Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13456 of 2013 ====================================================== Dr. Ajit Bahadur Singh S/O Late Tej Narayan Singh Resident Of Ca- 61, Kankarbagh, P.S.- Kankarbagh, District- Patna.... .... Petitioner Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Old Secretariat, Patna 2. The Principal Secretary, Department Of Medical Education And Family Welfare, Govt. Of Bihar, New Secretariat, Patna 3. The Secretary, Department Of Medical Education And Family Welfare, Govt. Of Bihar, New Secretariat, Patna 4. The Additional Director, Department Of Medical Education And Family Welfare, Govt. Of Bihar, New Secretariat, Patna 5. The Principal, Patna Medical College And Hospital, Ashok Raj Path, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. A.K. Singh For the Respondent/s : Mr. Kunal Tiwary, A.C to S.C. 5 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 26-08-2013 Heard learned counsel for the parties. Prayer in this Writ application reads as follows: (i) For partial quashing of the Memo. 834 (17) dated 07.07.2013 whereby and where under after promotion to the post of Professor in the Department of Surgery the petitioner has been transferred / posted to Government Medical College, Bettiah, in the Department of Suregery till further orders contrary to the Bihar Medical Education Service Cadre, Recruitment, Appointment and Promotion Rules, 2008 (hereinafter referred to as “2008 Rules”). (ii) For a direction to the respondent authorities to recall / modify its own Memo No. 834 (17) dated 07.07.2013 and reinstate the petitioner in 2 Patna Medical College and Hospital, Patna, (hereinafter referred to as PMCH), as Professor, in the Department of Surgery, as four posts of Professor is still lying vacant in the Department of Surgery.
Legal Reasoning
judgment of this Court in the case of Dr. Mrs. Shushma Pandey Vrs. State of Bihar & Ors. and its analogous Case; 2006(1) PLJR 737. Learned counsel, appearing on behalf of the State, on the other hand, has filed counter affidavit wherein, apart from other things, two pleas have been raised. Firstly, it has been stated that in the matter of promotion and thereafter posting the principle of posting as per merit-cum-choice cannot be followed and, secondly, it has been stated that the posting of the petitioner outside PMCH and, in fact, in Bettiah Medical College was on account of compulsion. To that extent it would be relevant to 3 quote paragraphs 6, 7, 8 and 9 to the counter affidavit which reads as follows: “6. That it is humbly stated that all together 17 posts of Professor, Surgery, are sanctioned for all 9 Medical Colleges in Bihar including one post of Professor in the newly established government Medical College, Bettiah. 7. That it is stated that the State Government decided in the year 2007 to set up three new Medical Colleges in Bihar to address shortage of doctors. However, none of these could get permission to admit students prior to this year. The Government Medical College, Bettiah was one amongst those. As per procedure, the Medical Council of India inspected this College and reported a faculty shortage of over 18% . With a view to obtain permission to admit students in a newly established medical College, it is imperative to bring down the faculty shortage below 10%. Accordingly, eleven faculty positions including the post of Professor in Surgery were filled in the Government Medical College, Bettiah to bring down the shortage of faculty position and an undertaking to address other deficiencies in a time bound manner was given to the Medical Council of India. As a consequence thereof MCI has granted permission to establish Government Medical College, Bettiah and admit 100 students for the first time this year. A photo copy of the MCI letter showing faculty shortage is attached herewith as 4 Annexure-A to this Counter affidavit. 8. That four Associate Professors working in the Surgery Department of different Medical Colleges, including the petitioner, were promoted to the post of Professor. The name of the petitioner appears at no.3 in the list of such promoted Professors as per his inter se seniority. The first two of them were posted in the same Colleges against vacant posts of Professor, Surgery, where they were posted earlier as Associate Professors. The last fourth was also posted in J.L.N. Medical College, Bhagalpur, against a vacant post, i.e., in the College where he was posted earlier as Associate Professor, because as per MCI Inspection carried out in that College earlier, shortage of Professor in surgery was pointed out. However, with a view to bring down the faculty shortage in the government Medical College, Bettiah for getting recognition for admission of MBBS 1st year course for Session 2013 -14 the competent authority was left with no choice except posting the petitioner, who was at no.3 in the list, to that Medical College. 9. That the posting of petitioner has been made in the larger interest of the State. Due to posting of eleven faculty positions, including the petitioner in the Government Medical College, Bettiah, the State was successful in getting permission to admit 100 students in this new Medical College this year, i.e., for the first time. 5 A photo copy of the MCI letter granting permission for Government Medical College, Bettiha is attached herewith and marked as Anexxure-B to this Counter affidavit.” Learned counsel for the petitioner, having filed a reply to the counter affidavit, does not dispute the facts mentioned in paragraphs 6 to 9, as quoted above, though a number of analogies have been raised in the rejoinder to the counter affidavit. In that view of the matter, this Court will proceed with the plea of the respondent with regard to the necessity of posting for saving the recommendation of Bettiah Medical College as a valid plea beyond any controversy. In fact, the petitioner himself in paragraph 15 has accepted this aspect by saying that if that was the necessity for Bettiah Medical College some one else could have been sent in place of the petitioner. The question, however, would be if the Patna Medical College and Hospital has five vacant post in Surgery and two being senior to the petitioner have been promoted and posted in the same Medical College, why the petitioner, being at no.3 in the list of such promoted Professors, for getting the benefit for Bettiah Medical College, was posted in exercise of power of the Government, will be valid or bad. It is now well settled that it is 6 the employer to relocate the matter of posting including promotion and posting of the Professor in the Medical College. The only exception will be that such discretion in the Medical College will have to be allowed so that it does not become an arbitrary exercise of power. In fact, in the judgment of the Full Bench itself, while dealing with the issue regarding choice cum merit policy, the law was laid down in the following terms in paragraphs 29, 31, 38 and 44. “29. In view of the discussion aforesaid, the first question posed at the outset is answered in affirmative and it is held that in posting of teachers of Medical Education Cadre in Medical Colleges. 31. Accordingly, answer to the second question set out at the outset is answered in the negative and it is held that policy of merit-cum-choice has not been superseded either directly or by implication by any subsequent decision. 38. The analysis aforesaid leads me to conclude that the principle of merit-cum-choice in posting has not been abrogated by the Rules and answer to question no.3 at the outset is rendered in affirmative and it is held that existing policy of merit-cum choice continues after coming into force of the Bihar Medical Education Service Cadre and Recruitment of Cadres Posts Rule, 1997. 44. To conclude, the answer to question no. (iv) 7 set out at the outset is rendered in affirmative and it is held that the policy of merit-cum-choice can be enforced by issuance of a writ in the nature of mandamus.” The cumulative reading of these pragraphs will leave nothing to speculate that a policy of posting of choice cum merit in the Medical College on the post of teachers is not only applicable in appointment but also for promotion. To that extent the stand taken by the respondents must be held to be incorrect. The Full Bench, however, in the case of Dr. (Mrs.) Shushma Pandey (Supra) in paragraph no.41 has carved out an exception by way of envisaging a departure to Rule of posting of choice cum merit by holding as follows: “ 41. It is true that every policy of State like any rule may not be totally mandatory. But provisions like choice of place of posting on the basis of merit tend to create some right in the person found more meritorious. In such a situation, though the policy is not comprehensively drafted, it obliges the State to adhere to it in normal situations unless there be good reasons for acting at variance.” (underlining for emphasis) Having thus considered the plea of the respondents in paragraphs 6 to 9 of the counter affidavit and, in fact, that no one junior to the petitioner has been given posting to the PMCH by 8 way of choice cum merit on the post of Professor in the Department of Surgery, this Court must hold that the order of posting in Bettiah Medical College does not suffer from any error. To that extent the challenge of the petitioner must fail. That would bring this Court to the last issue for which the learned counsel for the respondents was given indulgence, even after filing the counter affidavit, by order dated 23.08.2013, relevant portion of which reads as follows: “This Court has been consistently putting one question to the State Counsel for last one month, whenever this case has been taken up, as to whether the petitioner shall be accommodated at PMCH once necessity, under which the petitioner is sought to be posted in Bettiah Medical College, will come to an end when the person junior to the petitioner becomes available on the recommendation of the Commission for being promoted and posted on the post in the Department of Surgery. In other words, the State will have to explain as to whether it intends to only disqualify the petitioner from getting PMCH or persons junior to the petitioner will also have to give up PMCH for the same reason.” Today learned counsel for the State, having taken instructions from the respondents, have stated that they are not in a position to give any firm undertaking that when from the same 9 panel the persons posted below the petitioner could give choice of PMCH they will not be posted to PMCH and the junior most amongst them transferred to Bettiah Medical College. This however cannot be permitted inasmuch as if the petitioner has been sought to be sent to Bettiah Medical College on the ground of threatened de-recognition of Bettiah Medical College the Government cannot post any one below the petitioner from the same panel at PMCH who have also given option for PMCH and yet are junior to the petitioner in the combined cadre. In that view of the matter, if from the same Panel any one placed below the petitioner is considered for the posting at Patna Medical College the case of the petitioner will be considered first for posting to the petitioner in the Department of Surgery in PMCH. In other words, the petitioner being at serial no.3 in the Panel and there are five vacancies on the post of Professor of Surgery at PMCH, he will be given the first preference and no one junior to him will be posted in PMCH unless he is given such posting. With the aforementioned observation, this application
Arguments
Mr. Ashok Kumar Singh, learned senior counsel appearing on behalf of the petitioner, has submitted that almost there were five vacancies for the post of Surgery in PMCH and the petitioner was in Serial no.3 in the Panel, in all fairness he ought to have been given his choice posting at PMCH which shall be without venturing in the posting of teachers of the Medical College. In this respect, he has referred to the Full Bench