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2014 DIGILAW 48 (MAN)

Sanjeeta Ngairangbam v. Union of India

2014-04-21

N.KOTISWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. Heard Mr. B.P. Sahu, learned counsel appearing for the petitioner and Mr. Y. Nirmolchand, learned counsel appearing for the RIMS/respondents. 2. The present petition has been filed for quashing the advertisement dated 15.5.2013 for appointment to the post of Associate Professor/Reader in Oral Pathology and Oral Microbiology, issued by the Regional Institute of Medical Sciences (RIMS), Imphal and for direction for filling up the said post by way of promotion as per the relevant recruitment rules. 3. The brief facts of the case may be stated as follows. 4. The petitioner initially joined service as a Senior Resident in the Department of Dentistry, RIMS as per appointment order dated 15.01.2000. While in service, she was sponsored by the RIMS to undergo Post Graduate course in MDS (Master of Dental Surgery) in the branch of Oral Pathology in the year 2003, which she successfully completed from the Tamil Nadu Dr. M.G.R. Medical University in the year 2007 under Registration No. 24032652. Subsequently, the petitioner was appointed on promotion to the post of Assistant Professor under the Time Scale Promotion Rules, 1991 w.e.f. 1.2.2009. Upon establishment of the Dental College, RIMS in the year 2012, the Executive Council of the RIMS, Imphal took a decision on 22.8.2012 to transfer all the staffs, members and infrastructure of the existing Dentistry Department of RIMS, Imphal to the newly established Dental College, Imphal with immediate effect on provisional basis. Pursuant to the aforesaid decision, the service of the petitioner, who was serving as Assistant Professor, stood transferred to the newly established Dental College, RIMS as an Assistant Professor. 5. According to the petitioner, the Director of RIMS issued an advertisement on 15.5.2013 whereby three posts of Associate Professor/Reader (one each for Prosthodontics, Conservative/Endodontis and Oral Pathology & Oral Microbiology) along with other posts were advertised for appointment. As per the aforesaid advertisement dated 15.5.2013, the qualification and experience required for appointment to the post of Associate Professor/Reader were mentioned as follows:- Qualification: A. BDS degree of an Indian University or its equivalent qualification with Post Graduate qualification/Diplomate of National Board in the subject. Experience: 4 (four) years teaching experiences after post-graduation in a Dental College. 6. According to the petitioner, the said post of Associate Professor/Reader is to be filled up by way of promotion as per the recruitment rules for the said post framed by the authorities. Experience: 4 (four) years teaching experiences after post-graduation in a Dental College. 6. According to the petitioner, the said post of Associate Professor/Reader is to be filled up by way of promotion as per the recruitment rules for the said post framed by the authorities. As per the recruitment rules for the post of Associate Professor/Reader, Dental College, RIMS, the post is to be filled up by promotion failing which by direct recruitment. The essential qualifications for both promotion as well as direct recruitment are same i.e. possession of BDS degree of an Indian University or its equivalent qualification with Post Graduate qualification/Diplomate of National Board in the subject and with 4 year's teaching experience after Post Graduation as mentioned below: A. B.D.S Degree of an Indian University or its equivalent qualification with post graduate qualification/Diplomate of National Board in the subject and with 4 yrs teaching experience after post graduation. According to the petitioner, even though, the petitioner who is serving as Assistant Professor in the newly created Dental College, fulfilled all the qualification for promotion as Associate Professor/Reader and was expecting to be promoted, applied for the said advertised post, but subsequently, submitted a representation to the Director of RIMS, Imphal on 13.6.2013 requesting for cancelling the said advertisement and to consider her case for appointment to the post of Associate Professor (Oral Pathology) by holding a special DPC. 7. The RIMS authorities filed their affidavit-in-opposition contesting the writ petition. The main thrust of the case of RIMS authorities is that even though the petitioner has 5 year's teaching experience in the Dentistry Department, RIMS, she has only 1 year's teaching experience in Dental College and as per the norms laid down by the Dental Council of India, 4 year's teaching experience in the subject is to be from a Dental College and since the petitioner does not have 4 year's teaching experience in a Dental College after MDS, the petitioner cannot be appointed to the post of Associate Professor/Reader by way of promotion. Mr. Mr. Y. Nirmolchand, learned counsel for the RIMS contends, as pleaded in para No. 18 of the affidavit-in-opposition that as per the requirement of Dental Council of India, 4 year's teaching experience in a Dental College/Dental Institution is required which the petitioner does not possess and in fact, the Dental Council of India Inspectors who had come for inspection of the Dental College, RIMS, Imphal had expressed the view that teaching experience in a Dental College/Institute only is the relevant teaching experience. Accordingly, the petitioner cannot be considered for appointment by way of promotion as Associate Professor/Reader as she does not possess the requisite 4 year's teaching experience in a Dental College/Dental Institution. According to him, since the Dental College was established for the teaching of students in dental science, unless one possesses such teaching experience, one cannot be considered for appointment as Associate Professor/Reader. It has been also submitted that 4 years experience in a Dental College is required for being eligible for examinership in BDS examination as per the Dental Council of India Regulations. It has been contended that it is in the interest of the student as well as the Institution that only a qualified teacher with requisite experience are appointed to the teaching post and since the petitioner does not possess the requisite teaching experience, appointment of the petitioner would be not only illegal but also not in the interest of the Institution. Learned counsel for the respondent by drawing attention to the qualifications as per the revised BDS Course Regulations, 2007 (for short "Regulation") issued by the Dental Council of India has submitted that teaching experience should be in a Dental Institution as specifically mentioned in the case of Principal/Dean also. The learned counsel for the respondent has also submitted that the petitioner would be otherwise eligible for appointment to the post of Associate Professor/Reader (Dentistry) under the Time Scale Promotion Rules, 1991 on completion of 5 years regular service as Assistant Professor w.e.f. 1.2.2014 and as such, the interest of the petitioner can be taken care of by considering her case for promotion to the post of Associate Professor/Reader under the Time Scale Promotion Rules, 1991. 8. Mr. 8. Mr. B.P. Sahu, learned counsel for the petitioner, however, has submitted that the allegation of the respondent authorities that the petitioner does not possess the requisite qualifications for appointment to the post of Associate Professor/Reader is not correct. According to him, as per the recruitment rules for the said post of Associate Professor/Reader framed by the RIMS and as per the Regulations framed by the Dental Council of India, there is no mention that the requirement that the 4 year's teaching experience after post-graduation has to be obtained only from a Dental College. Mr. Sahu, learned counsel for the petitioner submits that though the requirement of teaching experience in a Dental College/Dental Institution is specifically mentioned in respect of the post of the Principal/Dean, the same is not so in respect of the post of Associate Professor/Reader in the Regulations framed by the Dental Council of India. Therefore, when the Regulations framed by the Dental Council of India do not mention that teaching experience required for appointment to the post of Associate Professor/Reader has to be from a Dental College/Institution, insisting on such requirement is not permissible. Learned counsel for the petitioner by drawing attention of this Court to the recruitment rules for the post of Associate Professor/Reader has submitted that the 4 year's teaching experience after post-graduation as mentioned in the recruitment rules is not qualified and specific that such experience has to be obtained from a Dental Institution or a College. Therefore, Mr. B.P. Sahu, learned counsel for the petitioner has contended that stand of the RIMS authorities that the teaching experience has to be obtained from a Dental College/Dental Institution is not contemplated under the Rules and hence, cannot be insisted upon as mandatory. Mr. B.P. Sahu, learned counsel for the petitioner has submitted that as neither the recruitment rules nor the Regulations framed by the Dental Council of India specifically mention that the teaching experience has to be obtained from a Dental College/Dental Institution, the authorities cannot insist that the teaching experience has to be obtained from a Dental College/Dental Institution as has been done in the impugned advertisement dated 15.5.2013 event though the advertisement also mentions that the teaching experience is to be from a Dental College, and also as insisted in the affidavit-in-opposition filed by the RIMS authorities in the present writ petition. Mr. Mr. B.P. Sahu, learned counsel also contends that interestingly the respondent authorities had declared the petitioner to be eligible for direct recruitment in terms of the advertisement dated 15.5.2013 and as per the recruitment rules for the post of Associate Professor/Reader, the essential qualification and experience are same, it cannot be said that the petitioner is not eligible and cannot be considered for promotion. 9. On hearing the learned counsel for the parties and also considering the materials on record, it can be said that the issue which arises for consideration and decision by this Court is whether the post of Associate Professor/Reader is to be filled up by way of promotion or direct recruitment and as to the essential requirements for the said post to be filled up by way of promotion, which the petitioner is claiming. The RIMS authorities have framed the recruitment rules for the post of Reader/Associate Professor of the Dental College, RIMS, Imphal, a copy of which is annexed as Annexure-A/1 to the writ petition. In Column No. 11 of the said recruitment rules, it has been provided that the post of Reader/Associate Professor has to be filled up by promotion failing which by direct recruitment. The essential qualifications for promotion as well as direct recruitment are provided in Column No. 8 and 12 respectively. Column No. 8 deals with the educational qualifications required for direct recruitment and Column No. 12 for promotion. As mentioned in both the columns, the requirements are i) possession of BDS degree of an Indian University/equivalent qualification/Diplomate of National Board in the subject and (ii) 4 year's teaching experience after post-graduation. Since the recruitment rules have provided that the post is to be filled up by promotion failing which by direct recruitment, the process for filling up the said post by promotion has to be first resorted to. Only when such process does not fructify, the authorities can resort to direct recruitment process for filling up the said post of Associate Professor/Reader. In the present case, the RIMS authorities have not stated whether they had resorted to promotional process first for filling up the said post of Reader/Associate Professor. It is not the case of the RIMS authorities that since the post cannot be filled up by way of promotion, they had to resort to direct recruitment by issuing the impugned advertisement. In the present case, the RIMS authorities have not stated whether they had resorted to promotional process first for filling up the said post of Reader/Associate Professor. It is not the case of the RIMS authorities that since the post cannot be filled up by way of promotion, they had to resort to direct recruitment by issuing the impugned advertisement. On the other hand, it is case of the petitioner that the RIMS authorities without resorting to the promotional process first, have sought to fill up the post of Associate Professor/Reader by way of direct recruitment by issuing the impugned advertisement dated 15.5.2013. This Court is of the opinion that in view of the specific provisions of the methodology of the recruitment process under the recruitment rules, the authorities have to first make an endeavour to fill up the post of Associate Professor/Reader by way of promotion and only when appointment by way of promotion is not possible, either due to lack of eligible candidates or non-availability of suitable candidates, they can resort to the direct recruitment process. In the present case, nothing has been mentioned by the RIMS authorities that because of the inability to fill up the post of Associate Professor/Reader by way of promotion, due to germane reasons, the authorities had to resort to direct recruitment by issuing the advertisement dated 15.5.2013. Therefore, this Court is of the view that the RIMS authorities could not have resorted to direct recruitment process for filling up the post of Associate Professor/Reader without having considered the option of filling up of the post by way of promotion and as such, the advertisement dated 15.5.2013 issued by the RIMS authorities for filling up the post of Associate Professor/Reader (Oral Pathology & Oral Microbiology) cannot be held to be valid. 10. Having held that the RIMS authorities could not have resorted to direct recruitment process without first considering the promotional option as provided under the recruitment rules, it has to be examined whether there are any eligible candidates for filling up the said post of Associate Professor/Reader by way of promotion. If there are eligible candidates in the feeder post, obviously RIMS has to consider the case of the eligible candidate for promotion to the post of Associate Professor/Reader. If there are eligible candidates in the feeder post, obviously RIMS has to consider the case of the eligible candidate for promotion to the post of Associate Professor/Reader. Only if the RIMS authorities find that no such eligible candidates are available or no suitable candidates are available, the direct recruitment can be resorted to. In the present case, the petitioner is claiming that she is eligible for promotion to the post of Associate Professor/Reader in terms of the recruitment rules. The only objection by the RIMS authorities as mentioned above is that even though the petitioner may possess the educational qualification, she does not possess the requisite teaching experience as provided under the recruitment rules as well as per the Regulation framed by the Dental Council of India. We may reproduce the relevant portions of the Regulations issued by the Dental Council of India as regards the minimum basic qualification and teaching experience required for teachers for Under-graduate dental studies. Note: In case of individuals with discrepancy between teaching experience and the post-graduate qualification, a reference may be made to the Dental Council of India through competent authority for consideration. This is not applicable for future entrants." On minute examination of the provisions of the recruitment rules as regards the teaching experience, as quoted above, it is seen that there is no mentioning in the recruitment rules or in the Regulations framed by the Dental Council of India that in respect of Readers, the 4 year's teaching experience after post-graduation has to be from a Dental College/Dental Institution as in the case of Principal or Dean. The recruitment rules as well as the Regulations are silent as regards the institution from which experience has to be gathered. It is not denied by the RIMS authorities that the petitioner has 6 year's teaching experience as mentioned in paragraph No. 12 of their affidavit-in-opposition. The objection of the RIMS authorities is that out of the said 6 year's teaching experience, only 1 year has been obtained from the Dental College and the remaining from the Dentistry Department of the RIMS. According to the RIMS authorities, the experience gained by the petitioner in the Dentistry Department of the RIMS cannot be considered to be a teaching experience in terms of the recruitment rules and the Regulations of the Dental Council of India. According to the RIMS authorities, the experience gained by the petitioner in the Dentistry Department of the RIMS cannot be considered to be a teaching experience in terms of the recruitment rules and the Regulations of the Dental Council of India. This Court, however, is not able to accept this contention of the RIMS authorities in as much as the Rules do not specify as to the nature of the Institution from which such teaching experience has to be gathered by any candidate. The Rule is silent as to whether it should be from a Dental College or a Dental Institution as in the case of Principal or Dean, where is it specifically provided that such experience is to be from a Dental Institution. Therefore, in absence of a specific provision under the recruitment rules or under Regulation, it will not be proper to import the requirement of teaching experience from a special Dental College or a Dental Institution. Merely because the Regulation provides for having an experience from a Dental College in respect of Principal/Dean, it cannot be said that it has to be also from the Dental College/Dental Institution in respect of Associate Professor/Reader. Mr. Nirmolchand, learned counsel for the respondent has sought to justify the interpretation that the teaching experience has to be gathered from a Dental College or Dental Institution from the provision under the Regulation which deals with the qualification and experience for eligibility for examinership in BDS examination. Under the Regulation, it has been provided that i) M.D.S. Degree from a recognised institution, ii) four years teaching experience in the subject in a dental college after MDS and iii) holding the post of a Reader or above in a Dental Institution approved/recognised by the Dental Council of India for B.D.S are the requirements for eligibility for examinership in BDS Examination. It is to be noted that the said requirements are in respect of considering eligibility for "examinership" in BDS examination and not for appointment as Associate Professor/Reader in the Dental College. In the qualification and experience required for Readers for Under Graduate dental students as provided under the said Regulation, such requirement of experience from a dental college is conspicuously absent. The Regulations do not mention that such teaching experience has to be gathered from a dental college as in the case of examinership. In the qualification and experience required for Readers for Under Graduate dental students as provided under the said Regulation, such requirement of experience from a dental college is conspicuously absent. The Regulations do not mention that such teaching experience has to be gathered from a dental college as in the case of examinership. Whether the petitioner is eligible for "examinership" in BDS examination is neither the issue here, nor such eligibility of examinership a requirement for appointment as an Associate Professor. Therefore, this Court is of the view that since the recruitment rules as well as the Regulations of the Dental Council of India are silent as to the source of experience, the RIMS authorities cannot insist that such experience must be obtained only from a dental college. In view of it, the petitioner who admittedly has 6 year's teaching experience, cannot be said to be not eligible for consideration for promotion to the post of Associate Professor/Reader. Therefore, if the petitioner is eligible for promotion to the post of Associate Professor/Reader, the case of the petitioner and other eligible candidates, if any, have to be considered for promotion first under the recruitment rules and only when the RIMS authorities find any of the candidates to be not suitable that the authorities can resort to direct recruitment process for filling up the said post of Associate Professor/Reader. In the result, for the reasons discussed above, the petition succeeds. The advertisement dated 15.5.2013 as far as the post of Associate Professor/Reader (Oral Pathology & Oral Microbiology) is concerned is set aside. The RIMS authorities are directed to consider the case of the petitioner and other eligible candidates, if any, for promotion to the post of Associate Professor/Reader (Oral Pathology & Oral Microbiology) in terms of the recruitment rules for the said post within a period two months from today. It is provided that only when it is not possible to fill up the said post of Associate Professor/Reader (Oral Pathology & Oral Microbiology) by way of promotion as mentioned above that RIMS authorities can resort to the direct recruitment process. Writ petition stands allowed as indicated above.