Indian Kanoon - Search engine for Indian Law

8. The brief nature of the above affidavit drew an energy counter-affidavit for Dr. Saran who charged the State Government that it had not disclosed the principles upon which the impugned appointments had been made and that it had withheld from the court all information regarding the principles adopted in regulating the appointment of lecturers in Bihar Health Services. Thereafter the State Government filed a more detailed affidavit on 29-9-1966 in which it stated as follows as para 5 :

In the matter of appointment to superior teaching post, although there are no statutory rules in taking its decisions, the State Government has undoubtedly always kept in mind the appropriate factors namely merit and experience. As evidence of merit, the State Government has always kept in mind the academic qualifications of a candidate under consideration in accordance with the recommendation of the Indian Medical Council, namely, whether the candidate possessed a post graduate degree of M.S., whether he possessed F.R.C.S. or equivalent qualification in Surgery. With reference to the question of experience likewise the State Government has always taken into consideration whether the candidate has worked as Registrar or any equivalent post of Surgery or in allied Clinical Department, for at least a period of 3 years in a teaching institution. It is only after a full consideration of these factors that decision is taken in the matter of appointment as Lecturer in Surgery. With reference to the particular facts of the cases under consideration, all the appointed persons did possess the necessary academic qualification and in addition to those qualifications had a long experience either in the post of a Registrar or some other equivalent post better than the petitioner Dr. Uma Kant Saran. Indeed, so far as the petitioner Dr. Uma Kant Saran is concerned, the position is that he was appointed as tutor in Surgery on 17-7-1962 and consequently on the 31st March, 1965 when the panel of eligible candidates were drawn up for consideration, he had a teaching experience of only two years 8 months and 15 days, which is even less than the very minimum length of experience to qualify, for consideration in accordance with the recommendation of the Indian Medical Council.

11. The lowest grade amongst the teachers is that of Junior teachers. They are generally designated as Demonstrators or Tutor or Residents or Registrars or Junior Surgeons or Junior physicians or Junior Venereologist or Junior Anaesthetist. All these persons get teaching experience when they are appointed to these posts. Respondents 5 and 6 had not been initially appointed specifically to these posts. Respondent No. 5 though attached to the Medical College Hospital was described as a Casualty Officer and respondent No. 6 was described as a Supernumerary Assistant Surgeon. Their case is that they were required to do teaching work and, in fact, on representations made by them and others they were specifically designated as holding the posts with leaching experience with the concurrence of the Indian Medical Council. A lot of correspondence had been produced it this case. We have been taken through the same and we are satisfied that the State Government finally accepted the posts held by respondents 5 and 6 teaching posts. The trouble started with the letter written by she Secretary of the Indian Medical Council to the Government on December 3rd, 1959. In this letter the Secretary informed the Government that the Executive Committee of the Medical Council Officers (OPD) Resident Officers etc., in the subjects such as Medicine, Surgery etc. be accepted as equivalent to the teaching done by Registrars for the purpose of appointment to the posts of Lecturers. Respondent No. 5 was a Casualty Officer at the time and felt that he was left out. So in December 1960 he wrote to the Government that though he was doing teaching post. His case was taken up by the Professor of Surgery and the Principal of the College, and in due course the Vice Chancellor accepted the proposal that the post of Casualty Officer should be recognised as a teaching post. On 12 6-1963 the State Government wrote to the Secretary, Indian Medical Council that the post of Casualty Officer must also be recognised as a teaching post. In its letter dated 4-11-1993 the State Government informed the Secretary, Medical Council that Dr. Mahendra Pratap Sinha, M.S. (That is respondent No. 5) was one of the 8 Casualty Officers and had teaching experience from 23-9 1959 to 5-8-1963. In reply to that letter the Secretary on 6-2 1964 informed the Government that though they were not very much in favour of Casualty Officers being recognized as holding teaching posts the Executive Committee had decided that the teaching done by the 8 Doctors as Casualty Officers shall be counted, as a special case, as teaching done by the Registrar for the purposes of appointment to the higher posts. It will be seen that this decision had been taken quite a long time before the Writ Petition had been filed. Respondent No. 5, therefore, found a place in the same class as Registrars, Tutors etc.

12. Similar is the case of respondent No. 6. He held a supernumerary post of a Civil Assistant Surgeon attached to the Patna Medical College Hospital from 30-12-1959 and while in that post had to teach under-graduate and post-graduate students. On 22-10-1962 Govt. issued a notification that 8 Doctors including respondent No. 6 were permitted to count certain periods of their service towards teaching experience. Respondent No. 6 was permitted to count his service from 30-12-1959 towards teaching experience. Later, on 20-4-1963 Government seems to have gone back on this decision. But on representations being made, Government on 21-9-1964 directed that these Medical Officers may be permitted to count certain be permitted to court certain periods when they were on supernumerary duty towards teaching experience. One of the Medical Officers was respondent No. 6 and the period which was allowed to be counted was from 30-12-1959 to 2-7-1963 and again from 4-11-1963 to 9-1-1964. On the latter date respondent No. 6 was appointed Registrar, Department of Surgery, Patna Medical College Hospital on a temporary basis. He held that position till he was appointed a lecturer on 19-8-1965.

15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturer's posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellant's contention is correct that the lecturer's posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other word the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on 19-8-1965 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Govt. that the decision had been taken to make the appointment on March 31, 1965. But we do not think there is any substance in that contention. It would, thus, follow that while respondents 5 and 6 were eligible for appointment as lecturers on 31-3-1965 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him.