Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9743 of 2013 ====================================================== Dr. Kavita Wife Of Shailendra Kumar Resident Of 7 H.F., 4/12, Hig Flat, Bahadurpur Housing Colony, P.S. - Agamkuan, District - Patna, Presently Posted As Assistant Professor, Gynecology, Srikrishna Medical College And Hospital, Muzaffarpur Versus .... .... Petitioner 1. The State Of Bihar 2. The Principal Secretary, Department Of Health, Govt. Of Bihar, Patna 3. The Additional Secretary, Department Of Health, Govt. Of Bihar, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11574 of 2013 ====================================================== Dr. Arti Kumari Wife Of Dr. Santosh Kumar Mishra Resident Of Village And P.O. - Baraka Gaon (Mansingh Patti), P.S. - Buxar, District - Buxar, Presently Resident Of A-504, Nandan Tower, Kankarbagh Colony More, P.S. - Kankarbagh, District - Patna Versus .... .... Petitioner 1. The State Of Bihar Through Chief Secretary, Govt. Of Bihar, Patna 2. The Principal Secretary, Department Of Health, Govt. Of Bihar, Patna 3. The Additional Secretary, Department Of Health, Govt. Of Bihar, Patna 4. The Deputy Secretary, Department Of Health, Govt. Of Bihar, Patna 5. The Principal, Patna Medical College, Patna .... .... Respondents ====================================================== Appearance : (In CWJC No.9743 of 2013) For the Petitioner/s : Mr. Ashok Kumar Choudhary, Adv. Mr. Prashant Sinha, Adv. For the Respondent/s : Mr. S.D.Sanjay, AAG12 Mr. S.A.Alam, SC3 (In CWJC No.11574 of 2013) For the Petitioner/s : Mr. Praful Chandra Jha, Adv. Mr. Rajeev Kumar, Adv. For the Respondent/s : Mr. S.D.Sanjay, AAG12 Mr. S.A.Alam, SC3 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 03-07-2013 Heard counsel for the parties. Both these writ applications have been find for posting of the petitioners in Patna Medical College and Hospital (P.M.C.H.)
Legal Reasoning
Patna High Court CWJC No.9743 of 2013 (3) dt.03-07-2013 2 Patna. Their case in nut shell is that there were nine vacancies on the post of Assistant Professor in the department of Obstetrics and Gynecologist in PMCH and as such there was no justifiable reason for the State Government not to post these two petitioners in PMCH whose first choice was PMCH. Mr. Ashok Kumar Choudhary, learned counsel for the petitioner in the first case and
Legal Reasoning
Mr. Praful Chandra Jha, learned counsel for the petitioner in the second case have also highlighted the Government policy regarding posting in Medical Colleges based on merit cum choice. On the other hand, learned counsel for the State appearing in both the cases have submitted that though there were in all 31 vacancies on the post of Assistant Professor in the department of Obstetrics and Gynecologist which could have fulfilled the need of all the Government Medical Colleges of this State but the Bihar Public Service Commission could recommend only 13 eligible candidates against aforesaid 31 posts and therefore, even if there were five vacancies reported for PMCH all those five could not have been filled up so as to exclude other Medical Colleges altogether from getting Assistant Professor to fulfil their requirement. To that extent the plea of the director of Medical Council of India and threatened de-recognition in absence of qualified teachers has been explained to be the main reason for Patna High Court CWJC No.9743 of 2013 (3) dt.03-07-2013 3 not filling up all the five posts in PMCH and also giving posting to the petitioners in other Medical Colleges to save their recognition. In the considered opinion of this Court the terms and conditions laid down for posting in Medical Colleges based on merit cum choice under Rules can have definitely override the paramount public interest. The policy of merit cum choice for posting on promotion is not absolute. Here in the present case the post of Assistant Professor in the department of Obstetrics and Gynecology is vacant in almost all the Medical Colleges of the State. If the Assistant Professors are not posted in all the Medical Colleges the MCI may very well derecognize the MBBS course being taught therein. Based on these considerations if the Government for the time being has chosen to fill up only three of five vacancies in PMCH from 13 candidates and has posted both the petitioners in S.K. Medical College, Muzaffarpur that cannot be held to be erroneous either on fact or in law. Admittedly the petitioner in the first case, namely, Dr. Kavita is at serial no.5 of the panel whereas the petitioner in the second case Dr. Arti Kumari is at serial no.6 of the panel. First three of the panel have been posted in PMCH and the fourth one has been given NMCH. Thereafter if the respondents have selected the two petitioners at serial no. 5 and 6 for the time being Patna High Court CWJC No.9743 of 2013 (3) dt.03-07-2013 4 for their posting at S.K.Medical College, Muzaffarpur, this Court having regard to the following stand of the respondents in the counter affidavit: “5. That it is humbly stated that in favour of the relief sought for the petitioner has taken ground that while posting her at SKMCH, Muzaffarpur the principle of merit cum choice has been ignored, since she stands at 5th position in the merit list and in accordance with her choice coupled with the availability of vacancy of PMCH she is entitled to be posted there. 6. That it is humbly stated that the State Government as a matter of policy took a decision to fill up the vacancies of Assistant Professor, Obstetrics and Gynecology so that all the medical colleges of Bihar may get at least adequate and appropriate number of Assistant Professors. 7. That it is significant to state that from the perusal of
Decision
Annexure 7 of the writ petition it itself become clear that against total 31 vacancies in all medical colleges of the State only 13 recommendations were received from BPSC, Patna for appointment on the post of Assistant Professor, Obstetrics and Gynecology. 8. That thereafter in the light of such position the State Government decided to fill up the vacancies in such a way so that Assistant Professor may become available in all the medical colleges in required numbers and also in view of the inspection conducted by MCI. 9. That it is pertinent to state here that in such a condition it was decided to fill up only 3 post of Assistant Patna High Court CWJC No.9743 of 2013 (3) dt.03-07-2013 5 Professor, Obstetrics and Gynecology at PMCH, Patna against a total vacancies of 5 and therefore the top 3 in the merit list which are all above the petitioner were posted at PMCH, Patna and further against the sole vacancy at NMCH, Patna one Tabbasum Ahmad being placed at 4th position in the merit list was posted. No vacancy of Assistant Professor, Obstetrics and Gynecology was reported from ANMCH, Patna. 10. That it is necessary to point out here that the petitioner had given three options of PMCH, Patna, NMCH, Patna and ANMCH, Gaya in descending order but in view of the aforesaid position she could not be posted as either of these choices and therefore she was posted as SKMCH, Muzaffarpur which is nearer to the Patna, after obtaining approval of the competent authority at the highest level of the State.” is not inclined to interfere with the order of posting of the petitioners in S.K.Medical College especially when it is admitted at the Bar that both have also joined their respective posts in S.K.Medical College, Muzaffarpur. It is, however, made clear that since the posting of the petitioners has been made in S.K.Medical College, Muzaffarpur in t he administrative exigencies explained in the counter affidavit but that will not mean that if at any point of time during the currency of the present panel the two remaining vacant post of Assistant Professor in the department of Obstetrics and Patna High Court CWJC No.9743 of 2013 (3) dt.03-07-2013 6 Gynecologist in PMCH will be filled up, no one junior to the petitioners in the panel will be given posting in PMCH in preference to the petitioners. There may, however, be a situation that the petitioner Dr. Kavita being at serial no.5 in the event of filling up of 5th post of PMCH from the present panel may get her posting in PMCH but if the person at serial no.4 of the panel, Tabbasum Ahmad, opts for her posting at PMCH and as per her position in the merit list at serial no.4 is given preference over the petitioners, the petitioner Dr. Arti Kumari will automatically get her posting at NMCH on the vacancy of Dr. Tabbasum Ahmad at NMCH. This however will be only necessary if the Government decides to fill up these two posts of Assistant Professor in the department of Obstetrics and Gynecology in PMCH from the present panel and/or gets more Assistant Professors on the recommendation of the BPSC during the validity of the panel of the petitioners. With the aforementioned observation and direction, both the writ applications are disposed of. surendra/- (Mihir Kumar Jha, J)