Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17777 of 2010 ====================================================== Dr. Umesh Chandra Sinha S/O Sri Prayag Narain Sinha R/O Village And P.O. - Belori, P.S. - Lakhisarai, Distt.- Lakhisarai, At Present Posted At Government Ayodhya Shiv Kumari, Ayurvedic College, Begusarai .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Health, Government Of Bihar, New Secretariat, New Secretariat, Patna 2. Joint Secretary, Department Of Health, Government Of Bihar, New Secretariat, Patna 3. Dr. Vishwanath Sharma S/O Late Bhagwat Sharma R/O Vill. And Post- Thepaha, P.S.- Jeeradei, Distt.- Siwan .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Alok Kumar Sinha, Advocate Mr Indrajeet Bhushan, Advocate Mr Manish Kumar, Advocate For the Respondent/s : Mr Upendra Pratap Singh, AC to SC 25 ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER 7 11-02-2013 Petitioner was granted promotion on the post of a Reader vide notification dated 6th of June, 2007. This notification is Annexure- 2. Subsequently, the benefit of this promotion was taken away by yet another notification dated 8th of June, 2010. This notification is Annexure- 1 and also under challenge in the present writ application. A reading of Annexure- 1 would show that the reason for withdrawing the order of promotion contained in Annexure- 2 relating to the petitioner was that one Dr.Vishwanath Sharma, who was senior to the petitioner, was not given promotion as a Reader due to some dispute relating to his educational qualification.
Legal Reasoning
Patna High Court CWJC No.17777 of 2010 (7) dt.11-02-2013 2/6 Promotion was not granted to him even though he was senior to the present petitioner. After the issue relating to his educational qualification got sorted out, the respondent State decided to grant him what was rightfully due by way of promotion, which could only be done by taking away the promotion of the petitioner on the post of a Reader, which was granted earlier. Counsel representing the petitioner submits that once promotion was granted to the present petitioner after due consideration, that should not have been undone or unsettled by brining in claim of a retired person and granting him benefit, especially when Dr. Vishwanath Sharma had a Post Graduate degree in Ras Shastra and not Dravyaguna, a Department to which the petitioner belongs. Attention of the Court has been drawn to the amended provision brought about in the year 1991 i.e. Annexure- 4, which clearly states that promotion can only be granted in the subject in which the person concerned has a Post Graduate degree. Since Dr. Vishwanath Sharma was a Post Graduate in Ras Shastra, he could never claim or be given benefit of promotion in Dravyaguna. Contention of the petitioner sounded attractive on the face of this submission, however, on a deeper look, it is evident that Dr Vishwanath Sharma was appointed in the Department of Patna High Court CWJC No.17777 of 2010 (7) dt.11-02-2013 3/6 Dravyaguna on the basis of his having experience in that Department at BHU for three years. Respondent- State, therefore, decided to appoint Dr. Vishwanath Sharma in the Department of Dravayaguna and not Ras Shastra. Even pursuant to that appointment Dr Vishwanath Sharma, who admittedly is senior to the petitioner, worked in the Department of Dravayaguna all these years and finally superannuated on 30th of May, 2008. If because of a controversy raised regarding his qualification at a later stage was the reason for non- grant of promotion in the very first place then, in my opinion, the State has done no wrong by settling the dispute subsequently and rightly conferring on him the benefit of promotion to the two posts, which were available to be filled up in the Department of Dravayaguna as a Reader. Since the number of posts available was only two, the only way the State could have accommodated and granted benefit to Dr Vishwanath Sharma was by taking away the benefit of promotion from the junior most of the two of the list. Since petitioner happened to be that person, his promotion contained in Annexure- 2 was undone by way of Annexure- 1 and Dr Vishwanath Sharma has been given the benefit of promotion on the post of a Reader from 6th of June, 2007 till the date of his superannuation. Patna High Court CWJC No.17777 of 2010 (7) dt.11-02-2013 4/6 Court, therefore, cannot overlook the fact that though Rule, contained in Annexure- 4, was put into place in the year 1991 but the State Government taking into consideration the qualification and experience, appointed Dr. Vishwanath Sharma in the Department of Dravyaguna. This appointment was never challenged by any person right till his age of superannuation. For all practical purposes, therefore, Dr. Vishwanath Sharma had to be and would be treated to be a part and parcel of the Department of Dravyaguna and if he had the requisite seniority vis- a- vis the present petitioner, the petitioner cannot be permitted to challenge his seniority by a via media by re-raising a dispute on his eligibility and qualification for the purposes of promotion. In the opinion of this Court, Dr Vishwanath Sharma has been rightly given his seniority and promotion, which was due to him but for some dispute raised on his qualification at a point of time. Annexure- 1, therefore, cannot be said to be arbitrary. Court can very well appreciate the anguish of the petitioner to hang on to a position and the benefit which he has acquired because of non-consideration of the claim of Dr Vishwanath Sharma but that by itself cannot entitle him to claim that benefits vis- a- vis a senior in the Department. In the totality, however, now when Dr Vishwanath Patna High Court CWJC No.17777 of 2010 (7) dt.11-02-2013 5/6 Sharma has retired on 30th of May, 2008, as has been stated at the Bar and is reflected in paragraph 32 of the writ application, the State has an obligation to now fill that post vacated by Dr Vishwanath Sharma by considering the claim of the petitioner, who was otherwise eligible because the promotion in the very first place, would not have been granted to him if he lacked the said eligibility. The writ application is disposed of with a direction upon the respondents that they will consider continuing promotion of the petitioner, preferably from 1st of June, 2008, the date the post of Reader became vacant in Dravyaguna Department due to retirement of Dr Vishwanath Sharma. There does not seem to be any impediment. The respondents will also take into consideration the fact that Annexure- 1 has been issued on 8.6.2010 whereas Dr Vishwanath Sharma retired on 30.5.2008 so there was no occasion to withdraw the benefit after 30.5.2008. No doubt, the State has taken a stand that in a writ application the seniority etc. of the teachers of Ayurvedic Medial Colleges have been set aside and a direction has been given to create a fresh seniority, which is evident from perusal of Annexures- A and B but that exercise of constitution of a Committee was done on 10.9.2012, therefore, they should Patna High Court CWJC No.17777 of 2010 (7) dt.11-02-2013 6/6 expedite the matter and not keep in in limbo by not taking a decision on this aspect of the matter. Writ application stands disposed of in terms of the above. (Ajay Kumar Tripathi, J) sk