http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: DR. RAMESH CHANDRA SINHA

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT23/08/1988

BENCH: DUTT, M.M. (J) BENCH: 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.

HEADNOTE:     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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]

JUDGMENT:     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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.    P.S.S.                                  Appeals  disposed