SHYAM PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an un-usual case of transfer of the petitioner by the impugned order dated 12th December, 1994 as contained in annexure-15 to the writ petition, by which the petitioner has been transferred to the vacant post of Professor of Surgery, Nalanda Medical College Hospital Patna hereinafter called the N M C H , Patna) from Patna Medical College Hospital, Patna (hereinafter called the P.M.C.H.).

(2.) This case was admitted for hearing by a Division Bench on 21st December, 1994 fixing the case for final hearing on 30th January, 1995. Learned counsel for the petitioner submits that the writ petition was admitted after a very contested bearing but even then since 21st December, 1994 np counter affidavit has been filed by the State respondents. By the said order of this Court dated 21st December, 1994. the impugned order of transfer dated 12th December, 1993 was stayed. Today when the hearing commenced as a part beard matter, learned counsel for the State respondents was asking for time to file counter affidavit The Court has rejected the said prayer and proceed to decide the matter finally on the materials available on the record;

(3.) From the un-controverted averments made in the writ petition, it appears that the petitioner has a remarkable academic career, the details of which may not be necessary to be indicate there. It is not in dispute that the petitioner was appointed as Resident Surgical Officer in P. M C. H. in the year 1967 and continued on the various teaching posts there. However, the petitioner, was transferred to Ranchi Medical College Hospital, Ranchi by order dated 28th December. 1974 where he was posted as a Tutor in the Department of Surgery. Thereafter he was posted as Assistant Professor in the N.M.C. H. by order dated 16th December, 1977 to which post the petitioner joined on 16th January, 1978. Thereafter the petitioner was promoted as Associated Professor in the year 1980. Along with the petitioner one Dr A.A. Hai was also appointed as an Associate Professor and and it is not in dispute that the said Dr. Hai is junior to the petitioner as would appear from Annexure-3 to this writ petition. Thereafter by an order dated 22nd July, 1986 the petitioner along with Dr. A. Hai and Dr Sachchidanand Sinha were confirmed as Associate Professors. The said order also shows that Dr. A.A. Hai is junior to the petitioner. Thereafter by order dated 23rd September, 1991 the petitioner along with Dr A A. Hai and Dr. Sachchidanand Sinha were promoted as Professor of Surgery on ad hoc basis in anticipation of the approval of the Bihar Public Service Commission. The petitioner, at that time, was retained in the N M C.H. whereas Dr. A.A. Hai and Dr. Sachchidanand Sinha, who were junior to the petitioner, were retained at P.M.CH. Learned counsel for the petitioner submits that at the time of such promotion posting is given on the basis of merit-cum-choice. Stating the aforesaid fact the petitioner made a representation on 23rd September, 1991 after joining the post of Professor in the N M C H. In the said representation, the petitioner wanted his posting in P M C.H, Thereafser the petitioner by another representation dated 6th Junuary, 1992 gave a reminder to his previous representation dated 23rd September, 1991. Thereafter the matter was placed before the Establishment Committee which considered the case of the petitioner and the said Establishment Committee by an order dated 23rd October. 1992 felt that injustice has been caused to the petitioner by not posting him in P.M.C.H. and recommended in favour of his posting at P.M C H. on the post which fell vacant with effect from 1st April, 1992 on the retirement of Dr. Narendra Prasad. Thereafter presumably on the basis of the said recommendation of the Establishment Committee, the order dated 5th August, 1994 was passed posting the petitioner as Professor in the department of Surgery on a vacant post in the P.M.C.H. The said order has been annexed as Annexure 9 at page 49 of the writ petition It is not in dispute that pursuant to the said order the petitioner handed over the charge as Head of the Department, Surgery in N.M.C.H. to Dr. B.B Pandey on 6th August, 1994 and thereafter joined the post of Professor of Surgery in P.M.C.H. on the same date i. e. on 6th August, 1994 and the petitioner's joining was accepted in the P.MCH. The petitioner has also annexed a certificate given by Dr. R.N. Tiwary to the effect that the petitioner has been teaching with distinction the students of Post Graduate Medical College and the petitioner's article has been published in the prestigious medical journal namely, British Journal of Surgery. 1 he said certificate given to the petitioner has been annexed as Annexure-14 to the writ petition.