- (1.) HEARD the parties.
(2.) PETITIONER has prayed for quashing that part of Notification No. 101 (4) dated 26.2.2004 (Annexure -6), whereby respondent no. 5 has been posted as District Tuberculosis Officer, (DTO for short), Lohardaga and petitioner has been ordered to work as Medical Officer in the centre. The main grounds of challenge are that petitioner was transferred on the said post of DTO, Lohardaga only four months ago i.e. on 11.10.2003 (Annexure -2) and secondly he has been made to work as Medical Officer, District Tuberculosis Centre, Lohardaga under respondent no. 5, who is junior to the petitioner. Learned counsel for the petitioner submitted that on 8.4.2002, respondent no.5, who was Medical Officer cum Civil Surgeon, Lohardaga was given additional charge of the District Tuberculosis Centre, Lohardaga. On 11.10.2003, petitioner was posted as D.T.O., Lohardaga but just after four months petitioner was again made Medical Officer, District Tuberculosis Centre, Lohardaga by impugned order dated 26.2.2004. Petitioner represented to respondent no. 2 in this regard by letter dated 1.3.2004. Petitioner 'sfurther case is that in the provisional seniority lists of the Government of Bihar as well as Government of Jharkhand, petitioner is much senior to respondent no. 5. Learned counsel for the petitioner relied on unreported order of this Court in the case of Dr. Akhilesh Pratap Singh V/s. State of Jharkhand and Ors. rendered on 16.7.2003 in W. P. (S) No. 1013 of 2003 (Annexure -10). It was submitted that in the said case irrespective of grant of Senior Selection Grade this Court declined to determine the seniority and on the basis of the provisional seniority list, this Court held that it was desirable that the senior person should be allowed to hold charge of higher post. Learned counsel for the petitioner further relied on a judgment reported in Jaibir Mishra V/s. L.N. Mithla University and Ors., 1987 0 PLJR 838 in support of his contention that senior person should be given charge of the higher post. Learned counsel for the petitioner further submitted that petitioner 'ssubstantive pay is higher than respondent no. 5. He further submitted that respondent no. 5 cannot rely on the alleged Senior Selection Grade in view of the Resolution of the Finance Department of the Government of Bihar dated 8.2.1999 whereby the State Government decided to abolish the existing facilities of time bound promotions and Selection Grade with effect from 1.1.1996. It is lastly submitted that petitioner also completed training on 31.2.2004 i.e. before the impugned order dated 26.2.2004 was issued.
(3.) THE stand of the respondent -State is that a training was required to be completed in view of the guidelines of the Revised National Tuberculosis Control Programme (RNTCP). Respondent no.5 completed the training on 13.10.2002, whereas petitioner completed the same on 31.1.2004 and therefore respondent no. 5 was given additional charge of the District Tuberculosis Officer on 8.4.2002, though petitioner is senior to respondent no.5 in appointment. State has also said in its counter affidavit that if this Court directs, the respondents are ready to take decision on the petitioner 'srepresentation within time fixed by the Court.;