Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17683 of 2011 ====================================================== Nityanand Kishore, Son of Sri Ram Chandra Prasad, Resident of Village- Nehalpur, P.S.-Parasbigha, District-Jehanabad At Present Working As Pharmacist,Patna Medical College Hospital,Patna. .... .... Petitioner. Versus 1. The State of Bihar through the Commissioner Cum-Chief Secretary, Health Service, Patna. 2. Director In Chief, Health Services, Bihar,Patna. 3. The Civil Surgeon-Cum-Chief Medical Officer, Darbhanga. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Siddhartha Prasad, Adv. : Mr. Shyameshwar Kumar Singh, Adv. For the Respondent/s : Mr. S.D. Sanjay, AAG-12 : Ms. Priya Gupta, AC to AAG-12. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 3 20-06-2013 Heard learned counsel for the petitioner and the State. 2. The petitioner prays for following reliefs: (i) Treating his joining w.e.f. 01.11.1991, the date on which persons securing lesser marks than him were appointed to the post of ‘Pharmacists’ instead of 19.03.2005, the date of issuance of appointment with all consequential benefits including payment of salary, seniority (ii) For payment of salary due from 19.03.2005 which has been stopped from time to time. (iii) For release of the original certificates deposited at the time of joining in 2005 with the office / department. 2
Legal Reasoning
Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 2 / 8 3. However, in course of hearing, the petitioner has limited his prayer in respect of relief no.(i) for shifting his date of appointment to 01.11.1991 only for the purposes of seniority and other notional benefits and not for back wages from 01.11.1991. 4. The petitioner did not persist with his claim for back wages w.e.f. 01.11.1991. 5. Before I consider the merit of the matter, it is necessary to indicate the facts of the case in brief: 6. In the year 1991, an advertisement was published in daily Newspaper namely Times of India, Patna edition on 19.03.1991 inviting applications for the post of Mishrak (Pharmacist). The post of ‘Mishrak’ carried pay scale of Rs.975- 1540 and that of ‘Pharmacist’ pay scale of Rs.1320-2040/- and Paricharak scale of 825-1200/-. All the posts were in Class-III categories. 7. As per the Government Circular dated 03.12.1980, the appointment to Class-III posts were to be made on the basis of marks secured in school and college. The minimum qualification for the post of Mishrak was matriculation whereas that for Pharmacist was passing of Pharmacology examination. 8. The petitioner passed Matriculation examination in the year 1982 in 1st Division. He passed his Intermediate (Science) 3 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 3 / 8 in the year 1984. He passed his Diploma course in Pharmacy conducted by Health Department of the Government of Bihar and got 626 out of 1200 marks. Copy of mark-sheet is annexed as Annexure-2. The petitioner got registered as Pharmacist in 1990 under Bihar State Pharmacy Council, Patna bearing registration no.11715 of 1990 and has got also enrolled with the Employment Exchange, Jehanabad on 01.12.1990. 9. The petitioner along with other applied pursuant to advertisement published on 19.03.1991 for the post of Pharmacist. He appeared in interview on 19.08.1991. The petitioner’s name did not figure in the merit list. 13 persons were selected in General Category, 6 persons in Backward Category, 4 persons in Extremely Backward category and three persons in Scheduled Castes category. 10. The petitioner submits that he belonged to Backward category and had secured 626 marks in Pharmacology. He has been wrongly left out from consideration, as the person at serial no.10 in the merit list of General Category had only 500 marks and the candidates at serial no.3 in Backward Class category had only 507 marks in Pharmacology examination. All these persons were appointed as Pharmacist (Mishrak) vide letter no. 2392 dated 01.11.1991. When the petitioner eventually came 4 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 4 / 8 in knowledge of all these unfairness and discrimination, he filed C.W.J.C. No.6778 of 1999 and the writ application was disposed of vide order dated 08.01.2004. The learned Single Judge while disposing of the writ application noticed that the petitioner had secured more marks than the last candidates selected either in general category or backward category and as such observed that he has been wrongly ignored. The learned Single Judge further observed that the case of the petitioner is a fit case in which direction should be issued for his appointment notwithstanding the dispute as to whether aforesaid 33 vacancies are subsequent vacancies or not. The learned Single Judge directed the respondents to consider his case against one of the vacancies. 12. As ill luck would have it, the representation of the petitioner was rejected on 13.03.2004 on the ground that as per new norms and Rules, the appointments are now to be made on the recommendation of Staff Selection Commission. 13. Being aggrieved, the petitioner filed C.W.J.C. No.4718 of 2004. The learned Single Judge negatived the contention of the respondents in the context of the case that in changed situations, appointment now can be made only on the recommendation of the Commission. It was observed that the process of appointment had started much before coming into force 5 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 5 / 8 of the new Act as such the process of appointment was to be completed in terms of earlier provisions. The learned Single Judge in the facts and circumstances of the case directed the respondents to appoint the petitioner on the post of Pharmacist. 14. In terms of the direction of this Court the joining of the petitioner dated 05.04.2005 was accepted. However the misery of the petitioner continued because the petitioner was not paid salary in the revised scale for about 22 months neither his service book was opened nor his certificates were returned. 15. The petitioner filed various representations for returning his certificates and for opening of service book and payment of salary which has been stopped from time to time after his joining in 2005 and for grant of all due increments. It was the case of the petitioner that he was granted only two additional increments though he was entitled to more increments. 16. A counter affidavit has been filed on behalf of respondent no.3. The respondents state that the pay scale of Mishrak was Rs.975 – 25 – 1150 – 30 – 1540/- in 1991, the revised scale of which is Rs. 3050 – 75 – 3950 – 80 -4590/-. 17. The petitioner contend that the scale of Mishrak was Rs.975 – 1540/- whereas the unrevised scale of Pharmacist as per Advertisement in 1991 was Rs. 1320-2040/-, against which 6 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 6 / 8 post he applied having diploma in Pharmacology. The petitioner contend that he would be entitled to revised scale of Rs.4500- 7000/- which is replacement scale of Pharmacist (1320 – 2040) as admissible in the year 1991. 18. I have heard the counsel for the parties. The petitioner held Diploma in Pharmacist and applied for the post of Pharmacist in the year 1991. The scale of Pharmacist as shown in advertisement was Rs.1320 – 2040/- and the minimum eligibility was Pharmacology passed. It is not in dispute that the petitioner belongs to Backward category. It is also not in dispute that the petitioner had secured more marks than the last candidate selected either in General category or Backward category for the post of Pharmacist. This Court held that the case of the petitioner was wrongly ignored and he was entitled to be appointed as Pharmacist in the relevant scale. This Court vide order dated 15.12.2004 passed in C.W.J.C. No.4718 of 2004 directed the respondents to appoint the petitioner against the post of Pharmacist. 19. It is relevant to state here that earlier also this Court vide order dated 08.01.2004 passed in C.W.J.C. No.6778 of 1999 directed the respondents to consider the case of the petitioner against one of the vacancies. The learned Judge further observed that the process of appointment of petitioner started in the year 7 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 7 / 8 1991 and as such Rule and procedure as prevalent then, would apply. 20. The petitioner has limited his prayer to shifting the date of his appointment to 01.11.1991 only for the purposes of notional benefits including seniority. He is not insisting for back wages since 01.11.1991, the date on which other successfull candidates having lesser marks than him were appointed. 21. The petitioner admittedly had secured more marks than the last candidate selected either in general category or backward category in the year 1991, which is evident from two orders of this Court in C.W.J.C. No.6778 of 1999 and C.W.J.C. No. 4718 of 2004 disposed of on 08.01.2004 and 15.12.2004 respectively. Had the respondents not committed error in overlooking claim of petitioner he would have been appointed in the year 1991 instead of on 19.03.2005, and that too pursuant to direction of this Court. Thus there is substance in his prayer to shift the date of his appointment to 01.11.1991 for the purpose of granting notional benefits. 22. This Court accordingly direct the respondents that for the purposes of grant of notional benefits like computation of additional increments, fixation of salary, retirement benefits etc. the date of appointment of the petitioner would be reckoned from 8 Patna High Court CWJC No.17683 of 2011 (3) dt.20-06-2013 8 / 8 01.11.1991, the date on which other candidates having lesser marks than the petitioner have been appointed. The respondents would release his salary which was not paid after issuance of appointment letter in 2005. Similarly, the respondents would release the original certificates deposited with them after retaining a photo copy of the same. 23. So far as relief of granting seniority is concerned, this Court is not inclined to grant benefit of seniority for two reasons. Firstly, the petitioner has not arrayed the persons as respondents, who may be affected by the decision. Secondly, the petitioner did make a prayer or press for such relief in the prior writ applications nor it was granted. 24. Thus, the writ application is allowed only in so far it relates to grant of notional benefits w.e.f. 01.11.1991 for the purpose of computing salary, additional increments, retirement benefits etc. The prayer for grant of seniority w.e.f. 01.11.1991 is disallowed for reasons already stated. Uday/- (Samarendra Pratap Singh, J)