Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 346 (GUJ)

State Of Gujarat v. Janki Girishchandra Shah

2020-02-25

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. Present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the State authority- original respondent Nos.1, 2 and 3, against the judgment and order dated 29.11.2019 passed in Special Civil Application No.4932 of 2018. 2. The background of facts on which the present appeal has arisen is that the respondent-original petitioner is holding the qualification of BDS and MDS in Periodontia and was later on working in Periodontia as well as in Public Health Dentistry, which is an allied subject to Periodontia. The Public Health Dentistry came to be introduced to Dental Colleges at a later stage and its purpose was to create awareness in the mind of people so that it can prevent and control dental and oral diseases, which include decay, dental caries, gum, periodontal diseases and oral cancer, which would promote optimum oral health through organized community efforts. It is the case of the original petitioner- respondent that she completed her BDS from Government Dental College, Ahmedabad in 1989 and subsequently, joined MDS course at the same institute and later on, completed MDS course in Periodontia in 1991. Originally, public health was taught at BDS level in the third year and at that point of time, when the respondent- petitioner joined MDS, there was no separate department of Public Health Dentistry but the same was part and parcel of Periodontia. On completion of MDS, the respondent-petitioner joined as a Tutor in Periodontia in Government Dental College and Hospital, Jamnagar, soon after passing the said course, and worked as a Tutor from 18.9.1991 to 4.12.1992. Somewhere in 1992, Public Health Dentistry was started in the Department of Periodontia and the petitioner therefore, had applied for the post of Tutor in Public Health Dentistry at Government Dental College and Hospital at Ahmedabad on an adhoc basis with effect from 5.12.1992 and continued to work till 1.12.1997. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, Government of Gujarat on 8.2.1988 had framed the Rules to provide regulation of recruitment to the post of Assistant Professor of Community Dentistry in General State Services Class-I at the Government Dental College & Hospital. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, Government of Gujarat on 8.2.1988 had framed the Rules to provide regulation of recruitment to the post of Assistant Professor of Community Dentistry in General State Services Class-I at the Government Dental College & Hospital. The said appointment to the post of Assistant Professor of Community Dentistry was to be made either through promotion or from amongst the persons of proved merit and efficiency who are working as Tutor in Community Dentistry or Periodontia at the Government Dental College and Hospital and possessing academic qualification and adequate teaching experience for the post by way of direct selection. Further, the mode of appointment was through direct selection. Rule 3(b) of the said Rules provides for direct selection inter alia stating that such persons would possess BDS degree of a recognized University and should also possess either MDS or MS or a Post-Graduation degree in the subject of Community Dentistry or Periodontia having a teaching experience as Tutor or an equivalent post for three years in Community Dentistry in a recognized institution. 3. It is the case of the respondent- petitioner that in the year 1988, the Recruitment Rules for the post of Assistant Professor in the State of Gujarat provided that anyone who wants to become Assistant Professor on ad-hoc basis either on promotion or direct selection should have the qualification either in Periodontia or Community Dentistry. Accordingly, the respondent was appointed as Assistant Professor way back in the year 1997 in Community Dentistry at Government Dental College, Ahmedabad. The said period of appointment was initially for six months or till the post was filled up on regular basis or till further orders, whichever is earlier. Subsequently, the respondent applied for the post of Assistant Professor, Community Dentistry Class-I for direct selection through GPSC in the year 2000 and was selected on 30.6.2000 and was appointed initially for a period of two years on probation. Thereafter, vide office order dated 29.12.2003, the respondent was given a long term continuance as an Assistant Professor in Community Dentistry on successful completion of the probation period. Dental Council of India Regulation, 2007 clearly stipulates that in case of Public Health Dentistry, one examiner from Public Health Dentistry and second one can be from Periodontics for eligibility of examiner-ship for BDS examination. Dental Council of India Regulation, 2007 clearly stipulates that in case of Public Health Dentistry, one examiner from Public Health Dentistry and second one can be from Periodontics for eligibility of examiner-ship for BDS examination. In addition thereto, four years’ teaching experience in the subject in a Dental College after MDS was stipulated, which requires to be reviewed after 3 years. Similar is the situation with regard to the subjects, such as Physiology, Biochemistry, Pathology, Microbiology and Dental Materials and in case of Dental Materials, if internal is from Prosthodontics, external should be from Conservative Dentistry. This goes to show that the Public Health Dentistry or Community Health Dentistry was allowing those with Periodontia to be teaching in one or the other departments, having regard to the background which has been stated above. It has further been stated by the original petitioner that in the year 2007, the Dean of the Government Dental College and Hospital, Ahmedabad wrote a letter to the Additional Director of Medical Education & Research, Gandhinagar and forwarded an application of the respondent for the post of Professor in Community Dentistry, because by that time, the respondent had completed more than 7 years on the post of Assistant Professor, confirmed in the year 2002 and found eligible right from the year 2007 for the post of Professor. In August 2009, the Government of Gujarat, Health and Family Welfare Department issued a circular inter alia stating that in 2004, seniority as on 1.1.2002 was published and that upto April 2009, no fresh regular appointment has been made and considering the latest position in Community Dentistry in the cadre of Assistant Professor Class-I, final seniority list was published showing the position as on 1.4.2009. According to the original petitioner, one Dr. Jayesh K. Parikh, who was BDS and MDS in Periodontia and working as Dean of the Government Dental College, Jamnagar, was appointed in 1984 as a Tutor in Periodontia and on promotion at Government Dental College & Hospital, Ahmedabad, was regularized on the said post on 19.3.1988. Thereafter, in special remark column, it was stated that on 23.10.1997, he was promoted as Professor in Community Dentistry at Government Dental College, Ahmedabad and as such, found necessary by the respondent to clarify again that Dr. Thereafter, in special remark column, it was stated that on 23.10.1997, he was promoted as Professor in Community Dentistry at Government Dental College, Ahmedabad and as such, found necessary by the respondent to clarify again that Dr. Parikh was holding the qualification of Periodontia and was initially appointed as Tutor in Periodontia and by way of promotion, was appointed as Assistant Professor in Community Dentistry and in 9 years’ tenure, he became Professor of the Community Dentistry after working as Assistant Professor. The grievance of the respondent was that though she had been working as Assistant Professor from 30.6.2000 for almost a period of 18 years, she is not yet promoted as Professor. It was stated that she was actually holding the charge of Professor since the year 2012 and if the experience of Assistant Professor on ad-hoc basis is also taken into consideration, the said experience of the respondent-petitioner would come to more than 20 years. It was also pleaded that several posts of Professor are vacant in Government Dental College. But, despite the aforesaid situation, though having served practically for more than 20 years as Assistant Professor, the respondent was kept as it is, as In-charge Professor and Head of the Department. Due to this severe discrimination and unfair treatment, time and again, grievance was raised by the respondent. Further, according to the original petitioner, there was some movement going on at intradepartmental level to appoint Dr. Jayesh Parikh, being senior Professor working from 1997 as a Professor, to be appointed as the Dean of the Government Dental College, Jamnagar. As a matter of fact, according to the respondent, Dr. Jayesh Parikh was appointed in February 2012, who took charge of the post in March 2012. At the time when the respondent- petitioner applied for the post of Professor, she was fully qualified to be appointed as such and having the eligibility under the Recruitment Rules and advertisement both. On the contrary, having regard to the fact that Dr. Jayesh Parikh took charge in March 2012, it was incumbent on the part of the appellant- respondent authority to appoint the respondent- petitioner as a Professor and Head of the Department at Dental College, Ahmedabad. But, when she was interviewed by the Committee, she was kept in a waiting list, probably because, technically the post of Dr. Jayesh Parikh took charge in March 2012, it was incumbent on the part of the appellant- respondent authority to appoint the respondent- petitioner as a Professor and Head of the Department at Dental College, Ahmedabad. But, when she was interviewed by the Committee, she was kept in a waiting list, probably because, technically the post of Dr. Jayesh Parikh was not vacant on the date of interview, so the respondent – petitioner was under bonafide impression that her appointment as a Professor would be made very soon as she was assured by the Committee members that she is in the waiting list. In 2007, a proposal was forwarded to consider the respondent-petitioner to be appointed for the post of Professor, but then no concrete steps were taken. In this background, despite the fact that the respondent was eligible for the post in question, to her surprise, one Dr. Naina Patel, who was working as Professor and Head of the Department of Periodontia at Government Dental College, Jamnagar was transferred in place of Dr. Jayesh Parikh for the reasons best known to the Government and was soon brought back to Jamnagar. According to the original petitioner, Dr. Naina Patel before her transfer out of Ahmedabad as Professor was working in Community Dentistry and had served as Head of the Department of Community Dentistry in middle of September 2012. This indicates that they were inter-transferable, which was the practice followed by the Government from time to time. On the contrary, the respondent – petitioner was given the charge of Professor and Head of the Department of Community Dentistry in addition to her charge as Assistant Professor and there are several documents to indicate that she was discharging all the duties of Professor as well as the Head of the Department. She was also given additional charge of Professor of Physiology by the order of Administrative Officer of Government Dental College, Ahmedabad, where one Dr. Girish Chauhan was already holding the charge. Since Dr. Girish Chauhan who was holding the additional charge upon retirement of Dr. She was also given additional charge of Professor of Physiology by the order of Administrative Officer of Government Dental College, Ahmedabad, where one Dr. Girish Chauhan was already holding the charge. Since Dr. Girish Chauhan who was holding the additional charge upon retirement of Dr. C.S. Sharma, he was selected and appointed as Assistant Professor of Oral Pathology at Government Dental College, Jamnagar, the original petitioner was asked to hold the charge of Professor and Head of the Department of Physiology as well and since the year 2012-13, the original petitioner has been discharging her duties respectively of two departments, till filing of the petition. This was the state of affairs of the original petitioner and since she was not being considered and treated equally, the petitioner was constrained to approach this Court by way of the afore-mentioned writ petition for seeking the following reliefs:- “(a) Be pleased to admit and allow this petition. (b) Be pleased to issue appropriate writ order or direction in the nature of mandamus or any other appropriate writ order or direction, directing the respondents to recognise the petitioner having been appointed as Professor of Community Dentistry from 2007 onwards and petitioner should be given all the benefits, continuity, recognition and difference of salary from that period; (c) In the alternative, be pleased to issue appropriate writ order or direction in the nature of mandamus or any other appropriate writ order or direction, directing the respondents to recognise the petitioner having been appointed as Professor of Community Dentistry from 2012 onwards and petitioner should be given all the benefits, continuity, recognition and difference of salary from that period; (d) Be pleased to, in view of judgment of this Hon’ble Court passed in S.C.A. No.12889/2014 and in view of the stand taken by the Govt. in M.C.A. For Contempt No.190/2016, direct the respondents to consider the case of the petitioner for long term promotion w.e.f. 2007 to the post of Professor of Community Dentistry; (e) In the alternative, be pleased to, in view of judgment of this Hon’ble Court passed in S.C.A. No.12889/2014 and in view of the stand taken by the Govt. in M.C.A. For Contempt No.190/2016, direct the respondents to consider the case of the petitioner for long term promotion w.e.f. 2007 to the post of Professor of Community Dentistry; (e) In the alternative, be pleased to, in view of judgment of this Hon’ble Court passed in S.C.A. No.12889/2014 and in view of the stand taken by the Govt. in M.C.A. For Contempt No.190/2016, direct the respondents to consider the case of petitioner for long term promotion w.e.f. 2012 to the post of Professor of Community Dentistry; (f) During the pendency and final hearing of this petition, be pleased to direct the respondents to promote the petitioner on long term basis to the post of Professor of Community Dentistry, keeping in mind what has been observed by Hon’ble Gujarat High Court in judgment passed in S.C.A. No.12889/2014 as well as decision of Hon’ble Supreme Court of India. (g) ….........” 4. The said petition came up for consideration before learned Single Judge. Learned Single Judge after hearing both the sides was pleased to find the action of the authorities impermissible and was pleased to allow the petition by issuing directions and it is this order dated 29.11.2019, which is made the subject matter of the present Letters Patent Appeal before us. 5. We have heard learned Assistant Government Pleader Ms. Nisha M. Thakore appearing for the State authority and learned senior counsel Mr. Bhaskar Tanna, assisted by learned advocate Mr. Hardip Mahida, for Tanna Associates on behalf of the respondent-original petitioner. 6. Learned Assistant Government Pleader Ms. Nisha Thakore has vehemently contended that the order passed by learned Single Judge is not only bad in law but the same is not in consonance with the material on record and the conclusion arrived at is based upon misreading of the relevant Rules. As a result of this, such erroneous findings deserve to be corrected by setting aside the impugned order. Ms. Thakore has further submitted that if the authority has erroneously considered the promotion of Dr. Rajesh Shah, the same cannot be made a base to apply Article 14 of the Constitution of India to consider the relief in favour of the original petitioner. Ms. Thakore has further submitted that if the authority has erroneously considered the promotion of Dr. Rajesh Shah, the same cannot be made a base to apply Article 14 of the Constitution of India to consider the relief in favour of the original petitioner. On the contrary, the benefit conferred on the basis of violation of the set procedure, cannot be extended to the petitioner and therefore, relying upon the decisions delivered by the Apex Court, a contention is raised that no legal right is available to the original petitioner. As such, the equality concept, which is applied to be pressed into service, according to Ms. Thakore, is of no avail to the respondent-petitioner. Further, the respondent –petitioner was not fulfilling the eligibility criteria in respect of experience and therefore also, the view taken by learned Single Judge is not sustainable. The experience of Associate Professor, which the original petitioner was holding, would not be a relevant consideration as the Rules are silent and as such, cannot be taken in aid by the original petitioner and since the original petitioner has miserably failed to establish even the prima facie case, learned Single Judge has committed a serious error in issuing the directions. Ms. Thakore has requested that even otherwise, as the order suffers from lack of application of mind, the same deserves to be set aside in the interest of justice. No other submissions have been made. 7. As against this, learned senior counsel Mr. Tanna has submitted that in fact, learned Single Judge has at length considered the case and then having found that irrespective of concept of equality, the very petitioner was holding the post of Professor, may be as In-charge, right from the year 2012 and therefore, when the posts are available and eligibility criteria is being fulfilled, there was no other earthy reason for the respondent authority to deny the claim of the petitioner. According to Mr. Tanna, if experience of adhoc to be counted, on the contrary, the respondent- petitioner is having more than enough experience of the relevant post and since this was the un-controverted situation considered by learned Single Judge, the conclusion arrived at is just and proper and there is hardly any case made out by the authority to dislodge the findings arrived at by learned Single Judge. According to Shri Tanna, the matter is dealt with at length by learned Single Judge and as such, in absence of any distinguishable material or better submission, the view taken by learned Single Judge, when found to be a possible view, may not be substituted in appeal. In any case, irrespective of any situation prevailing on record, since the original petitioner was discriminated for the reasons best known and the relevant Rules, precisely Rule 4(b) of the Rules, are completely securing the eligibility and merit, there appears to be no error committed by learned Single Judge in passing the impugned order. Hence, the Letters Patent Appeal is requested to be dismissed. 8. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, we found some substance in the plea of learned senior counsel Mr. Tanna and it is an un-controverted factual position prevailing on record that the relevant post is very much available for which the original petitioner is fulfilling the eligibility criteria. Additionally, there is substantial compliance of the relevant Rules since the petitioner was in fact holding the charge of Professor and Head of the Department right from 2012. When that be the situation, there is hardly any scope available for the authority to agitate the grievance against the findings arrived at by learned Single Judge. In our considered opinion, the order passed by learned Single Judge is in conformity with the relevant record and is based on proper analysis of the material and the factual background and hence, we deem it proper not to substitute our view in place of the possible view which has been adopted by learned Single Judge. From a bare perusal of the order in question, it appears that the contention raised by learned Assistant Government Pleader Ms. Thakore had been properly dealt with by learned Single Judge and the observations contained in the paragraphs of the impugned order itself make it clear that there is hardly any illegality or irregularity in the order impugned in the appeal. 9. We are in close conformity with the observations and the conclusions arrived at by learned Single Judge. Accordingly, we deem it proper to reproduce the relevant paragraphs of the judgment hereunder:- “5.4. 9. We are in close conformity with the observations and the conclusions arrived at by learned Single Judge. Accordingly, we deem it proper to reproduce the relevant paragraphs of the judgment hereunder:- “5.4. The principal plank of contention to deny the petitioner the right to promotion, as raised by the respondents, is the coming into force the Rules called Professor, Class-I in the Dental Subjects in Government Dental College & Hospital Recruitment Rules, 2015. What is sought to be insisted that unless the petitioner works as Associate Professor with experience of five years, she cannot be eligible under the Rules of 2015. It is an uncontroverted factual position that there existed no posts of Reader or Associate Professor from 01st May, 1960 till 02nd December, 2015 in any of the Dental Colleges of the State. Even the Rules for appointment to the post of Associate Professor came to be notified by Notification dated 11th May, 2016 called Reader/Associate Professor, Class-I General State Services in Dental Subjects mentioned in Annexure in Government Dental Colleges and Attached Hospitals Recruitment Rules, 2016. 5.5. The whole contention on part of the respondents that the promotional hierarchy has changed which would disentitle the petitioner from promotion, is misconceived. The question of petitioner having experience of Associate Professor or on the post of Reader would not be relevant and would not arise. The petitioner's case for promotion to the post of Professor, Public Community Dentistry was required to be considered irrespective of and notwithstanding the Rules sought to be relied on, as those Rules could not operate to deprive the petitioner her overdue promotion. 5.6 The Rules of 2015 cannot operate to bar the eligibility of the petitioner to the post of Professor, when the petitioner had already acquired the eligibility before coming into force the Rules, and further on admitted facts, vacancy was available. The petitioner, as stated above, was eligible under Rules of 1974 which were in vogue when right to be promoted for the petitioner accrued and crystalised. The Rules of 2015 could not be applied to the petitioner to decline the fructification of petitioner's right to be promoted as Professor, Community Dentistry. The petitioner was already recommended for the promotional post of Professor and that she was already holding the charge of the post since September, 2012. The Rules of 2015 could not be applied to the petitioner to decline the fructification of petitioner's right to be promoted as Professor, Community Dentistry. The petitioner was already recommended for the promotional post of Professor and that she was already holding the charge of the post since September, 2012. It was quite unjust and unreasonable on part of the respondents to deny the promotion avenue to the petitioner. 6. Moreover and importantly, the facts of the case of Dr.Rajesh Amrutlal Shah (supra) who had filed Special Civil Application No.12998 of 2014 before this Court culminating into his promotion, were quite akin to the present petitioner. For comparative reference, the same may be noticed as under. (i) Said Rajesh Shah came to be appointed as Tutor through Gujarat Public Service Commission on 04th June, 1987, prior to which he was Medical Officer; (ii) Between 03rd May, 1994 and 14th October, 1994 he worked as Assistant Professor ad hoc at Medical College, Jamnagar; (iii) Between 15th October, 1994 and 26th March, 2002 he worked as a regular Tutor at the Dental College, Ahmedabad; (iv) Between March, 2002 to July, 2006 he was Ad hoc Assistant Professor at Ahmedabad; (v) On the basis of the Resolution dated 19th March, 2015 of the State Government, service period of said Mr.Shah between 27th March, 2003 and 12th July, 2006 was treated as regular. On 13th July, 2006 he was appointed as regular Assistant Professor at the Government Dental College, Ahmedabad; (vi) Since February, 2005 he held the additional charge of the post of Professor; (vii) In February, 2009 he came to be appointed as Professor in Pharmacology (Ad hoc) and has been working on the said post till date; (viii) upon his request for promotion to the post of Professor, Pharmacology upon completion of 10 years of service as an Assistant Professor, the Director, Medical & Health Services, called for details of all the Assistant Professors who had completed nine years of service; (ix) Petitioner's details were called for in June, 2011 and were processed. 6.1 As the exercise came to a standstill thereafter, writ petition was filed by the said Dr.Shah which resulted into order dated 12th June, 2015 whereby the Court observed regarding his promotional right and directed consideration for his promotion. 6.1 As the exercise came to a standstill thereafter, writ petition was filed by the said Dr.Shah which resulted into order dated 12th June, 2015 whereby the Court observed regarding his promotional right and directed consideration for his promotion. As the directions were not complied with, contempt proceedings came to be filed, during which blowing down to the Court's order, the respondents issued promotion order promoting said Dr.Shah.” 10. From the aforesaid circumstances, which are prevailing on record, the observations are not possible to be construed by us as perverse in any form, which would enable us to exercise our appellate jurisdiction. On the contrary, learned Single Judge has maintained the judicial discipline by observing the decisions delivered by the Supreme Court quoted in the order. With a view to avoid unnecessary burden, we are not inclined to reproduce the said decisions and the extracts contained therein. But, we make it clear that we are in conformity with the view taken by learned Single Judge, who ultimately disposed of the petition by assigning cogent reasons. The ultimate outcome which is reflected in para 10, since relevant, we quote the same hereinafter:- “10. For the discussion and reasons foregoing, (a) It is directed that case of the petitioner for the purpose of promotion to the post of Professor of Community Dentistry shall be considered and it shall be further considered on the lines of the case of Dr. Rajesh Amrutlal Shah (supra) decided by this Court on on 12th June, 2015, on the basis of the findings recorded therein and decision taken by the authorities pursuant to the said order; (b) The petitioner shall be accorded similar treatment in the matter of promotion to the post of Professor, Community Dentistry; (c) In the facts of the case of the petitioner herein, it is directed that the respondents shall consider the case of the petitioner for promotion with effect from 2012 to the post of Professor of Community Dentistry as directed above within four weeks from the date of receipt of the present order.” 11. On basis of this material and on the basis of the true construction of the relevant Rules, having independently perused, we are unable to exercise our appellate jurisdiction to substitute the view taken by learned Single Judge as the same is a reasonable and possible view. On basis of this material and on the basis of the true construction of the relevant Rules, having independently perused, we are unable to exercise our appellate jurisdiction to substitute the view taken by learned Single Judge as the same is a reasonable and possible view. It is under this set of circumstances, that the impugned action of the authority is not only unjust and arbitrary but deserves to be corrected, which has been rightly done by learned Single Judge. 12. In the premises aforesaid and in view of the facts and circumstances, stated hereinabove, we are of the considered opinion that the appeal filed by the Authority lacks merit. Accordingly the appeal is dismissed. 13. Since the appeal is dismissed, the connected Civil Application also stands dismissed.