1. Having heard Mr. Arun Kumar Prasad, learned Counsel for the Petitioner Mr. P.K. Shahi, learned Government Pleader No. 7 on, behalf of the State and Mr. Banwari Sharma appearing on behalf of Respondent No. 4, in detail, we intend to dispose of this application at that admission stage itself.

2. In short, the grievance of the Petitioner, in the present writ application, is that though he possessed the requisite qualification as well as teaching experience, he was deprived of the promotions as Assistant Professor and then as Associate Professor and the last one as Professor in the E.N.T. Department of the Medical College whereas his juniors have been allowed to supersede him so much so that on 1.2.1991 the service of Respondent No. 4, who is less qualified and prosseses less total teaching experience, has been regularised as Associate Professor by the Government notification dated 1.2.1993 as contained in Annexure-1, without disposing of the representations of the Petitioner made from time to time.

3. However, in the counter affidavit filed on behalf of Respondent No. 2, a copy of order dated 1.2.1991 rejecting the representations filed by the Petitioner has been annexed as E without giving any reason for the same.

4. The Petitioner has given a comparative chart of his qualification and the teaching experience vis-a vis that of Respondent No. 4 at Annexure 13 to the amendment petition filed on his behalf on 11th March, 1992. The correctness of the same has not been disputed by the learned Government Pleader No. 7 as also by Mr. Banwari Sharma, learned Counsel appearing for Respondent No. 4 to whom we, even before the hearing of this matter commenced, had asked as to whether Respondent No. 4 would like to file any counter affidavit but Mr. Sharma categorically stated that the facts Stated in the comparative chart are not in disputed and, accordingly, we proceeded to hear the-matter in detail, so that the same may be disposed of at the admission stage itself.

5. The short question that has been raised on behalf of the Respondents is that the Petitioner, in view of the Government resolution, contained in Memo No. 5935 (2) dated 7.9.1973 (Annexure C), was not entitled to count the teaching experience in respect of supernumerary duty performed by him from 15.2.1971 to 15.12.1976 and from 16.12.1979 to 14.3.1980 when he worked in the Patna Medical College Hospital beyond the expiry of the so called tenure of three years. It was also contended that the Petitioner is not entitled to count teaching experience from 8.5.1988 to 23.10.1988 when he worked as Medial Officer in the Preventive & Social Medicine Department of the Patna Medical Collage Hospital, Patna, However, learned Government Pleader No. 7 and also learned Counsel for Respondent No. 4 have not disputed the fact that the Petitioner has actually perform the teaching work in a teaching hospital (sic) from 17.2.1971 till date.

6. learned Counsel for the Petitioner is reply submitted that in view of principal laid down by the Supreme Court in the (sic) reported in : AIR 1983 SC 509 Dr. Asim Kumar Bose v. Union of India and Ors. the Petitioner acquired the requisite teaching experience and (sic) eligible and due for promotion as Assistant Professor with effect from 4.3.1976 Associate Professor with effect from (sic) and as Professor in the E.N.T. Department on 18.2.1988. The Petitioners representation for due promotions have been arbitrarily (sic) by order, as contained in Annexure which, according to the settled principal also bad in law as no reason has been against for the same. On the other hand, the learned Counsel for the Respondents has relied (sic) Bench decision of this Court reported in the BBCJ 45 1990 (I) PLJR 124 Dr. Anil kumar Sinha v. The State of Bihar and Ors. which had taken notice of the aforementioned (sic) Court decision and also the respondent of the Government dated 7.9.1973 by holding to be of binding nature. We do not accept this submission of the learned Counsel for the respondents.

7. In fact in the said decision, the Court was not considering the validity or otherwise of the said Government decision. There lordships proceeded to decided that case on (sic) that since there was no statutory rule (sic) down the criteria for recognition of the (sic) experience, the Government order dated 7.9.1973 was held to be an order of a (sic) nature. In our opinion the validity the said Government order would be (sic) in view of the Supreme Court decision Dr. Asim Kumar Boses case (supra), but on the validity of the same has not been alleged by the Petitioner, I n the present (sic) we do not want to express any final opinion about the same.

8. In the case of Dr. Asim Kumar Bose (supra), the Supreme Court held as follows:

The recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-office shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching expedience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation.

From the aforesaid it is clear that the Supreme Court his laid down the law that (sic) different as to whether a teaching expense is acquired on a regular appointment was specialist in a teaching hospital with (sic) designation. In substance, in the present case, the only objection appears to be the Petitioner did not acquire the teaching experience on regular appointment in acceptance with the Government resolution (Annexure-C) and, therefore, not entitled to the (sic) period for consideration of his case for promotion. The fact that the Petitioner actual teaching experience in a teach hospital has not been disputed. We are therefore, of the view that applying the principle laid down by the Supreme Court in the above case the Petitioner is entitled to count the actual teaching experience acquired by him.

9. learned Counsel for the Petitioner has also relied on the order of the Supreme Court passed in Dr. Ram Janam Singhs case, in the light of which the Government issued notification in favour of Dr. Ram Janam Singh giving him the benefit of the teaching experience when he was not posted against a regular teaching post and, consequently, promoting him as Associate Professor and as Professor with effect from due date, though without financial benefit by relaxing the aforementioned Government resolution dated 7.9.1973. A true copy of the notification has been annexed as Annexure 17 to the reply affidavit filed on behalf of the Petitioner.

10. It may be useful to quote the order passed by the Supreme Court in respect of Dr. Ram Janam Singh which has been quoted in Dr. Anil Kumar Sinhas case (supra):

Heard learned Counsel for the parties. We are of the view that the legal position to be applied to the facts and circumstances of the case, has been properly settled by this Court in the case of Dr. Asim Kumar Bose v. Union of India and Ors. The order and judgment of the High Court is set aside and the Respondent. State of Bihar is directed to dispose of the Appellants claim for regularisation of his service and the other reliefs in accordance with the principle indicated by this Courts judgment, referred to above. The direction given in that case will be taken as given here. The appeal is disposed of accordingly with no order as to costs.

In view of the disposal of the appeal today, the writ petition is not pressed and is dismissed.

11. The Supreme Court set aside the judgment of the High Court and issued direction to the Respondent State of Bihar to dispose of his claim for reclamation of his service and other reliefs in accordance with the principle indicated by the Supreme Court in Dr. Asim Kumar Boses (supra). From Paragraph 15 of the decision in Dr. Anil Kr. Sinha (supra and Annexure 17 to the reply affidavit it appears that Dr. Ram Janam Singh was given the benefit of the teaching experience for the period when he was not posted against a regular teaching post. More or less the case of the Petitioner is also of similar nature as would appear from the stand of the Slate Government, as contained in sub-paragraph 4 of paragraph 2, wherein it has been stated tint the Petitioner was denied the benefit of the teaching experience while he worked on supernumerary duty and in the Preventive & Social Medicine Department. Besides that the period of the teaching experience spent beyond the expiry of tenure of the post of Registrar was also not recognised.

12. As regards the tenure, learned Government Pleader No. 7 could not point our any rule depriving a persons of the actual teaching experience for the period spent beyond the tenure of the past or Registrar, the validity of which, in our opinion, would be doubtful even if it existed, a view of the Supreme Court decision in Dr. Asim kumar Boses case (supra). However, since no such Rule or even Government decision has been produced before us, we do not want to express any final opinion about the same but, in view of the Supreme Court decision in Dr. Asim Kumar Boses case (supra), we are of the view that the Petitioner could not Have been denied the benefit of the actual teaching experience for the period while he performed the same on supernumerary duty or during the period the so called expiry of the tenure post of Registrar.

13. As regard the period, while he was posted as Medical Officer in the Department of Preventive and Social Medicine, the Petitioners claim is that he performed teaching work there also and acquired actual teaching experience, in support of which he has filed a copy of the certificate granted by the Head of the Department as Annexure 8 to the work petition. learned Counsel for the Petitioner also submitted that the Department of preventive and Social Medicine is a teaching department I n terms of resolution of the Medical Counsel of India, a relevant extract copy a which has been annexed as Annexure 7 to the writ petition which is quoted hereunder--

Medical Counsel of India (sic) on undergraduates Medical (sic) adopted by M.C.I. in 1977 and (sic) upto February, 80. page 34 (sic) addition to the teaching undertakes by the departments of Social and (sic) Medicine, a joint programme with other departments is essential in order is give the students a comprehensive (sic) in man, his heath illness. (e) As regards the qualifications of teachers it is highly important that all the teachers have as far as possible, adequate administrative experience in addition to teaching experience. They should also be encouraged to accept skill in clinical subjects specially (sic) to community medicines.

Page 41. Teachers from entire facilities of medical collage should be given (sic) orientation and posted in tares to rural centre for the training (sic) in community health.

These facts have not been disputed by this learned Counsel for the Respondents.

14. Thus, in our opinion, the rejection the representations of the Petitioner by a (sic) order, contained in Annexure E, within it giving any reason is wholly illegal and arbitrary. In any view of the matter, since we have already held that the Petitioner was (sic) for the teaching experience all through height from 1971 since when, undisputedly, he performed the actual teaching work in a teaching hospital and also because this is not in dispute that he possessed the requisite qualification, we are of the view that the Petitioner was/is entitled for his promotions as Assistant professor, as Associate Professor and thereafter as Professor also with effect from date.

15. Accordingly, we quash the order dated 1.2.91 as contained in Annexure E and direct the Respondents authorities to dispose of the Petitioners claim for regularisation of his service and other reliefs in the light of our directions given above without financial benefits from the due dates within a month from today, even if it is required, by creating show post (s) as the Petitioner is retiring shortly. We may, however, indicate that the Petitioner shall be entitled to get the scale of his it promotional post with effect from the date be assumes charge.

16. Let a copy of this order be handed ever to the learned Government Pleader No. VII for onward communication.