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2003 DIGILAW 255 (GAU)

Bhusan Chandra Roy Medhi v. Hemanta Kumar Mahanta

2003-06-16

P.P.NAOLEKAR, RANJAN GOGOI

body2003
JUDGMENT 1. The respondent, who was the petitioner in the original petition, had challenged the promotion given to Dr. B.C. Roy Medhi, Medical Associate Professor, Forensic Medicine on the post of Professor, Forensic Medicine, Assam Medical College, Dibrugarh by order dated 2nd September, 2000. The learned Single Judge allowed the writ petition on the premises that there are no rules governing the promotion to the post of Professor, Forensic Medicine, the normal rule of seniority shall apply and admittedly, the petitioner being senior than that of the Respondent No. 7, the appellant herein, would be entitled for promotion to the higher post namely, the post of Professor, Forensic Medicine. The Court has held that the Respondent No. 7 Dr. B.C. Roy Medhi has been given promotion, who is junior to the respondent-petitioner without considering the case of the petitioner by the Departmental Promotion Committee and on this count, the promotion given to the Respondent No. 7, appellant herein, was quashed. From the tenor of the order passed by the learned Single Judge, it appears that he is impressed with the fact that in the absence of Service Rules, the Departmental Promotion Committee should have adopted the criteria of seniority and secondly, since the petitioner-respondent was not considered, the promotion should not have been given to the Respondent No. 7, the appellant herein. Aggrieved by the order passed by the learned Single Judge, Dr. B.C. Roy Medhi, the private respondent, has filed the present appeal. 2. From the facts alleged, there is no dispute before us that Dr. Hemanta Kumar Mahanta was senior to the Respondent No. 7, the appellant herein, on the post of Associate Professor. There is also no dispute that the promotion to the appellant was given on the recommendation of the Departmental Promotion Committee. The only question for consideration before us is whether there is any relevant criteria laid down by the Government for giving promotion on the post of Professor or normal rule of seniority in service shall be a criteria for consideration for promotion to the higher post in the absence of the rules. 3. During the course of arguments before us, the learned counsel for the State Government has filed a copy of the notification dated 27th May, 1988 issued by the Secretary to the Government of Assam, Health and Family Welfare Department. 3. During the course of arguments before us, the learned counsel for the State Government has filed a copy of the notification dated 27th May, 1988 issued by the Secretary to the Government of Assam, Health and Family Welfare Department. The learned counsel for the State has also filed a proceeding of the selection process held by the Departmental Promotion Committee in sealed cover (the photo copies of the same is kept record). As per the notification issued on 27th May, 1988, in the absence of the Rules Selection Committee was constituted for the purpose of promotion to the post of Professor, Associate Professor and Assistant Professor consisting of the Commissioner/Secretary to the Government of Assam, Health and Family Welfare Department and representative from the Personnel (B) Department as a Member and the Director of Medical Education, Assam, Guwahati-6 as a Member-Secretary. The notification has also prescribed that for the promotion to the post of Professor, Associate Professor and Assistant Professor, the criteria for promotion shall be merit-cum-seniority. It is the well established principle of law that in the absence of any rules, regulations or statutory provisions, the Government have the jurisdiction to issue the Executive Instructions. When the Government issued the Executive Instructions, the vacant space shall be occupied by the Executive Instructions till the rules, regulation and statute is framed covering the field. 4. In the present case, the Government has issued the notification dated 27th May, 1988 wherein the criteria has been fixed for promotion to the post of Professor in the Forensic Medicine Department as merit-cum-seniority. Therefore, the learned Single Judge was not correct in holding that the petitioner-respondent being senior would entitle to the promotion on the post of Professor merely on the basis of his seniority on the post of Associate Professor. 5. We have perused the recommendation of the Selection Committee wherein the Selection Committee has not recommended the name of the respondent as they found adverse remarks in the Annual Confidential Report of Dr. Mahanta, meaning thereby that the Selection Committee has not found Dr. Mahanta suitable for promotion to the post of Professor on the basis of his merit. The rule being merit-cum-seniority, the Selection Committee was well within its right to recommend an eligible person for promotion on the basis of merit and seniority and not only on the basis of seniority. Mahanta, meaning thereby that the Selection Committee has not found Dr. Mahanta suitable for promotion to the post of Professor on the basis of his merit. The rule being merit-cum-seniority, the Selection Committee was well within its right to recommend an eligible person for promotion on the basis of merit and seniority and not only on the basis of seniority. The Selection Committee proceeding also clarified that the petitioner case has been considered by the Selection Committee and he was not found fit. The learned Single Judge was not correct in holding that the petitioner-respondent's case was not considered by the Selection Committee while granting promotion on the post of Professor, Forensic Medicine. It is then submitted by the learned counsel for the appellant that there has been allegations of mala fide against the Head of the Department of Forensic Medicine Dr. P.C. Sarma who has taken revenge against the petitioner while writing the Annual Confidential Report of the petitioner as the petitioners respondent has made certain complaints against him. It is well settled that the allegation of mala fide cannot be considered by the Court in the absence of the person being added as a party to the proceeding. Apart from this, we find that Dr. P. C. Sarma was not a member of the Selection Committee and thus, cannot influence the proceeding of the Selection Committee wherein the petitioner-appellant was not recommended for promotion to the post of Professor, Forensic Medicine. 6. For the aforesaid reasons, we find that the judgment of the learned Single Judge was not in accordance with law and it is hereby set aside. However, in the circumstances of the case, we do not impose any cost.