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2017 DIGILAW 880 (MP)

State of M. P. v. Kavita N. Singh

2017-08-02

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT Shukla, J. -- 1. In the instant intra-Court appeal preferred under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 challenge has been made to the order dated 17.7.2017 passed by the learned Single Judge in Writ Petition No.7222/2017 whereby the petition filed by the petitioners/respondents No.1,2 and 3 herein, has been allowed and the impugned order, dated 9.5.2017 (Annexure P-8) appointing the respondent No.7, Dr. (Mrs.) Rooplekha Chouhan, in the writ petition as Professor (Gynaecology) on contract basis after her retirement in the Netaji Subhash Chandra Bose Medical College, Jabalpur has been set aside and further, her appointment giving charge as Head of Department (HOD) & Dean of the said College has also been quashed. 2. On 20.7.2017 while mentioning the matter for urgent hearing it was stated that a similar petition forming the subjectmatter of Writ Petition No.9113/2017 involving the same issue has been filed by the Medical Teachers’ Association, N.S.C.B. Medical College, Jabalpur assailing the contractual appointment of the said respondent No.7 after attaining the age of superannuation as on 31.3.2017. Thus, a request was made to hear both the matters analogously. 3. Since the issue involved in both the cases is similar in nature and similar orders are subject matter of assail therein, both the matters are disposed of by a common order. For the sake of clarity and convenience, the facts adumbrated in Writ Petition No.7222/2017 filed by Dr. (Mrs.) Kavita N. Singh and others, which has been allowed by the learned Single Judge, are taken up for adjudication of both the cases. 4. The writ petitioners invoked the jurisdiction under Article 226 of the Constitution of India challenging the impugned order dated 9.5.2017 appointing the respondent No.7 as Professor (Gynaecology) on contract basis after her retirement on 31.3.2017 and further appointing her as HOD (Gynaecology) giving charge to the post of Dean of the Medical College. The bone contention of the petitioners is that they are working on the post of Associate Professors in the Medical College for the last several years and they have accomplished the qualifying service for promotion on the post of Professor (Gynaecology). The said post is vacant in the Medical College since 31.3.2014, but their cases for promotion were not considered. The bone contention of the petitioners is that they are working on the post of Associate Professors in the Medical College for the last several years and they have accomplished the qualifying service for promotion on the post of Professor (Gynaecology). The said post is vacant in the Medical College since 31.3.2014, but their cases for promotion were not considered. It is contended that the appointment of the respondent No.7 is in violation of the provisions of Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1987 [ for brevity ‘the Rules 1987’] and also the M.P. Treasury Code. 5. One of the petitioners has also filed Writ Petition No.4127/2017 seeking promotion to the post of Professor, which is pending for consideration. It is submitted that instead of considering the cases of eligible persons for promotion, the respondents have again appointed the respondent No.7 as Professor and HOD of the Gynaecology Department on contract basis by the impugned order dated 9.5.2017. Further, she has also been given the charge of HOD and Dean of the Medical College which runs contrary to the Recruitment Rules. It is canvassed that the post of Professor is a promotional post and it can be filled up 100% by promotion. It is assiduously urged that the contract appointments as per Policy can be made only in exceptional circumstances looking to the larger public interest, and where the work which is being performed by the said person cannot be performed by any other person in the Department. But, in the present case, eligible persons who fulfil the eligibility criteria for the said promotion, are already available, therefore, there was no exceptional circumstance to make the contract appointment of the respondent No.7, who had already attained the age of superannuation as on 31.3.2017. 6. In the connected Writ Petition No.9113/2017 filed by the Medical Teachers’ Association, NSCB Medical College Jabalpur, It is asseverated that the Netaji Subhash Chandra Bose Medical College, Jabalpur is an autonomous college and it is governed by the Swashasi Chikitsa Mahavidyalaya ke Samvardhan Evam Samvilyan Sambandhi Niyam [Chikitsa, Dant, Nursing Vidyalaya tatha Mansik Arogyashala ke liye) Rules, 1998 [here in after referred to as ‘the Rules 1998']. Rule 20 of the Rules 1998 deals with appointment of Dean, Professor, Associate Professor, Assistant Professor, Paramedical Officer and Administrative Officer. Rule 20 of the Rules 1998 deals with appointment of Dean, Professor, Associate Professor, Assistant Professor, Paramedical Officer and Administrative Officer. It is envisaged in the said Rules that the appointment shall be made under the prevalent rules of the Rules 1987 in the Department of Medical Education. 7. The main grievance of the Association is regarding the appointment of the respondent No.7 as HOD (Gynaecology) and giving her additional charge of the Dean of the Medical College. It is submitted by the petitioners that that appointment on the post of Dean is governed by the provisions of 1998 Rules and as per the provisions of rule 20, appointment on the post of Dean has to be made by promotion from the seniority list of the Professors in the State. It is further contended that there are many senior persons who have attained the eligibility for promotion to the post, are available and they have quoted certain names. It is contended that a appointment of respondent No.7 as Dean after retirement on contract basis is contrary to the provisions of the M.P.Treasury Code which is the guiding principle on the issue of finance in the State of M.P. It is further submitted that contractual appointment cannot be given for drawing or disbursing power or finance powers. A reference has been made to the Code 125 of the M.P. Treasury Code which has been produced in para 5.12 of the petitioner. It is also contended that provision of Code 125 clearly stipulates that an officer who is authorised signatory, at least has to be a gazetted officer. A contractual employee cannot be a Gazetted Officer and, therefore, the appointment of the respondent No.7 on the post of Professor (Gynaecology) on contract basis, cannot be assigned additional charge of HOD (Gynaecology) and Dean of the Medical College, Jabalpur. 8. A contractual employee cannot be a Gazetted Officer and, therefore, the appointment of the respondent No.7 on the post of Professor (Gynaecology) on contract basis, cannot be assigned additional charge of HOD (Gynaecology) and Dean of the Medical College, Jabalpur. 8. Thus, in sums and substance the contention of the petitioner Association is that the appointment of the respondent No.7 on the post of HOD (Gynaecology) and Dean of the Medical College is illegal and as per Rules 1998 the same can be filled up by promotion strictly as per order in the seniority list in the cadre of the Professors in the State of M.P. However, ignoring the claim of the eligible officers and in contravention of the provisions of the M.P. Treasury Code, appointment of the respondent No.7 as Dean of the Medical College has been made. 9. The respondents appellants State in Writ Appeal No.615/2017 strenuously stated that the respondent No.7 was holding the regular post of Professor (Gynaecology) and she was also In-charge Dean of the NSCB Medical College, Jabalpur. She has attained the age of superannuation on 31.3.2017 and the said post is vacant, as the said post is to be filled-up by promotion only and the promotion can be held because of the interim order passed by the apex Court. It is further contended that in bunch of writ petitions, this Court has held the provisions for reservation in the M.P. Public Service (Promotion) Rules, 2002 [for brevity ‘the Rules 2002’] is ultra vires and against the judgment passed by this Court, an S.L.P. (C) No.13954/2016 has been filed before the Supreme Court whereby the apex Court has directed to maintain ‘status-quo’. Therefore, the State Government at present cannot convene a regular DPC in the Department. The State had no option but to make some arrangement either by In-charge arrangement or by making appointment on contract basis in accordance with Circular/Policy of the State Government, dated 13.9.2011. It is contended that as per Policy a proposal was initiated from the Office of the Divisional Commissioner, Jabalpur for extension of service of the respondent No.5 and recommendations were sent to the Principal Secretary of the Department concerned, vide proposal dated 27.2.2016. The proposal was forwarded to the Commissioner, Medical Education, Government of M.P., Bhopal vide letter dated 6.3.2017. It is contended that as per Policy a proposal was initiated from the Office of the Divisional Commissioner, Jabalpur for extension of service of the respondent No.5 and recommendations were sent to the Principal Secretary of the Department concerned, vide proposal dated 27.2.2016. The proposal was forwarded to the Commissioner, Medical Education, Government of M.P., Bhopal vide letter dated 6.3.2017. It is strenuously urged by the respondents that the case of the respondent No.7 [arraigned as respondent No.5 in the writ appeal] for extension of her service was considered by the State Government in the light of the Policy dated 3.9.2011 for contractual appointment on the post of the Professor (Gynaecology) and the same was referred to the Committee duly constituted pursuant to the Policy consisted of (i) The Principal Secretary, Government of M.P., General Administration Department (GAD); (ii) The Principal Secretary, Government of M.P., Department of Medical Education; and (iii) The Principal Secretary, Government of M.P., Department of Finance. 10. During course of arguments, the proceedings of the aforesaid Committee were also produced before us for perusal. It is contended that the requisite information as prescribed in the format in the Policy was placed before the said Committee and all the 19 points prescribed in the format regarding performance of the respondent included – (a) information pertaining to availability of eligible candidates for being promoted on the post in question; (b) justification/reason on behalf of the Department in not convening a DPC for promotion of regular candidates; (c) opinion of the Administrative Department; (d) ACRs of the respondent No.7 for the past 10 years and her non-involvement in any criminal case during her tenure; (e) efficiency of the respondent No.7 for grant of contractual appointment; and (f) approval of the Minister In-charge. 11. Thus, case of the respondent No.7 has been considered by the Committee duly constituted in that behalf for her contractual appointment on the post of Professor and HOD/Dean (Gynaecology) of the Medical College, Jabalpur after her retirement. It is vehemently urged that in view of the order of ‘status-quo’ passed by the apex Court in respect of promotion, the State has taken resort to the appointment of respondent No.7 on contract basis as Professor of Gynaecology after her retirement for a period of one year or till the post of Professor is filled up, whichever is earlier. 12. 12. Counsel appearing for the respondent Medical Council of India, had stated before the learned Single Judge that the council has nothing to say in the matter of contract appointment and it is with the State Government and the petitioners. Counsel for the respondent No.7 submitted that the petitioners do not have any locus to challenge the contract employment of the respondent No.7 and virtually the same was made in terms of the Policy, dated 3.9.2011, which is also a mode, as specified in rule 6(4) of the Rules 1987 and, therefore, the learned Single Judge has erred in law while allowing the writ petition. 13. Regard being had to the arguments advanced on behalf of the parties and upon perusal of the record, we find that the legality and validity of the Promotions Rules 2002, wherein this Court has declared the reservation in promotion as unconstitutional, is pending for adjudication before the apex Court vide SLP (C) No.13954/2016. In the SLP the apex Court, on 12.5.2016 has passed the interim order in the following terms: “Leave granted. Until further orders, status quo, obtaining as on today, shall be maintained. List the matter for hearing in the third week of September, 2016.” 14. It is not in dispute that the matter is still pending for adjudication before the Supreme Court and, therefore, the State Government had two options in such circumstances where an employee has retired from services on attaining the age of superannuation and the said post is to be filled up in 100% by promotion, either to make an ad hoc or interim arrangement from the eligible persons already working on the feeder post, which has fallen vacant; and (ii) to make contract appointment in accordance with Government Circular/Policy dated 3.9.2011, subject to fulfilment of the conditions as enumerated in the said Circular/Policy. The procedure for appointment on contract basis after retirement is not a mode of recruitment under the service rules, as it is not an appointment to the service under rule 7 of the Rules 1987. It is a contract appointment which is governed by the procedure prescribed in the Policy, dated 3.9.2011 which provides that a contract appointment can be made in exceptional circumstances looking to the public interest. If continuation of the said officer or employee is in the immediate interest of the Government. It is a contract appointment which is governed by the procedure prescribed in the Policy, dated 3.9.2011 which provides that a contract appointment can be made in exceptional circumstances looking to the public interest. If continuation of the said officer or employee is in the immediate interest of the Government. Further, the work which is being performed by the said person cannot be performed by any other person in the Department. Besides, there is a cavil, in case the post is required to be filled up by promotion and the persons possesses the eligibility of such promotion are not available. 15. From a bare perusal of the record and minutes of the Committee, it is luminescent that the committee had taken into consideration all the conditions enumerated in the Policy. It is found that all the points prescribed in the format regarding performance of the respondent No.7 were taken into consideration like : (a) Information pertaining to availability of eligible candidates for being promoted on the post in question. (b) Reason on behalf of the Department in not convening DPC for promotion of regular candidates. (c ) Opinion of the administrative department. (d) ACRs of the respondent No.7 for the last 10 years and her non-involvement in any criminal case during her tenure. (e) Efficiency of the respondent No.7 for grant of contractual appointment. We do not find any error or illegality in the proceedings of the Committee. Even otherwise the scope of judicial interference over a decision of Screening/Promotion Committee is limited. In catena of cases, the apex Court has held that it is not the function of the Court to hear an appeal over decision of Selection Committee. Reference may be made to the judgment of the apex Court rendered in the case of Dalpat Abasaheb Solunke etc. v. Dr. B.S. Mahajan etc. AIR 1990 SC 434 followed in the subsequent judgments in Kuldip Chand v. State of H.P. and others, AIR 1997 SC 2606 and Anil Katiyar (Mrs.) v. Union of India and others, [ (1997)1 SCC 280 ] . 16. The learned Single Judge had examined the decision of the Committee regarding the recommendation of respondent No.7 and for not considering the cases of the other eligible candidates. 16. The learned Single Judge had examined the decision of the Committee regarding the recommendation of respondent No.7 and for not considering the cases of the other eligible candidates. It is relevant to mention here that a peculiar situation has arisen in the present case, as there is an order of status quo passed by the apex Court, in respect of promotions in the State of Madhya Pradesh and therefore, the State Government had taken a decision to make contractual appointment on the post of Professor in accordance with the Policy of the State Government. We do not find any fault in the decision making process either of the State Government or of the Selection Committee, for making recommendation of respondent No.7 for her appointment on the post of Professor on contract basis. We do not perceive any illegality or error in the decision of the State Government or the Selection Committee to make recommendation of respondent No.7 for appointment on the post of Professor (Gynaecology) on contract basis. 17. The learned Single Judge has emphasized that the eligible candidates like the petitioners have been deprived of their rights for promotion by the same is in breach of the conditions of the Policy. It is relevant to mention here that an employee has no fundamental right or statutory right for promotion. An employee has got a right of consideration for promotion to the next cadre subject to fulfilment of the conditions. In this regard, we may refer to the judgments passed by the apex Court rendered in the cases of Union of India and others v. Sangram Keshari Nayak, [ (2007)6 SCC 704 ]; C.O. Arumugam and others v. State of Tamil Nadu and other, [1991 Suppl (2) SCC 199]; and Union of India and anothers v. Hemraj Singh Chauhan and others, [ AIR 2010 SC 1682 ]. 18. On a studied scrutiny of the Minutes of the Committee, we find that the Committee had recommended appointment of the respondent No.7 on the post of Professor (Gynaecology) on contract basis for a period of one year or till the post is filled-up by promotion, whichever is earlier. Besides, there was no recommendation for appointment of the respondent No.7 giving her additional charge of HOD (Gynaecology) & Dean of the Medical College, Jabalpur. 19. Besides, there was no recommendation for appointment of the respondent No.7 giving her additional charge of HOD (Gynaecology) & Dean of the Medical College, Jabalpur. 19. Since the post of HOD & Dean are of administrative nature, as contended by petitioner Association in the writ petition and a contract employee cannot be conferred with the power of drawing and disbursing, especially, when senior eligible and suitable officers are available in the cadre of Professor in the State. We find that the appointment of the respondent No.7 as HOD (Gynaecology) and further In-charge Dean of the Medical College, is not in accordance with law. As we have accorded that we do not find any recommendation by the Committee for appointment of the respondent No.7 on the said post, we set aside the appointment of the respondent No.7 on the post of HOD (Gynaecology) and Dean of the Medical College, Jabalpur. 20. As we have considered that the duty of the HOD and the Dean of a College is of administrative nature, which can be performed by any senior-most person, available in the feeder cadre, we direct the respondents to reconsider for appointment on the post of HOD (Gynaecology) from working eligible and qualified Associate Professors and for the post of In-charge Dean of Medical College amongst senior Professors working in the State of Madhya Pradesh, as expeditiously as possible, preferably within a period of three weeks from the date of receipt of the certified copy of the order passed today. 21. Accordingly, the Writ Petition No.7222/2017 as well as the writ appeal are partly allowed and the order passed by the learned Single Judge, so far as it relates to quashing of the order of appointment of the respondent No.7 on the post of Professor (Gynaecology) is concerned, stands quashed and the order of the learned writ Court pertaining to appointment of of the respondent No.7 on the post of HOD (Gynaecology) and Dean of the Medical College, Jabalpur is upheld. As an irresistible conclusion, the connected writ petition is also allowed in part and stands disposed of in the above terms. However, in the facts and circumstances of the case, there shall be no order as to costs.