The State Of Maharashtra vs Dr. Mrs. Pratibha
2011 Latest Caselaw 8 Bom

                                                                          1

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         NAGPUR BENCH, NAGPUR




                                                                                                                                         
                                                     Writ Petition No.5999/2010




                                                                                                       
                        1.         The State of Maharashtra,
                                   through its Secretary, Public Health Department,
                                   Mantralaya, Mumbai - 400 032.




                                                                                                      
                        2.         The Director of Health Services,
                                   Maharashtra State, Bombay,
                                   Sent Georges Hospital Compound,
                                   4th Floor, Near V.T. Station,
                                   Bombay.                                                                                       ..Petitioners.




                                                                                  
                                               ..V/s..

                         1.
                                                      
                                   Dr. Mrs. Pratibha w/o Prabhakar Gulhane,
                                   aged about 47 Yrs., Occu. Service,
                                   R/o Vijay Nagar,
                                   Near High court, Civil Lines,
                                                     
                                   Nagpur.

                         2.        Dr. B.M. Dama,
                                   Deputy Director of Health Services,
                                   Aurangabad Division, Aurangabad.                                         (Name of respondent no.2
                

                                                                                                            deleted vide order dated
                                                                                                             21/10/2011)
             



                                                                                                                         ..Respondents.

                         Mrs. B.H. Dangre, Addl.G.P. for petitioners.
                         Mr. P.H. Gulhane, Adv. for respondent no.1.
    -----------------------------------------------------------------------------------------------------------------------------------------------





                                              CORAM : S.A. BOBDE & M.N. GILANI, JJ.

                              JUDGMENT ( Per M.N. Gilani, J.)

Date of Reserving the judgment : 14/10/2011.

Date of Pronouncing the judgment : 21/10/2011.

1. Rule. Heard finally by consent of the parties.

2. This petition under Article 226 and 227 of the

Constitution has been filed by the Public Health Department,

Government of Maharashtra challenging the decision dated

15/4/2010 passed by the Maharashtra Administrative Tribunal (for

short "Tribunal") in Transfer Application No.3872/1991 in Writ

Petition No.214/1990.

3. The respondent no.1 was appointed as Medical

Officer -II in the Health Services of the Government of Maharashtra

by order dated 10/4/1968. In the year 1974 the respondent no.1

was promoted and brought in the cadre of Medical Officer, Class-I.

The respondent got second promotion to the post of Deputy Director

of Health Services w.e.f.18/11/1982. The respondent no.2 is holding

similar post and in the seniority list published on 22/6/1989 he was

shown next below the respondent no.1 whereas one Dr. V.D.

Sontakke is senior to respondent nos.1 and 2. The next promotional

post is of Joint Director, Health Services. By order dated 23/1/1990

the petitioner promoted both Dr. V.D. Sontakke and Dr. B.M. Dama

as Joint Directors of Health Services. Aggrieved by her supersession

the respondent no.1 approached this Court by filing writ petition on

24/1/1990 being Writ Petition No.214/1990. This writ petition was

transferred to the Maharashtra Administrative Tribunal as Transfer

Application No.3872/1991. Learned Tribunal by order dated

15/4/2010 allowed this Transfer Application with following

directions.

"The respondents are directed to promote the

applicant to the post of Jt. Director of health Services w.e.f. 23.1.1990 as deemed date of promotion with all

consequential benefits as per her entitlement under the

Rules."

The petitioners take an exception to this very order.

4. In the cadre of Deputy Director of Health Services,

Class-I, she is placed at serial no.10 in the seniority list published on

10th of March 1980. The respondent no.2 is placed at serial no.11

and is apparently junior to her. She holds qualification as M.D. in

Obstetrics and Gynecology and diploma in public health services.

As compared to the qualification which she possess the respondent

no.2 is less qualified. Despite this the respondent no.2 was promoted

to the post of Joint Director. As regards promotion of Dr. V.D.

Sontakke she had no grievance since he was senior to her. When the

respondent no.1 had become due for consideration for promotional

post of Deputy Director, she was wrongfully superseded and

therefore, she filed Writ Petition No.1749/1985 which was decided

in her favour. The special leave petition filed by the petitioner was

dismissed and thereafter only orders promoting her to the Deputy

Director was issued. Since the date she joined as Deputy Director,

her superiors and her colleagues were harbouring grudge against her.

On 8th of august 1988 she was communicated adverse remarks

pertaining to the years 1983 - 1984 and 1985-1986. On receipt of

the same, she made representations on 19th September 1988 and on

20th November 1988. Thereafter she received communications

about adverse entries for the years 1988-1989. On the basis of such

adverse entries which were illegally and malafidely made in her

service record, she was superseded by promoting the respondent

no.2 as Joint Director of Health Services. She was not given an

opportunity of being heard before superseding her. Even before the

representations against the adverse entries were decided, promotion

order was issued. It was her case that while denying her promotion

the petitioner violated the principles of natural justice. On all these

grounds she prayed for quashing of the order dated 23/1/1990

promoting the respondent no.2 to the post of Joint Director of Health

Services and in turn prayed for direction to post her as Joint Director

of Health Services.

5. Before the Tribunal Mrs. Nalini Pathak, the Under

Secretary to the Government of Maharashtra, Public Health

Department filed an affidavit. In that, it was categorically admitted

that the Department of Public Health proposed 6 names falling under

zone of consideration to the establishment board on 9/10/1989.

However, in that name of the petitioner, although she stood at serial

no.10 i.e. above the present respondent no.2 herein, her name was

excluded. Based on this factual aspect, she canvassed that the

decision to eliminate her was not that of establishment board but of

the Public Health Department which has no jurisdiction to decide the

matter of promotion vis-a-vis supersession of the senior. In a

nutshell, it was her case that the elimination of her name at the stage

of sending proposal by the Public Health Department is evidence of

wrongful denial of promotion in utter disregard to the service

jurisprudence.

6. The respondents relied upon the Rules framed by the

Government of Maharashtra under Article 309 of the Constitution.

The Rule 3 of the same is reproduced below.

"3. - Appointment to the post of Joint Director of

Health Services in the Directorate shall be made either, -

(a) by promotion of a suitable person on the

basis of selection from amongst the persons holding the post of Deputy Director of Health Services, Maharashtra

Medical and Health Services Class-I in the Directorate; or

(b) by transfer of a suitable officer from any

other Government Department, possessing the qualifications and experience prescribed for appointment by nomination in clause (c) of this rule ; or

(c) by nomination from amongst candidates who, -

(i) unless already in the service of Government, are not more than forty-five years of age ;

(ii) possess M.B.B.S. Degree or any other qualification specified in the first or second Schedule to

the Indian Medical Council Act, 1956 ;

(iii) possess a Master's degree in Obstetrics and

Gynaecology or Paediatrics, or in Preventive and Social

Medicine specified in the First or Second Schedule to the Indian Medical Council Act, 1956 or any other qualification declared by the medical Council of India to be equivalent thereto ;

(iv) possess experience of health administration, Medical relief or family welfare for a period of not less than 7 years gained after acquiring the qualification

mentioned in sub-clause (iii), in a Government

Department or Local Authority established by the Government.

Provided that age limit may be relaxed by Government on the recommendation of the Commission in favour of candidates having exceptional qualification or experience or both."

7. At the relevant time there were two vacancies. In

October 1989 the Public Health Department proposed 6 names to the

establishment board for consideration sans the name of the

petitioner. Meanwhile, the special review committee recommended

to the establishment board to retire the respondent no.1 prematurely

in the public interest. The recommendations of the special review

committee were accepted by the high power establishment board and

accordingly on 25th May 1990 three months notice, as required under

Rule 10(4) of Maharashtra Civil Services Pension Rules, was issued.

Under these circumstances, the respondent no.2 was selected and

promoted to the post of Joint director superseding the respondent

no.1. Further the case of the petitioner was that the post of Joint

Director being selection post, on merits the respondent no.1 was

denied the promotion to the said post. Accordingly the allegations of

mala fide, bias or animus have been denied.

8. In Transfer Application No.3872/1991 the respondent

no.1 had joined the Director of Health Services as respondent no.2

and while defending her case made certain personal allegations

against Dr. Mrs. Malti Chandrikapure, Director of Health Services.

9. In her affidavit in reply, Dr. Chandrikapure, narrated the

procedure of filling the post on promotion in the Department of

Public Health of Government of Maharashtra. According to her the

selection to the promotional post is made by establishment board

with which she has no concern. She denied the allegations of mala

fides, bias levelled against her. As regards adverse entries

appearing in the service record of the petitioner she submitted that

they were communicated to the respondent no.1.

10. Learned Tribunal held that the case of the petitioner for

promotion was not at all considered by the establishment board since

her name was not forwarded by the concerned department. Learned

Tribunal arrived at this conclusion and, rightly so, by referring to the

affidavit filed by Nalini Pathak, the Under Secretary, Government of

Maharashtra Public Health Department. Since the contents in the

affidavit clinches the issue, we consider it appropriate to reproduce

the relevant excerpt from the same as follows:

"(c) At the relevant time, there were only two vacancies in the said posts for being filled up by selection under Clause (a) Rule 3 as mentioned above.

(d) I say that having regard to the vacancies in the said posts 6 names were sent by the Public Health Department to the Establishment Board on 9th October,

1989 for filling the said posts. The petitioner's name

figured in the seniority list of Deputy Directors only in March, 1988 after her writ petition in the Nagpur High

Court for promotion to the post of Deputy Director came to be finally decided in the said seniority list as on 1 st March, 1988, the petitioner is shown at Serial No.10.

(e) However, the petitioners name did not come to be included in the list of 6 names sent by the Public

Health Department to the Establishment Board on 19th October 1989 for the purposes of considering promotion on merits/by selection to the posts of Joint Directors.

(f) The Special Review Committee of the Government of Maharashtra has since considered the case of the petitioner and recommended her compulsory

retirement under clause 10(4)(a) of the Maharashtra Civil Services (Pension) Rules, 1981. Accordingly, a compulsory retirement notice dated 25th May, 1990 has been issued to the petitioner.

(g) In the above circumstances, B.M. Dama (respondent no.3) has come to be selected by the

Establishment Board for the purpose of the said post of Joint Director and accordingly appointed by the order of

the Government of Maharashtra dated 23rd January,

1990."

11. The law on the point that an employee has no right to be

promoted, however, he has a right to be considered for a promotion

is well settled. In case of Bhagwandas Tiwari and others V/s.

Dewas Shajapur Kshetriya Gramin Bank and others reported in

(2006) 12 Supreme Court Cases 574 the Supreme Court held that :

"In all services, whether public or private there is invariably a hierarchy of posts comprising of higher posts

and lower posts. Promotion, as understood under the service law jurisprudence, is advancement in rank, grade or both and no employee has right to be promoted, but

has a right to be considered for promotion."

Reference can also be made to the decision in case of Union of India and another V/s. Hemraj Singh Chauhan and others reported in (2010) 4 S.C.C. 290.

12. Obviously, the right of the respondent no.1 to be

considered for promotion to the post of Joint Director, Health

Department has been denied to her. We, therefore, affirm the

findings of learned Tribunal recorded in para 21 which are

reproduced below.

"it so happened that Dr. B.M. Dama (R-3) who was junior to the applicant (being at sr. no.11 in the seniority

list as on 1.3.1988) was selected and appointed to the post of Jt. Director of Health Services. Thus, the applicant

was superseded. This, supersession is obviously wrong

in as much as her name was not at all considered by the Establishment Board in its meeting held on 20.11.1989. The supersession is thus illegal and needs to be set aside. The supersession is accordingly set aside."

However, we do not agree that it was within the domain

of learned Tribunal to direct the promotion of the respondent no.1 to

the post of Joint Director without there being scrutiny of her service

record and application of mind regarding her suitability or otherwise

to hold the promotional post of Joint Director. This is within the

exclusive domain of the establishment board. Ordinarily, where the

Tribunal or the High Court exercises jurisdiction of judicial review it

merely quashes the order under challenge and the consequential

legal effect is that but for the order under challenge the remaining

part of the proceeding stands automatically revived before the

authority with the need for fresh consideration and disposal by fresh

order. We believe that the High Court or the Tribunal substituting

its own order for the order quashed by them is impermissible

particularly in the circumstances of the present case. {relied

decision in case of (1980) 2 S.C.C. 191 Grindlays Bank Limited V/s.

Income Tax Officer, Calcutta and others)}

13. In State of Mysore V/s. C.R. Sheshadri and others

reported in (1974) 4 S.C.C. 308 the Supreme Court elaborately

explained the jurisdiction of the High Court in such matter by

observing as follows.

"...(ii) In our constitutional scheme, a broad three-fold division exists, viz.-

(a) The power to promote an officer belongs

to the Executive and the judicial power may control or review government action but cannot extend to acting as if it were the Executive.

(b) The court may issue directions but leave

(c)

it to the Executive to carry it out.

The judiciary cannot promote or demote

officials but may demolish a bad order of Government or order reconsideration on correct principles."

14. In State Bank of India and others V/s. Mohd.

Mynuddin reported in (1987) 4 S.C.C. 486 dealing with the same

issue vis-a-vis power of the High Court under Article 226 it was

observed that :

"If promotion has been denied arbitrarily or without any reason ordinarily the court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a

direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. Where the State Government or a statutory authority is under an obligation to promote an employee to a higher post

which has to be filled up by selection the State Government or the statutory authority alone should be

directed to consider the question whether the employee is

entitled to be so promoted and the court should to ordinarily issue a writ to the Government or the statutory authority to promote an officer straightway."

15. Learned counsel for the respondent relied upon the

decision in Badrinath V/s. Government of Tamil Nadu and others

reported in (2000) 8 S.C.C. 395. It was a case of wrongful denial of

promotion to super-time scale.

ig It was held that the appellant was

entitled to promotion to super-time scale. Instead of remitting the

matter to the State Government the Supreme Court issued

mandamus to grant super-time scale to the appellant from the date

that scale was granted to his junior. The facts of the case in hand

are that the case of the petitioner was not at all brought before the

establishment board and consequently not considered.

16. The learned Tribunal, to justify the deviation from

the settled principle of law, relied upon the decision of the Division

Bench of the Calcutta High Court in Dr. Sibdas Roy V/s. State of

West Bengal and others reported in 2009 (3) SLR 544. With respect,

we do not agree that the ratio in the case supra governs the case in

hand. The well settled principle that while exercising power of

judicial review, the Tribunal or the Court should not substitute its

own order for the order quashed by it, was not discussed and

considered in the aforesaid case. This is not a case where the

establishment board which had considered the promotion of

respondent no.2 who was junior to respondent no.1 had completely

lacked jurisdiction. In that event on quashing of the proceeding by

the Tribunal or the High Court there is no revival at all of the

proceedings before the establishment board.

17. For the foregoing reasons, we partly allow the writ

petition.

(i) The finding, recorded by the learned Tribunal that

the non-consideration of name of the respondent no.1 by the

establishment board in its meeting held on 20/11/1989 amounts to

denying her right of being considered for the promotional post, is

affirmed.

(ii) The directions issued by the Tribunal to promote the

respondent no.1 to the post of Joint Director of Health Services

w.e.f. 23/1/1990 are quashed and set aside.

(iii) The matter is remanded back to the establishment

board for considering the case of petitioner as it stands on

20/11/1989 vis-a-vis other candidates who were under zone of

consideration on that particular date without being influenced by

notice of premature retirement dated 25/5/1990.

(iv) Considering the fact that the Public Health

Department had for no reason wrongfully declined to forward the

name of respondent no.1, though she was in zone of consideration,

to the establishment board for filling two vacancies of the post of

Joint director, Health Services; we direct that the petitioners shall

pay costs quantified at Rs.10,000/- (Rs. Ten Thousand Only) to the

respondent no.1.

                 (v)            Rule made absolute in above terms.




                                               
                              JUDGE                                JUDGE

                                
                               
    Tambaskar.