NANAVATI - (1.) THE Judgment of the court was delivered by -
(2.) THESE two appeals arise out of the judgment and order passed by the High court of Patna, in Civil Writ Jurisdiction Case No. 12274 of 1992. Civil No. 11240 of 1995 is filed by the State of Bihar and Civil No. 11241 of 1995 is filed by Dr Choudhary, who was Respondent 3 in the writ petition. The writ petition was filed by Dr Ramesh Chandra, respondent 1 in these appeals and hereafter referred to as "the respondent". The respondent after obtaining MBBS degree joined the Prince of Wales Medical College, Patna as a demonstrator in the Department of Anatomy. He did MS in General Surgery and thereafter MCh in Neurosurgery in 1967. He then joined the Christian Medical College, Vellore for some time and then went to a foreign country for further studies. He returned to India in 1973. By that time the Prince of Wales Medical College, Patna, was taken over by the State government. As leave for two years which he had obtained while working as a demonstrator in the Prince of Wales Medical College had expired and he had not reported for duty his name was not included in the list of employees submitted to the government when the said Medical College was taken over by it. Finding that his name was not included in the list, he joined Kurji Holy Family Hospital in March 1973. His services were terminated by that hospital in December 1978. Earlier, on 18/1/1974, he had submitted a joining report to the officer in charge of the Patna Medical College who had forwarded it to the government. On 29/6/1981, he was permitted to join and was absorbed in the Bihar Health Services as a tutor in the Department of Anatomy with effect from 29/5/1971 i.e. from the date the college was taken over by the government. The government then sought an opinion of the Medical council of India as regards his eligibility for appointment on a teaching post in Neurosurgery. After receiving the concurrence of the Medical council the government created a post of Associate Professor in the Department of Neurosurgery and on 27/4/1983 appointed him on that post on ad hoc basis in anticipation of the concurrence of the Bihar public service commission. 47 The appointment of the respondent as a tutor with retrospective effect and his further appointment as an Associate Professor was challenged by one Dr Sinha and by Dr Choudhary who were then working as Assistant Professors, by filing a petition (CWJC No. 1815 of 1983 in the Patna High court. It was disposed of on 31/5/1983 as infructuous, as the State government made a statement before the court that promotion of both the writ petitioners as Associate Professors on ad hoc basis was approved by it but a notification to that effect could not be issued because of the stay order. The High court, while dismissing the writ petition had observed that it would be open to the government to issue the notification. Accordingly, on 3/6/1983, the government issued a notification cancelling its earlier Notification dated 27/4/1983 (whereby the respondent was appointed as an Associate Professor) and appointing all the three doctors as Associate Professors on ad hoc basis. The order passed by the High court was challenged by the respondent by filing an appeal in this court. During the pendency of that appeal (Civil No. 4023 of 1991 the State government, on 24/1/1991, issued a notification regularising the ad hoc appointments of all the three doctors. Dr Sinha's name was mentioned at Serial No. 1 followed by the name of Dr Choudhary at Serial No. 2 and the respondent's name appeared at Serial No. 3. On 22/9/1991, this court disposed of the appeal by passing the following order: "After hearing the learned counsel for the parties and having regard to the subsequent events resulting into the appointment of the appellant and Respondents 4 and 5, we find that the dispute which requires determination relates to seniority only. It appears that the State government had by its notification dated 24/1/1991 determined the inter se seniority of the appellant and Respondents 4 and 5. We are of the opinion that the question relating to seniority should be decided by the High court. We, accordingly, allow the appeal, set aside the order of the High court and remand the matter to the High court for determining the question of seniority of the appellant and Respondents 4 and 5...."
(3.) MEANWHILE, the post of Professor of Neurosurgery had fallen vacant on 1/5/1990. Dr Sinha had also retired by that time. At that stage, the respondent again filed a petition in the Patna High court for a writ of mandamus directing the State of Bihar not to appoint Dr Choudhary as Professor or allow him to assume the office of the Head of Neurosurgery Department. The respondent also filed one more petition (CWJC No. 5965 of 1991 for getting quashed the recommendation of the Departmental Promotion Committee to appoint Dr Choudhary as Professor and Head of the Department and also for a writ of mandamus directing the government to appoint him as Professor and Head of the Neurosurgery Department in the Patna Medical College. The latter writ petition was disposed of on 6/12/19911 as premature. On 22/4/1992, a writ petition was filed by Dr Sinha and Dr Choudhary in 1983 and the decision which was challenged before this court by the respondent and which was remanded to the High court for 48 determining the question of seniority was withdrawn at the instance of the writ petitioners. On 1/8/1992, the government promoted Dr Choudhary to the post of Professor with effect from 1/5/1990, the date on which the post had fallen vacant. The respondent challenged that appointment by amending his earlier writ petition viz. CWJC No. 3596 of 1990 which was still pending. It was allowed by the High court on 19-8-1992 as the impugned Notification dated 1/8/1992 was issued upon an erroneous assumption that CWJC No. 5965 of 1991 was still pending. The High court remanded the matter to the State government and directed it to take a fresh decision. Accordingly the government, on 18/11/1992, decided that all the three doctors were eligible for appointment/promotion as Associate Professors; Dr Sinha acquired eligibility on 29/9/1981 and became entitled to the said post on 8/1/1983; Dr Choudhary acquired eligibility on 5/2/1983 and became eligible for promotion from 8/1/1983 as the vacancy was already existing on that date; and, Dr Ramesh Chandra, the respondent, who was appointed on the post created on 10/3/1983, was not entitled to get it with retrospective effect as prior to 27/4/1983, he was working as a tutor in another department, namely. Anatomy and was, therefore, not having any teaching experience during 10/3/1983 to 26/4/1983. In view of this decision Dr Sinha and Dr Choudhary were given promotion to the post of Associate Professor and their teaching experience was treated as having started from 3/6/1983. The respondent was treated as appointed on 27/4/1983 and his teaching experience was to count from that date. The appointments of the three doctors were, however, termed as ad hoc.;