Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Pat) 389

IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJENDRA MENON, RAJEEV RANJAN PRASAD, JJ.
Dr. Shyamal Kishore Singh, S/o of Shahdeo Prasad Singh - Appellant
Versus
The State of Bihar, through the Principal Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna - Respondent
Letters Patent Appeal No.1740 of 2012 In Civil Writ Jurisdiction Case No.2323 of 2012
Decided On : 09-04-2018

Advocates Appeared:
For the Appellant :Mr. Amarendra Narayan, Advocate
For the State : Mr. Kumar Alok, S.C. 8
For the M.C.I. :Mr. Kumar Brijnandan, Advocate

The main legal point established in the judgment is that a writ of mandamus cannot be issued contrary to the statutory rules, as the court emphasized the importance of adhering to the statutory framework established by Rule 5(Ka) of the Bihar Medical Education Service Cadre and Cadre Posts Selection Recruitment Rules, 1997.

Headnote:
promotion - Medical Education - Rule 5(Ka) of the Bihar Medical Education Service Cadre and Cadre Posts Selection Recruitment Rules, 1997 - The court discussed the statutory rule, which created a teaching cadre and provided the structure of the Bihar Medical Education Service Cadre and the promotional line in the Medical Education Service Cadre. The court held that the petitioner's post was not included in the teaching cadre of the posts identified by the Rules in the Medical Colleges. The court also emphasized that a writ of mandamus cannot be issued contrary to the statutory rules.
Fact of the Case:

The petitioner sought promotion to the post of Associate Professor and Professor in the department of Pathology, claiming similarity to others who were promoted. The court analyzed the petitioner's service history, the statutory rule of 1997, and the distinction between teaching and non-teaching posts.
Finding of the Court:

The court found that the petitioner's post was not included in the teaching cadre as per the statutory rule of 1997, and therefore, he was not entitled to be considered for promotion to the post of Associate Professor and Professor.
Issues: The issues involved the petitioner's eligibility for promotion based on the similarity with others who were promoted and the interpretation of the statutory rule of 1997.
Ratio Decidendi: The court's decision was based on the interpretation of Rule 5(Ka) of the Bihar Medical Education Service Cadre and Cadre Posts Selection Recruitment Rules, 1997, which clearly provided the structure of the Bihar Medical Education Service Cadre and the promotional line in the Medical Education Service Cadre.
Final Decision: The Letters Patent Appeal was dismissed as the petitioner's post was not included in the teaching cadre as per the statutory rule of 1997, and he was not entitled to be considered for promotion to the post of Associate Professor and Professor.

JUDGMENT :

RAJEEV RANJAN PRASAD, J.

Challenge in this Letters Patent Appeal is to the order dated 06.07.2012 passed by the learned Writ Court in C.W.J.C. No. 2323 of 2012 by which the learned Writ Court has refused to quash the order dated 13.09.2011 (Annexure-14 to the Writ Application) passed by the respondent Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna rejecting the representation of the petitioner for his promotion to the post of Associate Professor and Professor in the department of Pathology.

2. It appears that the petitioner moved this Court under Article 226 of the Constitution for quashing of the order as contained in Annexure-14 mainly on the ground that the persons like Dr. Manorama Mishra and Dr. R.P. Agrawal have been given promotion pursuant to the order dated 16.07.2007 passed in C.W.J.C. No. 6386 of 2005. The petitioner claimed that treating him alike Dr. Manorama Mishra and Dr. R.P. Agrawal, the respondents be directed to promote him from the relevant date as Associate Professor on completion of five years of his service as Assistant Clinical Pathologist and thereafter to promote him as Professor on completion of four years in his service in the rank of Associate Professor. He has further prayed for quashing of the seniority list dated 25.03.2008 and revising the same by including his name in the list of Associate Professors and Professors of the department in the Medical Colleges of the State.

3. The learned Writ Court took note of the service history of the petitioner and found that pursuant to the advertisement (Annexure-16 with reply of the petitioner to the counter affidavit) the name of the petitioner found place in the panel and he was finally appointed as Assistant Clinical Pathologist vide notification dated 30.12.1987 (Annexure-2 to the Writ Application). The notification itself provides that, apart from their own pay, the concerned person shall be entitled to additional allowance for teaching. The case of the petitioner is that from the day one petitioner’s service was utilized also for imparting teaching and training to the Undergraduate as well as Post Graduate students of the Medical College.

4. The learned Writ Court also took note of the submission of the petitioner that Dr. Manorama Mishra, who was posted as Assistant Clinical Pathologist in P.M.C.H. was at first instance posted under the control of junior persons working as Assistant Professors and Associate Professors, upon a challenge made to her posting in this Court vide C.W.J.C. No. 7033 of 1998, this Court disposed of the Writ Application vide order dated 01.03.2000, as contained in Annexure-8 to the Writ Application, with a finding that the post of Assistant Clinical Pathologist may not be a cadre post under the Rules but was an ex-cadre teaching post. However, in respect of her claim for being promoted as Associate Professor and Professor, the Court remitted the matter for consideration by the respondents and granted liberty to them to seek necessary instructions/guidelines from the Medical Council of India in the matter.

5. The Medical Council of India vide its letter dated 07.02.2006 (Annexure-9) submitted that Teacher’s Eligibility Qualification Sub-Committee in its meeting held on 26.05.2005 considered the case of the petitioner (Dr. Manorama Mishra) and it found that the post of Assistant Clinical Pathologist in a hospital could not be equated with any teaching post in a Medical College as these two were separate entities. The said resolution of the Sub Committee was approved by the Executive Committee of the Council on 13.08.2005. In this view of the matter, the representation of Dr. Manorama Mishra was rejected by the Principal Secretary against which she again moved this Court in C.W.J.C. No. 6386 of 2005. The said Writ Application was disposed of by this Court on 16.07.2007 (Annexure-10) holding that the finding that the post of Assistant Clinical Pathologist held by D