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PATNA HIGH COURT
S.Ali Ahmad and B.N.Agrawal JJ.
Ramji Pandey
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 3937 of 1985 ; 4538 of 1985 ;
Decided On : JANUARY 15, 1987
CONSTITUTIONAL LAW - ARTICLE 14, 16, 311 - NOTIFICATION - VALIDITY - DEBARMENT FROM PROMOTION - STARTING POINT - PERIOD OF DEBARMENT - CALCULATION - NOTIFICATION ISSUED BY STATE GOVERNMENT - LEGALITY AND SCOPE - PROMOTION OF ASSOCIATE PROFESSORS TO PROFESSORS - CONDITIONS - INTERPRETATION.
Fact of the Case:
Four writ applications were filed challenging the legality and scope of three documents issued by the State Government. The first document was a Notification dated 3-3-1975, which stated that if a teacher attached to a medical college within the State is promoted to a higher rank and is posted to another medical college in the State and in case he does not join then his case for promotion will not be considered for another three years. The second document was a Notification dated 24-6-1982 inviting eligible doctors for interview for the purposes of promotion to the post of Professor in different departments. The last sentence of this Notification said that if any Associate Professor does not attend the meeting on the specified date and time then it will be deemed that he is not interested in his promotion and his case for promotion will not be considered for the next three years. The last document was a Notification dated 22-10-1982, which mentioned about two doctors, who did not attend the interview/sitting and, therefore, their cases for promotion will not be considered for the next three years.
Finding of the Court:
1. The Notification dated 3-3-1975 was not violative of Articles 14, 16 and 311 of the Constitution of India. The ban for considering the cases of promotion of doctors covered by the Notification for three years was quite reasonable and, in no way, discriminatory. 2. The last part of the Notification dated 24-6-1982 was not bad as it was not in terms of the Notification dated 3-3-1975. The Notification dated 3-3-1975 did not cover cases where doctors do not attend the interview for promotion. The State had to cover this loophole by another order under Article 162 of the Constitution of India. 3. The starting point for debarment should be the date when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors. The period of debarment will commence only when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors.
Issues: 1. Whether the Notification dated 3-3-1975 was violative of Articles 14, 16 and 311 of the Constitution of India? 2. Whether the last part of the Notification dated 24-6-1982 was bad as it was not in terms of the Notification dated 3-3-1975? 3. What should be the starting point for debarment; whether the date on which interview/sitting is held or the date when promotion in pursuance of that interview is made?
Ratio Decidendi: 1. The Notification dated 3-3-1975 was not violative of Articles 14, 16 and 311 of the Constitution of India. The ban for considering the cases of promotion of doctors covered by the Notification for three years was quite reasonable and, in no way, discriminatory. 2. The last part of the Notification dated 24-6-1982 was not bad as it was not in terms of the Notification dated 3-3-1975. The Notification dated 3-3-1975 did not cover cases where doctors do not attend the interview for promotion. The State had to cover this loophole by another order under Article 162 of the Constitution of India. 3. The starting point for debarment should be the date when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors. The period of debarment will commence only when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors.
Final Decision: 1. The writ applications were dismissed. 2. The Notification dated 3-3-1975 was held to be valid and not violative of Articles 14, 16 and 311 of the Constitution of India. 3. The last part of the Notification dated 24-6-1982 was held to be valid and not bad as it was not in terms of the Notification dated 3-3-1975. 4. The starting point for debarment was held to be the date when promotion is actually made on the basis of interview/sitting which was not attended by the concerned associate professors.
S.Ali Ahmad, J.
1. These four writ applications have been heard together as the points involved in these cases are the same. Although the volume of the brief has been made frighteningly bulky by filing unnecessary supplementary-affidavits, counter-affidavits, etc. but learned Counsels for the parties during the course of argument did not rightly refer to the unnecessary and irrelevant details which were brought on record. 1 also, therefore, will refer only to such facts and documents which have been referred to by learned Counsels for the parties and which have relevancy to the facts in issue.
2. Before I take up the individual writ applications, it will be better to first determine the legality and scope of the three documents. The first is a Notification dated 3-3-1975 issued by the State Government paragraph 2 of which inter alia, says that if any teacher attached to medical college within the State is promoted to a higher rank and is posted to another medical college in the State and in case he does not join then his case for promotion will not be considered for another three years. The next document is a Notification dated 24-6-1982 issued by the State Government inviting eligible doctors for interview for the purposes of promotion to the post of Professor in different departments. The last sentence of this Notification says that if any Associate Professor does not attend the meeting on the specified date and time then it will be deemed that he is not interested in his promotion and his case for promotion will not be considered for the next three years. Some of the Associate Professors did not attend the interview and their cases for promotion were not considered and persons junior to them were promoted by Notification dated 22-10-1982. The last portion of this Notification mentions about two doctors, who did not attend the interview/sitting and, therefore, their cases for promotion will not be considered for the next three years. Copies of this Notification were also sent to the two doctors whose cases were not to be considered for the next three years (as will appear from Annexure 1 itself).
3. Mr. A. B. Ojha, who appeared on behalf of the petitioner in C.W.J.C. No. 3937 of 1985 first contended that the resolution dated 3-3-1975 was violative of Articles 14, 16 and 311 of the Constitution of India. He said that since this Notification itself was bad, therefore, the Notification dated 24-6-1982 (Annexure 1) which was based on the earlier Notification was also bad. At the out set, I may mention here that it is not possible for me to appreciate as to now Article 311 of the Constitution will be attracted, This Article applies to cases of dismissal, removal and reduction in rank on account of misconduct. The Notification dated 3-3-1975 does not prescribe any punishment of dismissal, removal or reduction in rank on account of any misconduct. It only prescribes that if a teacher is given promotion and he does not join (sic.) on promotion then his case for promotion will not be considered for the next three years. According to the State, this Notification has been issued because the teachers in Government medical colleges were allowed private practice. It is said that some of the doctors established massive private practice and they did not like to be transferred from that place even on promotion. The result was that the services of the best teachers could not be properly utilised by the State, This Notification was, therefore, issued to discourage such teachers prescribing that for another three years their cases for promotion will not be considered even if a vacancy in the higher grade occurs in the medical college where be is serving. I do not agree with Mr. Ojha that the Notification, which really is an order under Article 162 of the Constitution of India, is violative of Articles 14 and 16 of the Constitution. The ban for considering the cases of promotion of doctors covered by the Notification for three years is q
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