DR. KHATIBUR RAHMAN Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) In this application under Art. 226 of the Constitution of India is involved the inter se seniority of the petitioner vis-a-vis respondent No. 3 The petitioner has prayed for an appropriate writ quashing the order of the Government through the Health Commissioner-cum-Secretary to the Government in the Department of Health, Bihar, Patna, respondent No. 1, contained in memo portion of the notification dated the 10th July, 1974 as incorporated in Annexure 1 to the application. By that order respondent No. 1 has directed that their seniority in the grade of Lecturers in the Department of Anaesthesiology in the Patna Medical College Hospital would be their cadre seniority, the effect of which has been, for all practical purposes, to declare respondent No. 3 as senior to the petitioner, in the post of Lecturers in the aforesaid College. The petitioner had earlier filed a writ application being CWJC 1531 of 1974 in this Court challenging the aforesaid direction. That application was placed for preliminary hearing before a Bench of this Court. On the 9th of Oct., 1974 the earlier writ application was disposed of in terms of observations made in the order passed by that Bench, a copy of which has been annexed to this petition as Annexure 2 In that order it was observed that the appointment had been made on temporary basis for a period of six months only. If the appointment would have been made on a permanent basis, the matter would-have been different and this Court may have examined the legal position whether respondent No. 3 had been rightly or wrongly given seniority over the petitioner. As it appeared that the petitioner had filed a representation on the 21st of Aug., 1974, i.e., after the notification was issued by the Government and that representation had not yet been disposed of, the petitioner may file another representation in this respect if so advised. It was further observed that it was desirable that the representation of the petitioner should be disposed of as soon as possible and the Court was sure that the Government would give due consideration to it and decide the question after taking into consideration all the facts and circumstances and in accordance with the established practice and rules, if any. With the aforesaid observations, that writ application was permitted to be withdrawan. A further representation was submitted by the petitioner in pursuance of the aforesaid order on the 14th of Oct., 1974 and respondent No. 1 failed to decide the issue on the representation filed by the petitioner both prior to the filing of the earlier writ application and the subsequent representation filed in the light of the observations made by this Court despite reminders to the authority concerned.

(2.) The facts are not in controversy and the point that arises for consideration is plain and simple. On the 10th of Sept., 1955 the petitioner was appointed temporarily as a Civil Assistant Surgeon. On the 5th of Sept., 1957 he was appointed as a Resident Anaesthetist in the Department of Anaesthesiology, which is borne out by Annexure 6 to the application. On the 10th of Dec., 1958 the petitioner was confirmed as Civil Assistant Surgeon by a notification dated the 7th of Feb., 1959. Respondent No. 3, on the other hand, was appointed on probation on the 16th of June, 1958, as per Annexure E to the counter-affidavit, by a notification dated the 9th of July, 1958. On the 16th of June, 1959 respondent No. 3 was confirmed on that post by a notification dated the 30th of Sept., 1959 as is borne out by Annexure 16 to the previous writ petition. On the 15th Sept., 1971 both of them were conferred upon the designation of lecturers along with others, as is evident from Annexure 8 to this petition. In the seniority list of the cadre of Civil Assistant Surgeons, the petitioner was put on serial No. 415 whereas respondent No. 3 was put on serial No. 364. By the impugned memo, on account of respondent No. 3 having been placed as senior in the cadre seniority the petitioner was declared as junior to respondent No. 3. Initially, the stand of the respondents was that the cadre seniority should govern the seniority amongst the lecturers. This stand was, however, given up and it was urged that only the length of teaching experience should be the governing factor in order to decide the inter se seniority amongst the lecturers. The only point that, therefore, crops up is as to whether the petitioner or respondent No. 3 has a longer teaching experience. As the seniority on the post of a lecturer would ultimately have a bearing on the promotion to the next higher grade on the teaching side, the matter involves vitally the career of the two contestants, namely, the petitioner and respondent No. 3.

(3.) The facts standing as they are, the stand taken by the respondents was that the petitioner was appointed as Civil Assistant Surgeon in the cadre of the State Medical Service which was not the regular cadre of permanent Civil Assistant Surgeon. Respondent No. 3 was so appointed as a direct recruit on permanent basis with effect from the 16th of June, 1958 and was thus on probation for a period of one year, after satisfactory completion of which he was confirmed on the 16th of June, 1959. Since respondent No. 3 was appointed directly on permanent basis on the recommendation of the Bihar Public Service Commission in Aug., 1957 and the petitioner's initial appointment being on a temporary basis, although earlier, respondent No. 3 should be field to be senior. Apart from that, it has been stated in paragraph 8 of the counter-affidavit filed on behalf of respondents 1 and 2 that there are three different grades of teaching posts in the State Medical Colleges, namely, those of (i) Professors, (ii) Lecturers and (iii) Junior teachers having various designations. Appointments to posts on teaching side are made directly according to the criteria laid down by the Medical Council of India which is mandatory under the Indian Medical Council Act, 1956. According to the prescribed guidelines at least three years of teaching experience on a junior teaching post are essential for appointment to the post of Lecturer and at least five years' experience as a Lecturer for the post of a Professor. The writ application has been sought to be contested on the ground that, although the petitioner was appointed as a Residence Anaesthetist in the Department of Anaesthesiology in the Patna Medical College Hospital on 5-9-1957, as already stated above, that post was not at that time recognised as a teaching post ; the post of a Resident Anaesthetist was recognised as a teaching post on the 9th of Jan., 1968. Therefore, the petitioner's appointment as a Resident Anaesthetist on 5-9-1957 could not be taken into account for the purpose of teaching experience. On the contrary, the petitioner's stand is that on the 9th of Jan., 1968 as per Annexure 6 the Residents in the Department, who were all along on teaching post, were merely asked to be recognised as such by the Medical Council of India. The moot question, therefore, is as to whether the petitioner, by virtue of his appointment as a Resident before any teaching post was held by respondent No. 3, can ask us to reckon his length of teaching experience by reason of his appointment to the post of Resident on that date. For the reasons to be given hereinafter, I would answer the question posed in the affirmative.