Research › Search › Judgment

Manipur High Court · body

2022 DIGILAW 156 (MAN)

Ch. Deependra Singh v. State of Manipur

2022-08-12

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed seeking a writ of mandamus directing the respondents to adjust the petitioners against the regular vacancies of the post of Assistant Professors in the Department of Obstetrics & Gynecology, Micro-biology, Pharmacology, PMR and Pathology at Jawaharlal Nehru Institute of Medical Sciences, Porompat as per Rule 7(h) of the Time Scale Promotion (Regularly appointed Senior Residents/ Tutor/ Demonstrator/ Lady Demonstrator possessing Post Graduates degree) Rules, 2018 with effect from date the petitioners were appointed as Assistant Professor (Non-functional) on up-gradation. 2. The case of the petitioners is that on the recommendation of the duly constituted Selection Board, the petitioners 1 to 4 were appointed as Senior Residents in the Department of Obstetrics & Gynecology; petitioner No.5 was appointed as Tutor/Demonstrator in the Department of Micro- biology; petitioner No.6 was appointed as Tutor in the Department of Pharmacology; petitioner No.7 was appointed as Senior Resident in the Department of PMR and petitioner No.8 was appointed as Tutor/Demonstrator in the Department of Pathology at Jawaharlal Nehru Institute of Medical Sciences (JNIMS), Porompat. 3. Further case of the petitioners is that to provide an opportunity for promotion to the regularly appointed Senior Resident/ Tutor/ Demonstrator/Lady Medical Officer to the post of Assistant Professor, a Rule called Time Scale Promotion (Regularly appointed Senior Residents/ Tutor/ Demonstrator/ Lady Demonstrator possessing Post Graduates degree) Rules, 2018 [for short, 'the Rules of 2018'] was framed by the second respondent. As per Rule 7 of the Rules of 2018, promotion to the post of Assistant Professor is to be made from amongst those persons holding the post of Senior/Tutor/Demonstrator/Lady Medical Officer having the qualifications and conditions stipulated in Rule 7. Rule 7(h) provides that the promotees should have to carry out duties of the original post i.e. Senior/Tutor/Demonstrator/Lady Medical Officer till they are adjusted against any regular vacancies of the post of Assistant Professor. 4. According to the petitioners, on the recommendation of the duly constituted DPC, they were appointed on up-gradation post of Assistant Professor (Non-functional) on 3.1.2019 and the petitioners have joined their respective posts. 4. According to the petitioners, on the recommendation of the duly constituted DPC, they were appointed on up-gradation post of Assistant Professor (Non-functional) on 3.1.2019 and the petitioners have joined their respective posts. Since four posts of Assistant Professors in the Department of Obstetrics & Gynecology have been lying vacant before the petitioners 1 to 4 were appointed on up-gradation to the post of Assistant Professor (Non-functional), they submitted a representation dated 4.1.2019 to the second respondent through Head of Department of Obstetrics & Gynecology to adjust their services to the regular vacancies of the post of Assistant Professor. As 2 posts of Assistant Professors in the Department of Pharmacology have been lying vacant before petitioner No.6 was appointed on up-gradation, the sixth respondent submitted a representation on 22.10.2019 and 4.3.2020 respectively to the second respondent. As one post of Assistant Professor in the Department of PMR lying vacant before petitioner No.7 was appointed on up-gradation, he had submitted representations dated 4.1.2019 and 25.10.2019 to the second respondent and as three posts of Assistant Professors in the Department of Pathology have been lying vacant before petitioner No.8 was appointed on up-gradation, she submitted representations dated 7.1.2019 and 22.1.2019 to the second respondent through proper channel to adjust her service to the regular vacancy of the post of Assistant Professor. Thus, all the petitioners are claiming that they ought to have been adjusted against the regular vacancies by invoking Rule 7(h) of the Rules of 2018. 5. Resisting the writ petition, the second respondent filed affidavit-in-opposition stating that the promotees under the Rules of 2018 should have carry out duties of the original post i.e. Senior/Tutor/ Demonstrator/ Lady Medical Officer till they are adjusted against any regular vacancies of the post of Assistant Professor. However, the Rule is silent on how the adjustment has to be done. It is stated that the post of Assistant Professor as per JNIMS Service Rules, 2015 is direct recruitment and there is no avenue for promotion to the post of Assistant Professor. 6. It is stated that the Rules of 2018 is one time Rule specially framed for 77 regularly appointed Senior Residents, who otherwise have no scope for future promotion and, therefore, the same cannot be relied upon by the petitioners. Hence, prayed for dismissal of the writ petition. 7. Mr. 6. It is stated that the Rules of 2018 is one time Rule specially framed for 77 regularly appointed Senior Residents, who otherwise have no scope for future promotion and, therefore, the same cannot be relied upon by the petitioners. Hence, prayed for dismissal of the writ petition. 7. Mr. N. Ibotombi, the learned senior counsel for the petitioners submitted that since the vacancies in respect of Obstetrics & Gynecology, Micro-biology, Pharmacology, PMR and Pathology have arisen before the petitioners were appointed as Assistant Professors (Non-functional) on up-gradation, the respondents ought to have adjusted the petitioners against the regular vacancies by invoking Rule 7(h) of the Rules of 2018. He would submit that the posts of Assistant Professors in the Departments of Obstetrics & Gynecology, Micro-biology, Pharmacology, PMR and Pathology are still lying vacant. 8. The learned senior counsel for the petitioners urged that the whole purpose and objective of framing and implementing the Rules of 2018 is to provide promotional avenues to the teachers and medical officers i.e. Senior/Tutor/Demonstrator/Lady Medical Officer in JNIMS and to adjust the Assistant Professor (Non- functional) to the regular vacancies. However, the respondents are not implementing the said Rules of 2018 fully and implemented only in part. 9. By placing reliance upon Rule 6D of the Time Scale Promotion Rules, 1991 of the Regional Institute of Medical Sciences, Imphal, Manipur, the learned senior counsel submitted that on the recommendation of the DPC held under the Rules of 1991 of the RIMS, 12 Doctors who were holding the posts of Senior Registrars, Senior Demonstrators, Registrars, Demonstrators and Blood Bank Officer, were given promotion to the post of Assistant Professors. He submits that as the Rules of 2018 of JNIMS is parity with the Rules of 1991 of RIMS, the authorities of JNIMS is duty bound to adjust the petitioners to the post of Assistant Professors from the date of regular vacancy arose. Thus, a prayer is made to direct the respondents to adjust the petitioners against the regular vacancies with effect from 3.1.2019, the date on which the petitioners were appointed as Assistant Professor (Non-functional) on up-gradation. 10. Per contra, Mr. Thus, a prayer is made to direct the respondents to adjust the petitioners against the regular vacancies with effect from 3.1.2019, the date on which the petitioners were appointed as Assistant Professor (Non-functional) on up-gradation. 10. Per contra, Mr. Lenin Hijam, learned Advocate General appearing for the respondents submitted that the Rules of 2018 is one time rule specially framed for 77 regularly appointed Senior Residents (74 MMS and 3 BDS) who otherwise have no scope for future promotion and, therefore, the petitioners by citing the Rules of 2018 cannot sought for relief to adjust them against the regular vacancies with effect from 3.1.2019. He submits that the Rules of 2018 is silent on how the adjustment has to be done. In fact, the post of Assistant Professor as per JNIMS Service Rules, 2015 is a direct recruitment post and there is no avenue for appointment on promotion to the post of Assistant Professor. Thus, the prayer is to dismiss the writ petition. 11. This Court considered the rival submissions and also perused the materials available on record. 12. The grievance of the petitioners is that since the vacancies in the posts of Obstetrics & Gynecology, Micro-biology, Pharmacology, PMR and Pathology have arisen before the petitioners were appointed as Assistant Professors (Non-functional) on up-gradation, the respondents ought to have adjusted the petitioners against the regular vacancies with effect from 3.1.2019. 13. There is no dispute that on the recommendation of the duly constituted Selection Board, the petitioners were appointed as Senior Residents/Tutors/Demonstrators/Lady Medical Officers in the Departments of Obstetrics & Gynecology, Mico-bilogy, Pharmacology, PMR and Pathology and on 3.1.2019 respectively and subsequently, they were appointed as Assistant Professors (Non-functional) on up-gradation with a condition that they should execute an undertaking under Rule 7(h) of the Rules of 2018 within a period of seven days from 3.1.2019. The petitioners themselves admit that as per Rule 7(h), they have to carry out their duties as Senior Resident/Tutor/Demonstrator/Lady Medical Officer till they are adjusted against the regular vacancies of the posts of Assistant Professor. 14. Since the petitioners claim adjustment of the post of Assistant Professors in their respective Departments by referring to Rule 7(h) of the Rules of 2018, it would be appropriate to extract Rule 7(h), which reads as under: '7. 14. Since the petitioners claim adjustment of the post of Assistant Professors in their respective Departments by referring to Rule 7(h) of the Rules of 2018, it would be appropriate to extract Rule 7(h), which reads as under: '7. h) The Promotee under this scheme shall have to carry out duties of original posts i.e. Senior resident/ Tutor/ Demonstrator/ Lady medical officer till they are adjusted against any regular vacancies of the post of Assistant Professor. The Promotee has to sign an agreement with JNIMS Authority that, in the event of any such promote declining to carry out his/her duty of the original posts from which he/she was promoted under the Time Scale Promotion Scheme for regularly appointed Senior resident/ Tutor/ Demonstrator/ Lady Medical Officer, the authority may, in the public interest withdraw the personal promotion of the Assistant Professor (non-functional) given to him/her.' 15. On a perusal of Rule 7(h) of the Rules of 2018, it is clear that the promotees should have carry out duties of the original post i.e. Senior Resident/Tutor/Demonstrator/Lady Medical Officer till they are adjusted against any regular vacancies of the post of Assistant Professor. That apart, as rightly argued by learned Advocate General for the respondents that the Rules of 2018 is silent as to how the adjustment has to be made. When there is no specific provision as to how the adjustments are to be made against any regular vacancies of the post of Assistant Professor, the petitioners cannot insist the respondents to adjust them against the regular vacancies by invoking Rule 7(h) of the Rules of 2018. 16. The specific argument of learned Advocate General for the respondents is that as per JNIMS Service Rules, 2015, the post of Assistant Professor is to be filled up by direct recruitment only and, as such, there is no avenue for appointment on promotion to the post of Assistant Professor. Therefore, the petitioners as a matter of right cannot claim adjustment. We find some force in the argument of the learned Advocate General for the respondents. 17. Though by relying upon the Time Scale Promotion Rules, 1991 of RIMS, the learned senior counsel for the petitioners contend that the Time Scale Promotion Rules, 2018 of the JNIMS is parity with the Time Scale Promotion Rules, 1991, nothing has been produced to prove the same. 17. Though by relying upon the Time Scale Promotion Rules, 1991 of RIMS, the learned senior counsel for the petitioners contend that the Time Scale Promotion Rules, 2018 of the JNIMS is parity with the Time Scale Promotion Rules, 1991, nothing has been produced to prove the same. As could be seen from the records, the Rules of 2018 was framed as one time rule specially for 77 regularly appointed Senior Residents who otherwise have no scope for future promotion. 18. As stated supra, since there is no provision as to how the adjustment are to be made against any regular vacancies of the post of Assistant Professor in the Rules of 2018, the petitioners have no legal right to claim adjustment against the regular vacancies with effect from 3.1.2019, the date on which they were appointed as Assistant Professor (Non-functional) on up-gradation. In this regard, it is pertinent to note that the petitioners are seeking retrospective absorption without any right which otherwise cannot be granted in view of the decision of the Hon'ble Supreme Court in the case of Ganga Vishan Gujrati and others v. State of Rajasthan and others, (2019) 16 SCC 28 , wherein the Hon'ble Supreme Court held that 'retrospective seniority cannot be granted to employee from date when employee was not borne on cadre'. In the case on hand, the petitioner's up-gradation to the post of Assistant Professors (Non-functional) only on 3.1.2019. Therefore, the claim of the petitioners that they should be adjusted with effect from 3.1.2019 as Assistant Professor (Non-functional) on up- gradation is unsustainable in law. 19. As could be seen from the records, immediately upon receipt of the order upgrading the post of non-functional Assistant Professor, on 4.1.2019 itself, some of the petitioners have submitted individual representations to the second respondent through their respective Head of Departments to adjust them to the regular post of Assistant Professor of the Department, which is stated to be lying vacant. The representation aforesaid in fact against the terms of the promotion order dated 3.1.2019. 20. It is to be pointed that after giving their representations in the year 2019, the petitioners have not persuaded the issue and they approached this Court only in the year 2021 seeking to adjust them against the regular vacancies with effect from 3.1.2019. The representation aforesaid in fact against the terms of the promotion order dated 3.1.2019. 20. It is to be pointed that after giving their representations in the year 2019, the petitioners have not persuaded the issue and they approached this Court only in the year 2021 seeking to adjust them against the regular vacancies with effect from 3.1.2019. Thus, for all the reasons stated above, this Court finds that there is no merit in the writ petition and the same is liable to be dismissed. Anyhow, the Respondents out to have considered the petitioners' individual representations according to law but they are yet to consider for the reasons best known to them. 21. Accordingly, a) the writ petition is dismissed, b) the respondents are hereby directed to consider the petitioners' individual representations dated 04.01.2019 and to pass appropriate speaking orders within a period of 3 (three) months from the date of receipt of this order.