BASANT KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER has prayed for issuance of a writ of mandamus against the respondents commanding them to give retrospective effect to the promotion of the petitioner to the post of Associate Professor in Neuro Surgery from the date the petitioner was awarded degree of M.Ch in Neuro Surgery i.e. from 1.12.1989 and further, to promote the petitioner to the post of Professor in Neuro Surgery taking into consideration the retrospective promotion of the petitioner to the post of Associate Professor and counting the teaching experience of the petitioner, from the date of retrospective promotion i.e. 1st December 1989 and likewise, for direction to the respondents to promote the petitioner to the post of Professor in Neuro Surgery with effect from 31.1.1994 i.e. the date on which the post of professor in Neuro Surgery fell vacant and to pay the salary of the retrospective post from those dates.

(2.) AN interlocutory application was filed by the petitioner on 13.09.2005 seeking permission for amendment in the prayer of the writ application in order to enable him to challenge the clause in notification No. 121(2) dated 06.05.2004 (Annexure -10) issued by the Department of Health, Government of Jharkhand. It is explained in the interlocutory application that during the pendency of the writ application, petitioners representation was considered by the Health Department, Government of Jharkhand and the petitioner's claim for his promotion was allowed by the aforesaid notification (Annexure -10) whereby the petitioner's promotion with retrospective effect from 1.2.1994 was allowed but with a clause that the monetary benefits shall however be admissible from 15.11.2000 only. Petitioner has challenged the aforesaid clause in the notification in respect of the date from which the monetary benefits has been declared as admissible to him. It is also explained that the petitioner has superannuated from service during the pendency of this writ application on 31.7.2003. Earlier, vide notification No. 142(17) dated 15.05.1996 petitioner was granted promotion by the respondents on 19.01.1996 to the post of Associate Professor, though he being possessed with all requisite qualification, was eligible for the post since 01.12.1989. Likewise, he was granted promotion to the post of Professor with effect from 3.4.2002 vide notification No. 36(2) dated 03.04.2002 and that too, without any monetary benefits, though he was entitled for promotion to the post of Professor from the date it had fallen vacant since 31.1.1994.

(3.) LEARNED Counsel for the petitioner explains that the instant application was filed on 25.7.1997 claiming relief (s) against the State of Bihar through the Commissioner -cum -Secretary, Medical Education, Department of Health, New Secretariat Building, Patna as respondent No. 1. Petitioner was posted at the relevant time in Rajendra Medical College, Ranchi as Associate Professor of Neuro Surgery and had rendered continuous service since the date of his appointment in the said college and from where he eventually superannuated on 31.7.2003. In the writ application, petitioner had sought for a writ of mandamus to be issued against the respondents to give retrospective effect to the petitioner's promotion to the post of Associate Professor in Neuro Surgery from the date the petitioner was awarded qualifying degree of M.Ch in Neuro Surgery i.e. from 1.12.1989 and also to promote the petitioner to the post of Professor in Neuro Surgery on the basis of the retrospective promotion of the petitioner to the post of Associate Professor and counting his teaching experiences from the date of retrospective promotion i.e. 1.12.1989. Since the post of Professor in Neuro Surgery fell vacant on 31.1.1994, the petitioner had prayed for a directive for his promotion to the post of Professor with effect from 31.1.1994. Petitioner had sought parity in the matter of his promotion in the same manner as extended to another doctor namely Dr. R.P. Choudhary. Learned Counsel emphasizes that the demand for his promotion was advanced on the basis of the fact that the petitioner had possessed all requisite qualification to make him eligible for promotion and that such demand was also made on the basis of the service conditions of the petitioner. When the petitioner was not promoted to the post of Associate Professor, he was constrained to file a writ application before this Court vide C.W.J.C. No. 1238 of 1991(R) which was disposed of on 13.9.1991 and thereafter, he had filed another writ application vide C.W.J.C. No. 2832 of 1993 (R) which was disposed of on 12.1.1994 with a direction to the concerned Government to consider the petitioner's representation for his promotion in the light of the judgment of the Supreme Court in Dr. Karn Kumar Agrawal's case (AIR 1991 SC 1514), within four months from the date of receipt of the copy of the order, but despite orders of this Court, his representation for his promotion was not considered by the respondents and hence, he had to file another petition vide M.J.C. No. 51 of 1995 (R), where -after he was promoted to the post of Associate Professor vide notification No. 142(17) dated 15.5.1996. Learned Counsel adds that vide notification No. 2074/F dated 4.4.1985 and another notification No. 1082 dated 22.2.1988 issued by the Government of Bihar, it was declared that eligible candidates are entitled to promotion to the higher post from the date the post fell vacant i.e. with retrospective effect. In this context, learned Counsel invites attention to annexure -6 to the instant writ application. According to the petitioner, post of Associate Professor in the Neuro Surgery fell vacant on 1.11.1987 on the retirement of then incumbent Dr. N.P. Sinha and the post of Professor fell vacant on 31.1.1994 on the retirement of then incumbent Dr. H.P. Narayan. Yet, both the posts were deliberately kept vacant without considering the petitioner's representation demanding his promotion to the said post. When repeated representations failed to yield any response, petitioner had to file the present writ application. It was during the pendency of this writ application, that the State of Jharkhand had finally considered the petitioner's representation and conceded the petitioner's demand for his promotion to the post of Professor with retrospective effect from 1.2.1994 in consonance with the earlier notification of the Government of Bihar dated 4.5.1989 and 22.2.1988 respectively. Learned Counsel adds that since the petitioner's claim for his promotion with retrospective effect has been conceded, he is also entitled to monetary benefits accrued by virtue of his promotion to the higher post from the date of his promotion and, therefore, fixing the cut off date for extending monetary benefits to the petitioner as 15.11.2000 only, is totally illegal and arbitrary. Learned Counsel submits that since his demand for promotion has already been conceded with retrospective effect, his only grievance is in respect of the clause contained in the notification (annexure -10), whereby his claim for the monetary benefits with retrospective effect i.e. 1.2.1994 has been denied.