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Gujarat High Court · body

2022 DIGILAW 1421 (GUJ)

H. H. Bhaya v. State of Gujarat

2022-10-17

BHARGAV D.KARIA

body2022
JUDGMENT : 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs : “(A) Admit this petition; (B) issue appropriate writ, order or direction quashing and setting aside the illegal and arbitrary action on the part of the concerned respondents authorities in not giving promotion to the petitioners to the post of Additional District Health Officer/District Tuberculosis Officer/ District Reproductive Child Health Officer and be pleased to hold that the petitioners are entitled to be promoted to the post of Additional District Health Officer/District Tuberculosis Officer/District Reproductive Child Health Officer and be pleased to hold that the action on the part of the concerned respondents authorities is per the illegal, arbitrary. discriminatory and violation of Article 14 of the Constitution of India, in the aforesaid peculiar facts and circumstances; (C) issue appropriate writ, order or direction directing the concerned respondents authorities to consider the case of the petitioners for giving promotion to the petitioners to the post of Additional District Health Officer/District Officer/ District Reproductive Child Health Officer and to give them promotion to the post of Additional District Health Officer/ District Tuberculosis Officer/ District Reproductive Child Health Officer from the date or which the other candidates have been given promotion i.e. 3/9/2009 with all the consequential benefits following there from pending admission and final disposal of the pres petition, be pleased to issue appropriate writ, order direction directing the concerned respondent authorities to consider the case of the petitioners for giving them promotion to the post of Additional District Health Officer/District Tuberculosis Officer/ District Reproductive Child Health Officer with effect from 3/9/2009; (CC) Be pleased to issue appropriate writ, order of direction, directing the concerned respondent authorities to give deemed date of promotion w.e.f. 3/9/2009 and other consequential benefits as the petitioner had become entitled to get the promotion to the post of Additional District Health Officer/ District Tuberculosis Officer/ District Reproductive Child Health Officer w.e.f. 3/9/2009 in the aforesaid facts and circumstances of the case.” 2. Brief facts of the case are as under: 2.1 Initially, the petitioners were given the appointment for the post of Medical Officer Class-II at different Public Health Centers, District Reproductive Child Health Center, dispensary hospitals under the control of respondent no.1-Health and Family Welfare Department for the State of Gujarat. Brief facts of the case are as under: 2.1 Initially, the petitioners were given the appointment for the post of Medical Officer Class-II at different Public Health Centers, District Reproductive Child Health Center, dispensary hospitals under the control of respondent no.1-Health and Family Welfare Department for the State of Gujarat. Thereafter, some of the petitioners have undergone the course of Diploma in Public Health from Calcutta University recognized by the Medical Council of India in the year 2001-2003. Whereas some of the petitioners have undergone course of Diploma in Public Health from the said University in the year 2002-2004. 2.2 The petitioners therefore, were eligible to get promotion to the post of Additional District Health Officer/ District Tuberculosis Officer/ District Reproductive Child Health Officer on completion of Diploma in Public Health course from the recognised university by the Medical Council of India. According to the petitioner all the post of Additional District Health Officer/ District Tuberculosis Officer/ District Reproductive Child Health Officer are equivalent post and requisite qualifications for all the three posts are similar and only nomenclature is different. The common Seniority List was also prepared for the aforesaid three posts governed by the recruitment rules for the post of District Tuberculosis Officer as per the notification dated 03.08.2007, issued by the State Government to the effect that the candidate should possess the MBBS degree from the Government or statutory university of Gujarat or any other qualification specified in I or II schedule of the Medical Council Act and Diploma in Tuberculosis Disease or Diploma in Public Health and experience of five years of work of Tuberculosis either in the field or in the clinic. 2.3 It is the case of the petitioners, that the respondent authorities had given promotion to total 18 Medical Officers in the aforesaid three posts by orders dated 03.09.2009 and 08.09.2009. Out of 18 Medical Officers, 10 were not holding the valid qualification for being promoted to the said three posts as they had undergone course of Diploma in Public Health from Sree Chitra Tirunal Institute for Medical Sciences & Technology, Thiruvananthapuram, which is not a recognized university by the Medical Council of India. 2.4 It is further the case of petitioners that the course undergone by the said persons was for only one year and no written or practical examinations were held. 2.4 It is further the case of petitioners that the course undergone by the said persons was for only one year and no written or practical examinations were held. The petitioners thereafter joined the above 10 persons as per the order passed by this Court on 29.03.2010 as respondent nos. 3 to 13. 2.5 The case of the petitioner no.1 is that though his seniority number is Sr.No.1460 in Seniority List of Medical Officers Class-II as on 01.012007, one Dr. M.C. Chauhan who is at Sr.No.1465 at Seniority List was promoted by respondent no.1 in the year 2009. The petitioners were thereafter promoted to the post of Additional Health Officer in the year 2013 as per the Seniority List. 3. Learned advocate Mr. N.K. Majmudar for the petitioners has submitted that as the petitioners have passed Diploma in Public Health prior to the promotion of respondents nos. 3 to 13. The petitioners, therefore, ought to have been promoted as per the date prior to promotion of respondents no. 3 to 13, on passing of such examination. It is further submitted that respondent nos.3 to 13 have passed the Diploma in Public Health, subsequent to the petitioners from the institute which is not recognized by the Medical Council of India. Therefore, respondents nos. 3 to 13 were not entitled to be promoted at all. 4. An Affidavit-in-reply is filed on behalf of the respondent no.1, contending inter-alia, that the promotion was given to respondent nos. 3 to 13 on the basis of Seniority List on attaining requisite qualification of Diploma in Public Health as prescribed in Rules. It is further contended that the petitioners are juniors to the persons who are promoted though the petitioners passed examination in Diploma in Public Health prior in point of time than those who are otherwise senior to them, and hence the petitioners cannot be considered for promotion as per the recruitment Rules. The petitioners were promoted as and when their turn came for promotion as per seniority list, therefore, prayers made by the petitioners cannot be granted. 4.1 It is further contended in the affidavit-in-reply that Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram was established by an Act of Parliament, therefore, the same is not required to have recognition from the Medical Council of India. 4.1 It is further contended in the affidavit-in-reply that Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram was established by an Act of Parliament, therefore, the same is not required to have recognition from the Medical Council of India. 4.2 With regard to the contention of the petitioner no.1, that his junior in Seniority List is promoted, it was pointed out in additional affidavit filed on behalf of the respondent no.1 that the selection for the post of Additional District Health Officer / District Reproductive Child Health Officer requires Diploma in Public Health whereas the qualification for the post of District Tuberculosis Officer is Diploma in Public Health or Diploma in Tuberculosis. It is further contended that there are two different promotional posts requiring different specialization having different job structure though the Seniority List of Medical Officer Class-II to the Medical Officer Class-I post of Additional District Health Officer etc., is the common but it requires specific qualifications therefore, the persons having qualification in Diploma in Public Health has more promotional avenue for the said post. But the person having qualification of Diploma in Tuberculosis has limited promotion that is only for the post of District Tuberculosis Officer. Reliance was placed on the District Health Officer/ Additional District Health Officer/ District Immunization Officer Class-I Recruitment Rules, 1997, more particularly Rule (3)(C) of the said Rules. 4.3. It is contended in the affidavit in reply that as per Rule 3(C) of the said Rules, the eligibility for appointment of to the posts mentioned in Rule 2, the candidate is required to possess the Post-Graduate Degree or Diploma in Public Health or Hygiene or Sanitisation or any equivalent Post Graduate Degree from the recognized university or any institution recognized by the State Government of Gujarat. It is therefore, averred that the petitioner no.1 was not having requisite qualification of Diploma in Tuberculosis at the relevant point of time therefore, his junior at serial no. 1465 is promoted. 5. Having heard learned advocate Mr. N.K. Majmudar for the petitioners and having gone through the affidavit-in-reply filed on behalf of the respondent no.1, it appears that the petitioners have claimed promotion over their seniors in to the final Seniority List published by the respondent authorities for Medical Officer class-II as on 01.01.2007. 1465 is promoted. 5. Having heard learned advocate Mr. N.K. Majmudar for the petitioners and having gone through the affidavit-in-reply filed on behalf of the respondent no.1, it appears that the petitioners have claimed promotion over their seniors in to the final Seniority List published by the respondent authorities for Medical Officer class-II as on 01.01.2007. The contention of the petitioners that the petitioners have passed the course of Diploma in Public Health prior in point of time, cannot be considered as an eligible criteria to promote petitioners prior to their seniors. 6. The contention raised on behalf of the petitioners that respondent nos. 3 to 13 have passed the Diploma in Public Health Course from the institution which is not recognized by the Medical Council of India is also not tenable, in view of the fact that Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram is established by an Act passed by the Parliament in the year 1980. Copy of the same is placed on record along with further affidavit filed on behalf of respondent no.1 at Annexure-I at page 118 of the paper book, Section 24 reads as under : “Section 24. Notwithstanding anything contained in the Indian Medical Council Act, 1956, the medical degrees and Diplomas granted by the institute under this Act shall be recognised medical qualifications for the purposes of that Act and shall be deemed to be included in the First Schedule of that Act.” 7. In view of the above provisions contained in the said Act of year 1980, the contentions raised on behalf of the petitioner that the said institution is not recognized by the Medical Council of India is rejected. 8. With regard to the contention of petitioner no.1 to the effect that Dr. M.C. Chauhan at serial no. 1465 in the Seniority List dated 01.01.2007 is promoted prior to his seniority at Serial no.1460 in the said Seniority List is concerned, the respondent-authorities have explained in detail in the further affidavit filed on 22.04.2010, wherein reliance was placed upon District Health Officer/ District Immunization Officer Class-I Recruitment Rules, 1997 and stated that the petitioner no.1 admittedly could not have been considered for the post of District Tuberculosis Officer, as Dr. M.C. Chauhan was having the qualification of Diploma in Tuberculosis, and hence, he was promoted for the post of District Tuberculosis Officer which is different from the post of Additional District Health Officer. Therefore, it is apparent that petitioner no.1 is not discriminated in any manner whatsoever from Dr. M.C. Chauhan. 9. In view of forgoing reasons, the petition being devoid of any merit, it is accordingly dismissed. Rule is discharged.