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2018 DIGILAW 1470 (GAU)

Hirak Das v. State of Assam

2018-10-01

L.S.JAMIR

body2018
JUDGMENT : L.S. Jamir, J. Both the writ petitions having common cause of action are being disposed of by this common judgment and order. Heard Mr. K.K. Mahanta, learned senior counsel assisted by Mr. B. Deka, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel, Health Department appearing for the respondent Nos. 1 to 4 and Mr. G. Uzir, learned senior counsel assisted by Mr. M. Saikia, learned counsel appearing for the respondent Nos. 5, 6, 7 and 9 in W.P (C) 2167/2016 and the respondent No. 5 and 6 in W.P (C) 3816/2016 and Mr. M. Khatanair, learned counsel appearing for the respondent No. 8 in W.P (C) 2167/2016. 1. Mr. K.K. Mahanta, learned senior counsel appearing for the petitioner submits that on completion of MBBS Degree, the petitioner obtained his graduation degree in Anatomy from the Guwahati Medical College & Hospital. Thereafter, the petitioner joined at Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu on 17-08-2009 as an Assistant Professor and continued as such till 30-10-2010. The petitioner being selected by the Assam Public Service Commission (APSC in short) was appointed as a Demonstrator of Anatomy along with eight others by a Notification dated 10-12-2010 and was posted at Silchar Medical College. After serving for 7 months in the Silchar Medical College, the petitioner was transferred to Assam Medical College & Hospital, Dibrugarh as Assistant Professor. Further, the petitioner was again transferred to Silchar Medical College in the same capacity wherein, he joined on 03-01-2013. Again, the petitioner was transferred to the Assam Medical College & Hospital, Dibrugarh and he joined to the said post on 04-04-2013. The petitioner was again transferred to the Gauhati Medical College on 30-06-2015 and since then, he is still continuing in the same college. 2. Learned senior counsel for the petitioner submits that the petitioner has four publications as first author in Indexed National Journal and is eligible to be promoted to the rank of Associate Professor. The petitioner was again transferred to the Gauhati Medical College on 30-06-2015 and since then, he is still continuing in the same college. 2. Learned senior counsel for the petitioner submits that the petitioner has four publications as first author in Indexed National Journal and is eligible to be promoted to the rank of Associate Professor. It is submitted that the promotion to the rank of Associate Professor from Assistant Professor is governed by the Assam Medical Education Services Rules, 2008 ( the Rules of 2008 in short) more particularly, Rule 11 (ii) which provide that a member of the service holding the post of Assistant Professor (Senior Scale-1) shall be eligible for promotion to the rank of Associate Professor (Senior Scale-II) in accordance with MCI Regulations provided the Governor is satisfied about his/her ability integrity and character. Learned senor counsel for the petitioner submits that as per the Regulations of the Medical Council of India (MCI in short) to become eligible for promotion to Associate Professor from the grade of Assistant Professor there is requirement of five years of teaching experience which can be reduced to four years only if the incumbent has two publications in the National and International Journal as First Author during the period of service as Assistant Professor. 3. Learned senior counsel for the petitioner submits that in terms of the Rules of 2008 and the MCI Regulations, the petitioner is eligible for promotion to the rank of Associate Professor with effect from 21-05-2014 on which date, he completed four years of teaching experience as an Assistant Professor. Further, by that date, no one above the petitioner in seniority was eligible for promotion. Therefore, the petitioner made a representation on 13-03-2014 praying for promotion to the rank of Associate Professor. It is also submitted that a Departmental Promotion Committee (DPC) was held on 09-09-2014. However, the said DPC did not consider the case of the petitioner and therefore, the petitioner submitted a representation dated 07-10-2014 before the Commissioner, Department of Health & Family Welfare (B), Government of Assam praying for promotion to the post of Associate Professor of Anatomy. It is also submitted that a Departmental Promotion Committee (DPC) was held on 09-09-2014. However, the said DPC did not consider the case of the petitioner and therefore, the petitioner submitted a representation dated 07-10-2014 before the Commissioner, Department of Health & Family Welfare (B), Government of Assam praying for promotion to the post of Associate Professor of Anatomy. The said representation was forwarded by the Director of Medical Education Assam to the respondent No. 1 by forwarding letter dated 08-10-2014 by observing that to become Associate Professor, one requires five years service as Assistant Professor which can be reduced to four years only if the incumbent has two publications in National or International Journal as First Author during the period of Assistant Professor. In the meantime, the MCI by a communication dated 18-03-2015 wrote to the petitioner replying to his application dated 05-02-2015 informing that the Council has considered the documents of the petitioner's academic qualification, teaching experience and research publication and found that the petitioner is eligible for the post of Associate Professor in the Department of Anatomy in a Medical College as per the Rules and Regulations of the Council. 4. Learned senior counsel for the petitioner also submits that a DPC was again held in the month of March, 2015 wherein, the petitioner was placed in Serial No. 1 in the merit list for promotion to the grade of Associate Professor, however, promotion was not granted to the petitioner. The petitioner hoping that the respondents were considering his case waited for a positive action. However, when the same was not forthcoming, the petitioner made two separate representations both dated 19-10- 2015 before the respondent No. 1 and the respondent No. 2. However, no steps were taken by the respondents and therefore, the petitioner approached this Court by way of W.P (C) 7244/2015 which was disposed of by an order dated 27-11-2015 directing the petitioner to make a fresh representation before the respondent No. 1 and the respondent No. 1 was further directed to dispose of the representation to be filed by the petitioner by a speaking order within a period of four weeks. Thereafter, the Secretary to the Government of Assam, Health & Family Welfare Department passed an order dated 23-02-2016 rejecting the prayer of the petitioner for promotion on the ground that there is no provision for counting and consideration of past experience outside the State of Assam of a candidate as a requirement for promotion to the next higher post of Associate Professor under the Rules of 2008. 5. Learned senior counsel for the petitioner submits that the petitioner was eligible for promotion to the rank of Associate Professor when the respondents had made consideration for promotion in the middle of 2014 inasmuch as, he had four publications as First Author in the Indexed National Journal and counting the period of his service as Assistant Professor in the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu ,he had completed the required period of four years and the petitioner was the only qualified candidate at that relevant point of time. However, the respondents on a misinterpretation of the provision of the Rules of 2008 as well as the MCI Regulations had wrongly refused promotion to the petitioner. It is also submitted that the MCI is the statutory regulatory body which lays down the eligibility criteria for appointment and promotion to the Medical Colleges all over the country. The MCI in the communication dated 18-03-2015 has in clear and unambiguous terms clarified that the petitioner was eligible for the post of Associate Professor in the Department of Anatomy in a Medical College. Learned senior counsel for the petitioner also submits that the MCI by corrigendum dated 05-06-2014 addressed to the Health Secretary of all the States had informed that the requirements mentioned in the last column regarding the qualification and teaching experience has been amended by the Council by a Notification dated 21-07-2009 in Minimum Qualification for teachers in Medical Institutions Regulations, 1998 providing that in the post of Associate Professor in the concerned subject should have four years experience in the recognized medical college with a minimum of two research publications in indexed/national journal. He, therefore, submits that the corrigendum would clearly indicate that it is not mandatory that the teaching experience should be within a particular state in which an Assistant Professor is working for promotion to the post of Associate Professor. He, therefore, submits that the corrigendum would clearly indicate that it is not mandatory that the teaching experience should be within a particular state in which an Assistant Professor is working for promotion to the post of Associate Professor. The criteria is to work as an Assistant Professor in the concerned subject in the recognized medical college and therefore, the respondents had travelled beyond what has been prescribed by the MCI by imposing conditions on its own and therefore, the impugned action of the respondents should be set aside and quashed. 6. Learned senior counsel for the petitioner further submits that a reading of Rule 11 (ii) of the Rules of 2008 indicates that in the matter of promotion to the grade of Associate Professor, the same has been subjected to the qualifications laid down by the MCI. Therefore, Rule 11 (ii) having subjected itself to the MCI guidelines, the respondents cannot go beyond the same. He submits that the order dated 23-02- 2016 clearly indicates that the respondents has imposed conditions beyond the MCI Regulations and guidelines by bringing in a stipulated condition of possessing teaching experience only within the state and therefore, on such erroneous premise, the claim of the petitioner was rejected. Learned senior counsel for the petitioner also submits that during the pendency of W.P (C) 2167 of 2016, the respondents had again proceeded to promote the respondent Nos. 5 and 7 in W.P (C) 3816 of 2016 to the rank of Associate Professor, Anatomy Department by an order dated 06-06-2016 and therefore, the petitioner has been compelled to challenge the order dated 06-06- 2016 by filing W.P (C) 3816 of 2016. 7. Learned senior counsel for the petitioner therefore submits that when there is no provision under the Rules of 2008 as well as under guidelines of the MCI that the computation of four years teaching experience has to be made while serving in a particular state, the respondents by refusing the claim of the petitioner for counting his past experience while serving as Assistant Professor at the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu is most arbitrary and therefore, the order dated 23-02-2016 should be quashed and set aside. He, further submits that as the petitioner was eligible for promotion ahead of the respondent Nos. He, further submits that as the petitioner was eligible for promotion ahead of the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016, the official respondents could not have promoted them to the grade of Associate Professor without considering the case of the petitioner and therefore, the Notification dated 06-06-2016 also requires to be set aside and quashed insofar as it relates to the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016. Learned senior counsel has placed reliance in the case of Scientific Advisor to Raksha Mantri and Another-vs- V. M. Joseph, (1998) 5 SCC 305 . 8. Mr. B. Gogoi, learned Standing Counsel, Health Department submits that the petitioner was appointed as Demonstrator of Anatomy after the recommendation of the APSC as a fresh appointment. Thereafter, the petitioner has been promoted as Assistant Professor in 2011 in terms of the Rules of 2008. It is submitted that after the petitioner had joined as Assistant Professor at the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu, the petitioner had responded to the advertisement for filling up the post of Demonstrator. Thereafter, on being selected by the APSC, the petitioner was appointed as Demonstrator. Therefore, the seniority of the petitioner can be counted only from the date of joining as Demonstrator in the State of Assam. Any service rendered in the earlier Medical College at Tamil Nadu cannot be considered for counting the seniority of the petitioner in the post of Demonstrator in the State of Assam. It is submitted that in the old regulations of MCI it is provided that the teaching experience as Assistant Professor in the concerned subject should be four years in 'a' recognized Medical College. However, with the amendment as brought in by the corrigendum dated 05-06-2014, it is clearly provided that the teaching experience as Assistant Professor in the concerned subject should be four years in 'the' recognized medical college. Therefore, the substitution of the word 'a' by the word 'the' would clearly indicate that the said working experience should be in the college in which the petitioner is serving and therefore, the past experience of the petitioner at a medical college in Tamil Nadu cannot be counted. Therefore, the substitution of the word 'a' by the word 'the' would clearly indicate that the said working experience should be in the college in which the petitioner is serving and therefore, the past experience of the petitioner at a medical college in Tamil Nadu cannot be counted. Further, learned Standing Counsel submits that in the Notification dated 10-12- 2010 by which the petitioner along with eight others were appointed as Demonstrator, the position of the petitioner appears at Serial No. 6 in order of merit. The names of the respondent Nos. 5 and 6 in W.P (C) No 3816 of 2016 appears at Serial No. 2 and 3 above the petitioner in the said Notification dated 10-12-2010. This would clearly indicate that the respondent Nos. 5 and 6 were senior to the petitioner. He also submits that the DPC minutes dated 09-09-2014 is not under challenge in the present writ petition wherein, it is clearly indicated that there is no eligible faculty for recommendation to the grade of Associate Professor, Anatomy. Further in the DPC minutes dated 24-02-2016, the respondent Nos. 5 and 6 in W.P (C) No. 3816 of 2016 were recommended for promotion to Associate Professor. This was done on the basis of seniority and the said minutes dated 24-02-2016 is also not under challenge in both the writ petitions. In the absence of challenge to the DPC minutes dated 09-09-2014 and 24-02-2016, no relief can be granted to the petitioner. Learned Standing Counsel also submits that there was a DPC meeting held on 04-05-2017. However, in the absence of any vacancy, no recommendation could be made by the said DPC. Referring to Rule 11 (ii) of the Rules of 2008, learned Standing Counsel submits that promotion to the post of Associate Professor shall be made in accordance with the MCI regulations provided the Governor is satisfied about his/her ability, integrity and character. Therefore, in the absence of any provision in the Rules of 2008 that counting of past service rendered outside the State of Assam would be counted, the respondents on consideration of the representation made by the petitioner had rightly come to the conclusion in the order dated 23-02-2016 that the past experience of the petitioner outside the state of Assam could not be counted and therefore, there is no merit in the writ petition and the same deserves to be dismissed. 9. Mr. 9. Mr. G. Uzir, learned senior counsel appearing for the respondent Nos. 5, 6 7 and 9 in W.P (C) 2167 of 2016 and the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016 while supporting the statements forwarded by the learned Standing Counsel, Health Department submits that the service of the petitioner at Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu was purely on probation and therefore, the past experience of the petitioner on probation period cannot be counted. He places reliance in the appointment order dated 17-08-2009 annexed to the Additional-Affidavit as Annexure-3 filed by the petitioner in W.P (C) 2167 of 2016 and submits that the contents of the appointment order clearly provides that the appointment of the petitioner in the Medical College at Tamil Nadu was on probation and such probation period was for a period of one year from the date of joining. Therefore, the petitioner's experience as Assistant Professor in the Medical College at Tamil Nadu with effect from 17-08-2009 to 30-10-2010 cannot be regarded as experience. It is also submitted that the Health & Family Welfare Department had published a provisional gradation list of the doctors of Anatomy Department of the Medical Services of the State of Assam by Notification dated 02-04-2012. In the said provisional gradation list, the name of the petitioner appears at Serial No. 28 and the private respondents are all ranked above the petitioner. The said seniority list is also not under challenge in the present writ petition and therefore, the writ petition deserves to be dismissed. 10. Mr. M. Kahtanair, learned counsel appearing for the respondent No. 8 in W.P (C) 2167 of 2016 submits that the respondent No. 8 is still an Assistant Professor without any promotion and therefore, the petitioner has no cause of action against the respondent No.8 and further adopts the submission forwarded by the learned Standing Counsel, Health Department. 11. Mr. 10. Mr. M. Kahtanair, learned counsel appearing for the respondent No. 8 in W.P (C) 2167 of 2016 submits that the respondent No. 8 is still an Assistant Professor without any promotion and therefore, the petitioner has no cause of action against the respondent No.8 and further adopts the submission forwarded by the learned Standing Counsel, Health Department. 11. Mr. K.K. Mahanta, learned senior counsel for the petitioner, in reply, submits that merely because of joining as a Demonstrator in the State of Assam would not wipe out the past experience of the petitioner as Assistant Professor and that the petitioner considering his working experience had already attained the eligibility criteria in terms of the Rules of 2008 as well as the MCI Guidelines and Regulations and therefore, the respondents should have considered the case of the petitioner ahead of the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016. Therefore, a direction is also required to be passed on the official respondents to promote the petitioner as Associate Professor in Anatomy from the date the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016 were promoted. 12. I have considered the submission forwarded by the learned counsel for the parties. 13. At the outset, there is no dispute at the bar that the petitioner has four publications as the First Author in Indexed National Journal. There is also no dispute that the petitioner was serving as Assistant Professor at Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu from 17-08-2009 to 30-10-2010. 14. This Court has considered the Rules of 2008 more particularly, Rule 11 (ii) which reads as under:- "11 (ii) A member of the service holding the post of Assistant Professor (Senior Scale-1) shall be eligible for promotion to the rank of Associate Professor (Senior SCALE II) in accordance with MCI regulation provided the Governor is satisfied about his/her ability integrity and character" 15. Table 1 (B) of the Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 for the post of Reader/Associate Professor reads as under:- "(b) Reader/Associate Professor (i) As Assistant Professor in concerned subject for four years in a recognized medical college" The corrigendum dated 05-06-2014 of the Medical Council of India amended the Table-1 and with regard to (B) Associate Professor, the same reads as under :- "(B) Associate Professor:- (i) As Assistant Professor in the concerned subject for four years in (ii) Minimum of two research publications in indexed/national ournal." 16. From a reading of the corrigendum dated 05-06-2014, it is seen that the experience as Assistant Professor in the concerned subject is four years in a recognized medical college has been replaced by inserting the word 'the' in place of 'a'. A reading of the same would indicate, in my considered opinion, that in the earlier requirement, it would be in any recognized medical college. However, in the corrigendum dated 05-06-2014 with the insertion of the word ' the', it would mean that the work/teaching experience would be only in the recognized medical college where the petitioner is serving. Therefore, the past experience of the petitioner while working in the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu cannot be taken into consideration in the recognized medical college in which the petitioner is serving in the State of Assam. 17. A further perusal of the Rules of 2008 would indicate that the post of Demonstrator is in the cadre of Class-1 (Junior Grade) and the post of Assistant Professor is in the cadre of Class-1 (Senior Grade). It is also not disputed that the petitioner on being appointed as Demonstrator by the Notification dated 10-12-2010 was further promoted to the next higher post of Assistant Professor in Class-1 (Senior Grade) in the year 2011. This would clearly indicate that the petitioner after serving as Assistant Professor in the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu had joined to a lower post of Demonstrator on being selected by the APSC. Thereafter, the petitioner was promoted to the post of Assistant Professor. This would clearly indicate that the petitioner after serving as Assistant Professor in the Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu had joined to a lower post of Demonstrator on being selected by the APSC. Thereafter, the petitioner was promoted to the post of Assistant Professor. On this ground too, this Court is of the considered opinion that the petitioner cannot claim his past experience in Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu on his promotion to the post of Assistant Professor from the post of Demonstrator in the State of Assam. 18. The Notification dated 10-12-2010 by which the petitioner was appointed along with eight others as Demonstrator under various medical colleges in the State of Assam clearly indicates that the private respondents are above the petitioner in order of merit. The provisional gradation list of Anatomy Department of Medical Colleges of the State as on 01-03-2012 circulated by the Notification dated 02-04- 2012 also clearly indicates that the petitioner is placed at Serial No. 28 and the private respondents are above the petitioner in order of seniority. This being the position, this Court has no hesitation to come to the conclusion that the petitioner is junior to the private respondents and merely because of the past experience in Vinayaka Missions Kirupananda Variar Medical College, Salem, Tamil Nadu, the petitioner cannot claim for promotion ahead of the private respondents. 19. This Court has also considered the minutes of the selection committee meeting held on 24-02-2016 by which the respondent Nos. 5 and 6 in W.P (C) 3815 of 2016 were recommended for promotion to the post of Associate Professor. A consideration of the same would indicate that the guidelines of MCI as well as the Rules of 2008 were taken into consideration by the selection committee as well as other relevant records and had thereafter, recommended the case of the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016 for promotion to the post of Associate Professor. Consequently, the official respondents had issued the Notification dated 06-06-2016 promoting the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016 to the post of Associate Professor. This Court does not see any infirmity either in the minutes of the Selection Committee held on 24-02-2016 nor in the Notification dated 06-06-2016. 20. Consequently, the official respondents had issued the Notification dated 06-06-2016 promoting the respondent Nos. 5 and 6 in W.P (C) 3816 of 2016 to the post of Associate Professor. This Court does not see any infirmity either in the minutes of the Selection Committee held on 24-02-2016 nor in the Notification dated 06-06-2016. 20. In the facts and circumstances of what has been discussed herein above, there is no merit in the writ petitions and the same are accordingly dismissed. 21. No costs.