Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2097 (JHR)

Rekha Sharma v. State of Jharkhand

2017-12-06

S.N.PATHAK

body2017
JUDGMENT : S.N. PATHAK, J. 1. Heard learned counsel for the parties. 2. Petitioners who are teaching faculties in RIMS, Ranchi in different Departments have approached this Court with a prayer for a direction upon the respondents to declare the post of 'Tutor' in RIMS, Ranchi as a permanent post prior to coming into force of RIMS Rule with effect from 08.09.2014; to allow the petitioners to continue on the post of 'Tutor' of different non-clinical branches in RIMS, Ranchi and allow subsequent benefits of promotion as their services were permanent and not tenure based as what has been now declared as 'Tenure Post' subsequent to enactment of RIMS Rule with effect from 08.09.2014; to regularise their services after completion of two years of service on probation and to direct the respondent No. 3 - Director, RIMS, Ranchi to advertise only those sanctioned and vacant post of 'Tutors' for new recruitment other than on which petitioners are working. 3. It is alleged that in the years 2005, 2007 and 2008 the respondent - RIMS, Ranchi issued advertisements for appointment on the post of Professors/Associate Professors/Assistant Professors/Tutor/Residents/Registrars/Anesthetist. In the said advertisement it was categorically mentioned that for the abovementioned regular posts, the incumbents must possess requisite academic qualifications, teaching and research experience as prescribed by the Medical Council of India. It was further mentioned that the 'terms and conditions of service related to the above mentioned posts will be as per the Rules and Regulations of RIMS". The petitioners appeared in the examination and after being qualified, they joined the post of 'Tutors' at RIMS, Ranchi. The petitioners and others were subsequently confirmed in service vide memo No. 1017, dated 25.02.2011. Thereafter, the Director, RIMS, Ranchi vide Memo No. 6491, dated 05.09.2008, forwarded list of teachers who were promoted to the post of Assistant Professors including the list of teachers posted as 'Tutors' promoted to the post of 'Assistant Professors'. It is case of the petitioners that in the erstwhile State of Bihar the post of 'Tutor' was considered to be permanent and employees were only relieved for the field work upon their requests but the dispute regarding post of 'Tutor' as a tenure based post arose after enactment of RIMS Services Rules which came into force with effect from 08.09.2014. On 18.04.2015, in the 40th Meeting of the Governing Body of RIMS, Ranchi, vide Agenda No. 40.14, it was decided that the post of 'Tutor' was tenure based post and as such, considering all the posts as vacant, new recruitment must be made by way of an advertisements. Being aggrieved by the said decision, the petitioners and others represented before the authorities with a prayer not to disturb them from the post of 'Tutors' and further to advertise only those posts which are lying vacant. Petitioners are also aggrieved by inaction on part of the respondents whereby their request to confirm their services vide letter dated 11.02.2010, 02.03.2011, 21.02.2014 have been kept pending. 4. Mr. Anil Kumar Sinha, learned Sr. Counsel assisted by Mr. Abhay Prakash, appearing for the petitioners submitted that in none of the advertisements, the post of 'Tutor' was marked as 'Tenure' post rather the post of 'Tutor' was permanent and all consequential benefits related to the service conditions were extended to them similar to other employees of RIMS, Ranchi. The persons employed as a 'Tutor' were directly promoted to the post of Assistant Professor provided they possessed the requisite qualification as prescribed by the Medical Council of India. Learned Sr. Counsel further submitted that post of 'Tutor' was never a tenure post and it's only RIMS Rule, 2014, effective from 08.09.2014 i.e. the date on which RIMS Service Rule came into force, the post of 'Tutors' was marked as Tenure Post. Learned Sr. Counsel further submitted that Agenda No. 4 - 14 of the 23rd General Body Meeting of RIMS, Ranchi held on 23.03.2010, the Director, RIMS, Ranchi was of the firm opinion that the post of 'Tutor' are of permanent nature however in absence of statutory rule mentioning service conditions of the employees of RIMS, it was taken to be 'Tenure' based post for time being till RIMS Service Rule is finalised. The said Service Rule was notified on 08.09.2014. Learned Sr. Counsel has drew attention of this Court towards Memo No. 141(2), dated 31.05.2004 and further submitted that till date there are many employees in RIMS and other Medical Colleges of State of Jharkhand who are functioning as a 'Tutors' and the 'Tutors' were directly promoted to Assistant Professors in different clinical subjects. Learned Sr. Learned Sr. Counsel has drew attention of this Court towards Memo No. 141(2), dated 31.05.2004 and further submitted that till date there are many employees in RIMS and other Medical Colleges of State of Jharkhand who are functioning as a 'Tutors' and the 'Tutors' were directly promoted to Assistant Professors in different clinical subjects. Learned Sr. Counsel further submitted that pursuant to Notification No. 162 (7B), dated 31.07.2008, many Tutors and Senior Residents had been directly promoted to the post of Assistant Professors without interview or advertisement. Learned Sr. Counsel further submitted that even the Rule of Medical Council of India is silent to the effect as to whether the post of 'Tutor' is tenure based or not and it only provides requisite qualification for the post. Learned Sr. Counsel further submitted that in the erstwhile State of Bihar the post of 'Tutor' was considered to be permanent and employees were only relieved for the field work upon their requests and the dispute regarding post of 'Tutor' as a tenure based post arose after enactment of RIMS Service Rules with effect from 08.09.2014. Learned Sr. Counsel further submitted that during the periods 2005, 2007 and 2008 when the petitioners had been appointed on the post of 'Tutors', there was no statutory rules framed by the State Government or RIMS, Ranchi and the appointments were made on the basis of executive instructions issued from time to time. There was no executive instruction which prescribes fixed tenure i.e. 3 years for the post of 'Tutors'. Learned Sr. Counsel submitted that the RIMS Rule, 2014 cannot be applied retrospectively which may affect and prejudice rights of the petitioners. Petitioners have already rendered their services for more than 10, 8 and 7 years and as such any action of respondents based on retrospective operation of Rule framed out on 08.09.2014 is grossly illegal and arbitrary in the eye of law. Learned Sr. Counsel has placed heavy reliance upon the Judgment reported in 2009(12) SCC 62 . Learned Sr. Counsel further submitted that the appointment of petitioners and others were based upon their qualifications prescribed by the Medical Council of India and there had been no repugnancy to any other Rules enforced at the time of their appointment. Learned Sr. Counsel has placed heavy reliance upon the Judgment reported in 2009(12) SCC 62 . Learned Sr. Counsel further submitted that the appointment of petitioners and others were based upon their qualifications prescribed by the Medical Council of India and there had been no repugnancy to any other Rules enforced at the time of their appointment. The appointments made on the post of 'Tutor' by RIMS, Ranchi in 2005, 2007 and 2008 were as per the Executive Instructions of the Governing Body of RIMS, Ranchi and there was no instruction that the post was 'Tenure' based. Learned Sr. Counsel further submitted that petitioners are unnecessarily being harassed as the notifications issued by the RIMS clearly shows that 'Tutor' is a permanent post. Based on such assumption, some of the 'Tutors' have been directly promoted to the post of 'Professors' as they were functioning for considerable periods on the post of 'Tutors' and no promotion had been given to them. Learned Sr. Counsel cited example of Dr. Rosaline Toppo who had been appointed as a 'Tutor' on 28.12.1991 and is still continuing as a 'Tutor' till date. Learned Sr. Counsel has further drew attention of this Court towards Annexure-16 and 17 to the Supplementary Affidavit filed on 30.09.2015 showing list of doctors who, after remaining on the post of 'Tutors' for long period, had been promoted to the post of Assistant Professor as well as Associate Professors pursuant to Notification No. 102(2), dated 08.04.2004 and 141(2) dated 31.05.2004 respectively. Learned Sr. Counsel further drew attention of this Court towards Annexure-18 whereby services of Tutors/Senior Residents of different Departments in MGM Medical College, Jamshedpur & Patliputra Medical College, have been confirmed. It has also been pointed out that pursuant to Annexure-19, the Department of Health & Family Welfare has decided to fill up the vacant posts of teaching cadre in all the three Medical Colleges in the State of Jharkhand i.e. RIMS, Ranchi; MGM Medical College, Jamshedpur and PMCH, Dhanbad. It is also pointed out that pursuant to notification No. 167(9), dated 05.09.2015 [Annexure-20], the Department of Health, Medical Education, Family Welfare Department, Jharkhand has promoted 'Tutor' and 'Senior Resident' having qualification of MD/MS to the post of Assistant Professor in respect of PMCH, Dhanbad and MGM Medical College, Jamshedpur. Learned Sr. It is also pointed out that pursuant to notification No. 167(9), dated 05.09.2015 [Annexure-20], the Department of Health, Medical Education, Family Welfare Department, Jharkhand has promoted 'Tutor' and 'Senior Resident' having qualification of MD/MS to the post of Assistant Professor in respect of PMCH, Dhanbad and MGM Medical College, Jamshedpur. Learned Sr. Counsel submitted that in the circumstances, it is a glaring example of arbitrary and discriminatory attitude of the respondents whereby in the similar set of facts others have been granted promotion treating the post of 'Tutor' to be permanent whereas they are not confirming services of the petitioners who have been rendering their services on the post of 'Tutors' for last several years without any complaint from any quarter. In order to buttress his arguments, learned Sr. Counsel has placed reliance upon the Judgment rendered in the case of Central Inland case reported in AIR 1986 SC 1571 [Para-90 and 92] wherein the Hon'ble Apex Court has clearly held that employees are under control of the employers and any such conditions imposed by employers not as per Rule/Advertisement, cannot bind the employee. Learned Sr. Counsel has further placed reliance upon the Judgment rendered in the case of Comptroller & Auditor General of India v. Mohan reported in AIR 1991 SC 2288 and submitted that it is well settled that promissory estoppel cannot apply against Statute or for the terms and conditions mentioned in the advertisement. In the present case, 1997 Rule and terms of advertisement shall be treated as a Statute. the Advertisement is an administrative decision but in absence of Statutory Rule, it has force of law. Learned Sr. Counsel further argued that Clause-12 of Annexure-4 is contrary to Clause-2 thereof and the advertisement. Further, Clause-12 is not at all sustainable as petitioners have not been removed after completion of tenure of 3 years. Learned Sr. Counsel has further drawn attention of this Court towards Annexure-5, Page-45 which is the document obtained under Right To Information Act which does not talk of Tutor to be a tenure post, rather it talks about regular appointment. Further, Clause-12 is not at all sustainable as petitioners have not been removed after completion of tenure of 3 years. Learned Sr. Counsel has further drawn attention of this Court towards Annexure-5, Page-45 which is the document obtained under Right To Information Act which does not talk of Tutor to be a tenure post, rather it talks about regular appointment. It has been further been argued that the word 'tenure' comes in picture only from Clause-4 and as such, from 08.09.2014, the date this Rule came into existence and the post 'tutor' became 'tenure' post but the petitioners have been appointed prior to it and as such their appointments cannot be said to be on the tenure post. Learned Sr. Counsel has further drawn attention of this Court to the Supplementary Affidavit filed on 10.03.2017 and further submitted that the 'Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008' clearly depicts about the tenure. However, it is fairly submitted by learned Sr. Counsel that Rules published by State of Bihar is not applicable in the State of Jharkhand and he has brought the same on record only in order to indicate that the post of Tutor is not a tenure post. In the alternative, it has been argued by learned Sr. Counsel that already two posts are lying vacant for the post of Tutor in Physiology and Microbiology and therefore, the intervenors - respondent Nos. 4 and 5 may be adjusted against those posts as the petitioners are not challenging their appointment. Since the seats are lying vacant, they can be comfortably adjusted against the vacant post of Tutors in the Department of Physiology and Microbiology. 5. Pursuant to order dated 31.07.2017 in I.A. No. 4198 of 2017, Intervenors - Dr. Anita Kumari and Dr. Manju Boipai have been added as party - respondent Nos. 4 and 5 to the writ petition. Mr. Manoj Tandon, learned counsel appearing on behalf of the Intervenors - respondents Nos. 4 and 5 submitted that though the intervenors have been finally selected but the appointment letters have not been issued to them in view of pendency of the instant writ petition. Learned counsel submitted that since the petitioners have accepted the terms and conditions stipulated in the appointment letters and hence they cannot be allowed to turn back after lapse of tenure post. Learned counsel submitted that since the petitioners have accepted the terms and conditions stipulated in the appointment letters and hence they cannot be allowed to turn back after lapse of tenure post. Learned counsel heavily relied upon the Judgment rendered by Hon'ble Supreme Court in the case of Vidhyavardhaka Sangha & Anr. v. Y.D. Deshpande & Ors. reported in (2016) 12 SCC 484 - Para-4. Learned counsel further submitted that no right can be accrued to an employee after lapse of last date of tenure in the matter of 'tenure' appointment. Learned counsel has further placed reliance upon the Judgment rendered in the case of Ram Nayan Shukla v. District Basic Education Officer reported in (1999) SCC (L & S) 631 - Para-2. Learned counsel further submitted that RIMS authority is bound to issue appointment letters inasmuch as there was no stay granted by this Court and selection process was allowed to continue by order dated 22.05.2015. Learned counsel has further placed reliance upon the Judgment passed by Hon'ble Supreme Court in the case of P. Venugopal v. The Union of India reported in (2008) 5 SCC 1 . Mr. Manoj Tandon, learned counsel has further placed reliance on Clause-12 of Annexure-4 Series and further argued that the post of Tutor is a tenure post and in view thereof, the petitioners cannot say that it is not a tenure post. Tenure of the petitioners came to an end in the year 2010 itself whereas the writ petition has been preferred in the year 2015 i.e. after 5 long years praying therein to confirm their services which is not tenable in the eyes of law. As the fresh advertisement has been floated, process has already been completed and the intervenors have been duly selected, now the right has accrued to the intervenors to get appointment against the post they have been selected and as such, direction may be given to appoint them against the post. Learned counsel submitted that in the circumstances when the intervenors had been finally selected, the RIMS authorities are bound to issue appointment letters. The respondents - RIMS have sat tight over the matter though there is no stay against appointment. 6. Per contra counter affidavit has been filed on behalf of the respondents - RIMS as well as State. 7. Mr. The respondents - RIMS have sat tight over the matter though there is no stay against appointment. 6. Per contra counter affidavit has been filed on behalf of the respondents - RIMS as well as State. 7. Mr. Rajesh Kumar, learned counsel appearing for RIMS, Ranchi submitted that claim of the petitioner is not sustainable in the eyes of law as the petitioners had been appointed in the years 2005, 2007 and 2008 and in appointment letters itself at Clause 12/14 [Annexure-4, Page-28 to the writ petition] it has been clearly mentioned that they are being appointed for the tenure of three years only. Mr. Rajesh Kumar, learned counsel further emphatically argued that admittedly post of Tutor is a tenure post which is reflected from the appointment letter and which has also been accepted by the petitioners and as such, it cannot be said that it is not a tenure post. On completion of their tenure, vide letter No. 408, dated 22.01.2010 and letter No. 6403, dated 13.08.2011, they had been given further extension till further orders and their extension in service has been treated as 'Non-teaching'. The said extension has been approved by the 23rd Meeting of the Governing Body of RIMS, dated 23.03.2010. Learned counsel submitted that in view of acceptance of appointment and joining on tenure post and further extension till new appointments are made, the petitioners cannot be allowed to challenge the terms of their appointment. Learned counsel further submitted that Advertisement issued vide letter No. 720/RIMS, Ranchi dated 15.02.2006 which has been brought on record vide Annexure-D to counter affidavit filed on 01.03.2016 clearly stipulates that post of Tutor is a tenure post for three years. Annexure-2 brought on record by the petitioners is erroneous and fabricated. Learned Counsel further submitted that most of the petitioners are not eligible for the post of Assistant Professors and they have tried to compare themselves with Tutors appointed earlier without enclosing their appointment letters and qualification. In the alternative, it has been argued by learned counsel for RIMS that even if the petitioners are allowed to continue, they may continued but not as a Tutor. 8. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that the writ petition needs no interference. In the alternative, it has been argued by learned counsel for RIMS that even if the petitioners are allowed to continue, they may continued but not as a Tutor. 8. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that the writ petition needs no interference. However, appointment has to be considered in view of terms and conditions laid down in the Advertisement. Only on the ground that petitioners were given extension, does not give them right to continue on the post. Though the tenure comes to an end which was only for 3 years. If this contention of the petitioners are accepted then every contractual appointment on extension of the period shall be treated a permanent and regular. From the advertisement itself, it is clear that appointments had been done against the tenure post, which also find support from the letter of appointment of the petitioners which has also been placed on record vide Annexure-4 which reflects that petitioners had been appointed for a period of 3 years only. Annexure-D to the counter affidavit also clearly stipulates that in the advertisement tenure has been mentioned and it finds support from the letter of appointment. The Hon'ble Apex Court in the case of P. Venugopal v. The Union of India reported in (2008) 5 SCC 1 , para-32 has held as under:- "32. From the above quotation, as made in para-16 of the said decision of this Court, it is evident that this Court has laid down that the term of 5 years for a Director of AIIMS is a permanent term. Service conditions made the post of Director a tenure post and as such the question of superannuation or prematurely retiring the incumbent of the said post does not arise at all. even an outsider (not an existing employee of AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply. "Tenure" means a term during which the office is held. it is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. "Tenure" means a term during which the office is held. it is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure." The Hon'ble Apex Court, in the case of Vidyavardhaka Sangha and another v. Y.D. Deshpande and others reported in (2006) 12 SCC 482 , in para-4 has held as under: "4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employees or on contract basis....... ..." 9. The Judgments relied upon by learned Sr. Counsel is of no help to him as in the instant case no change has been brought out in the terms and conditions of appointment. Regarding the implementation of Rules from retrospective dates, this argument of learned Sr. Counsel is also not acceptable to this Court on the ground that extension has been approved by the 23rd Meeting of the Governing Body of RIMS dated 23.03.2010. In view of acceptance of appointment and joining on Tenure post and further extension thereof till now, petitioners cannot be allowed to challenge their terms of appointment. Further, extension in service has been treated as non-teaching and as such, it cannot be said that the tenure comes into picture only when the Rule was framed i.e. 08.09.2014. Petitioners had been appointed in the year 2005, 2007 and 2008. Further, extension in service has been treated as non-teaching and as such, it cannot be said that the tenure comes into picture only when the Rule was framed i.e. 08.09.2014. Petitioners had been appointed in the year 2005, 2007 and 2008. Under Clause 12/14 [Annexure-4, page-28 of the writ petition], it has been clearly mentioned that they are being appointed for a period of 3 years only and on completion of their tenure, they were given further extension till further orders and as such, it cannot be said that Rule has been made retrospective. However, I find that it is an admitted fact that petitioners had preferred representations but the respondents RIMS has not taken any decision on the said pending representations. 10. The interveners had been selected as per the procedures laid down in the advertisement. No illegality or infirmity has been pointed out by anyone whatsoever in their appointment and as such, the respondents are duty bound to appoint the interveners if they otherwise fulfil the criteria. 11. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I hereby direct the respondents to pass order on pending representation of the petitioners in accordance with law keeping into consideration that the petitioners have completed the terms of their tenure of three years, though extension has been given to them. I further direct that since the intervenors have been duly qualified for the post, they be given appointment letters if they otherwise fulfill the conditions as laid down in advertisement. As this court does not find any illegality or infirmity in the appointment of intervenors, no case is made out for any interference and they deserves to be appointed. However, the respondents are directed to pass reasoned order in accordance with law on pending representations of the petitioners. The entire exercise must be completed within a period of six weeks from the date of receipt/presentation of a copy of this Order. The writ petition is accordingly disposed of. Resultantly, all the pending Interlocutory Applications i.e. I.A. No. 539 of 2016, I.A. No. 4488 of 2016, I.A. No. 1814 of 2017, I.A. No. 322 of 2017, I.A. No. 4198 of 2017, I.A. No. 4230 of 2017 and I.A. No. 7714 of 2016 stand disposed of.