was said that since the appointment was to be made subsequent to 16-7-1985, therefore, she was being illegally ignored.
22. I may mention here that it is difficult to accept the case of the petitioner that she was not aware of Annexure 'A', the order dated 17-12-1982, by which four persons were promoted to the post of Professor and the petitioner was debarred for three years from that date. Annexure 'A', the Notification, was sent to the petitioner by post as appears from the Notification itself and it will be presumed that in normal circumstance it reached the petitioner. Further the fact that four persons junior to the petitioner were promoted in the year 1982 will not be known to the petitioner is somewhat difficult to digest. I am of the view that Annexure 'A', the Notification regarding promotion of four Associate Professors and debarment of the petitioner for three years was served on her in the year 1982 itself. But the petitioner did not challenge it at that time. She cannot after expiry of about three years attack it on account of acquiescence. That apart, on merit also J do not find anything in favour of the petitioner. From what I have stated earlier, it will be apparent that the petitioner was asked to give her consent for promotion indicating her choice for posting. She very clearly on 17-7-1982 stated that she was not prepared to go to any hospital outside Patna Medical College (Vide Annexure 'B' to the counter-affidavit filed on behalf of the State). The petitioner naturally, therefore, was not promoted and on 17-12-1982 four persons were promoted and the petitioner was debarred for three years. The period of three years will thus be considered from 17-12-1982 since admittedly the consideration for filling up the post of Professor started before expiry of three years from 17-12-1982. Therefore, her case was rightly not taken into consideration. I, therefore, see no merit in this application which is dismissed, but without costs.
23. C.W.J.C. No. 2660 of 1986 :
Dr (Mrs.) Shanti Ray is the petitioner in this case. At present she is posted as an Associate Professor in the department of obstetrics and gynecology in the Patna Medical College Hospital. Her prayer is to direct respondent Nos. 1 and 2 to consider her case for promotion to the post of Professor in the department of obstetrics and gynecology in the Patna Medical College on the basis of the order of the State Government dated 24-5-1985. The alternative prayer made in the application is to direct the State Government not to fill up the post of Professor till the decision of C.W.J.C. No. 4538 of 1985. On 25th November, 1986, an application for amendment was filed. In this application, it was, inter alia, stated that during the pendency of this writ application, the State Government issued a Notification dated 25-6-1986 by which Dr (Mrs.) ShardaSahay was promoted illegally to the post of Professor. A photostat copy of the Notification has been marked as Annexure '6' and a prayer has been made to quash the same. According to the petitioner, the post of Professor in the department of obstetrics and gynecology fell vacant in the Patna Medical College Hospital. The State Government accordingly invited the petitioner and others by letter No. 342 (17) dated 24th May, 1985. The petitioner appeared in the interview and gave her choice for posting at the Patna Medical College Hospital. It is said that on the basis of the interview a memorandum was prepared by the Health Department on 2-9-1985 for promoting the petitioner to the post of Professor in the Patna Medical College Hospital. A photostat copy of the memorandum has been filled as Annexure 2 to the writ application. But before a decision could be taken by the State Government, C.W.J.C. No. 4358 of 1985 was filed in this Court and this Court by its order dated 28.9-1985 passed an interim order as a result of that the post of Professor in the department could not be filled up. Thereafter, another post of Professor in the department fell vacant in the Patna Medical College Hospital and a writ application which was registered as C.W.J.C. No. 5704 of 1984 was filed by Dr. (Mrs.) Jagdishwari Mishra. In that case on the direction of this Court, it is said, the file of the State Government relating to the promotion of Associate Professor to the post of Professor was called for and then it transpired that an order was passed by the Health Minister on 28-1-1986 that the case of Dr. (Mrs.) Sharda Sahay be placed before the Establishment Committee and the post of Associate Professor which the petitioner was holding be up-graded to the post of Professor with the concurrence of the Finance Department. This order of the Health Department admittedly has not been acted upon so far. The grievance of the petitioner, however, is that steps are being taken in the Health Department to fill up the post of Professor of obstetrics and gynecology in the Patna Medical College Hospital by promoting Dr. (Mrs.) Sharda Sahay, respondent No. 3, on the plea that the period of debarment is now over and her case can be considered for promotion. According to the petitioner, the period of debarment of respondent No. 3 continued till 16-12-1985 and, as such, she could not be considered for promotion.
24. A counter-affidavit has been filed on behalf of respondent No. 3. This counter-affidavit substantially states that the petitioner was also not eligible for promotion as she also suffered from debarment and that the case of this respondent was being illegally ignored. It has also been stated that after the retirement of Dr. (Mrs.) Malti Rohtagi in May, 1985, the post of Professor was filled up by transfer of Dr. (Mrs.) Jagdishwari Mishra. It has also been stated that this respondent was appointed to the second post of Professor in July, 1986 and as such, there was no post of Professor available in the department. According to this counter-affidavit, respondent No. 3, who is the senior-most Associate Professor was entitled to promotion.
25. I have already held in C.W.J.C. No. 4538 of 1985 filed by respondent No. 3 that she was not qualified for consideration for promotion to the post of Professor before 16-12-1985 and since the process of promotion started prior to this, therefore, she could not be considered for the same. The State Government will now have to proceed to fill up the post of Professor by considering the case of the petitioner and other eligible candidates.
26. It will be relevant to mention here that respondent No. 3 has said that she has already been appointed as Professor to the second post. Perhaps, this statement is based on Annexure 6 which is sought to be quashed by the petitioner. According to this Annexure, which is dated 25-6-1986, respondent No. 3 and the petitioner were promoted on ad hoc basis to the post of Professor for a period of six months. With the expiry of six months, Annexure 6 has outlined its life. Therefore, there is no question of now quashing it. Further in my view that cannot be said to be illegal because the promotions were made purely on ad hoc basis and that too for a period of six months only. This had to be done because the department could not run without Professors and some interim arrangement had to be made. Respondent No. 3 and the petitioner, perhaps, being senior-most in the department were, therefore, given ad hoc charge of Professors. But it is well settled that ad hoc promotions or appointments do not create any right. For these reasons, I do not feel inclined to quash Annexure 6.
27. In the result, the writ application is allowed in the manner indicated above ; but on the facts of this case, I would make no order as to costs.
B.N. Agrawal, J.
28. I agree.