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Gauhati High Court · body

2014 DIGILAW 816 (GAU)

Narayan Debnath v. State of Assam and Ors.

2014-08-25

UJJAL BHUYAN

body2014
1. Heard Mr. C. Choudhury, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing Counsel, Health Department, Assam. Also heard Mr. J. Sarma, learned counsel appearing for Central Council of Homeopathy (respondent No. 4). Respondent Nos. 5 to 10 though served, have neither filed affidavit nor have they entered appearance. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of the selection of respondent Nos. 5 to 10 as Professor of Homeopathy and their consequential promotion. 2. Case of the petitioner is that he is a bachelor degree holder in Homeopathy and joined service under the Government of Assam in the Health Department as Demonstrator in the Swahid Jadav Nath Homeopathy Medical College in 1992. Subsequently, petitioner obtained Post Graduate degree in Homeopathy in 2004. He was promoted to the post of Lecturer in 2007 and was posted at Assam Homeopathic Medical College, Nagaon. Petitioner was promoted to the post of Reader on 7.5.2008 and since then he is serving as Reader in Assam Homeopathic Medical College, Nagaon. According to the petitioner, except him, all the other Readers working in the different Govt. Homeopathic Medical Colleges in the State of Assam are diploma holders in Homeopathy. Petitioner is the only serving Reader who possesses a degree in Homeopathy and subsequently obtained. Post Graduate degree. With a view to fill up 7 vacancies in the post of Professor in different Govt. Homeopathic Medical Colleges in the State of Assam, a meeting of the Selection Committee constituted for the said purpose was held on 23.12.2010. The required qualification for the post of Professor, as per the Homeopathy (Minimum Standards of Education) Regulations, 1983, as amended, is as under : "A. Essential qualifications. Post Graduate qualification in Homeopathy with two years of experience as Reader or a Degree in Homeopathy with six years of teaching experience as Reader or Diploma in Homeopathy of not more than 4 years duration with ten years teaching experience in the subject concerned in a Homeopathic College. The qualification shall be the one included in the Second Schedule of Homeopathy Central Council Act, 1973. B. Desirable qualifications. 1. Experience as Supervisor/Guide for Post Graduate Programme in Homeopathy or original publication in research. 2. Administrative experience or Research experience in a research institution under the Department of Indian Systems of Medicine & Homeopathy of State Government or Central Govt. B. Desirable qualifications. 1. Experience as Supervisor/Guide for Post Graduate Programme in Homeopathy or original publication in research. 2. Administrative experience or Research experience in a research institution under the Department of Indian Systems of Medicine & Homeopathy of State Government or Central Govt. in a responsible position. ” 3. Apprehending that petitioner would not be considered for promotion to the post of Professor despite having admittedly better merit, petitioner submitted representation dated 27.12.2010 before the Commissioner and Secretary, Government of Assam, Health & Family Welfare (B) Department, Dispur, requesting the said authority to consider his promotion by following the provisions of Homeopathy (Minimum Standards of Education) Regulations, 1983, as amended, by giving preference to teachers possessing desirable qualifications prescribed in the said Regulations. 4. Since there was no response to the above representation of the petitioner, he approached this court by filing WP(C) No.387/2011. This court by order dated 28.1.2011 disposed of the said writ petition by providing that the authority may consider the representation of the petitioner dated 27.12.2010 in accordance with the rules and other relevant provisions. Respondent No. 1 disposed of the representation of the petitioner by passing order dated 10.03.2011. It was, stated that the principle of seniority-cum-merit is followed while considering selection for promotion of the faculty members in the academic institutions under the Health Department, Govt. of Assam. 5. Following recommendation of the Selection Committee dated 23.12.2010, Government of Assam in the Health & Family Welfare (B) Department, issued notification dated 1.3.2011, promoting six Readers to the post of Professor in the three Homeopathic Medical Colleges of Assam under regulation 4(d) of Assam Public Services Commission (Limitation of Functions) Regulations, 1951. The six Readers so promoted are respondent Nos. 5 to 10 in this petition. By another notification also dated 1.3.2011, respondent No. 10 was allowed to hold charge of office of Principal of Assam Homeopathic Medical College & Hospital, Nagaon on in-charge basis due to superannuation of the previous incumbent on 28.2.2011. 6. Aggrieved, petitioner has filed the present writ petition. Contention of the petitioner is that State respondents had completely overlooked merit in the promotion exercise. Desirable qualifications mandated by Homeopathy (Minimum Standards of Education) Regulations, 1983 were not taken into consideration. Selection ought to have been made on the basis of eligibility, seniority and merit with due regard to suitability, experience and accomplishment. Contention of the petitioner is that State respondents had completely overlooked merit in the promotion exercise. Desirable qualifications mandated by Homeopathy (Minimum Standards of Education) Regulations, 1983 were not taken into consideration. Selection ought to have been made on the basis of eligibility, seniority and merit with due regard to suitability, experience and accomplishment. However, authorities have made the selection entirely on the basis of seniority. 7. This court by order dated 4.4.2011, while issuing notice, passed an interim order to the effect that no existing vacancy in the post of Professor of Homeopathy in any of the three Homeopathic Medical Colleges of Assam should be filled up without the leave of the court. On receipt of notice, respondent No. 4 entered appearance and filed a counter affidavit. It is stated that for the post of Professor of Homeopathy, the Central Council of Homeopathy has prescribed the requisite qualification in the Homeopathy (Minimum Standards of Education) Regulations, 1983, as amended. The requirement comprises of both essential qualifications and desirable qualifications, which have already been noticed above. It is further stated that Central Council of Homeopathy has no role in matters of appointment or promotion of faculty members in the Homeopathy Medical Colleges of the State. The service conditions are governed by the relevant service rules and regulations. Respondent No. 1 in his affidavit has stated that Central Council of Homeopathy in its meeting held on 31.5.1991 had taken a decision to treat diploma in Homeopathy as equivalent to degree in Homeopathy. The decision was so taken to arrive at parity in pay scales, promotions etc. of those who are already in service. It is stated that selection was made by the Selection Committee on the basis of relevant rules and instructions, which would be reflected in the minutes of the meeting of the Selection Committee. Petitioner's representation was disposed of by passing a speaking order on 10.3.2011. Health & Family Welfare Department, Government of Assam in principle has agreed to notify diploma holders of Homeopathy as equivalent to degree holders following decision taken in this regard by the Central Council of Homeopathy. Further stand taken is that the criteria provided under rule 14(4) of the Assam Medical Education Service Rules, 2008 is applied in case of promotion in Homeopathic Medical Colleges as well. Promotions are not made subject wise since subject wise departments have not been created. Further stand taken is that the criteria provided under rule 14(4) of the Assam Medical Education Service Rules, 2008 is applied in case of promotion in Homeopathic Medical Colleges as well. Promotions are not made subject wise since subject wise departments have not been created. Petitioner could not be promoted to the post of Professor as his position was at SI. No.24 in the seniority list. 15 eligible faculty members were above the petitioner. In addition, there was 1 backlog vacancy for Scheduled Castes (SC), which was filled up by promoting respondent No. 10 (placed at SI. No.15 of the list). Therefore, the Readers from SI. Nos. 3 to 8 and 15 were recommended for promotion. However, the candidate at SI. No. 8 (Dr. N Bhattacharjee) could not be promoted as one vacancy had to be kept vacant due to the interim order of this court. Petitioner in his reply-affidavit to the affidavit of respondent No.1 has stated that since petitioner possesses the desirable qualifications which the other contenders did not possess, he ought to have been given preference. Due weightage to the desirable qualifications has not been given. Selection was made solely on the basis of seniority without giving any weightage to desirable qualifications. 8. Submissions made by learned counsel for the parties are on pleaded lines. Therefore, a detail reference to the submissions so made, is considered not necessary. Before proceeding further, it would be apposite to refer to the minutes of the Selection Committee meeting held on 23.12.2010 for promotion from Reader to Professor. There were 7 vacancies in the post of Professor. On the other hand, there were 2 backlog vacancies for SC, 1 for ST(P) and 1 for ST(H). The Selection Committee noted the essential qualifications as well as the desirable qualifications required for the post of Professor in Homeopathic subjects. Against 7 vacancies, there were 26 number of candidates in the feeder cadre of Reader. Among the 26 Readers, 16 were found eligible for promotion. The following is the statement of 26 Readers out of which 16 were found eligible by the Selection Committee : •sl. Nos. Name of the Reader Category Date of Joining as Reader Promotion Eligibility Remarks I II III IV V VI 1. Dr. B.K. Saikia, MBBS 7.5.2008 Not eligible Teach Exp. below 5 yrs 2. Dr. B.K. Nath, MBBS 7.5.2008 Not eligible Tech. Exp. below 10 yrs 3. Dr. Nos. Name of the Reader Category Date of Joining as Reader Promotion Eligibility Remarks I II III IV V VI 1. Dr. B.K. Saikia, MBBS 7.5.2008 Not eligible Teach Exp. below 5 yrs 2. Dr. B.K. Nath, MBBS 7.5.2008 Not eligible Tech. Exp. below 10 yrs 3. Dr. N.K. Misra, MD 7.5.2008 Eligible 4. Dr. S.N. Kalita, MD 7.5.2008 Eligible 5. Dr. P. Sarma, MD 7.5.2008 Eligible 6. Dr. K.K. Goswami MD 7.5.2008 Eligible 7. Dr. D. Bhattacharjee MD 7.5.2008 Eligible 8. Dr. N Bhattacharjee MD 7.5.2008 Eligible 9. Dr. H. Barua DHMS 7.5.2008 Not eligible Tech. Exp. below 10 yrs 10. Dr. J.N. Choudhury DHMS 7.5.2008 -do- -do- 11. Dr. T. Sonowal DHMS 7.5.2008 -do- -do- ST(P) 12. Dr. K. Bala MD 7.5.2008 Eligible -do- 13. Dr. S. Mazumdar DHMS SC 7.5.2008 Not eligible Tech. Exp. below 10 yrs. 14. Dr. B.K. Hazarika DHMS 7.5.2008 Not eligible 15. Dr. D.C. Senapati MDSC 7.5.2008 Eligible 16. Dr. G.C. Bora ' MD 7.5.2008 Eligible 17. Dr. P. Boruah MD 7.5.2008 Eligible 18. Dr S.L. Saikia DHMS 7.5.2008 Not eligible -do- 19. Dr. A.K. Dutta DHMS 7.5.2008 Not eligible -do- 20. Dr. (Mrs.) K.R. Dutta MD 7.5.2008 Eligible 21. Dr. D. Borah MD 7.5.2008 Eligible 22. Dr. M.H. Choudhury BHMS (Grade) 7.5.2008 Not eligible Tech. Exp. below 6yrs 23. Dr. D.K. Medhi MD 7.5.2008 Eligible 24. Dr. N. Debnath MD Gen 7.5.2008 Eligible Working as PG Guide of SKH Medical College, Maharashtra 25.Dr. B. BarmanMD7.5.2008Eligible 26.Dr. M.K GogoiMD7.5.2008Eligible 9. The Selection Committee discussed about the instruction of the Central Council of Homeopathy that while making promotion, the Homeopathy (Minimum Standards of Education) Regulations, 1983, as amended, should be kept in mind, including giving preference to teachers possessing desirable qualification. The Selection Committee also examined the other qualifications possessed by the petitioner. After detailed discussions, the Selection Committee decided to follow the rule of seniority-cum-merit for promotion and also examine the backlog position for reserve category. It was found that only 1 backlog vacancy of SC could be filled up. As respondent No. 10 was the only SC candidate having eligibility, the Selection Committee, therefore, recommended the following Readers for promotion to the post of Professor : SI. No. Name of the Reade Category Roster Point 1. Dr. N.K. Misra MD 14 UR 2. Dr. S.N. Kalita MD 15 UR 3. Dr. P. Sarma MD 16 UR 4. Dr. As respondent No. 10 was the only SC candidate having eligibility, the Selection Committee, therefore, recommended the following Readers for promotion to the post of Professor : SI. No. Name of the Reade Category Roster Point 1. Dr. N.K. Misra MD 14 UR 2. Dr. S.N. Kalita MD 15 UR 3. Dr. P. Sarma MD 16 UR 4. Dr. K.K. Goswami MD 17 UR 5. Dr. D. Bhattacharjee MD 18 UR 6. Dr. (Mrs.) N. Bhattacharjee MD 19 UR 7. Dr. D.C. Senapati MD SC 13 UR It is the stand of the Health Department that like the Medical Colleges of Assam, in respect of the Homeopathic Medical Colleges also, the provisions of Assam Medical Education Service Rules, 2008 (Rules) are followed in matters of recruitment and promotion. As per rule 13(e) of the Rules, which have been framed in exercise of powers conferred by the proviso to article 309 of the Constitution of India, promotion to higher post shall be on the basis of merit-cum-seniority. General procedure for promotion is laid down in rule 14. Under rule 14(4) of the Rules, in respect of posts to which selections have to be made, the selection shall be made on the basis of eligibility, seniority and merit with due regard to suitability, experience and accomplishments. 10. A conjoint reading of rule 13(e) and rule 14(4) of the Rules would make it clear that promotion to higher, posts like the post of Professor is primarily a seniority based selection provided the eligibility and minimum merit are achieved. In this case, admittedly, the essential qualifications for the post of Professor are, a candidate should have Post Graduate qualification in Homeopathy with 2 years of experience as Reader, or a degree in Homeopathy with 6 years teaching experience as Reader, or diploma in Homeopathy (of not less than 4 years duration) with 10 years of teaching experience. These qualifications are essential qualifications, meaning thereby that in the absence of such qualifications, a candidate would stand disqualified for consideration. In other words, these conditions are mandatory conditions. These qualifications are prescribed by the Homeopathy (Minimum Standards of Education) Regulations, 1983 framed by the Central Council of Homeopathy with the previous sanction of the Central Government in exercise of the powers conferred by the Homeopathy Central Council Act, 1973. Central Council of Homeopathy is the expert body. In other words, these conditions are mandatory conditions. These qualifications are prescribed by the Homeopathy (Minimum Standards of Education) Regulations, 1983 framed by the Central Council of Homeopathy with the previous sanction of the Central Government in exercise of the powers conferred by the Homeopathy Central Council Act, 1973. Central Council of Homeopathy is the expert body. It is also the apex body of Homeopathy study and practitioners. In its wisdom, the Central Council of Homeopathy has treated Post Graduate degree, degree and diploma with varying degrees (years) of experience as equivalent essential qualification for Professor. It is within the domain of the rule making authority to prescribe higher levels of experience in case of a lower qualification so as to bring all the qualifying criteria at par. Administrative authorities are in the best position to decide the requisite qualifications for promotion and what criteria to adopt while considering promotion. It is not for the court to substitute its views for that of the administrating authority. It is also permissible to prescribe longer qualifying service for those possessing lower qualification. The principle that difference in educational qualifications can be made up by long experience is well recognized. The hon'ble Supreme Court in a number of decisions has upheld provisions prescribing higher experience on the basis of difference in educational qualifications while prescribing eligibility for promotion. Desirable qualifications, such as, experience as guide, research experience, administrative experience etc. are in the nature of preferable qualifications and those will come into play only if two eligible candidates are placed at par. 11. When seniority is the dominant criteria, once eligibility is achieved, it is the seniority which will be the determining factor. 12. All the recommended candidates possessed the essential qualifications. Admittedly, they are senior to the petitioner. In such circumstances, selection of respondent Nos. 5 to 10 and their consequential promotion to the post of Professor cannot be faulted. Therefore, no interference is called for. There is no merit in the writ petition, which is accordingly dismissed. Interim order passed on 4.4.2011 stands vacated. No costs.