- (1.) A controversy which was presumed to have been resolved by an order of this Court passed on 16.04.2004 in an earlier writ application vide C.W.J.C. No. 2014 of 1997 (R) has resurfaced once again in the instant writ application filed by the petitioner. The controversy is on the petitioners claim for his promotion to the post of Associate Professor on the ground that he does possess the requisite qualification for such promotion and his claim which he has been making ever since 1983, has been wrongly denied to him.
(2.) FACTS of the petitioners case in brief is that he was initially appointed as a tutor in the department of Biochemistry on 03.09.1977 in the Mahatma Gandhi Memorial Medical College, Jamshedpur. Such appointment was given to him on the ground that he has possessed the requisite qualification i.e. a Post Graduate Degree in Biochemistry. By a notification dated 23.01.1979 issued by the Department of Health, Government of Bihar, the post of lecturer was divided into two grades. The first grade known as Assistant Professor (Senior Grade) and the second known as Associate Professor (Senior Grade). As per the petitioners contention, at the relevant time, the requisite criteria for promotion to the grade of Assistant Professor was that the candidate should have at least six points i.e. three points for post graduate degree and three points for three years teaching experience as tutor (one point for each year). For promotion to the grade of Associate Professor, the requisite criteria was that the candidate should have acquired nine points i.e. three points for the post graduate degree and six points for teaching experience as teacher. The petitioner having acquired eight points, he was interviewed on 18.01.1983. The petitioner was granted promotion to the post of Assistant Professor on 05.07.1983. Though by 04.09.1983 he had acquired nine points but his case for promotion to the post of Associate Professor was not promptly considered. However, after over seven years i.e. 22.06.1990, by which time the petitioner had acquired about 15 points, he was called to face an interview for selection by way of promotion to the post of Associate Professor. Though he had faced the interview on 06.09.1990 but he was not granted promotion. On the contrary, he was called upon to produce documents to show that the he possessed a Ph.D degree in Biochemistry on the ground that such degree was necessary for the promotion to the post of Associate Professor. Claiming that the insistence of the respondents that the petitioner should possess a Ph.D. degree in Biochemistry was baseless, arbitrary and against the eligibility criteria under the then existing rules, the petitioner had challenged the stand taken by the respondent by filing a writ petition before this Court vide C.W.J.C. No. 2014 of 1997 (R). The respondents contested the petitioners claim by taking a stand that according to the "Teachers Eligibility Qualifications, 1998  a mandatory Rule was made that in the departments including the department of Biochemistry, a nonmedical candidate may be promoted subject to the condition that he had a Ph.D. degree in the subject concerned and any appointment could be made only with a prior approval of the Medical Council of India. Since the petitioner did not possess the Ph.D. degree as per the requisite criteria, his claim for his promotion to the post of Associate Professor could not be accepted. After hearing the parties, this Court while disposing of the writ application, had observed as follows: Upon perusal of the aforementioned Eligibility Qualification, 1998, which has been brought on record by Annexure 'A, it is evident that it is prospective and not retrospective, inasmuch as Regulation 1 (2) reads as follows: "They shall come into force on the date of their publication in the official gazette.  The date of publication in the official gazette as disclosed at the top is "5th December, 1988 . In other words, this became effective and functional with effect from 05.12.1998, but in the year 1983, when the Petitioner became eligible, these regulations were not even in existence and the criteria which governed at that time were the 6 (six) points and 9 (nine) points referred to specifically at paragraphs 6 and 7 respectively of the Writ Petition and which have been noted above. It is now well settled that a Regulation or a Statute coming later in the day cannot take away accrued/vested rights. The qualification of 1998 being specific to the effect that it will come into force on and from 1998 cannot be allowed to be given retrospective operation and to that extent now in the year 2004 or any day after 1983, the Respondents cannot be allowed to say that the Petitioner is not eligible because he does not have Ph.D. qualification. This Ph.D. qualification was not the criteria at the time when the Petitioner became eligible. For the foregoing reasons, this Court is satisfied that a prima facie case for promotion of the Petitioner to the post of Associate Professor (Senior Grade) with effect from 04.09.1983 has been made out. While allowing the writ application, this Court had directed the petitioner to file a short representation before the concerned respondents bringing on record all the documents which have been appended to the writ application, together with a copy of the order and a corresponding direction was given to the Committee to take an appropriate decision on the petitioners representation within four months from the date of receipt of the representation. This Court had observed that if, however, the Committee is of the opinion that for one reason or the other, the petitioner is not entitled then in that event they will be required to pass a reasoned order in accordance with law within the same period. Pursuant to the above order, the petitioner filed his representation before the concerned authorities of the respondents. The respondents thereafter condescended to grant promotion to the petitioner to the post of Associate Professor with effect from 05.07.1988 though declaring that such promotion was conditional subject to the approval of the Medical Council of India. Being dissatisfied and aggrieved with the order of conditional promotion, the petitioner has filed the present writ application for quashing the notification dated 16.06.2004 (Annexure -3) under which the conditional promotion was given to him and with a further prayer for commanding upon the respondents to grant him promotion to the post of Assistant Professor with effect from 04.09.1983 and consequent upon such promotion to the post of Assistant Professor, to grant him further promotion to the post of Associate Professor with effect from 04.09.1987 the date on which he purportedly became eligible and entitled for such promotion. During the pendency of this writ application, the respondents issued a further notification (Annexure -15) whereby the conditional promotion granted to the petitioner to the post of Associate Professor was cancelled and the petitioner was reverted to the post of Assistant Professor. The petitioner filed an interlocutory application bringing the aforesaid facts regarding the subsequent developments. His prayer for amending his original writ application to incorporate the facts relating to the subsequent developments and also to include a further prayer for quashing the Annexures 9 and 15 was allowed by the order of this Court. While allowing the prayer of the petitioner, this Court had directed that status quo as on the date of order i.e. 20.11.2006 should be maintained till the disposal of the writ application.
(3.) ON the ground that despite the knowledge of the aforesaid order of status quo, the respondents transferred and posted Opposite Party No. 5 as Associate Professor in the Department of Biochemistry who joined the said post on 06.07.2007 and assumed the charge of H.O.D. even without the charge being handed over to him, the petitioner filed a Contempt Petition before this Court vide Contempt Case (Civil) No. 655 of 2007. The respondents had filed their show cause replies in the contempt petition by reiterating their earlier stand as taken in the counter affidavit filed in the writ application and stating that the petitioner is a non medical (Non M.B.B.S.) in the department of Biochemistry posted in the M.G.M. Medical College, Jamshedpur and possesses a post graduate degree only in Biochemistry. Promotion to the post of Associate Professor was granted to him vide Notification dated 16.06.2004 conditionally in anticipation of the approval of the Medical Council of India. Subsequently on receipt of non -approval of the M.C.I., the promotion was withdrawn vide the impugned Notification dated 26.09.2006 and accordingly the petitioner was reverted to the post of Assistant Professor as per Annexure -15 (impugned). The respondents have further sought to explain that the substantive post of the petitioner was that of Assistant Professor and by virtue of his being senior most teacher, he was discharging the work of Head of the Department though the said post is not a substantive post. Subsequently one Dr. Laxman Lal was transferred from the P.M.C., Dhanbad to M.G.M. Medical College, Jamshedpur vide Notification dated 10.04.2007 (Annexure -2 to the contempt application). Dr. Laxman Lal joined his post of Associate Professor in the M.G.M. Medical College and he being senior to the Assistant Professor, he was made H.O.D. by the orders of the Principal, M.G.M. Medical College, Jamshedpur. It is further sought to be explained that position of the petitioner as Assistant Professor was maintained as status quo and the same was not disturbed by the respondents and in view of the aforesaid facts and circumstances, the petitioner cannot claim that the respondents have committed any act of contempt of the lawful order passed by this Court. ;