DR. RAMESH CHANDRA SINHAversusSTATE OF BIHAR & ORS.

A
                      DR. RAMESH CHANDRA SINHA
                                         v.
                          STATE OF BIHAR & ORS.

                                AUGUST 23, 1988

            [E.S. VENKATARAMIAH AND MURARI MORON
                           DUTT, JJ.]

          Civil Services: Bihar Medical Service: Patna Medical College
      Hospital-Associate Professors of Plastic Surgery-Seniority a/-
      Length of teaching experience in Plastic Surgery to determine seniority.
c           The appellant and respondent Nos. 3 and 4 were appointed
      Associate Professors of Plastic Surgery in the Patna Medical College on
      September 29, 1978. In the appointment order the name of the appel-
      lant was placed below the two respondents. In a writ petition moved by
      him under Art. 226 Of:tke Constitution claiming seniority above respon-
Jl)   dent No. 4, the High Court found that he had teaching experience in
      Plastic Surgery for a period of 3 years 8 months 3 days, while the
      respondent No. 4 had such experience for 4 years 7 months 27 days and
      accordingly held that the respondent No. 4 was senior to the appellant.

        In this appeal by special leave it was contended for the appellant
E that in calculating the length of teaching experience the High Court had
  not taken into consideration that he had worked in the Plastic Surgery
  Department from November 29, 1963 to June 28, 1966 under the Head
  of the Department and If that period was taken into consideration along
  with the period determined hy the High Court he wood be senior .to
  respondent No. 4.
F
            Allowing the appeal,

           HELD: The question of seniority between the appellant and
      respondent No. 4 is to be resolved on the basis of the length of teaching
      experience in Plastic Surgery. [568DI        .
          A separate unit of Plastic Surgery was created in the Medical
    College Hospital on January 2, 1964. It is not disputed that the appel-
    lant had worked· as a teacher in that unit from January 2, 1964 to June
    28, 1966. It cannot be said that during this period be had gained teach-
    ing experience in General Surgery, as stated in the affidavit of the State
ItI Government, when, as a matter of fact. 1 .be was teaching in Plastic
                                        566
               R.C. SINHA v. STATE OF BIHAR [DUTI, J.]               567

Surgery. Though the appellant had addressed a letter to the Superin-        A
iendent, Patna Medical College Hospital on December 21, 1963 seeking
transfer to the Department of General Surgery, there is no material to
show that his reques~ was acceded to or that he was, as a matter of fact,
transferred from the ,pl~stic Surgery Unit to the General Surgery
Department. Instead of complying with his request it was ordered that
though he would work in the Plastic Surgery Department, he would be         B
deemed to have gained teaching experience in the Department of
General Surgery. Such an order was not asked for by the appellant. The
order was not only improper and unjwt but also illegaI. I~, 569B, E-GJ

      The High Court was, therefore, not justified in excluding the
period from 2.1.1964 to 28.6.1966 from the computation of the teaching
experience of the appellant in determining his seniority. That period C
when added to the period of admitted teaching experience of the
appellant; as found by the High Court, he will be senior to respondent
No. 4. [569H-570A]

     The State of Bihar to assign to the appellant seniority over respon- D
dent No. 4. [570B-cl     · .

     CIVIL APPELLATE JURISDICTioN: Civil Appeal Nos. 39
& 40 of 1981.

     From the Judgment and Order dated 1.8.1980 of tlie Patna-High E
Court in C.W.J.C. No. 650 of 1979 and 157 of 1978.  ·

      Tapas Roy and M.P. Jha for the Appellant.

 .  D. Goburdhan, D.P. Mukharjee and A.K. Jha for the
Respondents.                                          'F

      The Judgment of the Court was delivered by

      DUTT, J. The only point that is involved in one of these. two
appeals by special leave, namely, Civil Appeal No. 39 of 1981, which is
the only effective appeal, relates to the seniority between the appellant G
Dr. Ramesh Chandra Sinha and the respondent No. 4 Dr. P.K.
Verma. The appellant has also challenged the seniority of Dr. S.L.
Manda!, respondent No. :i in Civil Appeal No. 39 of 1981, and Dr. J.
Alam, respondent No. 1 in Civil Appeal No. 40 of 198L But, Mr.
Tapas Roy, learned counsel appearing· on behalf of the appellant in
both these appeals, has expressly given up the challenge in respect of . H
    568         SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

    these two persons. We are, accordingly, concerned with the question
    of seniority between the appellant and Dr. P.K. Verma in Civil Appeal
    No. 39 of 1981 and, as the appellant does not press the case against Dr.
    J. Alam, the Civil Appeal No. 40 of 1981 is infructuous and liable to be
    dismissed.                    ·

B         Both the appellant and Dr. Verma.are Plastic Surgeons. By an
    o.rder dated September 29, 1978, the State Government appointed the
    appellant, Dr. S.L. Manda! and Dr. P.K. Verma, the Associate Pro-
    fessors of Plastic Surgery in the Patna Medical College. In the said
    order, the name of the appellant was placed below the names of Dr.
    Manda! and Dr. Verma, which meant that the appellant was junior to
    them. The appellant, as stated already, has given up his case against
c   Dr. Manda!. The appellant, howe_ver, claims that he is senior to Dr.
    Verma and, accordingly, his name should have been placed above him
    in the said order of appointment. Being aggrieved by the said order
    making the appellant junior to Dr. Verma, the appellant moved the.
    Patna High Court under Article 226 of the Constitution claiming
D   seniority over Dr. Verma.

          It is not disputed before us that the question of seniority between
    the appellant and the respondent No. 4 will be resolved on the basis of
    the length of teaching experience in Plastic Surgery. The High Court
    came to the finding that the appellant had teaching experience in
E   Plastic Surgery for a period of 3 years 8 months 3 days, while the
    respondent No. 4 Dr. Verma had such experience for 4 years 7 months
    27 days. In that view of the matter, the High t:ourt held that the
    respondent No. 4 was senior to the appellant and dismissed the writ
    petition. Hence the Civil Appeal.No. 39 of 1981.

F       Mr. Roy, learned counsel appearing on behalf of the appellant,
  submits that in calculating the length/ of teaching experience of the
  appellant, the High Court has not ral<en foto its consideration that the
  appellant had worked in the Plastic Surgery Department from
  November 29, 1963 to June 28, 1966 under one Dr. R.N. Sinha, the
  Head of the Department of the Plastic Surgery,.Patna Medical College
G Hospital. In this connection, it may be stated that in the Patna Medical
  College Hospital, Plastic Surgery was a part of the General Surgery_
  Department. On January 2, 1964, a separate unit of Plastic Surgery ·
  was created and it is not disputed that the appellant had worked as
  a teacher in the Unit of Plastic Surgery from January 2, 1964 to ~une 28,
  1966. Indeed, as stated above, he had been in the Plastic Surgery
H Department from November 27, 1963 before it was converted into a
              R.C. SINHA v. STATJ: OF BIHAR [DUTT, J.l              569

separate unit. There can be no doubt that if this period from January 2,   A
1964 to June 28, 1966 is taken into consideration along with the period
of 3 years 8 months 3 days, the appellant will, undoubtedly.• be senior
to the respondent No. 4. The High Court has no doubt referre~ to this
period, but it proceeded on the basis that during the said period the
appellant had gained teaching experience in General Surgery, as
stated in the affidavit of the State Government. It is not easily under-   B
standable how the appellant could be said to have gained experience in
General Surgery when, as a matter of fact, he was teaching in Plastic
Surgery in the new Unit of Plastic Surgery created with effect from
January 2, 1964 under Dr. R.N. Sinha, the Head of the Department.
The High Court has also observed that during the said period the
appellant on some occasion himself wanted a transfer to the General        C
Surgery Department for gaining teaching experience in Gel)eral
Surgery and his request was acceded to by the State Government by
allowing him to gain teaching experience in General Surgery. The
High Court took the view that the, appellant could not fall back and
claim that the said period should also be counted as gaining teaching
experience in Plastic Surgery.                                             D

      In the first place, the High Court proceeded on the erroneous
assumption that the appellant's request for his transfer to the General
Surgery was acceded to by the State Government. It appears from a
letter dated December 21, 1963 of the appellant addressed to the
Superintendent, Patna Medical College Hospital, that the appellant E
wanted a transfer to the Department of General Surgery. There is no
material to show that the appellant's request for transfer to the
General Surgery was acceded to or that the appellant was, as a matter
of fact, transferred from. the Plastic Surgery Unit to the General
Surgery Department. It is true that the appellant had requested for his
transfer to the General Surgery Department, but instead of complying F
with his request it was ordered that though he would work in the
Plastic Surgery Department, he would be deemed to have gained
teaching experience in the Department of General Surgery. Such an
order was not asked for by the appellant. Even assuming that the
appellant had requested that his teaching experience -in Plastic
Surgery shouid be deemed to be teaching experience in General G
Surgery, it did not behove the Government or the authority concerned
to accede to such a request. The order, in our opinion, is not o·nly
improper and unjust but also illegal and cannot stand in the way of the
seniority of the appellant.

      The High Court was, therefore, not justified in exdudirrg the        IA
    570         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

A   said period from 2.1.1964 to 28.6.1966 from the computation of the
    teaching experience. of the appellant in determining his seniority. That
    period when added to the period of 3 years 8 months 3 days of admit-
    ted teaching experience of the appellant, as found by the High Court,
    the appellai\t will be senior to the respondent No. 4 Dr. P.K. Verma,
B   whose length of teaching service, as found by the High Court and not
    disputed before us, is 4 years.7 months 27 days only.

          For the reasons aforesaid, we set aside the judgment of the High
    Court and direct the State of Bihar to revise the seniority of the appel-
    lant and of the responctiint no. 4, Dr. P.K. Verma, and assign to the
    appellant seniority over the respondent No. 4.
c
          The Civil Appeal No. 39 of 1981 is allowed with costs_quantified
    at Rs.3,000. Civil Appeal No. 40 of 1981 is, however, dismissed with-
    out any order as to cost.

D   P.S.S.                                             Appeal.s disposed of.