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Jharkhand High Court · body

2014 DIGILAW 634 (JHR)

Mukta Kumar v. State of Jharkhand

2014-05-16

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. 1. Aggrieved by order dated 27.07.2011 in W.P. (S) No. 1971 of 2009 in and by which the prayer for quashing Notification dated 12.07.2008 in so far as, it relates to the Department of Pathology in RIMS and the prayer for quashing the part of Notification dated 14.10.2006 whereby the appellant's name figured below respondent nos.4 to 6 were rejected, the present Letters Patent Appeal has been filed. 2. The brief facts of the case are that, the appellant joined the health department in the year, 1979 and the respondent no.4 in the year, 1981. The appellant joined RMCH as a Tutor in the Department of Pathology on 07.11.1985 whereas, the respondent no.4 joined as a Tutor on 31.03.1984. The appellant was designated as Assistant Professor of Pathology on 29.10.1988 and in the final seniority list dated 06.11.1988 her name figured at Sl. No. 29. Vide order dated 08.04.2004 regular promotion as Assistant Professor was given to the appellant w.e.f. 15.09.1992. The respondent no.4 whose name appeared in the final seniority list dated 06.11.1998 at Sl. No. 42 and who was designated as Assistant Professor of Pathology on 31.05.1990, was given regular promotion as Assistant Professor vide order dated 31.05.2004 w.e.f. 31.03.1993 however, by Notification dated 14.10.2006 the date of promotion of the appellant as Assistant Professor has been altered to 01.01.2003 and her name in the seniority list has been brought down to Sl. No. 36 and thus, she has been made junior to respondent no.4 as the name of respondent no.4 appears at Sl. No.30 in the seniority list. 3. Mr. Vijoy Pratap Singh, the learned senior counsel appearing for the appellant has submitted that the appellant who joined the service much prior to respondent no.4 and who acquired MD degree in the year, 1981 itself which is an essential qualification for promotion on the post of Assistant Professor, was designated as Assistant Professor of Pathology on 29.10.1988 whereas, the respondent no.4 was designated as Assistant Professor of Pathology on 31.05.1990, and thus, she is senior to the respondent no.4 in all respect and while so, she is entitled for promotion as Associate Professor ahead of respondent no.4. Referring to order dated 31.12.1990 vide Annexure 3 it is submitted that since in the year, 1988 there was no statutory rule which provided denial of promotion in the event of non-joining on the transferred post, the stipulation contained in order dated 31.12.1990 debarring the appellant for promotion for a further period of 3 years cannot be taken against the appellant. It is further submitted that order dated 19.12.1997 is an order of transfer simplicitor and therefore, the Rule 11 of the 1997 Rules under which promotion is denied for the period of 5 years in the event of non-joining of the transferred post cannot be made applicable in the case of appellant. The said Rule provides that only in the event of promotion and consequent transfer, if an employee refuses to join the transferred post the employee would be denied promotion for next 5 years. It is further submitted that the qualification of MD Degree is an essential qualification for being promoted on the post of Assistant Professor and since the appellant acquired MD Degree in the year, 1981 itself, she became entitled for promotion in the rank of Assistant Professor w.e.f. 07.11.1988. Whereas, the respondent no.4 acquired MD Degree in the year, 1990 and therefore, she could not have been promoted in the rank of Assistant Professor prior to 1990. The appellant being senior to the respondent no.4 in the rank of Assistant Professor is entitled for promotion in the rank of Associate Professor ahead of respondent no.4 and the Notification dated 14.10.2006 whereby the appellant has been made junior to respondent no.4 is liable to be quashed. 4. Mr. Ananda Sen, the learned counsel appearing for the respondent no.4 has submitted that vide Notification dated 31.12.1990, the appellant who was working as Tutor in the Pathology Department, Rajendra Medical College, Ranchi, was promoted and posted as Assistant Professor, Pathology in MGM Medical College, Jamshedpur. The Notification dated 31.12.1990 contained a stipulation that the employee had to assume charge within 15 days and if one fails to give joining, his/her posting would be cancelled and the employee would be denied promotion for the next 3 years. Since, the appellant did not join at MGM Medical College, Jamshedpur, she was eligible for promotion on the post of Assistant Professor on or after 01.01.1994 only. Since, the appellant did not join at MGM Medical College, Jamshedpur, she was eligible for promotion on the post of Assistant Professor on or after 01.01.1994 only. As per the Medical Council of India regulation, the qualication for promotion as Assistant Professor is MD Degree with 3 year's teaching experience and since the respondent no.4 who joined as Tutor on 31.03.1984 and obtained MD degree in 1990, was rightly designated as Assistant Professor, Pathology on 31.05.1990 and a regular promotion on the post of Assistant Professor was given vide order dated 31.05.2004 w.e.f. 31.03.1993. Thus, the respondent no.4 has rightly been made senior to the appellant in the rank of Assistant Professor. Subsequently, vide Notification dated 19.12.1997 the appellant was again promoted and posted on the post of Assistant Professor, Pathology in Nalanda Medical College, Patna. The Notification dated 19.12.1997 also contain a stipulation whereunder in case the medical officers do not assume charge to their newly transferred post, they would be debarred from promotion for 5 years. Again the appellant did not join the post of Assistant Professor in Nalanda Medical College, Patna and incurred a disability whereunder, she could not have been given promotion till 19.12.2002 and therefore, she cannot claim to be senior to respondent no.4. 5. In reply, Mr. Vijoy Pratap Singh, the learned senior counsel appearing for the appellant submitted that vide Notification dated 08.04.2004, the appellant has been shown to be promoted to the post of Assistant Professor w.e.f. 15.09.1992 and vide Notification dated 06.11.1998 a final seniority list was published in which the appellant has rightly been shown senior to the respondent no.4 and since these orders were not challenged by the respondent no.4, she cannot claim to be senior to the appellant either in the rank of Assistant Professor or in the rank of Associate Professor. 6. We have considered the submissions advanced by the learned counsel appearing for the parties and perused the documents on record. 7. Admittedly, the appellant joined the Department of Pathology as tutor on 07.11.1985 whereas, the respondent no.4 joined the Department of Pathology as Tutor on 31.03.1984. Though, the appellant had joined Department of Health in the year, 1979 and the respondent no.4 had joined in the year, 1981, the respondent no.4 was senior to the appellant as Tutor in the Department of Pathology. Though, the appellant had joined Department of Health in the year, 1979 and the respondent no.4 had joined in the year, 1981, the respondent no.4 was senior to the appellant as Tutor in the Department of Pathology. Vide Notification dated 31.12.1990, the appellant was transferred on the post of Assistant Professor, Department of Pathology in MGM Medical College, Jamshedpur. But she did not join the posting and continued to work on the post of Tutor in RMCH, Ranchi. The contention of the learned senior counsel for the appellant that in the absence of a statutory Rule, the stipulation contained in Notification dated 31.12.1990 debarring the officer for the next three years from promotion cannot be made applicable in the case of the appellant, cannot be accepted for the reason that the appellant never challenged the said condition in Notification dated 31.12.1990. Since she continued to work in RMCH on the post of Tutor/designate Assistant Professor, the appellant cannot contend that the condition in Notification dated 31.12.1990 denying her promotion for three years cannot be made applicable to her. 8. It appears that vide Notification dated 06.11.1998, the Government of Bihar issued a seniority list in which, the appellant being at Sl. No.29 was shown senior to respondent no.4, whose name appeared at Sl. No.42. The State of Jharkhand filed a counter-affidavit in the writ proceeding stating that it was a mistake committed by the Government of Bihar. In view of the condition in Notification dated 31.12.1990, the appellant continued to work on the post of Tutor/designate Assistant Professor only and though, vide Notification dated 19.12.1997, she was given regular promotion on the post of Assistant Professor however, again she did not join at Nalanda Medical College, Patna and thus, she was debarred for promotion for further five years. Thus, the appellant was not even entitled for consideration of her case prior to five years after 19.12.1997 that is, prior to 19.12.2002. The contention of the appellant that vide Notification dated 08.04.2004, she was given regular promotion as Assistant Professor w.e.f. 15.09.1992 whereas, the respondent no.4 was promoted w.e.f. 31.03.1993 and thus, the appellant was senior to the respondent no.4 in the cadre of Assistant Professor, cannot be accepted. The Notification dated 14.10.2006 indicates that several objections were received from the doctors in the department after the promotion orders were issued in the year, 2004. The Notification dated 14.10.2006 indicates that several objections were received from the doctors in the department after the promotion orders were issued in the year, 2004. Therefore, a Committee was constituted to look into the grievances of the Medical Officers and the said Committee recommended vide Proceeding dated 10.03.2006 for correction in the date of promotion of the Medical Officers in the teaching cadre. Accordingly, Notification dated 14.10.2006 was issued clarifying that the promotion of the appellant on the post of Assistant Professor w.e.f. 15.09.1992 was an error in view of the conditions contained in Notification dated 31.12.1990 and 19.12.1997. The appellant thus, was granted promotion on the post of Assistant Professor w.e.f 01.01.2003. The contention of the learned senior counsel for the appellant that Notification dated 19.12.1997 is only an order of transfer of the appellant merits no acceptance. Though the appellant continued to work in RMCH, Ranchi on the post of designate Assistant Professor, she continued to draw the salary only of a Tutor. Notification dated 19.12.1997 makes it apparent that the appellant was working as designate Assistant Professor and by this notification she was promoted on the post of Assistant Professor, Pathology and transferred from RMCH, Ranchi to Nalanda Medical College, Patna and thus, Rule 11 of the 1997 Rules is attracted in case of the appellant. Consequently, in view of the condition in the Notification dated 19.12.1997, the appellant could not have been promoted on the post of Assistant Professor prior to 19.12.2002. The learned Single Judge has rightly found the respondent no.4 senior to the appellant, who has been promoted on the post of Professor vide Notification dated 12.07.2008 w.e.f. 30.04.2005. 9. In the result, we find no merit in the Letters Patent Appeal and accordingly, it is dismissed.