Allowed

The State of Bihar and Ors. v. Dr.Bhartendu Jha and Ors.

Patna HC3 Jul 2013L.P.A/214/2009

Case brief

AI extract

What is this about?

The Patna High Court allowed Letters Patent Appeals filed by the State of Bihar against a Single Judge order. The Court held that a petitioner confirmed as a Medical Officer could not claim regularization as a Lecturer despite having similar qualifications. The Single Judge's order directing regularization and altering service allocation was set aside, and the writ petitions were dismissed.

What did the court decide?

The orders of the Single Judge dated 1st July, 2008 allowing the writ petitions directing regularization and allocating service to Jharkhand are set aside and the writ petitions are dismissed.

The State of Bihar and Ors. Vs Dr.Bhartendu Jha and Ors. — Service and Employment | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.214 of 2009 IN

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Civil Writ Jurisdiction Case No. 10000 of 2007

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The State of Bihar.

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The Commissioner-Cum-Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Deputy Secretary-Cum-Nodal Officer, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Director, Desi Chikitsa, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Principal, Rajkiya Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga

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.... .... Respondents/Appellants

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Versus

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Dr.Bhartendu Jha , S/o Late Markandey Jha, resident of village- Muraitha, P.S.Jalley, District- Darbhanga

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.... .... Petitioner/ Respondent

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The Union of India, through the Ministry of Pension (Department of Personnel and Training), Government of India, New Delhi

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The State of Jharkhand through its Secretary, Department of Health

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The State Advisory Committee through its Chairman, Bailey Road, Patna

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…. …. Respondents/Respondents

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with

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Letters Patent Appeal No. 215 of 2009 IN

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Civil Writ Jurisdiction Case No. 1967 of 2001

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===========================================================

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The State of Bihar.

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The Commissioner-Cum-Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Director, Desi Chikitsa Local Medicine), Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna

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The Principal, Rajkiya Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga

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The Secretary-Cum-Commissioner, Department of Finance, Government of Bihar, Pant Bhavan, Bailey Road, Patna

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.... .... Appellants/Respondents

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Versus

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Dr.Bhartendu Jha , S/o Late Markandey Jha, resident of village- Muraitha, P.S.Jalley, District- Darbhanga

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.... .... Respondent/Petitioner

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=========================================================== Appearance :

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(In LPA No. 214 of 2009) & (In LPA No. 215 of 2009)

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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For the Appellants : Mr. Sanjay Kumar No.II, GA-5, Mrs. Nutan Kumari Sharma, AC to GA-5 & Mr. Pawan Kumar, AC to GA-5

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For the Respondents : None.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE S.N. HUSSAIN

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

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Heard learned counsel for the appellants.

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S.N. Hussain & Ahsanuddin Amanullah, J.J.

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Though the respondent/writ petitioner had appeared in the case and even a counter affidavit had been filed in LPA No. 215 of 2009, duly affidavited by him, but nobody has been representing him since the last few days when the case has been taken up for hearing. On the last occasion on 21^st June, 2013, this Court had recorded a detailed order with regard to the respondent/writ petitioner not pursuing the present matter before the Court. Today also, there is no representation on his behalf although the name of the learned counsel appearing for him is printed in the daily cause list. Accordingly, the matter has been heard and orders are being passed.

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These two appeals are directed against order dated 1^st July, 2008 passed in C.W.J.C. No. 1967 of 2001 and C.W.J.C. No. 10000 of 2007, by the learned Single Judge.

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C.W.J.C. No. 1967 of 2001 was filed seeking a direction to regularize the service of the petitioner on the post of Lecturer, whereas C.W.J.C. No. 10000 of 2007 was filed for quashing the notification as far as it related to the petitioner by which his service has been allocated to the State of Jharkhand.

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By the order under challenge, the learned Single

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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Judge by a common judgment and order dated 1^st July, 2008 had allowed both the writ petitions directing that the petitioner be allowed to join on the post of Lecturer and the allocation of his service to the State of Jharkhand was also set aside. Being aggrieved, the appellant State of Bihar has filed the present Letters Patent Appeals.

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Learned counsel for the appellants submits that the petitioner was initially appointed on the post of Medical Officer and his services had never been either absorbed or re-designated as Lecturer by the State Government at any point of time. It is the case of the appellant that in fact, when recommendation was received from the Bihar Public Service Commission, the same was also for the post of Medical Officer with regard to the writ petitioner.

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The learned Single Judge, according to the learned counsel for the appellants, has erred in holding that there had been discrimination against the petitioner by not regularising him on the post of Lecturer, since others had been regularized without consideration of the case of the petitioner for being absorbed on the post of Lecturer as he had similar qualification as that of others, who had been appointed as Lecturer. It is submitted that the same is erroneous since only those persons who had been appointed as Lecturer in the past had been confirmed on such post, whereas the petitioner was never appointed as Lecturer and thus, he cannot claim parity with persons who have finally been

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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appointed as Lecturer by the State Government.

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It is further submitted that the other contention of the writ petitioner that as he was qualified and fit to be appointed as Lecturer, his subsequent allocation to the State of Jharkhand is improper since there is no post of Lecturer which has been apportioned to the State of Jharkhand who could be transferred, the learned Single Judge having held that the petitioner was entitled to be absorbed on the post of Lecturer has thus also interfered in the transfer of allocation of the service of the petitioner to the State of Jharkhand holding him to be a Lecturer. Learned counsel for the appellants submits that this is not sustainable since the post of Medical Officer had been divided between the two States of erstwhile Bihar and newly created Jharkhand and the petitioner had been allocated the State of Jharkhand, which order did not require any interference, as no legal infirmity had been committed in either the appointment or allocation to Jharkhand of the writ petitioner.

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Learned counsel for the appellants also submits that earlier during the course of arguments in the present appeals, the respondent-writ petitioner had taken plea that there were three other similarly situated persons, who had been absorbed as Lecturer and the State was called upon to explain the same. It is submitted that the three persons, whose example has been given, have already been removed from the post of Lecturer, which has been challenged by them before this Court in proceedings which

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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are still pending.

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It would be relevant to indicate here that earlier one such writ petition being C.W.J.C. No. 5155 of 1999, has been directed to be heard along with the present appeal by order dated 30^th March, 2009, but later on the said writ petition along with four other similar writ petitions had been delinked from the present appeals on 27^th April, 2012.

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Learned counsel for the appellants submits that though the respondent/writ petitioner has been allowed to join on the post of Lecturer in the State of Bihar, but the same is only as an interim arrangement as it has clearly been stipulated that it would be subject to the result of the present two appeals.

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Though nobody has appeared to assist the Court on behalf of the respondent-writ petitioner, but from the averments made in the counter affidavit filed on his behalf under his signature, nothing has been brought on record to contradict the stand of the State that at no point of time the respondent-writ petitioner was ever appointed on the post of Lecturer. It has also not been denied that the Bihar Public Service Commission at the time of making recommendation for confirming the services of the petitioner had recommended for such confirmation on the post of Medical Officer. There is no material to show that the post of Medical Officer could not have been apportioned between the States of Bihar and Jharkhand.

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After considering the submissions of learned

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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counsel for the appellants and after perusing the materials on record, this Court finds substance in the submissions of learned counsel for the appellants. The writ petitioner having been appointed initially on the post of Medical Officer, later on confirmed upon the recommendation of the Bihar Public service Commission on the post of Medical Officer, cannot have a legally sustainable case for being appointed on the post of Lecturer only on the ground that he possessed qualification similar to that required for a Lecturer. It is well settled law that at the time appointment is made on a particular post and certain minimum qualifications are the pre-requisite, any claim of a person having a superior or better qualification which may also make him entitled for a higher post, will not confer any right on that person to be appointed to the higher post even though consideration is being made for a lower post, as in the present case. The consideration never being for the post of Lecturer in the case of respondent-writ petitioner, he can have no claim in law for being absorbed or appointed on the said post. Once this Court holds that the petitioner could have no claim for being absorbed or appointed on the post of Lecturer in the manner he has claimed, the second question becomes academic, since it is not the case of respondentwrit petitioner that the post of Medical Officer cannot be apportioned between the States of Bihar and Jharkhand.

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In view of the aforesaid, the order passed by the learned Single Judge dated 1^st July, 2008 in C.W.J.C. No. 1967

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Patna High Court LPA No.214 of 2009 dt.03-07-2013

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of 2001 and C.W.J.C. No. 10000 of 2007 is set aside. The writ petitions C.W.J.C. No. 1967 of 2001 and C.W.J.C. No. 10000 of 2007 are dismissed.

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The appeals accordingly stand allowed.

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(S.N. Hussain, J)

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(Ahsanuddin Amanullah, J)

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Patna High Court, Dated 3^rd July, 2013, NAFR/P.K.

The State of Bihar and Ors. v. Dr.Bhartendu Jha and Ors.

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The State of Bihar and Ors. v. Dr.Bhartendu Jha and Ors.

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