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Jharkhand High Court · body

2018 DIGILAW 2098 (JHR)

Tulsi Mahto v. State of Jharkhand

2018-09-19

PRAMATH PATNAIK

body2018
ORDER : PER PRAMATH PATNAIK, J. 1. Heard Mr. Kalyan Roy, learned counsel for the petitioner, Mr.R.K. Shahi, learned A.C. to A.A.G. appearing for the Respondent-State, Mr. (Dr.) Ashok Kumar Singh, learned counsel for the Respondent-RIMS, Mr. Rahul Kumar, learned counsel for the Intervenor as well as Mr.Praveen Kumar, learned counsel for the Respondent No. 3. 2. In the captioned writ application, prayer has been made by the petitioner for direction upon the respondents for promotion on the post of Professor, Department of Forensic Medicine, Rajendra Institute of Medical Sciences (hereinafter to be referred in short as ‘RIMS’) with effect from 31.08.1997 and further prayer has been made for cancellation of decision of the Selection Committee for appointing the private respondents on the post of Director, RIMS and further prayer for consideration of the case of the petitioner for appointment on the post of Director, RIMS, since the petitioner possesses all the requisite qualification for appointment on the said post. 3. During course of hearing, learned counsel for the petitioner did not press for the second prayer with regard to cancellation of promotion of the respondent no. 3. 4. The factual aspects, as has been delineated in the writ application, in a nutshell is that the petitioner was initially appointed as the Medical Officer on 26.06.1981. Thereafter, he was posted as a Tutor, pharmacology, Darbhanga Medical College. In the year 1985, the petitioner was posted as Tutor in Forensic Medicine in MGM Medical College, Jamshedpur. In the year 1988, the petitioner was promoted as Assistant Professor at MGM Medical College, Jamshedpur, in Forensic Medicine with effect from 31.08.1988. Thereafter, the petitioner was promoted as Associate Professor at RMCH, Ranchi in the Forensic Medicine on 31.08.1993. It has been averred in the writ application that after completion of 4 years as Associate Professor, one becomes eligible to be promoted on the next higher post of Professor as per the MCI Rules and since the petitioner completed 4 years, as on 31.08.1997, he was entitled to be promoted as Professor with effect from the said date. It has further been averred that by adopting the provisions of MCI Rules, the State Government has given promotion to the teachers of MGM Medical College, Jamshedpur on the post of Professor after completion of 4 years as Assistant Professor. It has further been averred that by adopting the provisions of MCI Rules, the State Government has given promotion to the teachers of MGM Medical College, Jamshedpur on the post of Professor after completion of 4 years as Assistant Professor. It has been stated that on 08.04.2004, the State Government has given promotion to the Associate Professor on the post of Professor after completion of 4 years in MGM Medical College, Jamshedpur. In the writ application, the names of similarly placed Associate Professors, those who have been promoted to the post of Professor after completion of 4 years have been mentioned. Some examples of names of some Associate Professors, those who have been promoted on completion of 4 years in PMCH, Dhanbad have also been mentioned as per Annexure-1 to the writ application. It has further been mentioned that in the year 2008, the State Government has given promotion to as many as 10 Associate Professors to the post of Professors after completion of 4 years as per Annexure-2 to the writ application. The petitioner was entitled to be considered for promotion with effect from 31.08.1997, but, as a matter of fact, he was promoted as Professor on 05.11.2003 at RIMS, Ranchi in Forensic Medicine, therefore, the petitioner submitted representation for promotion to the post of Professor with effect from 31.08.1997 as per Annexure-3 series, which failed to evoke any response from the authorities and in that view of the matter, the main contention in the writ application is for shifting the date of promotion from 05.11.2003 to 31.08.1997, the date of completion of 4 years as Associate Professor. Being aggrieved by the inaction of the respondents-State Government in not considering the case of the petitioner for promotion on the post of Professor with effect from 31.08.1997, the petitioner left with no other efficacious, alternative and speedy remedy has been constrained to approach this Court under Articles 226 of the Constitution of India for redressal of his grievances. 5. Learned counsel for the petitioner during course of hearing has submitted to confine his prayer only to the extent of ante-dating his promotion from 05.11.2003 to 31.08.1997 on the post of Professor, RIMS, Ranchi in the Department of Forensic Medicine. 5. Learned counsel for the petitioner during course of hearing has submitted to confine his prayer only to the extent of ante-dating his promotion from 05.11.2003 to 31.08.1997 on the post of Professor, RIMS, Ranchi in the Department of Forensic Medicine. In order to advance his arguments, learned counsel for the petitioner has submitted that the action of the respondents in not granting promotion to the petitioner on the post of Professor, Forensic Medicine from the date on which, as he has completed 4 years on the post of Associate Professor i.e. with effect from 31.08.1997, when similarly situated teachers have been promoted after completion of 4 years on the post of Associate Professor, amounts to hostile discrimination. Learned counsel further submits that as per the MCI Rules, the petitioner is entitled to be considered for promotion on the post of Professor after completion of 4 years on the post of Associate Professor. Learned counsel further submits that since the RIMS Act came into effect in 2002, therefore, the petitioner has no grievance against the RIMS i.e. respondent no. 4. 6. A counter affidavit dated 22.06.2011 has been filed on behalf of the respondents. In the counter affidavit, it has been submitted that with regard to claim of promotion of the petitioner to the post of Professor on 31.08.1997 will be covered by the Departmental Circular dated 17.12.1990 and the Circular dated 15.05.1992 (Annexure-A and B to the counter affidavit). It has also been stated that many persons posted in different Medical Colleges of Jharkhand including RIMS, Ranchi has been given promotion with due date i.e. on completion of 4 years of service on the post of Associate Professor, therefore, the State has taken a stand that an Anomaly Committee has been formed to look into the grievances of the petitioner with regard to the anomaly from the effective date of promotion. 7. 7. Another counter affidavit dated 25.11.2017 has been filed on behalf of the respondents, wherein, it has been submitted that in the year 2002, Rajendra Medical College and Hospital, Ranchi (RMCH) has been converted into Rajendra Institute of Medical Sciences, Ranchi (RIMS) as an autonomous body by the Act, namely, Rajendra Institute of Medical Science, 2002 and the Rules and Regulations has been framed in pursuance of the Act and from Rule 11 of the RIMS Regulation, 2002, it is evident that all the educational posts has to be filled by direct recruitment by way of advertisement. But in contravention of RIMS Act and Regulation, 2002, a stop gap arrangement has been made in light of direction passed by this Hon’ble Court as well as guidelines of Medical Council of India to maintain the recognition of the institution and the petitioner has been promoted to the post of Associate Professor with effect from 31.08.1993 vide notification no. 101 (2) dated 08.04.2004 on the basis of five years experience and as per the provision of Medical Council of India, he has been promoted to the post of Professor with effect from 04.11.2003. It has further been submitted that from the proceeding of the meeting of DPC dated 08.04.2004 that as per the condition, a committee has been constituted for resolving the objections raised by concerned persons and it is also evident that doctors have not been promoted after the fixed tenure (Kalawadhi) and for every post, there is different Kalawadhi/Tenure. For example, one Dr. Lal Bihari has been made Associate Professor on 01.12.1983, Professor on 20.01.1996 (period of 13 years) and one Dr. Satish Chandra was made Associate Professor on 22.02.1990 and Professor on 23.05 2001 (period of 11 years), Dr. Arun Kumar Mahato was made Associate Professor on 31.12.1990 and Professor on 01.04.2004 (period of 14 years) and one Rajendra Kumar Jha was made Associate Professor on 06.06.1995 and Professor on 01.11.2003 (period of 8 years) and the xerox copy of the guidelines issued by the Medical Council of India as well as proceedings of DPC has been annexed as Annexure-B series to the counter affidavit. It has further been submitted that as per the Rule 9 of the RIMS Regulation, 2002, the Director of RIMS has to be appointed by the Governing Body after approval of the State Government and as per the provision, the Respondent No. 3 was appointed in the year 2006 and after completion of his tenure in the year 2010, the petitioner was made in-charge Director, RIMS vide Notification dated 23.12.2010 as per Annexure-C to the counter affidavit. It has further been submitted that the representation of the petitioner has been rejected vide Departmental Notification dated 14.10.2006 as per Annexure-E to the counter affidavit. 8. During pendency of the writ application, I.A. No. 2484 of 2018 has been filed by the petitioner, challenging the notification dated 14.10.2006 to the extent of rejection of representation of the petitioner for promotion to the post of Professor. 9. Reply has been filed on behalf of the Respondent No. 2 to I.A. No. 2484 of 2018, dated 13.04.2018, wherein, it has been, inter alia, submitted that Rajendra Institute of Medical Sciences, Ranchi (RIMS, Ranchi) has been declared as an autonomous body in the year 2002 and prior to that it was functioning as Rajendra Medical College and Hospital (RMCH). It has further been submitted that earlier in the RMCH in the Department of Forensic Medicine, there was only one vacant post of Professor and Dr. K.P. Srivastava has been working and after the death of Dr. K.P. Srivastava on 04.11.2003, the single post of Professor had become vacant and accordingly, the petitioner was given promotion on the post of Professor with effect from 05.11.2003. 10. A rejoinder to the supplementary counter affidavit filed by Respondent Nos. 1 and 2 has been filed by the petitioner on 02.05.2018, wherein, it has been submitted that in the supplementary counter affidavit, the State has taken a completely different stand from the first affidavit filed by the State. It has further been stated that a Notification dated 26.05.2004 vide Annexure-A/3 would show that three posts in FMT were available, therefore, it is evidently clear that at the time of establishment of RMCH, three posts of Professor in the Department of FMT were available. It has further been submitted that the State Government has taken the stand that the post of Professor FMT has fallen vacant after the death of Dr. It has further been submitted that the State Government has taken the stand that the post of Professor FMT has fallen vacant after the death of Dr. K.P. Srivastava, who died on 04.11.2003, as such, the petitioner, was given promotion on 05.11.2003, but the averment made by the State in this regard is not correct. The petitioner has cited the case of one Dr. Ajit Kumar Chaudhary, who after completion of 4 years as Associate Professor has been promoted to the post of Professor in the department of F.M.T. vide Notification dated 12.07.2008 vide Annexure-A/4 to the affidavit. It has further been submitted that from the Notification dated 12.07.2008 vide Annexure-A/4, one Dr. Ajit Kumar Choudhary has been given promotion after completion of 4 years and Dr. Ajit Kumar Choudhary at Serial No. 48, Dr. Smt. Ratna Choudhary, at Sl. No. 54, and Dr. (Smt.) Punam Singh at Sl. No. 74 has been given promotion on completion of 4 years on the post of Associate Professor. The petitioner has given a comparative list of Doctors, who have been given promotion at Annexure-A/7 to the said affidavit. 11. A rejoinder to the supplementary counter affidavit dated 15.01.2018 has been filed by the petitioner to bring it to the notice of the Court that in similar circumstances, one Dr. Nand Jee Singh has been given promotion to the post of Associate Professor with effect from 21.05.2000, in spite of the fact that Dr. Singh became eligible for promotion on the said post from 12.02.1985 and Dr. Singh moved this Court in W.P. (S) No. 2153 of 2005 and the said writ petition was allowed vide order dated 30.01.2010 with direction to the State Government to promote the petitioner of that writ application with effect from 12.02.1985. Against the said order, the State Government preferred LPA No. 282 of 2010, which has been dismissed vide order dated 09.08.2010. Thereafter, the State Government issued Notification on 27.08.2010 for giving promotion to Dr. Singh from the retrospective effect i.e. on 12.02.1985 as evident from the Notification dated 27.08.2010 vide Annexure-1/1. 12. A counter affidavit has been filed by the Respondent No. 3, praying for outright dismissal of the writ application against the respondent no. 3, since the petitioner at the outset submitted not to press the prayer with regard to the cancellation of promotion of the respondent no. 12. A counter affidavit has been filed by the Respondent No. 3, praying for outright dismissal of the writ application against the respondent no. 3, since the petitioner at the outset submitted not to press the prayer with regard to the cancellation of promotion of the respondent no. 3, the detailed counter affidavit filed by the respondent no. 3 need not be dealt with. 13. A counter affidavit has been filed on behalf of the respondent no. 4, dated 02.11.2017, wherein, the relevant provisions including Section 7, Section 12 (i), Section 29 alongwith the relevant provisions of the Rajendra Institute of Medical Science Rules, 2002, (RIMS Rules, 2002) have been referred to. It has been submitted that in view of the provisions contained in Rule 19 of RIMS Rules, 2002, petitioner has given his option to be absorbed as an employee (teaching cadre) of RIMS and was accordingly absorbed as the full time employee (teaching cadre) of RIMS, Ranchi. The RIMS Act, 2002 came into force with effect from 20.04.2002 with issuance of gazette Notification. It has further been submitted that in view of the statutory provisions mentioned above, the petitioner ceased to be an employee (teaching cadre) of the State Government with effect from 20.04.2002 and became a full time employee (teaching cadre) of RIMS, Ranchi. It has further been submitted that with effect from 20.04.2002, the State Government ceased to have any authority to make any appointment including appointment through promotion on any post in the teaching cadre of RIMS, Ranchi. The State Government became functus officio in the matter of appointment including appointment through promotion in the teaching cadre of RIMS. It has further been averred that if the petitioner was aggrieved with the effective date from which he has been granted promotion as Professor i.e. on 02.11.2003, the only option before him was to file a representation before the Governing body of RIMS through Director, RIMS for an appropriate decision in the matter. It has further been submitted that the petitioner has filed the instant writ petition after the position of inter se seniority of teaching cadre in RIMS including the date of promotion as contained in Memo dated 08.04.2002 has concretized and thus on the ground of inordinate and inexplicable delay, the instant writ petition is fit to be dismissed. It has further been submitted that the petitioner has filed the instant writ petition after the position of inter se seniority of teaching cadre in RIMS including the date of promotion as contained in Memo dated 08.04.2002 has concretized and thus on the ground of inordinate and inexplicable delay, the instant writ petition is fit to be dismissed. Further, it has been averred that there are six teachers in RIMS who are senior to the petitioner in the existing gradation list of Professors in RIMS and the writ petition is liable to be dismissed on the ground that the petitioner has chosen not to implead those persons as party-respondents who are bound to be affected adversely and therefore, the writ petition is fit to be dismissed on the ground of non-joinder of necessary parties in the matter. 14. A supplementary counter affidavit on behalf of the respondent No. 4 dated 08.01.2018 has been filed, wherein, it has been submitted that on 31.08.1997, the petitioner merely acquired a right to be considered for promotion to the next higher grade in view of acquisition of basic minimum eligibility criteria for such a promotion. He did not acquire an entitlement or vested right to be granted such promotion necessarily by the competent-authority i.e. RIMS. The decision of the co-ordinate Bench dated 08.01.2014, in W.P. (S) No. 344 of 2013 has been annexed to the said affidavit. In another case of W.P. (S) No. 2824 of 2013, the order dated 28.10.2013 has been referred to. 15. Mr. R.K. Shahi, learned A.C. to A.A.G. appearing for the Respondent-State has reiterated the submissions made in the counter affidavit as well as second counter affidavit, more particularly Annexure-E to the counter supplementary counter affidavit as also reply to I.A. No. 2484 of 2018. Learned counsel for the Respondent-State has submitted that the prayer of the petitioner for grant of retrospective promotion is not entertainable by the State Government after coming into force of the RIMS Act and the Rules. 16. Learned counsel for the Respondent-State has submitted that the prayer of the petitioner for grant of retrospective promotion is not entertainable by the State Government after coming into force of the RIMS Act and the Rules. 16. Learned counsel for the Respondent No. 4 during course of hearing by referring to the counter affidavit as well as the supplementary counter affidavit has submitted that after coming into force of the RIMS Act and Rules, the State Government is bereft of its power to give any promotion to the post of Professor to consider the case regarding the retrospective promotion of the petitioner from 05.11.2003 to 31.08.1997. Moreover, Rule 11 of the RIMS Rules does not prescribe any promotion, but by way of direct appointment. Learned counsel for the Respondent-RIMS submits that the petitioner cannot claim promotion on the basis that some other similarly placed Doctors have been given promotion on completion of 4 years, if any real promotion has been given by the State Government, the petitioner cannot take advantage of that and there is no concept of negative equality and the petitioner cannot be a beneficiary of that negative equality. For any grievance, the petitioner ought to have approached the Governing Council of the RIMS, which is the competent authority to decide the question of antedating the promotion. 17. Learned counsel for the Intervenor has submitted that the writ petition is not maintainable due to non-joinder of necessary parties and the petitioner has sought for shifting the date of promotion and in the absence of non-impleadment of the State of Bihar, the writ petition is not maintainable in this regard. 18. As against the submission of the learned counsel for the Respondents, learned counsel for the petitioner also apartfrom the earlier submissions, has referred to paragraphs 57 and 58 of the decision of the Hon’ble Apex Court reported in AIR 1999 SC 2894 . 19. In order to appreciate the rivalized contentions, it would be apposite to refer to the relevant norms laid down by the Medical Council of India with regard to promotion from the rank of Associate Professor to that of a Professor, wherein, it lays down that the basic minimum qualification criteria for a tutor, to be considered for promotion from one rank Grade to another rank Grade. 20. 20. Admittedly, the petitioner acquired the eligibility for being promoted to the post of Professor on 31.08.1997 after completion of 4 years on the post of Associate Professor, therefore, the petitioner acquired the basic minimum eligibility criteria for such promotion that ipso facto does not give any right or entitlement or aforesaid right to be promoted on completion of 4 years on the post of Associate Professor. When the question of promotion is taken into consideration, the vacancy position and inter se merit and seniority are taken into consideration. Admittedly, after coming into force of the RIMS Act and Rules, the question of retrospective promotion of the petitioner from the post with effect from 05.11.2003 to 31.08.1997 needs to be considered by the Governing body of the RIMS. 21. In that view of the matter, it would be apposite to dispose of the writ application with liberty to the petitioner to file a representation annexing the relevant documents for his retrospective promotion to the post of Professor with effect from 31.08.1997 instead of 05.11.2003 within a period of four weeks from the date of receipt/communication of the order. On receipt of the said representation, the Governing body of the respondents-RIMS shall consider the case of the petitioner for retrospective promotion in accordance with the Rules and the Guidelines and the RIMS Act and Rule, 2002 and other extant Guidelines within a reasonable period, more preferably within a period of 12 weeks from the date of receipt of a copy of the representation and pass appropriate orders and the decision taken thereon be intimated to the petitioner within the aforesaid period. It is needless to mention that if after consideration of the representation of the petitioner, the Governing body of the RIMS comes to the conclusion that the petitioner is entitled for retrospective promotion with effect from 31.08.1997 instead of 05.11.2003, then in that eventuality, the petitioner would be entitled to all notional benefits except salary. 22. With the aforesaid observation and direction, the writ petition stands disposed of.