Dr.
Anil Kumar Sinha Vs. The State of Bihar & Ors [1998] INSC 54 (3 February 1998)
S. Saghir
Ahmad, G.B. Pattanaik G.B.Pattanaik, J.
ACT:
HEAD NOTE:
This
appeal is directed against the judgment dated 11th September, 1989, passed by Patna High Court in Civil Writ
Jurisdiction case No. 7543 of 1988. The appellant had filed the Writ Petition
for a mandamus to the State to count his services for the period 19.10.1971 to
21.4.1978 as Resident Medical Officer in Durbangha Medical College towards his teaching experience for the purpose of
consideration of his appointment as Assistant Professor as well as Associate
Professor. The appellant had alleged that he was appointed as a Civil Assistant
Surgeon on 7.7.1962 and was thereafter posted as Demonstrator in the Physiology
Department at Durbangha Medical Officer in the Department of Paediatrics in the
said Medical College. In October 1971 he was posted as a Resident Medical
Officer in the same Department of Paediatrics in Darbangha, Medical College by order dated 16.10.1971 and he continued as such till April 21, 1978. The Post of Resident Medical
Officer on Supernumerary duty stood abolished in different Medical Colleges w.e.f.
22.4.1978.
The
appellant was then appointed as Registrar in the said Medical College in the Year 1979 and then was appointed as Assistant
Professor in the Department of Paediatrics on 28.5.1986 which post he was
holding on the date he filed the application in Patna High Court seeking the
relief, as already states. The grievance of the appellant was that if his
services rendered as Resident Medical Officer from 19.10.1971 till 21.4.1978
would have been counted as teaching experience then he would have been
appointed as Associate Professor and that not having been done his rights under
Articles 14 and 16 of the Constitution have been infringed.
The
State Government took the stand t hat the post of Resident Medical Officer is
not a teaching post and on the other hand it was a post of supernumerary duty
and as such, the services rendered against the said post cannot be counted as
teaching experience in view of the Circular dated 7.9.1973. It was also
contended that the services rendered against a regular teaching post like
Registrar can only be counted as teaching experience and that also only for a period
of three years. As such no complaint can be made for not taking into account
the services rendered by the appellant from October 1971 till April 1978 as
Resident Medical Officer towards his teaching experience inasmuch as it is
contrary to the Government Circular dated 7.9.1973.
The
High Court b y the impugned judgment construed the aforesaid Government
Circular and came to hold that the period of the appellants' services from
October 1971 to April 1978 as Resident Medical Officer against the Supernumerary
post in the Department of Paediatrics cannot be hold that the said Government
Circular dated 7.9.1973 cannot b e held to be violative of Articles 14 and 16
of the Constitution. When it was pointed out on behalf of the appellant that
the Supreme Court h as disposed of a similar matter in a case of Dr. Ram Janma
Singh - 1986 (Supp.) Supreme Court Cases 673, and has directed that the
judgment of the Supreme Court in Dr. Asim Kumar Bose's case - 1983 (2) Supreme
Court Reports 16, should be followed, the learned Judge of Patna High Court
examined the judgment in Dr. Ram Janma Singh's case and came to hold than the
relevant Government Circular dated 7.9.1973, had not been brought to the notice
of Their Lordships in Ram Janma Singh's case. To find out whether in Dr. Ram Janma
Singh's case the Government Circular was actually brought to the notice of the
Court or not we called for the records of the said proceedings and on scrutiny we
fins that the said Circular has not been brought on record. With these findings
the Writ Petition having been dismissed the appellant has preferred this
appeal.
The
short question that arises for consideration is whether the services rendered
by the appellant as Resident Medical Officer in the Department of Paediatrics
for the period 19.10.1971 till 21.4.1978 can all be counted as the teaching
experience of the appellant? The answer to this question would depend upon the
relevant Rules and/or Administrative instructions issued by the Government of
Bihar dealing with the service conditions of the doctors in different Collages
and their interpretation. As it appears to us that at the relevant point of
time there was no Statutory Rule issued under Proviso to Article 309 of the
Constitution or any Act of the Legislature governing the service conditions of
the doctors employed in Medical Colleges. In the absence of any statutory rule
it was open for the State Government to regulate service conditions by issuing
relevant administrative instructions. The Government Order dated 7.9 1973 is one
such instruction dealing with the question of teaching experience of the
doctors appointed against different posts in the Medical Colleges. The relevant
part of the said Government Order has been extracted in the impugned judgement
of the High Court. That order clearly indicates that after 24.11.1971 no order
for grant of teaching experience to any officer who has not worked on a regular
teaching post will be passed. Mr, Saran, learned counsel appearing for the
appellant had been appointed as a Resident Medical Officer prior to 24.11.1971,
namely, on 16.10.1971, has case will not be governed by the latter part of the
Notification which prohibits for an order for grant of teaching experience to
any officer who has bot worked on a regular teaching post. According to the
learned counsel the appellant's case would be covered by the first part of the
Notification itself and, therefore, High Court committed an error not treating
the period from October 1971 to April 1978 towards the teaching experience of
the appellant. We are, however, unable to accept this contention of Mr. Saran,
learned counsel appearing for the appellant.
Under
the first part of the Notification dated 7.9.1973 when a doctor has worked
against a non-teaching post and worked against a post created on supernumerary
duty then the Government in the Health Department was passing independent
orders as to whether the period can be treated as teaching experience.
Admittedly no such order has been passed in favour of the appellant prior to
24.11.1971 or even till today. In that view of the matter the appellant does
not get any benefit under the first part of the Government Circular dated
7.9.1973. Necessarily the embargo contained in the second part of the said
Government Circular prohibiting from passing an order for grant of teaching
experience after 24.11.1971 would apply. The post against which the appellant
had been permitted to work from October 1971 to April 1978 is not one of the recognised
teaching post though the appellant asserts that while working as such he had
been teaching the students of the Medical College. We are not required to go into the
question and express any opinion thereon, since in our considered opinion the
appellant cannot claim as of right that the services rendered by him for the
period 19.10.1971 till 1.4.1978 should be counted as teaching experience in
view of the Government Circular dated 7.9.1973. Consequently we see no
infirmity with the ultimate conclusion of the Division Bench of the High Court
requiring our interference in this appeal.
In
course of hearing, however, Mr. Saran, learned counsel appearing for the
appellant brought to our notice several instances where the State Government
itself have issued orders granting teaching experience to the employees even in
case of retired employees, as would be apparent from Annexures 7 and 8 to this
appeal. An averment to that effect also has been made in paragraphs 18 and 21
of the Special Leave Petition. Though the State of Bihar has entered appearance but no
counter-affidavit has been filed. Mr, Pramod Swarup, Learned counsel appearing
for the State of Bihar contended before us that such a question had not been
raised before the High court as would appear from the judgment of the High
Court. This may be true as contended by Mr. Swarup, but in the Writ Petition
that was filed before the High Court such a ground appears to have been taken.
In that view of the matter we are not inclined to reject the contention of the
appellant out right on that score. The appellant in the meantime has also
retired form the Government service. In the aforesaid premises, while we are
not interfering with the impugned judgment of Patna High Court but we think
that ends of justice require a direction to be given to the State of Bihar to
consider the case of the appellant as to whether the services rendered by him
for the period 19.10.1971 till 21.4.1978 can at all be counted towards teaching
experience. This has to be done by considering the cases of others in whose favour
such orders have been issued, as indicated by the appellant, and the nature of
services rendered by the appellant as compared to those services rendered by
other persons who according to the appellant are similarly situated. We make it
clear that we express no opinion on the same and the Appropriate Authority will
take a decision depending upon the nature of duties discharged by the appellant
while working as Resident Medical Officer in the Department of Paediatrics in Durbangha
Medical College. Be it be stated that the Competent Authority should be
satisfied that infact the appellant h as been teaching the students and on such
satisfied that infact the appellant h as been teaching the students and on such
satisfaction being arrived at an appropriate order can be issued. If the
Competent Authority issues such an order in favour of the appellant then the
appellant's case for getting any higher promotion form any anterior point of
time on the basis of such teaching experience may be re-considered. If the
appellant rails to get any order from t he Competent Authority that the
services rendered for the Period October 1971 to April 1978 would be counted
towards teaching experience, then any further exercise is not necessary.
This
appeal is disposed of with the aforesaid observations and directions. There
will be no order as to costs.
Back
