HARIHAR DIKSHIT Vs. STATE OF BIHAR

JUDGEMENT

(1.) It has been quite some time since the matter was finally heard and orders were reserved. Hence, this Court has got the matter listed under heading 'to be mentioned' on 21.6.2011, 23.6.2011 as well as on 27.6.2011 to refresh itself with regard to the facts of the case, issues involved and submissions of the respective learned counsels for the parties. They have been kind enough to do that, in brief, in respect of all relevant aspects of the matter arising before this Court in the matter.

(2.) Petitioner, who, at the time of filing of the writ application, was posted as Assistant Professor in the Department of Pharmacology in Patna Medical College and Hospital, Patna, (for short 'PMCH'), through his writ application, has challenged a Notification contained in Memo. No. 652(17) dated 30.8.2006 (Annexure-7, Page-36), issued from the Department of Health, Government of Bihar, by which, for reasons mentioned therein, in effect, the period of working of private respondent as Tutor in the Department of Anatomy in PMCH (from 31.12.1990 to 30.6.1995) has been accepted as notionally spent as Tutor, Pharmacology for the purposes of cadre seniority etc. Accordingly the final seniority list, published through Department's letter no. 1240(17) dated 29.11.2003 (An.-4, page-27), has been modified and private respondent's ranking has been fixed at 5'A', above serial no. 6 and below 5. However, it has been mentioned that the matter shall stand affected by the judgment in L.P.A. No. 74 of 2005. Petitioner has further prayed for a direction to the official respondents not to give effect to the said notification and not to give effect to it for the purposes of appointments on higher posts. Subsequently, petitioner has brought on record a notification contained in memo no. 599(17) dated 4.7.2007 (Annexure- 12, page-148), issued during the pendency of the present writ application, by which, as a working arrangement, on provisional basis, in her own pay- scale, private respondent has been posted as Associate Professor in the Department of Pharmacology, PMCH. Through I.A. No. 7565 of 2009, he has also brought on record a provisional gradation list and a final gradation list, along with letters dated 10.1.2008 and 8.7.2008 respectively (Annexure-14, Page 161 and Annexure-16, Page 165), also published during the pendency of this writ application, putting the private respondent above the petitioner, with a prayer for liberty to challenge the said Annexures-12 & 16 also. The said I.A. of the petitioner was allowed by this Court by order dated 3.2.2010.

(3.) Facts of the case are hardly in dispute. Petitioner and the private Respondent, both are qualified doctors and did their post graduation in Pharmacology, in the year 1986 and 1989 respectively. Both were earlier appointed as medical officers in the State Health Service in different years. Before 1997 Rules came into force, appointments at the entry point in teaching cadre of Medical Colleges of the State used to be made from eligible and qualified medical officers of State Health Service, on the basis of subject-wise panels prepared, after inviting applications through advertisements. One such advertisement was issued on 29.12.1987. Admittedly petitioner was not an applicant at that time, whereas the private respondent, who was a simple MBBS at that point of time, was applicant for more than one subject-panel, and, there appears no dispute that, she was included in the panels of Pharmacology as also of Anatomy, at least. It is admitted that she was appointed/posted as Tutor in the Department of Anatomy in PMCH by Notification dated 29.12.1990 (Annexure-R4/1, page 77 and also R4/17, page-243) on the basis of her placement in the 1987 panel for Anatomy, whereas one Dr.P.N.Pandit was appointed/posted as Tutor in the Department of Pharmacology in PMCH by Notification dated 31.12.1990 (Annexure-R4/16, page-241), on the basis of his placement in the 1987 panel for Pharmacology. The private respondent has claimed that, though she was senior to the said Dr.P.N.Pandit in the panel of Pharmacology, she was wrongly left out. This has been disputed by the petitioner asserting that she was, in fact, junior in the panel, hence she could not be appointed/posted as Tutor, Pharmacology and got appointment/posting as Tutor, Anatomy. Respondent has asserted that the said Dr.Pandit was not a post graduate in Pharmacology, hence he could not be senior to her in the panel. By referring to the respective points of Dr.Pandit and herself from the 1990 panel (Annexure-R4/2, page-82 and typed copy R4/24, page-83), she has tried to create an inference that the said Dr.Pandit 'must have been junior' to her in the 1987 panel for Pharmacology. Hence his appointment as Tutor, Pharmacology, amounted to denial of her legitimate due.