RAMESH CHANDRA JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ application, the sole petitioner has prayed for issuance following directions to the respondent -State of Bihar and its officials: - "to act upon the recommendation made by the Departmental Promotional Committee presided over by Public Bureau of Enterprises vide proceeding dated 4.8.2004 whereby and whereunder the petitioner and Dr. Azmat Hussain Ansari, Lecturer in Surgery Department, Rajkiya Ayurvedic College, Patna have been recommended for promotion on the vacant posts of Reader in the Pay Scale of Rs. 10,000/ - to 15,200/ - and further the respondents may be directed to pay him the consequential arrears of salary and other benefits to the petitioner with effect from 19.7.1991."

(2.) MR . Rajani Kant Pathak, learned counsel with reference to the aforementioned prayer has submitted that there should have been no impediment in promoting the petitioner on the post of Reader inasmuch as his eligibility for such promotion had already been gone into, considered and adjudicated by the Departmental Promotional Committee (hereinafter to be referred to as "D.P.C.") which had in its recommendation dated 4.8.2004 had already found the petitioner fit for promotion. Referring to the said recommendation dated 4.8.2004 contained in Annexure -4, he has also strongly relied to the findings recorded there in that there were clear two vacancies on the post of Reader in Rajkiya Ayurvedic College, Patna and Begusarai. He has also drawn attention of this Court towards the facts recorded in the proceedings of the D.P.C. that the petitioner was admittedly working on the post of Lecturer and had also acquired the desired experience of minimum five years on the post of Lecturer including teaching experience of three years as a Lecturer. In view of the aforesaid admitted fact, there should not have been any difficulty in notifying the promotion of the petitioner after the recommendation was already made by the D.P.C. but then the respondent Nos. 1, 2 and 3 in their counter affidavit have taken a plea that Central Council of Indian Medicine (CCIM) by a resolution dated 16.8.1989 with the prior approval of the Government of India had notified IMCC (Minimum Standard of Indian Medicine) Regulation, 1989 whereby and whereunder qualification of Post Graduation in the subject of Ayurveda was made compulsory for all recruitments in teaching post to be made compulsory on/or after 1.7.1989. It is therefore this decision which is said to be coming in the way of the petitioner of being promoted because the petitioner is admittedly not holding any post graduate decree in any of the subject of Ayurved. The counsel for the State in this context, has also referred the circular of the State Government dated 19.6.1991 whereby and whereunder the State of Bihar had also adopted the said norms for filling of the post of Professor/Reader/Lecturer making the post graduate qualification as a condition precedent with effect from 1st of July, 1989. The respondents however have given a justification that even after issuance of the circular of the State Government dated 19.6.1991 adopting the norms of the CCIM dated 16.8.1989, the case of the promotion of the petitioner was considered because subsequently the CCIM vide its letter dated 29.3.1996 (Annexure -B to the counter affidavit) had clarified that the requirement of a post graduate decree will not be essential for further promotion of those teachers who had been appointed on or before 1.7.1989. The Government, therefore, have taken a plea in the counter affidavit that it was in the light of the aforementioned decision of the CCIM dated 29.3.1996 that the Government of Bihar had initiated steps for giving promotion to those teachers who had not obtained post graduate degree but were appointed and working before 1.7.1989, it is however, claimed by the respondents that when in terms of the aforementioned decision the D.P.C. had recommended the case of the promotion of the petitioner and one another person in the meeting held on 4.8.2004, and the same was being processed for its being notified, a letter of the Director of the Ministry of Health and Family Welfare of the Government of India dated 1.2.2006 (Annexure -D to the counter affidavit) was received by the Government of Bihar wherein it was mentioned that the provisions made by the CCIM in the circular dated 29.3.1996 making post graduate qualification not essential for teachers appointed on or before 1.7.1989 was contrary to the decision and notification issued by the Government of India and in fact the said circular of the CCIM dated 29.3.1996 had been issued by the CCIM even without complying the provisions of Section 36 of the CCIM Act, 1970 requiring prior approval of the Government of India and its being notified in official gazette. The respondents therefore, have taken a plea that it is this decision of the Government of India which has come in the way of the petitioner of being promoted on the post of Reader and accordingly, the State Government has not notified that promotion of the petitioner despite their being a recommendation of the D.P.C.

(3.) COUNSEL for the petitioner in reply had submitted that any service rule if not framed by the State Government under the legislative power under proviso to Article 309 laying down qualification can only be prospective in nature and therefore, the resolution issued by the Government of Bihar dated 19.6.1991 could at best be made effective from the date of its issue as no vested rights prior to that date could be taken away from a retrospective effect. In this context he had also relied on the earlier decision of the Government of Bihar dated 4.3.1982 laying down the norms of promotion on the post of Reader which would go to show that the only requirement for promotion on the post of Reader was having completed five years tenure in the cadre including three years teaching experience on the post of lecturer and therefore, when the petitioner had been appointed as Demonstrator in the year 1982 which post was upgraded by the Government of Bihar as Lecturer by a resolutin dated 24.1.1991 with a clear provision therein that the teaching experience acquired on the post of Demonstrator would qualify as teaching experience for the post of Lecturer, there would be little doubt that the petitioner was a Lecturer since 1982 and had completed a period of 9 years service even on the date of issuance of revised criteria/rules by the resolution of the Government of Bihar dated 19.6.1991 prescribing qualification of post graduation as a condition precedent for grant of promotion. In this context, counsel for the petitioner has referred to different judgments of the Apex Court in the case of A.A. Calton V/s. Director of Education & Anr. reported in AIR 1983 SC 1143, Dr. Asim Kumar Bose V/s. Union of India & Ors. reported in AIR 1983 SC 509, P. Mahendran & Ors. V/s. State of Karnataka & Ors. reported in AIR 1990. SC 405 and Y.V. Rangaiah & Ors. V/s. J. Sreenivasa Rao & Ors. reported in AIR 1983 SC 852. respectively.