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Jharkhand High Court · body

2011 DIGILAW 732 (JHR)

Mukta Kumar v. State of Jharkhand

2011-07-27

R.R.PRASAD

body2011
JUDGMENT: The case of the petitioner is that the petitioner joined on the post of Tutor in Rajendra Medical College and Hospital, Ranchi (now it is being known as RIMS) on 7.11.1985. On 29.8.1988, she was designated as Assistant Professor. In course of time, several tutors/designate Assistant Professors were promoted to the post of Assistant Professor and were posted in different Medical Colleges, vide notification no.1222 dated 31.12.1990 (Annexure 9 to the supplementary affidavit) with stipulation that if one would fail to join the post, he/she would be debarred for promotion for further three years. By the same notification, the petitioner was promoted to the post of Assistant Professor and was posted in Mahatma Gandhi Medical College, Jamshedpur. Admittedly, the petitioner did not join the promoted post at Mahatma Gandhi Medical College, rather continued to work in RMCH on the post of designate Assistant Professor. Again number of persons were promoted to the post of Assistant Professor, vide notification dated 19.12.1997 (Annexure 3) and were posted in different Medical Colleges with a stipulation that if the person would not join, he/she would be debarred from being promoted for further five years. Petitioner by the said notification was promoted to the post of Assistant Professor and was posted at Nalanda Medical College, Patna. However, according to the petitioner, this was never the order relating to the promotion, rather the order of simple transfer. 2. Be that as it may, the petitioner admittedly did not join the post at N.M.C.H. Thereafter final seniority list of the persons working at different Medical Colleges of the State on the post of Tutor and Assistant Professor was published wherein the petitioner's placement in the seniority list was at serial no.29 whereas the respondent no.4 was placed at serial no.42. 3. Further case of the petitioner is that in spite of that the petitioner being placed above to respondent no.4 in the seniority list, the petitioner, vide notification no.310(2) dated 14.6.2006 (Annexure 5) was given promotion to the post of Associate Professor with effect from 1.1.2003 whereas the respondent no.4 was given promotion on the post of Associate Professor with effect from 30.4.2001 and thereby the petitioner was made junior to the respondent no.4, though she was senior to respondent no.4. Subsequently, respondent no.4, vide notification no.257(7A) dated 12.7.2008 (Annexure 7) was promoted to the post of Professor with effect from 30.4.2005 ignoring the claim of the petitioner on that post though she was senior to respondent no.4 and therefore, notifications as contained in Annexure 5 and also in Annexure 7 have been sought to be quashed. 4. On the other hand, the case of the respondent no.4 is that the respondent no.4 joined on the post of Tutor in the year 1984. After putting number of years on that post, the respondent no.4 was ultimately promoted to the post of Assistant Professor with effect from 31.3.1993 whereas the petitioner when was promoted to the post of Assistant Professor, vide notification dated 31.12.1990, did not join, as a result of which, the petitioner, as per the stipulation made in the notification was debarred from being promoted to the post of Assistant Professor for further three years. By invocation of the said clause, the petitioner became junior to the respondent no.4 on the post of Assistant Professor. Under that situation, the State Government treating the respondent no.4 to be senior than the petitioner promoted respondent no.4 to the post of Associate Professor with effect from 30.4.2001 whereas the petitioner was promoted to the post of Associate Professor with effect from 1.1.2003. Thus, the respondent no.4 being senior to the petitioner was subsequently promoted to the post of Professor, vide notification dated 12.7.2008 with effect from 30.4.2005. Under these situations, the petitioner can not claim himself tobe senior to the respondent no.4 and hence, the order as contained in Annexure 5 and also in Annexure 7 never suffers from any illegality. 5. Learned counsel appearing for the petitioner submits that it is true that when the petitioner was promoted to the post of Assistant Professor and was posed at Mahatma Gandhi Medical College, Jamshedpur, vide notification dated 31.12.1990, the petitioner did not join the post. Subsequently, also when the petitioner was transferred to the post of Assistant Professor, NMCH, Patna by virtue of notification dated 19.12.1997 (Annexure 3) the petitioner did not join. Subsequently, also when the petitioner was transferred to the post of Assistant Professor, NMCH, Patna by virtue of notification dated 19.12.1997 (Annexure 3) the petitioner did not join. In both the notifications, stipulation was there of debarment for further promotion for three years/five years but the act of the petitioner of non-joining seems to have been condoned when final seniority list was published on 6.11.1998 (Annexure 4) wherein the petitioner was shown senior to the respondent no.4 and this stand of the petitioner gets strengthened from the fact that when the promotion was made, vide notification no.102(2) dated 8.4.2004 (Annexure 2), the petitioner was shown to have been promoted on the post of Assistant Professor on 15.9.1992 whereas the respondent no.4 was promoted to the post of Assistant Professor with effect from 31.3.1993 and thereby respondent no.4 has wrongly been promoted to the post of Associate Professor with effect from 1.1.2003 and on the post of Professor with effect from 30.4.2005. 6. As against this, Mr. 6. As against this, Mr. Ananda Sen, learned counsel appearing for the respondent no.4 submits that when the petitioner was promoted and was posted as Assistant Professor, MGM, Jamshedpur, vide notification dated 31.12.1990, the petitioner admittedly did not join the post and thereby she by invocation of a clause stipulated in the said notification was debarred for promotion for further three years and as such, final seniority list showing the petitioner to be senior than the respondent no.4 and also the notification dated 8.4.2004 (Annexure 2) under which the petitioner has been shown to have been promoted to the post of Assistant Professor with effect from 15.9.1992 are absolutely wrong for the reason that when the petitioner was debarred for three years from the date of notification, I.e.31.12.1990, she could not have been promoted before expiry of three years and when this anomaly came to the knowledge of the Government, it was rectified by issuing notification bearing no.310(1) dated 24.10.2006 wherein it has been noted in case of the petitioner that the petitioner did not join the post on being promoted at two occasions in the year 1990 and then in the year 1997 and as such, she was debarred from being promoted for five years from 19.12.1997 (date of notification) and in that situation, she was promoted to the post of Associate Professor with effect from 1.1.2003 whereas the petitioner was promoted to the post of Associate Professor with effect from 30.4.2001 and as such the petitioner being senior has rightly been appointed on the post of Professor. 7. Having heard learned counsel appearing for the parties, it does appear that while the petitioner and the respondent no.4 were holding the post of Tutor, the petitioner admittedly ranked senior to the respondent no.4. In course of time, the petitioner was promoted to the post of Assistant Professor and was posted at MGM, Jamshedpur, vide notification dated 31.12.1990 (Annexure 9 to the supplementary affidavit). By the said notification, other persons posted in different Medical Colleges were also promoted and were posted in different Medical Colleges with a stipulation that if the person would fail to join the place of posting, he/she would be debarred from being promoted for further three years. Admittedly, the petitioner did not join the post of Assistant Professor at MGM College, Jamshedpur. Admittedly, the petitioner did not join the post of Assistant Professor at MGM College, Jamshedpur. Meanwhile, the respondent no.4 was promoted to the post of Assistant Professor with effect from 31.3.1993 and the petitioner remained posted in R.M.C.H as designate Assistant Professor. After seven years, the petitioner was again promoted to the post of Assistant Professor and was posted at N.M.C.H, Patna. By the said notification, other persons had also been promoted and posted in different departments of different Medical Colleges. Again there was stipulation that if the person would not join the place of posting, he/she would be debarred from being promoted for further five years. However, on 6.11.1998, final gradation list of the Tutors and Assistant Professors posted in the Department of Pathology in different Medical Colleges of the State was published wherein the petitioner was shown senior to respondent no.4 as the petitioner had been placed above than the respondent no.4. Again in the year 2004, a notification (Annexure 2) was issued on 8.4.2004 whereby the petitioner was shown to have been promoted on the post of Assistant Professor with effect from 15.9.1992. On the basis of this notification and also on the basis of seniority list dated 6.11.1998 as contained in Annexure 4, the petitioner has put forth her claim of seniority over the respondent no.4 as the date of promotion of the petitioner on the post of Assistant Professor has been shown as 15.9.1992 which in view of the stipulation made in the notification dated 31.12.1990 (Annexure 9 to the supplementary affidavit) appears to be quite incorrect as by invocation of the clause of debarment, the petitioner could not have been promoted to the post of Assistant Professor before 31.12.1993. Thus, it was a sheer mistake which would further be apparent from the fact that if the petitioner would have been promoted to the post of Assistant Professor with effect from 15.9.1992, there would not have been any necessity of promoting the petitioner again on the post of Assistant Professor. In fact, she was promoted from the post of designate Assistant Professor to Assistant Professor, vide notification dated 19.12.1997 (Annexure 3). It be recorded that the petitioner again did not join the post of Assistant Professor at N.M.C.H, Patna in spite of stipulation being there that the person, who would not be giving joining, would be debarred from promotion for further five years. It be recorded that the petitioner again did not join the post of Assistant Professor at N.M.C.H, Patna in spite of stipulation being there that the person, who would not be giving joining, would be debarred from promotion for further five years. Thereby the petitioner continued to hold the post of designate Assistant Professor whereas the respondent no.4 who had been promoted to the post of Assistant Professor with effect from 31.3.1993 was promoted to the post of Associate Professor with effect from 30.4.2001, vide notification dated 14.10.2006 (Annexure 5). 8. It does further transpire that when the Department of Health and Medical Education came to know about the number of irregularities and anomalies with respect to date of promotion to the Teachers of the Medical Colleges, a committee was formed, on whose recommendation anomalies and mistake committed earlier in giving promotion was rectified, vide notification dated 14.10.2006 (Annexure 5) wherein it was noted about the petitioner’s non-joining, pursuant to the notification dated 31.12.1990 and 19.12.1997 and by invocation of the clause put in the notification issued in the year 1997 about the debarment of five years the petitioner was found entitled to be promoted on the post of Associate Professor with effect from 1.1.2003 whereas the petitioner, vide said notification was promoted to the post of Associate Professor with effect from 30.4.2001. Subsequently, the petitioner was promoted to the post of Professor with effect from 30.4.2005, vide notification dated 12.7.2008 (Annexure 7). 9. Thus, it is evidently clear that on account of non-joining on the post of Assistant Professor on which the petitioner was promoted not once but twice, the petitioner got junior to the respondent no.4 on the post of Assistant Professor. 10. The submission advanced on behalf of the petitioner that under notification issued by the State of Jharkhand, Assistant Professor and Associate Professor would be debarred from promotion for further five years, if they do not give joining on the promoted post in other Medical Colleges but the petitioner has wrongly been denied promotion for five years on account of non-joining on the post at N.M.C.H, Patna as the petitioner had never been promoted to the higher post at N.M.C.H, Patna by virtue of notification dated 19.12.1997 (Annexure 3) rather by that notification, petitioner had simply been transferred from RMCH, Ranchi to N.M.C.H, Patna. 11. 11. I do not find substance in the submission made in this respect for the reason that the petitioner by virtue of notification dated 19.12.1997 (Annexure 3) had been transferred to the post of Assistant Professor at N.M.C.H, Patna from the post of designate Assistant Professor R.M.C.H, Ranchi where she was drawing salary in the scale of Tutor. Remarks to this effect has been put in the notification issued on 16.10.2006 (Annexure 5). Under this situation, transfer made by virtue of notification dated 19.12.1997 has been taken to be transfer on promotion even under notification dated 16.10.2006. 12. Further claim of seniority of the petitioner is based on final seniority list published on 6.11.1998 (Annexure 4) wherein the petitioner has been placed at serial no.29 whereas respondent no.4 has been placed at serial no.42 but that seniority list seems to be issued to fix the seniority of the persons posted as designate Assistant Professor whereby the date of posting of the petitioner as designate Assistant Professor has been shown as 29.10.1988 whereas in case of respondent no.4, it has been shown as 31.5.1990 but that seniority list never relates to inter-se seniority amongst the Assistant Professors as on 6.11.1998, the petitioner cannot be said to have been promoted to the post of Assistant Professor when the petitioner had declined to join on the post of Assistant Professor first in the year 1990 and then in the year 1997. 13. I have already noted that the petitioner has been promoted to the post of Assistant Professor with effect from 31.3.1993 whereas petitioner in any case on account of invocation of the debarment clause could not have been promoted before 31.3.1993. 14. Thus, the respondent no.4 on being found senior to the petitioner has rightly been promoted on the post of Professor. 15. Accordingly, I do not find any merit in this application and hence, it is dismissed.