Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 63 (GAU)

Chandana Roy Das v. State of Assam

2017-01-11

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Shri H. Sarma, learned counsel for the petitioner. Also heard Shri A.K. Bhuyan, learned counsel appearing for the respondent Nos. 5 to 10 and Shri B. Gogoi, learned standing counsel appearing for the respondent Nos. 1 to 4. 2. The petitioner had completed her MBBS in the year 1994 and MD in the year 2000. On 17.07.2009, she was appointed as Registrar in the department of Obstetrics and Gynaecology in the Gauhati Medical College & Hospital. Thereafter on 09.02.2011, she was promoted as Assistant Professor in the department of Obstetrics and Gynaecology in the Gauhati Medical College & Hospital and since then she has been working as Assistant Professor in the said department of the college. The petitioner contends that the next post for promotion from Assistant Professor is Associate Professor. As per the qualification prescribed, by the Medical Council of India (MCI), the required qualification for promotion from Assistant Professor to Associate Professor is 5 years of service in a recognised Medical College as Assistant Professor. However, the desirable qualification is minimum of four research publications indexed in index Medicus/national journals. The said required qualification had been amended by notification dated 15.12.2009 by which the required qualification as of now is i) as Assistant Professor in Obstetrics and Gynaecology for 4 years in recognised Medical College and No. ii) Minimum of two research publications in indexed national journals. 3. It is the case of the petitioner that since the earlier requirement of publication of research publication was only a desired qualification, the promotion from Assistant professor to Associate professor were mostly made on the basis of seniority from amongst the candidates who completed the prescribed qualifying years as Assistant Professor. It is stated that even after the amendment of the rules, Assistant Professors were promoted on the basis of seniority alone, as MCI has provided for a transitory period of 4 years w.e.f. 24.07.2009. But after the transitory period has come to an end in the year 2013, the required qualification for promotion from Assistant Professor to Associate Professor would be a service period of 4 years as Assistant Professor in Obstetrics and Gynaecology in the recognised Medical College and 2 research papers accepted/published in indexed/national journals as first/second author during the tenure as Assistant Professor. The petitioner contends that there are 6 vacant posts of Assistant Professor lying vacant in the department of Obstetrics and Gynaecology in different Medical Colleges of Assam and out the same although the vacancy status of the 6th post is not very clear, there are at least 5 vacant posts of Assistant Professor which are available. 4. It is the case of the petitioner that the Government of Assam had initiated the process of filling up the said vacancies in the post of Associate Professor in the department of Assistant Professor in various Medical Colleges of Assam and, accordingly, the Director of Medical Education, Assam had issued a letter No. DME/132/GMC/ACR/2014/Research dated 01.09.2015. As per the said letter addressed to the Principal-cum-Chief Superintendent of Medical College & Hospital of Assam, the concerned Principal-cum-Chief Superintendent was required to inform the concerned faculties to attend the office of the Director of Medical Education, (DME) Assam on 07.09.2015 with the original copies of the research papers published/accepted in the indexed/national journals for verification in connection with promotion to the post of Associate Professor. 5. It is the case of the petitioner that as she possesses the required qualification of 4 years of qualifying service and has the required number of paper publications. The Principal-cum-Chief Superintendent vide letter dated 01.09.2015 had required the petitioner to appear before the DME on the stipulated date with the papers. The petitioner, accordingly on 07.09.2015, had appeared before the DME along with the other faculty members. It is the case of the petitioner that amongst all the other faculty members, none other than the petitioner possess the required qualification of publication of papers. Accordingly, it is the case of the petitioner that she is the only candidate who is eligible for promotion to the next higher post of Associate Professor. 6. Although, according to the gradation list of Assistant Professors, the position of the petitioner is at serial No.19, but amongst the faculties who had appeared before the DME on 07.09.2015, though all the 18 faculty members are senior to the petitioner, but none of them had the qualification of paper publication, which according to the petitioner is a mandatory requirement of the MCI. 7. 7. In the above factual background, the petitioner prefers this writ petition only for a direction that the respondent authorities be directed to publish the list for promotion to the post of Associate Professor in the department of Obstetrics and Gynaecology by following the prescribed rules of the MCI, by holding the date 07.09.2015 to be the last date of submission of the required publication of the papers. 8. The respondent Nos. 5 to 10, on the other hand, filed an affidavit-in-opposition, inter-alia raising the question that the writ petitioner was promoted to the post of Assistant Professor in violation of the MCI guide lines prevailing as on 24.07.2009 and the other subsequent notifications. The respondents seek to make out a case that the 3 years of service is required for promotion from Registrar to Assistant Professor and 4 years is required for promotion to the post of Associate Professor to Assistant Professor. Consequently, the total tenure required for promotion to the post of Associate Professor is 7 years. The writ petitioner having been promoted as Assistant Professor on 28.07.2009 has not completed the period of 7 years of service. 9. It is the further case of the respondent that they having been promoted to the post of Assistant Professor in different dates in the year 2002 to 2003, they have completed 7 years of service as Assistant Professor and, therefore, they are eligible for promotion to the post of Associate Professor. It is also the contention of the respondent Nos. 5 to 9 that the MCI guidelines requiring publication of paper came into force only in the year 2009 and, as such, the same is not applicable in respect of the respondent Nos. 5 to 9. 10. Shri B. Gogoi, learned standing counsel, Health Department, on the other hand, on the basis of the records of the case, submits that initially the meeting of the Departmental Promotion Committee (in short, DPC) for consideration of promotion to the post of Associate Professor was fixed on 12.05.2015 at 12.00 p.m. The said meeting which was fixed on 12.05.2015 was cancelled and the meeting of the DPC was rescheduled and fixed again on 28.08.2015. But the meeting of the DPC fixed on 28.08.2015 also could not be held as the Director of Medical Education, Assam could not provide the DPC with the records of the paper publication in respect of the faculty members for consideration of their promotion. Accordingly, it was provided that the Director of Medical Education will submit the status of the paper publication of the different faculty members in order to enable the DPC to complete the selection process. Finally, as submitted by Shri Gogoi, the meeting of the DPC for considering the promotion from the post of Assistant Professor to Associate Professor was held on 24.02.2016 at 2.30 p.m. 11. It is the submission of Shri B. Gogoi, learned counsel for the Health Department that as per the recordings in the note sheet, the proceeding of the DPC scheduled on 28.08.2015 could not be proceeded as the DME could not furnish the records of paper published in respect of the faculties. It was provided that the DPC meeting be completed after the DME submit the status of the paper publication of the faculty members. 12. Based on the aforesaid proceedings of the DPC, deferring the meeting of the committee up to 24.02.2016 for want of the publication of papers by the faculty members and other materials on record, it is the submission of Shri B. Gogoi, that the authorities in the Government of Assam in the Health Department had taken a conscious decision to defer the proceedings of the DPC in order to enable the senior faculty members to achieve the publication of the required papers. It was submitted that because of the conscious decision of the respondent authorities of the Govt. of Assam in the Health Department, the proceedings of the DPC had to be deferred in order to enable the faculty members to make the necessary publication of the papers. It is the submission of Shri Gogoi, that it was the intention on the part of the authorities of the Govt. in the Health Department to allow the faculty members in the cadre of Assistant Professor to publish the papers as required for promotion to the post of Associate Professor and make them eligible for such promotion. 13. It is the further submission of Shri Gogoi, that in the meantime, the respondent Nos. in the Health Department to allow the faculty members in the cadre of Assistant Professor to publish the papers as required for promotion to the post of Associate Professor and make them eligible for such promotion. 13. It is the further submission of Shri Gogoi, that in the meantime, the respondent Nos. 5 to 10 have published the necessary papers as required under the MCI guide lines and had made themselves qualified to be promoted to the post of Associate Professors. It is also submitted by Shri Gogoi, that the aforesaid conscious decision of the Govt. of Assam was taken in the background of the facts and circumstance that earlier the requirement of publication of paper was not a mandatory requirement for promotion to Associate Professor and, therefore, those Assistant Professor who had been promoted earlier had not felt the requirement of publication of any paper. It is submitted that it was a requirement of public interest that such an opportunity to publish the paper be given to senior incumbents in the cadre of Assistant Professor inasmuch as, if such an opportunity is not given, the entire senior faculty members in the cadre of Assistant Professor would be deprived of being promoted to the cadre of Associate Professor and such deprivation would not be in the interest of the department. Accordingly, it is the submission of the learned counsel that it was conscious decision on the part of the Govt. of Assam in the Health Department to give an opportunity to the senior faculty members in the cadre of Assistant professor to enable them to have the required publication of papers, so as to make them eligible for promotion to the post of Associate Professor. In pursuance to such decision of the government, that the proceeding of the DPC for considering the promotion to the post of Associate Professor had been deferred earlier. 14. In the above circumstance, the issue for adjudication before this court is as to whether the writ petitioner had any indefeasible legal right to be declared to be only the eligible candidate for promotion to the post of Associate Professor by taking the letter dated 01.09.2015 of the DMC to be the cut off date for publication of the papers. 15. 15. Upon appreciation of the facts narrated above, it is discernible that the requirement of publication of at least 2 papers became effective from the year 2013 onwards and prior to the year 2013 such requirement was not a mandatory requirement in order to be qualified for promotion to the post of Associate Professor. In the above circumstance, the incumbents were promoted to the post of Assistant Professor sometime in the year 2002 and 2003, had never felt the requirement of publication of any paper inasmuch as the same was not a mandatory requirement for being qualified for qualification for the post of Associate Professor. But the petitioner who was promoted as an Associate Professor sometime on 09.02.2011 being a person who was so promoted after the guidelines of the MCI requiring publication of the papers, was more alert to the requirement of having paper publication, in order to qualify for promotion to the post of Associate Professor. 16. In the given circumstances, if the situation, as such is accepted, out of all the eligible Assistant Professor of Obstetrics and Gynaecology, the petitioner would be the only qualified candidate who would qualify for promotion to the post of Associate Professor. In such circumstance, the interest of the department may not be sub-served inasmuch as all the senior faculty members in the cadre of Assistant Professor would be dis-entitled to be qualified for promotion as Associate Professor. On a comparative assessment, as submitted by the department, apart from the factor of publishing the papers, there is nothing to indicate that the senior faculty members in the cadre of Assistant Professor are in any manner inferior to that of the writ petitioner in the matter of providing service to the department. The only factor separating the senior faculty members and the writ petitioner is that the writ petitioner have two prior publication of papers, whereas, the respondent Nos. 5 to 10 being the senior faculty members in the cadre of Assistant Professor do not have any such publication. As already noticed, it is not a case that the respondent Nos. 5 to 10 are ineligible or incapable of publishing any paper, it is only because at that relevant time when they were promoted as Assistant Professor, the requirement of publishing of papers was not there and therefore they had not indulged themselves in publication of any paper. 17. As already noticed, it is not a case that the respondent Nos. 5 to 10 are ineligible or incapable of publishing any paper, it is only because at that relevant time when they were promoted as Assistant Professor, the requirement of publishing of papers was not there and therefore they had not indulged themselves in publication of any paper. 17. It being the given position, it cannot be held that the conscious decision of the respondent authorities in the Health Department to allow some time to the senior faculty member in the cadre of Assistant Professor to publish the required papers can be termed as arbitrary or unreasonable. The senior faculty members in the cadre of Assistant Professor, not being inferior to the petitioner, in any other manner, other than the aspect of publication of paper, it would be against the public interest to deprive the entire lot of the senior faculty members from being qualified to be promoted as Associate Professor. In such view of the matter, this Court is of the opinion that the conscious decision of the respondent authorities in the Health Department to allow some time to the senior faculty members to make necessary publication of papers, by deferring the proceedings of the departmental promotion committee cannot be held to be arbitrary, unreasonable and unsustainable. At the same time, the petitioner, by merely having published the required papers cannot be held to be a more preferred candidate for the promotion to the post of Associate Professor as there is nothing on record to indicate that the petitioner is more preferable in any other aspect of the matter. Further it also cannot be held that by declaring the petitioner to be the only eligible candidate for promotion to the post of Associate Professor by arriving at a conclusion that all other senior faculty members are ineligible, would serve the public interest in any manner. 18. Further it also cannot be held that by declaring the petitioner to be the only eligible candidate for promotion to the post of Associate Professor by arriving at a conclusion that all other senior faculty members are ineligible, would serve the public interest in any manner. 18. With reference to the submission of the writ petitioner that the respondent authorities be directed to publish the list for promotion of Associate Professor in the department of Obstetrics and Gynaecology by following the qualification requirement of publication of papers, by holding the date of 07.09.2015 to be the last date of submission of the required publication of papers, it may be noticed that the letter dated 01.09.2015 of the DME requiring the concerned faculty members to attend the office of the DME with the original copies of the research papers published/accepted has to be looked from the point of view that by the said letter, the DME required the in-house candidates to attend the office of the DME for the purpose of initiating the process for promotion to the posts of Associate Professor. The applicability of the legal principle that the qualification acquired after the last date of submission of application should not be taken into consideration is not squarely applicable in the facts and circumstance of the present case. As enunciated by various decisions of the Hon'ble Apex Court, the said legal principle that qualification acquired subsequent to the last date of submission of application should not be taken into consideration is based upon the sound principle that if the qualification acquired after the last date of submission of application is also to be taken into consideration, in such event, there would have been many other candidates who also would have apply against such advertisement. The said legal principle is basically based on the principle of right to equality where if the candidature of a particular candidate who had obtained the required qualification after the last date of submission of application is also taken into consideration and allow to participate in the selection process, the said would be discriminatory and would violate the right of equality that would accrue in favour of other similarly situated candidates, who also might have apply after acquiring the qualification subsequently. In the instant case, the facts and circumstance are not such that if the departmental candidate for the purpose of promotion is allowed to publish the required papers after the letter dated 01.09.2015, certain other candidates who also could not participate in the promotion process would be left out. In such view of the matter, by extending the time provided for publication of the papers, neither the same would be discriminatory against any intending candidate nor the same would violate the principle of right to equality. In such view of the matter, it cannot be construed that for the purpose of considering for promotion to the posts of Associate Professor, the date of the letter dated 01.09.2015 is to be construed to be the last date, by which the candidate would have to procure the required qualification of publication of the papers. 19. In view of the above, this Court is of the considered opinion that no indefeasible legal right has accrued to the writ petitioner in the facts and circumstance to be declared to be the only eligible candidate for being considered for promotion to the post of Associate Professor by depriving all other senior faculty members in the cadre of Assistant professor. Accordingly, the writ petition is found to be devoid of any merit and accordingly stands dismissed.