WRIT PETITION 12518 of 2002 on 18 September 2002

1. The State Of Bihar.

2. The Director In Chief, Health Service, Govt. Of Bihar, New Secretariat, Bailey Road, Patna.

3. The Divisional Commissioner, Patna.

4. The Principal, Nalanda Medical College, Patna.

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Appearance :

For the Petitioner/s : Mr. Sanjay Kumar @ Manu, Adv. For the Respondent/s : Mr. Awanish Nandan Singh, GP-XI Mr. Jay Prakash Sharma, AC to GP-XI

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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHAORAL ORDER

7 22-01-2014 1. Heard learned Counsel for the parties.

2. The prayer of the petitioner in this writ application reads as follows:- “1(I)

For quashing of the order contained in memo no. 2017 dated 18.9.2002 passed by the respondent Principal whereby the representation filed by the petitioner for grant of time bound promotion as also release of increments withheld for the years 92-93 and 93-94 has been considered and rejected under the order of this Hon’ble Court (as contained in Annexure-9).

(II)

To grant the petitioner first time bound promotion w.e.f. 28.11.89 in terms with govt. resolution no. 10770 dated 31.12.81 to which he is eligible and to pay him the monetary benefits accruing therefrom with suitable interest alongwith cost in the attending facts and circumstances of the case. For a direction to pay the petitioner his due

(III)

arrears of salary that shall accrue on grant of first time bound promotion including the increments earned by him during the period/year 1992-94.”

3. During pendency of the writ application, an interlocutory application being I.A. No. 736 of 2007 was filed wherein an additional prayer has been sought to the following effect:- “(v)For issuance of an appropriate writ(s)/order(s)/ direction commanding the respondents particularly respondent Principal particularly respondent Principal to issue an order granting ACP benefit to the petitioner in the light of the decision of the Screening Committee held on 29.7.2006 as the same has been done in the cases of several other similarly situate persons including the persons junior to him.”

4. It has to be noted that earlier this writ application was permitted to be withdrawn by an order dated 29.6.2010, relevant portion whereof reads as follows:- “In view of the fact this writ petition has remained pending for about eight years and cause of action of ACP has also been sought to be made subject matter of this writ petition, I. A. No. 736 of 2007 is allowed.

After some arguments, Mr. Ashok Kumar Chaudhary, learned counsel for the petitioner seeks permission to withdraw this writ petition in order to move the Director-in-Chief, respondent no. 2 for assailing the impugned order dated 18.7.2002 passed by respondent, Principal of Nalanda Medical College, Patna.

Mr. Chaudhary also seeks leave of this Court that the petitioner may be permitted to file fresh representation before the Director-in-Chief with all necessary details and documents.

This Court without expressing any opinion on the merits of the case would simply accord leave to the petitioner for withdrawal of this case with the aforementioned liberty for moving before the Director-in-Chief.

It is, however, made clear that the petitioner will have no right to move again this Court for the same cause of action which has been pressed in this writ petition.

Accordingly, this writ petition is dismissed as withdrawn.”

5. The petitioner, thereafter, had preferred LPA No. 216 of 2011 and the Division Bench by its order dated 3.2.2011 had passed the following order:- “With the consent of the learned Advocates, the Appeal is heard and decided today.

Conclusion

This Appeal preferred under Clause 10 of the Letters Patent arises from the order dated 29.06.2010 made by the learned single Judge in above CWJC No. 12518 of 2002.

The appellant, a Laboratory Technician in the service of Nalanda Medical College and Hospital, Patna, filed the above writ petition under Article 226 of the Constitution to seek time bound promotion effective from 28th November 1999 and for the benefit of Assured Career Progression.

After arguing the matter before the learned single Judge, learned Advocate Mr. Ashok Kumar Chaudhary appearing for the appellant sought permission of the Court to withdraw the writ petition with a view to approaching the Director-in-Chief by a representation. The learned single Judge has permitted the appellant to withdraw the writ petition. However, it is observed “the petitioner will have no right to move again this Court for the same cause of action which has been pressed in this writ petition”. It is the aforesaid observation which is under challenge before us.

Learned Advocate Mr. Praveen Kumar has appeared for the appellant. He has submitted that the aforesaid observation made by the learned single Judge be expunged.

We have noticed that earlier also the petitioner had approached this Court in the same subject matter in CWJC No. 8523 of 2002. That too, the appellant had withdrawn with a view to approaching the concerned authority. It appears that after the withdrawal of the above referred CWJC No. 8523 of 2002, the representation made by the appellant has been rejected. The appellant appears to be taking chance with the Court.

In above view of the matter, the impugned observation made by the learned single Judge is wholly justified.

In the alternative, learned Advocate Mr. Praveen Kumar has submitted that the impugned order of the learned single Judge be recalled. The appellant be permitted to argue the matter afresh on merits.

In view of the above submission, the Letters Patent Appeal is allowed. The impugned order dated 29.06.2010 is set aside. CWJC No. 12518 of 2002 is restored and is remitted to the learned single Judge for hearing and decision on merits. The appellant will deposit cost of Rs. 5,000/- (Five thousand) in the Registry of this Court within one month from today.

The writ petition will be notified for hearing before the learned single Judge only after the amount of cost is deposited in the Registry. In the event the appellant fails to deposit the amount of cost as specified, the above order shall stand recalled and the Appeal shall stand dismissed. It is further clarified that in no circumstances the appellant will have right to withdraw the writ petition nor shall he have permission to approach the authority below in the same subject matter. He shall have to obtain order on merits.

The Appeal stands disposed of in the above terms.”

(underlining for emphasis)

6. As would be now apparent from the aforesaid underlined portion of observation made by the Division Bench while remitting the matter back for hearing of the writ application, two things have been made clear, namely, that the petitioner will not be at liberty to withdraw the writ application and that he will not be given any permission to approach the authority in the same subject matter.

7. Thus, in keeping with the observations made by the Division Bench, the writ application has to be decided on its own merit.

8. As with regard to merit, it would be found that the petitioner was subjected to a disciplinary proceeding and was inflicted certain punishment by the order of the Principal of Nalanda Medical College and Hospital dated 12.9.1998, relevant portion whereof reads as follows:- ^^izkpk;Z dk dk;kZy; Ukyank esfMdy dkWyst] iVuk A

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9. After passing of the said order, the petitioner had moved this Court by filing CWJC No. 8523 of 2002 with a prayer to grant him time bound promotion in term of the government resolution dated 30.12.1981 and a learned Single Judge of this Court by an order dated 26.7.2002, while disposing of CWJC No. 8523 of 2002, had directed the Principal of the Nalanda Medical College and Hospital to consider and dispose of the representation filed by the petitioner as contained in Annexure-7 to this writ application.. Pursuant to the said order of this Court the Principal of the Nalanda Medical College and Hospital had passed a reasoned order holding the petitioner disentitled for grant of such time bound promotion as would be apparent from reading of the aforesaid order dated 18.9.2002, which, for the sake of clarity and convenience, is also quoted in ex-tenso:- ^^izkpk;Z dk dk;kZy; Ukkyank esfMdy dkWyst] iVuk A

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lekns”k ;kfpdk la[;k 8523@2002 Jh lqHkk’k “kekZ cuke jkT; ljdkj ,oa vU; ds ekeys esa fnukad 26-7-2002 dks ekuuh; mPp U;k;ky; }kjk vkns”k ikfjr fd;k x;k fd Jh lqHkk’k “kekZ ds }kjk nk;j ;kfpdk ds ,usDpj&7 ij fu;ekuqlkj fu.kZ; ysdj vkns”k ikfjr fd;k tk, A ekuuh; mPp U;k;ky; ssu ;g Hkh vkn”k fn;k gS fd izfroknh la[;k&4] izkpk;Z ] ukyank fpfdRlk egkfo|ky;] iVuk] vxj larq’V gksa rks Jh lqHkk’k “kekZ ds dkyc) izksUufr ,oa mlls mits gq, ykHkksa ij Hkh fu.kZ; ysa A Jh lqHkk’k “kekZ }kjk fn;s x;s ,usDpj&7 dks fcgkj ljdkj ds fu;eksa ,oa ifji=ksa ds vyksd esa leh{kksijkar vLohd`r fd;k tkrk gS A

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foHkkxk/;{k QekWdksykWth foHkkx us Hkh vius i=kad 60 fnukad 21-4-92 }kjk ;g Li’V n”kkZ;k gS fd Jh “kekZ vius dk;Z ij le; ij ugha vkrs gSa A dVs gq, mifLFkfr ij fcuk vuqefr ds mifLFkfr cuk nsrs gSa A foHkkxk/;{k ds lkFk v”kksHkuh; O;ogkj djrs gSa rFkk iz;ksx”kkyk izkoSf/kd dk dk;Z Hkh lqpk: :Ik ls ugha tkurs gSa A lkFk gha ;s foHkkxk/;{k dks Hkh /kedh nsrs gSa fd eSa jkT; deZpkjh la?k dk ea=h gwWa vkSj foHkkxk/;{k ds d{k esa tksj tksj ls cksyrs Fks] nqO;Zogkj djrs Fks vkSj ljdkjh dk;Z

esa ok/kk mRiUu djrs Fks A ok/; gksdj foHkkxk/;{k] QekdksykWth foHkkx us budks foHkkx ls fojfer dj izkpk;Z dk;kZy; esa Hkst fn;k A

¼3½ rRi”pkr Jh lqHkk’k “kekZ dk inLFkkiu ,Q0 ,e0 Vh0 foHkkx esa fd;k x;k A foHkkxk/;{k] ,Q0 ,e0 Vh0 foHkkx us Hkh vius Kki la[;k 115 fnukad 29-3-96 ds }kjk izkpk;Z dks fy[kk fd Jh lqHkk’k “kekZ foHkkx esa foyac ls vkrs gSa rFkk izfrfnu gkftjh cuk dj vuqifLFkr gks tkrs gSa A foHkkxk/;{k] ,Q0 ,e0 Vh0 us budks fuyacu djus ,oa lsok lekfIr ds fy, Jh “kekZ ls Li’Vhdj.k iwNs gSa A

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10. As would be apparent, the petitioner is aggrieved

by the decision refusing him the benefit of the time bound promotion. Let it be made clear that the benefit of time bound promotion is not automatic and in fact two things will be absolutely necessary for granting time bound promotion. Firstly the petitioner must fulfil the requirement rendering satisfactory service of the prescribed period of 10 or 25 years and secondly his service record should be clean so as to make him entitled for grant of regular promotion. The time bound promotion in fact is only a substitute when a person can not earn a regular promotion due to want of vacancy on the promotional post. Thus the policy of time bound promotion was introduced in the form of anti-stagnation removal measure and under such policy, the employer will be required to screen the service record.

11. In the case of petitioner, when his service record is screened, it would be found that he had already been inflicted with punishment of stoppage of two increments as per the earlier order of the Principal dated 12.9.1998. This order had remained unchallenged and thus became final. Therefore, in view of the order of punishment, the petitioner cannot claim himself to be eligible for grant of time bound promotion.

12. Once this aspect becomes clear, there will be no difficulty in approving the impugned order dated 18.9.2002 passed by the petitioner, refusing to grant of benefit of time bound promotion to the petitioner and infact the same suffers from no error either on fact or in law. A bare perusal of the order itself will go to show that the petitioner had unnecessarily incurred displeasure of his higher authorities, inasmuch as, it is found that wherever he was posted either in Pathology Department or Pharmacology Department of the Patna Medial College and Hospital, he had always been facing serious allegation of indiscipline. Thus, the petitioner’s chequered service record added with his order of punishment will automatically disentitle the petitioner from the benefit of time bound promotion and that is what has been precisely done by the Principal while passing the impugned order dated 18.9.2002. This Court also, therefore, does not find any error in the order dated 18.9.2002 passed by the Principal of the college.

13. Once this aspect becomes clear that the order dated 18.9.2002 cannot be interfered by this Court, the ultimate result will be that the petitioner will not be entitled for grant of time bound promotion as is the main prayer made in this writ application.

14. As with regard to the prayer made in I.A. No. 736 of 2007 for a direction to consider the case of the petitioner for grant of A.C.P. benefits, this Court would not like to say anything for the present because the policy of time bound promotion in terms of Resolution of Finance Department dated 30.12.1981 which remained in force till 31.12.1995 was made the subject matter of this writ application when it was filed on 12.11.2002. The A.C.P. Rules however were enforced in the year 2003 and thus the amendment sought in relief portion by the petitioner for grant of ACP benefits cannot be said to be in continuation or furtherance to the relief sought in the main writ application. In that view of the matter the prayer for amendment in I.A. No. 736 of 2007 is hereby rejected. It is however made clear that nothing said in this order shall come in the way of his claiming benefit of ACP and even in approaching this court again for grant of ACP if the same is refused to him by the Respondent.