Dr. Ramesh
Chandra Sinha Vs. State of Bihar & Ors [1988] INSC 236 (23 August 1988)
Dutt,
M.M. (J) Dutt, M.M. (J) Venkataramiah, E.S. (J)
CITATION:
1988 AIR 1976 1988 SCR Supl. (2) 566 1988 SCC Supl. 738 JT 1988 (3) 430 1988
SCALE (2)418
ACT:
Civil
Services, Bihar Medical Service: Patna Medical College Hospital-Associate
Professors of Plastic Surgery- Seniority of Length of teaching experience in
Plastic Surgery to determine seniority.
HEAD NOTE:
The
appellant and respondent Nos. 3 and 4 were appointed Associate Professors of
Plastic Surgery in the Patna Medical College on September 29, 1978. In the appointment order the name of the appellant was
placed below the two respondents. In a writ petition moved by him under Art.
226 of the Constitution claiming seniority above respondent No. 4, the High
Court found that he had teaching experience in Plastic Surgery for a period of
3 years 8 months 3 days, while the respondent No. 4 had such experience for 4
years 7 months Z7 days and accordingly held that the respondent No. 4 was
senior to the appellant.
In
this appeal by special leave it was contended for the appellant that in
calculating the length of teaching experience the High Court had not taken into
consideration that he had worked in the Plastic Surgery Department from
November 29, 1963 to June 28, 1966 under the Head of the Department and if that
period was taken into consideration along with the period determined by the
High Court he would be senior to respondent No. 4.
Allowing
the appeal,
HELD:
The question of seniority between the appellant and respondent No. 4 is to be
resolved on the basis of the length of teaching experience in Plastic Surgery.
[568D] A separate unit of PLastic Surgery was created in the Medical College Hospital on January 2, 1964. It is not disputed that the appellant had worked as a
teacher in that unit from January 2, 1964
to June 28, 1966. It cannot be said that during this
period he had gained teaching experience in General Surgery, as stated in the
affidavit of the State Government, when as a matter of fact; be was teaching in
Plastic Surgery. Though the appellant had PG NO 567 addressed a letter to the
Superintendent, Patna Medical College Hospital on December 21, l963 seeking
transfer to the Department of General Surgery, there is no material to show
that his request was acceded to or that he was, as a matter of fact,
transferred from the Plastic Surgery Unit to the General Surgery Department.
Instead of complying with his request it was ordered that though he would work in
the Plastic Surgery Department, he would be deemed to have gained teaching
experience in the Department of General Surgery. Such an order was not asked
for by the appellant.
The
order was not only improper and unjust but also illegal.
[568G,
569B, E-G] The High Court was, therefore, not justified in excluding the period
from 2. 1. l964 to 28.6.1966 from the computation of the teaching experience of
the appellant in determining his seniority. That period when added to the
period of admitted, teaching experience of the appellant, as found by the High
Court, he will be senior to respondent No. 4. [569H-570A] The State of Bihar to
assign to the appellant seniority over respondent No. 4. [570B-C]
CIVIL
APPELLATE JURlSDICTION: Civil Appeal Nos. 39 & 40 of 1981.
From
the Judgment and Order dated 1.8. 1990 of the Patna High Court in C.W.J.C. No. 650 of 1979 and 157 of 1478.
Tapas
Roy and M.P. Jha for the Appellant.
D. Goburdhan,
D.P. Mukherjee and A.K. Jha for the Respondents.
The
Judgment of the Court was delivered by DUTT, J. The only point that is involved
in one of these two appeals by special leave, namely, Civil Appeal No. 39 of
1981, which is the only effective appeal, relates to the seniority between the
appellant Dr. Ramesh Chandra Sinha and the respondent No. d Dr. P.K. Verma. The
appellant has also challenged the seniority of Dr. S.L. Mandal, respondent No.
3 in Civil Appeal No. 39 of 1981, and Dr. J. Alam, respondent No. 1 in Civil
Appeal No. 40 of 1981. But, Mr. Tapas Roy, learned counsel appearing, on behalf
of the appellant in both the appeals, has expressly given up the challenge in
respect of these two persons. We are, PG NO 568 accordingly, concerned with the
question of seniority between the appellant and Dr. P.K. Verma in Civil Appeal
No. 39 of 1981 and, as the appellant does not press the case against Dr. J. Alam,
the Civil Appeal No. 40 of 1981 is infructuous and liable to be dismissed.
Both
the appellant and Dr. Verma are Plastic Surgeons.
By an
order dated September
29, 1478, the State Government
appointed the appellant, Dr. S.L. Mandal and Dr. P.K. Verma, the Associate
Professors of Plastic Surgery in the Patna Medical College. In the said order, the name of the appellant was placed
below the names of Dr. Mandal and Dr. Verma, which meant that the appellant was
junior to them.
The
appellant, as stated already., has given up his case against Dr. Mandal. The
appellant, however, claims that he is senior to Dr. Verma and, accordingly, his
name should have been placed above him in the said order of appointment.
Being
aggrieved by the said order making the appellant junior to Dr. Verma, the
appellant moved the Patna High Court under Article 226 of the Constitution
claiming 9 seniority over Dr. Verma.
It is
not disputed before us that the question of seniority between the appellant and
the respondent No. 4 will be resolved on the basis of the length of teaching
experience in Plastic Surgery. The High Court came to the finding that the
appellant had teaching experience in Plastic Surgery for a period of 3 years 8
months 3 days, while the respondent No. 4 Dr. Verma had such experience for 4
years 7 months 27 days. In that view of the matter, the High Court held that
the respondent No. 4 was senior to the appellant and dismissed the writ
petition. Hence the Civil Appeal No. 34 of 1981.
Mr.
Roy, learned counsel appearing on behalf of the appellant, submits that in
calculating the length of teaching experience of the appellant, the High Court
has not taken into its consideration that the appellant had worked in the
Plastic Surgery' Department from November 29, 1963 to June 28, 1966 under one
Dr. R.N. Sinha, the Head of the Department of the Plastic Surgery, Patna
Medical College Hospital. In this connection, it may be stated that in the Patna Medical College Hospital, Plastic Surgery was a part of the General Surgery
Department. On January 2, t964, a separate unit of Plastic Surgery was created
and it is not disputed that the appellant had worked as a teacher in the Unit
of Plastic Surgery from January
2, 1964 to June 28,1966. indeed, as stated above, he had
been in the Plastic Surgery Department from November 27, 1963 before it was converted into a separate unit. The can be no
doubt that if PG NO 569 this period from January 2'1964 to June 28, 1966 is taken
into consideration along with the period of 3 years 8 months 3 days, the
appellant will, undoubtedly, be senior to the respondent No. 4. The High Court
has no doubt referred to this period, but it proceeded on the basis that during
the said period the appellant had gained teaching experience in General
Surgery, as stated in the affidavit of the State Government. It is not easily
understand able how the appellant could be said to have gained experience in
General Surgery when, as a matter of fact, he was teaching in Plastic Surgery
in the new Unit of Plastic Surgery created with effect from January 2, l964
under Dr. R.N. Sinha, the Head of the Department. The High Court has also
observed that during the said period the appellant on some occasion himself
wanted a transfer to the General Surgery Department for gaining teaching
experience in General Surgery and his request was acceded to by the State
Government by allowing him to gain teaching experience in General Surgery. The
High Court took the view that the appellant could not fall back and claim that
the said period should also be counted as genuine teaching experience in
Plastic Surgery.
In the
first place, the High Court proceeded on the erroneous assumption that the
appellant's request for his transfer to the General Surgery was acceded to by
the State Government. It appears from a letter dated December 21, 1963 of the appellant addressed to the
Superintendent. Patna Medical College Hospital. that the appellant wanted a transfer to the Department of General
Surgery. There is no material to show that the appellant's request for transfer
to the General Surgery was acceded to or that the appellant was, as a matter of
fact. transferred from the Plastic Surgery Unit to the General Surgery
Department. It is true that the appellant had requested for this transfer to
the General Surgery Department, but instead of complying with his request it
was ordered that though he would work in the Plastic Surgery Department, he
would he deemed to have gained teaching experience in the Department of General
Surgery. Such an order was not asked for by the appellant.
Even
assuming that the appellant had requested that his teaching experience in
Plastic Surgery should be deemed to be teaching experience in General Surgery,
it did not behove Government or the authority concerned to accede to such a
request. The order, in opinion, is not only improper and unjust but also
illegal and stand in the way of the seniority of the appellant.
The
High Court was, therefore, not justified in excluding the said period from 2.
1. l964 to 28.6.1966 from PG NO 570 the computation of the teaching experience
of the appellant in determining his seniority. That period when added to the
period of 3 years 8 months 3 dais of admitted teaching experience of the
appellant, as found by the High Court, the appellant will be senior to the
respondent No. 4 Dr. P.K. Verma, whose length of teaching service, as found by
the High Court and not disputed before us is 4 years 7 months 27 days only.
For
the reasons aforesaid, we set aside the judgment of the High Court and direct
the State of Bihar to revise the seniority of the
appellant and of the respondent no. 4, Dr. P.K. Verma, and assign to the
appellant seniority over the respondent No. 4.
The
Civil Appeal No. 39 of 1981 is allowed with costs.
quantified
at Rs.3,000. Civil Appeal No. 40 of 1981 is, however, dismissed without any
order as to cost.
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