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PETITIONER: DR. ANIL KUMAR SINHA

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       03/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B.PATTANAIK, J.      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

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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.

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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

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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.