A circular issued by the government to discourage doctors from refusing promotion or joining assigned colleges is valid as an executive instruction under Article 162 of the Constitution. Expressing preferences for specific locations does not amount to refusing promotion. Rule 49 read with Section 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930, does not apply to debarment under the circular as it is not a punishment for misconduct. The principle of natural justice is not violated by not giving a hearing before debarring doctors under the circular as they are aware of the consequences of not giving consent for promotion.

JUDGMENT

S. Ali Ahmad & Bhuvaneshwar Pd. JJ.

These three writ applications have been beard together and are being disposed of by this common judgment.

2. The petitioners of these writ applications were Assistant Professors of Obstetrics and Gynaecology and were posted in different Medical Colleges of the State. Eighteen posts of Associate Professors of Obstetrics and Gynaecology fell vacant. These three petitioners along with others were called for interview and were supplied a proforma in which they had to indicate as to whether they gave consent to their promotion as Associate Professor. They were also in that very proforma asked to give preference for places of posting in case they were promoted to the rank of Associate Professors. The proforma contained an undertaking that in case they fail to join the place of posting on promotion they, he or she shall be liable to be debarred from promotion for next three years. There was a further undertaking that refusal to give consent for promotion will likewise debar them from promotion for the next three years. An these three petitioners signed the proforma giving consent to their promotions. With regard to posting petitioners of C.W.J.C. No. 3588 of 1983 and C.W.J.C. No. 1928 of 1986 gave consent for Patna Medical College Hospital as the first preference and Nalanda Medical College Hospital as the second preference. Dr. (Mrs.) Barun Kala Sinha petitioner C.W.J.C. No. 5030 of 1983 in addition to Patna Medical College Hospital and Nalanda Medical College Hospital gave two more preferences for Sri Krishan Medical College Muzaffarpur and Bhagalpur Medical College. It may be mentioned that while giving the preferences, this petitioner gave a note in the proforma explaining her difficulties in moving out of Patna. Towards the end she said that if possible she may be posted at Patna. She also enclosed a letter (Annexure B) to the proforma addressed to the Health Commissioner stating that in case she could not, after promotion, be posted at Patna for the present then her case may be considered for promotion in the next vacancy that was likely to occur in Patna. After sometime she very positively said that there may be some delay in her promotion but she may be considered for promotion in the vacancies likely to occur in future in Patna only. The authorities on the basis of the circular dated 3.3.1975 which has been marked as annexure 5 in C.W.J.C. No. 3588 of 1983 held that since the petitioners of all these three writ applications had refused their promotion and were not prepared to go out of Patna, they earned the debarment under aforesaid circular dated 3.3.1975 for a period of three years. They were accordingly by the notification dated 18.5.1983 (annexure 1) to the writ application no. 3588 of 1983 informed that they stood debarred for three years on account of their refusal to go out of Patna. By the same notification other doctors, some of whom were juniors, were promoted to the rank of Associate Professor. The petitioners have now come to this Court challenging the order of department as contained in the notification dated 18.5.1983 and praying to this Court for issuance of a direction to the respondents to consider the case of the petitioners for promotion to the rank of Associate Professors and, if necessary, to quash the promotion of such of the doctors who were juniors to these writ petitioners.

3. Cause has been shown by the respondents including the State. In all these three writ applications counter-affidavits have been filed and it is said that all three petitioners of these three cases have had refused to go out of Patna on promotion and as such they earned debarment as provided by a circular dated 3.3.75. It is, therefore, necessary to consider the individual cases now.

C.W.J.C. No. 3588 of 1983

4. Annexure 4 is the copy of the profoma that was supplied to the petitioner but this has not been filled up. The State in the circumstances produced the original proforma that