Taruni Ngangbam (Dr. ) v. S. Bhagyabati Devi (Dr. ) and Ors.
2005-08-17
M.B.K.SINGH, T.NANDA KUMAR SINGH
body2005
DigiLaw.ai
T.N.K. Singh, J.:- 1. These two Writ Appeals are directed against the same judgment and order of the Learned Single Judge dated 30.1.2004 passed in W.P (C) No. 683 of 2000. 2. The fact of the case, in short, is that it is an admitted fact that the present appellant, Dr. Taruni Ngangbam of W.A. No. 59 of 2004/ private respondent No. 5 of W.P(C) No. 683 of 2000, was appointed as Medical Officer (SPM) in RIMS (Regional Institute of Medical Science) w.e.f. 23.10.1984: and she obtained P.G. Degree in Medicine in the year 1992. On 29.10.1993, the appellant was transferred as Registrar to the Department of Medicine, RMC (Now RIMS) and she joined the Department of Medicine, RIMS on 22.1.1993 as “Registrar” against the posts vacated by one Dr. Om Prakash Gupta who resigned vide order of the Chairman dated 29.10.1993. The appellant was appointed to the post of Assistant Professor(N.F.) w.e.f. 1.2.1995 under Time Scale Promotion Rules, 1991. 3. The principal respondent No. 1, Dr. (Mrs.) S. Bhagyabati Devi/ the writ petitioner of W.P(C)No.683 of 2000 was initially appointed to the post of “Chief Resident” in the Department of Medicine in the erstwhile RMC (now RIMS) against a post vacated by Dr. Kunjama George who left for P.G. study vide order dated 24.9.1980 and she was allowed to continue as “Chief Resident” against a post vacated by Dr.P. Bedikumar Singh who left for M.D. study vide order dated 8.2.1982 issued by the Chairman and later on, against a post vacated by Dr.(Mrs.) H. Nungshi Devi. W.e.f.31.10.1983 on the recommendation of the Selection Committee/ DPC meeting held on 24.2.1984, the principal respondent was appointed as Registrar on regular basis in the Department of Medicine, RMC(Now RIMS) against a regular vacancy caused by the promotion of Dr. Y. Iboton Singh to the post of Assistant Professor vide order dated 3.8.1984 issued by the Chairman, NERMC Society. By an order dated 12.8.1992, the Chairman, NERMC Society condoned a service break of the private respondent from 5.5.1983 to 16.5.1983, the period during which she worked as “Chief Resident” against the terminated post which was vacated by Dr. (Miss.) H. Nungshi Devi. 4.
By an order dated 12.8.1992, the Chairman, NERMC Society condoned a service break of the private respondent from 5.5.1983 to 16.5.1983, the period during which she worked as “Chief Resident” against the terminated post which was vacated by Dr. (Miss.) H. Nungshi Devi. 4. In the final seniority list of Registrar/Demonstrator/ Medical Officer as on 24.7.1992 under Memorandum dated 20.8.1992, the name of the private respondent/ writ petitioner appears at sl.no.33 and that of the appellant who was then serving as “Medical Officer(SPM)” appears at sl.no.63. It is also an admitted fact that w.e.f. 19.2.1993, on the recommendation of the Selection Committee/DPC meeting held on 19.2.1993, the private respondent/writ petitioner was given promotion as “Senior Registrar” in the Department of Medicine, RIMS. W.P.(C) No. 683 of 2000 was filed by the present principal respondent/writ petitioner challenging the said order dated 8.4.1999. 5. It is an admitted fact that the appellant obtained P.G. Degree in Medicine in the year 1992 and the private respondent/ writ petitioner obtained P.G. Degree in the year 1996. On the recommendation of the DPC held on 4.3.1999, the appellant was appointed by promotion to the post of Assistant Professor(NF) in the Deptt. of Medicine, RIMS w.e.f. 1.2.1995 under Time Scale Promotion Rules, 1991 as amended from time to time under the order of the Chairman dated 8.4.1999. The principal respondent/ appellant was also appointed to the post of Assistant Professor(NF) in the Deptt. of Medicine, RIMS w.e.f. 1.2.1998 under Time Scale Promotion Rules 1991 vide order of the Chairman dated 8.4.1999. Later on, under order of the Chairman dated 1.6.1999, the appellant and the principal respondent/ writ petitioner were allowed to be adjusted against the regular post of Assistant Professor. The principal respondent/writ petitioner being aggrieved by the order of the Chairman dated 8.4.1999 for appointing the appellant to the post of Assistant Professor(NF) w.e.f. 1.2.1995 under the Time Scale Promotion Rules, 1991 and also the said order of the Chairman dated 1.6.1999 filed W.P(C) No. 683 of 2000 only on the ground that the post of Medical Officer(SPM) against which the appellant was appointed is not a teaching post for the purpose of promotion under Time Scale Promotion Rules, 1991 and the appellant joined the teaching post of “Registrar” in the Department of Medicine only on 22.11.1993 where the principal respondent/writ petitioner was already serving as Sr.
Registrar which is a higher grade and as such the appellant is junior to her (principal respondent/ writ petitioner). 6. The only question to be decided in the present writ appeal as well as in W.P(C) No. 683 of 2000 is hat “Whether the post of Medical Officer(SPM) in the Deptt. of Community Medicine, RMC(Now RIMS) is a teaching post under the “Time Scale Promotion Rules, 1991 or not.?” For deciding this point, Rules 1,2,3 and 6(E) &(F) will be relevant and are quoted hereunder: “1. These Rules may be called the Time Scale Promotion Rules, 1991. 2. These rules shall come into force with effect from the date of notification and shall be applicable to all the employees holding teaching posts and the posts of Medical Officers, on regular basis under the Society. These rules supercede all the rules issued in this regard. 3. Definition: In these rules, unless the context otherwise requires:- (a) “Appointing Authority” means [an authority vested with the power such appointment and exercise such consequential power as laid down under the Constitution of the Institute and the bye-laws thereunder.] (b) “Chairman” means the Chairman, [Executive Council or Regional Institute of Medical Sciences, Imphal] (c) [“Executive Council” means Executive Council, Society of Regional Institute of Medical Science, Imphal.] (d) “Registrar Grade” includes Registrar, Demonstrator, Resident Pathologist, Resident Anaesthesiologist, Sr. Tutor, Sr. Resident, Medical Officer (Teaching & Non-teaching). (e) [ Omitted] (f) “Society” means [Society of Regional Institute of Medical Sciences, Imphal.] (g) “Teaching posts” means all posts in the grade of Professor, [Additional Professor,] Associate Professor, Assistant Professor, Registrar, Demonstrator, Sr. Resident, Sr. Tutor, Resident Pathologist, Resident Anaethesiologist and equivalent posts under the Society.” 6. RULES AND REGULATIONS GOVERNING THE SCHEME: * * * E. Up-gradation of Medical Officers (Nonteaching) as Senior Medical Officers:( Scale Rs. 3000-100-3500-125-5000/-) (i) The Medical Officers who have rendered 10 years of regular service (9 years for P.G. Degree holders and 10 years for Non- P.G.Degree holders) may be placed as Senior Medical Officers. (ii) Combined authorized strength of the posts of the respective Sub-Cadres from which these posts are upgraded will not be altered. (iii) The promotees under this Scheme shall have to carry out their duties of the original post till they are adjusted against any regular vacancies.
(ii) Combined authorized strength of the posts of the respective Sub-Cadres from which these posts are upgraded will not be altered. (iii) The promotees under this Scheme shall have to carry out their duties of the original post till they are adjusted against any regular vacancies. iv) Provided that in the event of any such officer declining to carry out his/her duty of the original post from which he/she was promoted under Time Scale Promotion, the authority may, in the public interest, withdraw the personal promotion/ designation of Senior Medical Officer given to him/her.” “(F) Assistant Professor (Non-functional) from Registrar, Demonstrator, Resident Pathologist, resident Anaesthesiologist, Sr. Tutor, M.Os. (Teaching, Sr. Resident with P.G. Degree holder (Scale Rs. 3000-100-3500- 125-5000/-) (i) They must have requisite and recognized Post Graduate qualification as per M.C.I. norms. (ii) They must render 10 years of regular service in the teaching posts [of the same discipline]. (iii) Within 10 years of regular service as the case may be they should have minimum 1 year of teaching experience [ of the same discipline] after obtaining P.G. Degree. (iv) Special relaxation shall be made for 1 year and 2 years for those who have joined the Institute after Post Graduation and Super Specialties respectively (v) This will be only personal designation. (vi) Combined authorized strength of the posts of the respective Sub-cadres from which these posts are up-graded will not be altered. (vii) The promotion shall be made on the basis of a common eligibility list covering all officers in the respective sub-cadres without regard to any specialities. (viii) The promotees under this scheme shall have to carryout their duties of original posts till they are adjusted against any regular vacancies. (ix) Provided that in the event of any such officer declining to carry out his/her duty of the original post from which he/she was promoted under the Time Scale Promotion, the authority may, in the public interest, without the personal promotion of Assistant Professor given to him/her. (x) Recommendation of DPC on senioritycum- fitness will be required. xi) This group of promotees will be junior to those who are already holding the post of Assistant Professor on a regular basis. (xii) Not more than (50%) shall be up-graded in a year. (xiii) In such case if Post Graduate allowance is enjoyed earlier, will be discontinued.” 7.
(x) Recommendation of DPC on senioritycum- fitness will be required. xi) This group of promotees will be junior to those who are already holding the post of Assistant Professor on a regular basis. (xii) Not more than (50%) shall be up-graded in a year. (xiii) In such case if Post Graduate allowance is enjoyed earlier, will be discontinued.” 7. The learned single Judge allowed the writ petition, i.e. W.P(C) No. 683 of 2000 by passing the impugned judgment and order dated 30.1.2000 by holding that the Medical Officer(SPM) of the Deptt. of Community Medicine is not a teaching post for the purpose of Time Scale Promotion Rules, 1991 for the reasons spelt out in paras-12 and 13 of the impugned judgment and order dated 30.1.2000 which reads as follows: “12. In the definition of the term “Registrar Grade” in Clause 3(d) of the Rules, the following posts, namely, Registrar, Demonstrator, Resident Pathologist, Resident Anaesthesiologist, Senior Tutor, Sr. Resident, Medical Officer (Teaching & Non-teaching) are included. But, interestingly, the definition of “teaching post” in clause 3(2) of the Rules does not mention the post of Medical Officer (teaching or non-teaching). This shows that all the posts in the Registrar Grade are not necessarily teaching posts. In order to constitute a teaching post, the post must be one in which there is imparting of instruction according to the general curriculum of the Institution. The exclusion of Medical Officer whether teaching or non-teaching in the definition of the term “teaching post”, which is a restrictive definition by the use of the word “means” and not “includes” in the definition of the term “Registrar Grade”, appears to be significant. It is the cardinal principal of construction that when a word has been defined in the interpretation clause, prima facie that definition governs wherever the word is used in the body of the statute. Therefore, the definition of the term “teaching post” in clause 3(g) shall necessarily govern the meaning of “teaching post” wherever it appears in the Rules. The posts specifically named as teaching posts in Clause 3(g) of the Rules are those posts which are considered to be normal teaching posts, and as such, there is no difficulty in recognizing them as teaching posts. On the other hand, the post of Medical Officer cannot be normally held to be teaching posts.
The posts specifically named as teaching posts in Clause 3(g) of the Rules are those posts which are considered to be normal teaching posts, and as such, there is no difficulty in recognizing them as teaching posts. On the other hand, the post of Medical Officer cannot be normally held to be teaching posts. This is evident from the said recommendation of the Medical Council of India the case of Medical Officer/Health Officer, who can be engaged in the teaching of Community Medicine. To my mind, therefore, thee may be some Medical/Health Officers who do not hold normal teaching posts but have nevertheless adequate field experience and whose services are accordingly utilized for teaching of Community Medicine under such circumstances. These Medical Officers fulfilling the above conditions and are engaged as such can be treated as holding posts equivalent to teaching posts. In my considered view, it is with a view to deal with certain situations as contemplated above that a provision appears to have been made to declare/recognize an equivalent teaching post in Clause 3(g) of the Rules. Therefore, such of the Medical/Health Officers who actually render teaching posts but are not recognized as holding posts equivalent to teaching posts can nevertheless be held to be holding posts equivalent to “teaching posts” in terms of Clause 3(g) of the Rules.” “13. Having held that some posts including the posts of Medical Officers can be treated as holding posts equivalent to teaching posts, the next question to be determined is whether there are materials before the Selection Committee to hold that the posts of Medical Officer(SPM), Community Medicine held by the private respondent prior to her transfer to the Department of Medicine as Registrar is a teaching post or a post equivalent thereto. The proceedings of the Selection Committee placed before me do not indicate the existence of such materials. On the contrary, the Selection Committee appeared to have proceeded with on the assumption that the private respondent was holding a teaching post and accordingly recommended her for the said promotion w.e.f.1.2.1995. It can thus be safely concluded that the Selection Committee without any materials has assumed the service rendered by the private respondent as Medical Officer(SPM) as a teaching post and not merely an equivalent of a teaching post. Can this be the correct view in law”. 8.
It can thus be safely concluded that the Selection Committee without any materials has assumed the service rendered by the private respondent as Medical Officer(SPM) as a teaching post and not merely an equivalent of a teaching post. Can this be the correct view in law”. 8. We may require to recall the decision of this court regarding the parameter of jurisdiction while exercising the writ appeals against the judgment and order of the learned single Judge of this court. This Bench in a number of writ appeals held that a Writ Appeal is an Appeal on principle meaning thereby that this court is exercising the co-ordinate jurisdiction and accordingly when examining the legality and validity of the judgment and order of the learned single judge it should be set aside or it should be quashed only when there is patent error on the face of the record or judgment is against the established/settled principle of law. If two views are possible and a view which is reasonable and logical, has been adopted by the learned single Judge and second view has not been accepted, decision/view adopted by the learned single Judge should be allowed to prevail. Para-15 of the judgment in State of Tripura & Ors - vrs - Remendra Nath Dey, reported in (2001) 1 GLR 54 reads as follows: “15. No doubt the writ court is a court of equity and equity must supplement the law meaning thereby that in exercising the power under Article 226 of the Constitution we cannot issue a mandamus or any other writ directing the authority to violate the law. But at the same time relief can be moulded by the Writ court in such a manner that justice is given/made as pointed out by the Apex Court in the Judgments quoted above. Writ Court is not a horned bull in a China day shop to put all things topsy-turvy, but whenever and wherever without violating the law or without causing a topsy-turvy situation, relief can be given within the bounds of law, such relief should be given because after-all the aim of the Court is to wipe out injustice, the genuine tears from the eyes of persons. It is in this background that we must decide this case in hand.
It is in this background that we must decide this case in hand. Another aspect of the matter is that a Writ Appeal is an appeal on principle meaning thereby that this court is exercising the coordinate jurisdiction and accordingly, when we examine the legality and validity of the Judgment of the concerned Single Judge, it should be set aside or it should be quashed only when there is patent error on the face of the record of the judgment is against the established/settled principle of law. If two view are possible and a view which is reasonable and logical, has been adopted by the learned single Judge and the second view has not been accepted, the decision/view adopted by the learned Single Judge, should be allowed to prevail.” 9. The ratio laid down in State of Tripura & Ors - vrs - Remendra Nath Dey (Supra) is followed in Tractor & Farm Equipment Ltd. - vrs - Secretary to the Govt. of Assam, Deptt. of Agriculture & Ors, reported in 2004(1) GLT 117. Para-26 of Tractor & Farm Equipment Ltd. - vrs - Secretary to the Govt. of Assam, Deptt. of Agriculture & Ors(Supra) reads as follows: “26. While dealing with the present appeal, one has to bear in mind that a writ appeal, really not statutory appeal preferred against the judgment and order of an inferior court to the superior Court. The appeal inter-se in a High Court from one Court to another is really an appeal from one coordinate Bench to another coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal, appeal, where the whole evidence on record is examined a new by the appellate Court, what is really examined, in a writ appeal, is the legality and validity of the judgment and/or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law.
If two views are possible and a view, which is reasonable and logical, has been adopted by a single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. Hence, the impugned the judgment of the learned Single Judge cannot be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail. The reference made, in this regard, by Mr. Dutta to the case of Ramendra Nath Dey (supra) is not misplaced.” We are also in respectful agreement with the ratio laid down by this court in State of Tripura & Ors - vrs - Remendra Nath Dey (Supra) and in Tractor & Farm Equipment Ltd. - vrs - Secretary to the Govt. of Assam, Deptt. of Agriculture & Ors (Supra). 10. Justice Mathew in Shri Mandir Sita Ramji - Vrs - Governor of Delhi & Ors, reported in AIR 1974 SC 1868 observed that “ the observation of the procedure laid down by Statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.”(Underlined is mine). We may also here recall the decision of the Apex Court in Kartar Singh - Vrs - State of Punjab, reported in (1994) 3 SCC 569 (C.B) that law is made not to be broken but to be obeyed and respect for the law is not retained by demonstration of strength but by better appreciation of reasons, better understanding of its reality and implicit obedient. The law is, what the Judges say, it is since the power to interpret the law vest in the Judges. 11.
The law is, what the Judges say, it is since the power to interpret the law vest in the Judges. 11. It is, no doubt, well settled that it is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statue is necessary when there is ambiguity, obscurity, or in-consistency therein and not otherwise. An effort should be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered superlusage or redundant. True meaning of a provision of law is to be determined on the basis of what it provides by its clear language, with due to record to the scheme of law(Reference may be made to Bhavnagar University - Vrs - Palitana Sugar Mill (P) Ltd. & Ors, reported in (2003) 2 SCC 111 . 12. The Apex Court in Kunal Singh - vrs - Union of India & Anr., reported in (2003) 4 SCC 524 held hat in the definition clause, if two distinct definitions of a cognate word or expression in the same enactment, must be understood accordingly in terms of the definition. The Apex Court in Union of India & Anr. - vrs - Tulsiram Patel, etc., reported in 1985 3 SCC 398 (C.B) had discussed “the Maxim - “Espressum facit cessare tacitum” while interpreting a statute and held that it is in the nature of constitutional prohibitory, injunction restraining the disciplinary authority from holding an enquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is, thus, no scope for introducing into the second proviso some kind of enquiry or opportunity by a process of interference or implication. The maxim “Espressum facit cessare tacitum”( when there is expression mentioned of certain things, then anything not mentioned is excluded). The ratio laid down in Union of India & Anr. - vrs - Tulsiram Patel, etc (supra) is followed by this court(D/B) in Hemam Bihari Singh - Vrs - State of Manipur, reported in (2004) 1 GLT 1. 13.
The maxim “Espressum facit cessare tacitum”( when there is expression mentioned of certain things, then anything not mentioned is excluded). The ratio laid down in Union of India & Anr. - vrs - Tulsiram Patel, etc (supra) is followed by this court(D/B) in Hemam Bihari Singh - Vrs - State of Manipur, reported in (2004) 1 GLT 1. 13. Coming back to the present case, we may, by keeping in view of the law laid down by the Apex Court in the cases cited above as well as the ratio laid down by this court in the cases cited above, to see as to whether the post of Medical Officer(SPM) is a teaching post for the purpose of Time Scale Promotion Rules, 1991 and also to see whether the view expressed by the learned single Judge in the impugned judgment and order is one of the reasonable and logical one even if two views are possible. 14. Admittedly, Rule 3(d) speaks about the grade, i.e. “Registrar Grade”. In other words, Rule 3(d) mentions only the posts which are in the grade of “Registrar”. Admittedly, in the Registrar Grade there are two different posts of Medical Officers, viz. Medical Officer (teaching)and Medical Officer (Non-teaching). Rule 3(g) specifies about the teaching post. On bare perusal of the Rule 3(g), it is crystal clear that “teaching posts” means all posts in the grade of Professor [Additional Professor] Associate Professor, Assistant Professor, Registrar, Demonstrator, Senior Resident, Senior Tutor, Resident Pathologist, Resident Anaesthesiologist and equivalent posts under the Society. It is abundant clear that while enacting/making Time Scale Promotion Rules, 1991, the law makers carefully not mentioned the post of Medical Officer while defining the teaching post under Rule 3(g). As held by the Apex Court in Shri Mandir Sita Ramji - Vrs - Governor of Delhi & Ors,(supra) that when the legislature has spoken, Judges cannot afford to be wiser and also as held by the Apex Court in Union of India & Anr. - vrs - Tulsiram Patel, etc (supra) that when there is expression mentioned of certain things, then anything not mentioned is excluded. We cannot construe the Rule 3(g) to such extent that teaching post includes Medical Officer even if the post of Medical Officer is not included in the teaching post defined in Rule 3(g).
- vrs - Tulsiram Patel, etc (supra) that when there is expression mentioned of certain things, then anything not mentioned is excluded. We cannot construe the Rule 3(g) to such extent that teaching post includes Medical Officer even if the post of Medical Officer is not included in the teaching post defined in Rule 3(g). Regarding the “equivalent posts” mentioned in Rule 3(g), the learned single Judge in the impugned judgment and order had discussed in thread bare and held that in the absence of record such as order of the competent authority, etc, that the post of Medical Officer(SPM) that is a post equivalent to one of the posts of teaching posts mentioned in Rule 3(g), it would be difficult to hold that the Medical Officer(SPM) is a post equivalent to one of the teaching posts defined in Rule 3(g). We are of the considered view that the said conclusions/views of the learned single Judge in the impugned judgment and order is sound and logical. 15. In the course of hearing of the present writ appeals, both the parties produced the documents in support of their rival contentions. The learned counsel appearing for the private respondents has drawn the attention of this court to the “ Minimum Standard Requirements for the Medical Collage for 100 Admissions Annually Regulation 1999.” Under that regulation, it is not clearly mentioned that Medical Officer is a teaching post, but the service of a Medical Officer can be utilized for teaching purposes. In the present case, as stated above by the learned Single Judge in the impugned and order there is no record to show that the service of the appellant had been utilizing for teaching purposes for the period between 23.10.1984 and 22.11.1993. The learned counsel appearing for the appellant had drawn the attention of this court to a letter of the Secretary, Medical Council of India dated 15.4.2005 to the Director, RIMS but the said letter dated 15.4.2005 only says that Medical Officer is one of the staffs for Rural Training Health Centres (including Field Work and Epidemiological Studies) and also the Medical Officer is one of the staffs for Urban Training Health Centres as such from the letter of the Secretary, Medical Council of India dated 15.4.2005, it is clear that Medical Officer is one of the teaching staffs which include Professor, Registrar, Lecturer, Epidemiologists-cum- Lecturer, Anaesthesiologist-cum-Lecturer and Tutor/Demonstator. 16.
16. For the reasons discussed above, we are of the firm view that interference to the impugned judgment and order of the learned single judge dated 30.1.2004 is not called for. Accordingly, these writ appeals are devoid of merit and hereby dismissed. Considering the entire facts and circumstances of the present case, parties are to bear their own costs.