SUSHMA PANDEYA Vs. SHEELA SHARMA

JUDGEMENT

(1.) THIS appeal is directed against the order dated 26.6.2001, passed by a learned Single Judge in C.W.J.C. No. 7274 of 2001, allowing the writ application filed by the writ petitioner -respondent no. 1, directing respondent no, 3 -the Secretary, Department of Medical Education and Family Welfare and Indigenous Medicine, Government of Bihar (respondent no, 2 in the writ application) 35. to issue notification promoting and appointing the writ petitioner on the post of Professor in the Department of Obstetrics and Gynaecology (hereinafter referred to as ';the Department ';) on the basis of the recommendation of the Bihar Public Service Commission (hereinafter referred to as ';the Commission ';) and approval of the same by the Cabinet, Government of Bihar. 5. 2 Necessary facts for disposal of the present appeal are as follows: Before adverting to the respective cases of the parties, it is to be stated that the controversy between the parties is as to the appointment of Professor in the Department. The Bihar Government, in exercise of the power under Article 309 of the Constitution of India, framed Bihar Medical Education Service Cadre and Recruitment Rules, 1997 (hereinafter referred to as ';the Rule ';), which was published 10. on 21.5.1997. By the said Rules, provisions were made for creation of a separate cadre of teaching staff and providing procedure for filling up the teaching post by direct recruitment as well as by promotion. So far as the filling up the post of Professor is concerned, it provides that all the posts of Professor shall be filled up by direct recruitment from the eligible Associate Professors by making an open advertisement on all India basis. A copy of the said Rules has been annexed as 15. Annexure 6 to the memo of appeal. 3 Rule 8 (Gha) of the said rules contains a provision with regard to the post of Professor and it provides that the post of Professor shall be filled up in accordance with the Rule of the Medical Council of India and the Rules in question on the basis of an advertisement on all India basis. The requisite qualification would be the minimum educational qualification and five years '; 20 experience as Associate Professor. An advertisement was issued on 8.12.1998 (Annexure 7 to the memo of appeal) for filling up the post of Professor in several departments, including the Department in question. Seven vacancies were advertised for the Department in question, out of which four posts were for general category candidates and three were for reserved category candidates. The appellant and the writ petitioner -respondent no. 1 as well as others applied and the 25. Commission made a recommendation on 22.6.2000 of four candidates in general category for appointment to the post of Professor (Annexure -10 to the memo of appeal). In the said recommendation, the writ petitioner is shown at serial no. 1 and the appellant has been shown at serial no. 3. The matter was placed before the Bihar Cabinet, which was approved on 17.3.2001. Thereafter, as no notification was issued, appointing the writ petitioner - respondent and others on 30. the vacant post of Professor, she filed the writ application in question on 19.6.2001. When the matter was taken up, the learned counsel for the State stated before the court that necessary notification would be issued. The appellant is stated to have appeared as intervenor, No specific order appears to have been passed adding her as a party. It was admitted at the Bar that she was also heard and, thereafter, the impugned direction has been issued by the learned Single Judge. 35. 4 The writ petitioner -respondent joined the Bihar Health Service on 5.5.1971. She worked as a Residential Surgical Officer in the Department in question. She was appointed as Registrar from 7.4.1979 and worked in that capacity till 12.3.1982. Thereafter, she was appointed as an Associate Professor on 18.5.1983. The appellant was initially appointed in a private Medical College, which was taken over on 1.1.1980 and her claim is that she was shown as Assistant Professor at the time 40. of taking over. The writ petitioner was appointed as an Associate Professor in 1983, whereas, the appellant was not appointed on the said post. She filed a writ application being C.W.J.C. No. 7064 of 1991 before this court for a direction to promote her to the post of Associate Professor. In the said writ petition, she also challenged the promotion given to the writ petitioner - respondent and she was arrayed as respondent no. 8 therein. The said writ application was dismissed as with - 45. drawn on 23.6.1998 on the ground that her grievances had been redressed. The appellant was made Associate Professor in the year 1995. 5. It further appears that on 25.4,1998, the appellant was promoted as Professor with effect from 19.2.1997 in Patliputra Medical College, Dhanbad. The writ petitioner -respondent challenged the same in C.W.J.C. No. 4221 of 1998 on the ground that the appellant did not possess the requisite qualification of five years experience as Associate Professor, promotion was made without 5. advertisement and her claim of her being Associate Professor since 1983 was ignored. A learned Single Judge allowed the said writ application by order dated 10.11.1998 and held as follows: