Dr. Krishna Shankar Ganguly vs The Kolkata Municipal ...
2023 Latest Caselaw 1160 Cal/2

                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                                Original Side

Present :-   Hon'ble Justice Amrita Sinha


                               WPO 806 of 2021

                       Dr. Krishna Shankar Ganguly
                                    Vs.
                  The Kolkata Municipal Corporation & Ors.

For the writ petitioner        :-    Mr. Amales Ray, Adv.
                                     Ms. Mousumi Bhowal, Adv.
                                     Mr. Samit Rudra, Adv.

For KMC                        :-    Mr. Ranajit Chatterjee, Adv.
                                     Mr. Swapan Kr. Debnath, Adv.

Hearing concluded on           :-    15.03.2023

Judgment on                    :-    10.05.2023


Amrita Sinha, J.:-


      The order dated 24th May, 2021 passed by the Chief Manager (Personnel)

allegedly in compliance of the direction passed by this court in WPO No. 353

2020 is impugned in the instant writ petition. By the said order the prayer of

the petitioner for promotion from an earlier date stood rejected.


      According to the petitioner, he is eligible to be promoted to the post of

Executive Health Officer.


      Circular No. 107 of DMC (HQ) of 1997-98 dated 27th March, 1998 issued

by the Deputy Municipal Commissioner (HQ), Personnel Department, Calcutta

Municipal Corporation ('KMC' for short) sets out the eligibility criteria for

promotion of Medical Officer to the post of Executive Health Officer (General). It

mentions that the Medical Officer must possess the essential qualification of

MBBS degree from a recognised University/institution and must have a degree

in MD (P and SM)/MD (community medicine) or a Diploma in Public Health

(DPH) from a recognised University/institution. Apart from the above, a Medical

Officer having five years of experience will be eligible on the basis of service
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seniority as reflected in the gradation list, subject to reservation as per

government policy.


        The petitioner possesses the qualification of MBBS and he obtained

postgraduate diploma in Health Sciences in Public Health from the Annamalai

University in May 2011 through correspondence. He made an application to

include his latest educational qualification and update his service book as well

as the gradation list.


        Medical Officers who were junior to the petitioner in the gradation list

were promoted in November 2013. Subsequent promotions were made

thereafter, but the case of the petitioner for promotion was not considered by

the respondents. The petitioner was given the benefit of promotion on and from

9th March, 2015. Higher qualification of the petitioner was recorded in the

service book in September 2016. He prays that he ought to have been given

promotion on and from the date of promotion of his juniors i.e, from November

2013.

The prayer of the petitioner for granting promotion from 2013 was

considered and rejected by the impugned order. The reason for rejecting the

prayer of the petitioner is that he did not satisfy the requisite qualification for

promotion. He does not possess the qualification of Diploma in Public Health.

The qualification of the petitioner i.e, postgraduate diploma in Health Sciences

in Public Health does not appear to be in consonance with the rules of KMC

regulating recruitment to the post of Executive Health Officer.

The petitioner admits that he obtained the diploma from the Annamalai

University through distance education mode. It has been submitted that if the

qualification of the petitioner was not in accordance with the circular regulating

promotion, then the authority would not have promoted him in the year 2015.

It is only because the qualification of the petitioner was in consonance with the

requirement of promotion, that he was promoted. As he obtained the higher

qualification in the year 2011 and applied in the year 2012, accordingly, his

candidature ought to have been considered for promotion in the year 2013

along with other Medical Officers.

Non-consideration of the qualification of the petitioner in proper time

resulted in delay in his promotion. If the higher qualification of the petitioner

would have been recorded in his service book in the right time, the petitioner

would not have been deprived of his promotion. Employees who were junior to

the petitioner has been promoted, ignoring the claim of the petitioner.

The petitioner has relied upon documents to show that the University

from which he obtained his higher qualification is recognised by the University

Grants Commission. It has been contended that it cannot be said that the

qualification of the petitioner is not equivalent to the qualification as prescribed

for promotion. Had there been any issue with regard to the equivalence of the

qualification of the petitioner, then promotion ought not to have been given to

him. After according promotion relying upon the qualification obtained by the

petitioner, KMC cannot, at this stage, question the qualification obtained by

him.

Prayer has been made to grant promotion to the petitioner from the date

his juniors were promoted by quashing the impugned order passed by the Chief

Manager (Personnel).

Learned advocate representing the respondent authorities opposes the

prayers of the petitioner. It has been submitted that as the petitioner did not

possess the requisite qualification, accordingly, his case was not considered for

promotion in the year 2013. For promotion, the petitioner was given the benefit

of the circular dated 29th December 2014 which permits promotion of Medical

Officers on completion of ten years of service as non-DPH candidate.

The qualification of the petitioner not being equivalent to the qualification

as mentioned in the circular relating to promotion, the candidature of the

petitioner could not be taken up for consideration for promotion in the year

2013. The higher qualification of the petitioner was not given credit at all for

according promotion to him. The qualification acquired by the petitioner was,

however, recorded in his service book but the promotion was given to him prior

thereto.

The respondents pray for dismissal of the writ petition.

I have heard and considered the rival submissions made on behalf of

both the parties.

The first reason for rejecting the prayer of the petitioner for promotion

is that his qualification was not in consonance with the Recruitment

Regulations of KMC. The required qualification was a 'Diploma in Public

Health' (DPH) from a recognised University/institution. The petitioner

acquired the qualification 'Postgraduate Diploma in Health Sciences in Public

Health' from the Annamalai University through correspondence course.

The petitioner asserts that the qualification postgraduate Diploma in

Health Sciences in Public Health is equivalent to the qualification mentioned

in the circular for promotion i.e., Diploma in Public Health. According to the

employer, the two qualifications are not equivalent to each other.

As the petitioner seeks to claim the benefit by submitting that the two

qualifications are equivalent, as such, it was the obligation of the petitioner

to obtain an equivalence certificate from the competent authority prior to

seeking such benefit. The petitioner ought not to have shifted the burden

upon the employer to obtain the equivalence certificate.

He who claims the benefit ought to have produced sufficient

documents in his favour so as to refute the allegation of the employer as

regards the inequivalence of the two qualifications. There is nothing on

record to suggest that the qualification obtained by the petitioner and the

qualification required for promotion are equivalent.

The equivalence of the two qualifications cannot be judged only from

their nomenclature. The duration of the course, syllabus, mode of study-

whether regular or correspondence, university/institution from where the

qualification was obtained etc. are some of the relevant factors which are

required to be verified to come to a conclusion whether the two qualifications

are equivalent or not. The court is also not the competent forum to decide

the equivalence of the qualification obtained by the petitioner.

The second reason for rejection is that the qualification acquired by

the petitioner is not recognised by the State of West Bengal. Learned

advocate for the petitioner has relied upon the University Grants

Commission Act, 1956 and the Annamalai University Act, 1928 in support of

the submission that the qualification obtained by him is from a recognised

University and accordingly, KMC ought to accept the same and grant benefit

of the said qualification.

It has also been submitted that as KMC has its independent

Recruitment Regulations as such the regulation meant for the State

Government employees will not be applicable in his case.

Even if the court accepts the submission of the petitioner that he

would be guided by the Recruitment Regulations of his employer, but in the

absence of a proper certificate of equivalence of the two qualifications, the

petitioner cannot seek benefit of the qualification acquired by him. Hence,

there is no point in going into the issue whether the qualification obtained by

the petitioner is recognised or not or whether the qualification has been

obtained from a recognised university or not.

The educational qualification of acquiring postgraduate diploma was

recorded in his service records as per the order of the Municipal

Commissioner dated 21st April, 2017. The petitioner was promoted as per the

modified Recruitment Regulations as a non-DPH candidate having ten years

of experience on 9th March, 2015.

According to the circular of KMC, the eligibility and seniority of an

employee is counted from the order of the competent authority under which

the actual qualification has been recorded in the service book of the

employee and his candidature stands after those eligible candidates already

existing in the respective gradation list. The petitioner was already granted

the benefit of promotion on completion of ten years of service, and

accordingly, the date of recording the higher qualification becomes

inconsequential.

The next question which arises is whether the petitioner could have

been promoted from an earlier date treating him as a non-DPH candidate.

The Recruitment Regulations dated 27th March, 1998 clearly mentions

that for promotion to the post of Executive Health Officer the candidate

should possess the essential qualification of having MBBS degree from a

recognised University/institution and a degree in MD or a Diploma in Public

Health from a recognised University/institution and having five years of

experience. The petitioner obtained the qualification of postgraduate Diploma

in Health Sciences in Public Health in October 2011. The petitioner alleges

that the private respondents superseded the petitioner on 4th November,

2013, the date they were promoted to the higher post.

On 29th December, 2014 the modified Recruitment Regulations for the

post of Executive Health Officer was published by the employer where there

was a scope for promotion of Medical Officers without a diploma in Public

Health on completion of ten years of service. Admittedly, the petitioner joined

in service as Medical Officer on 25th February, 1989. So, on the date the

modified Recruitment Regulations was published i.e, on 29th December,

2014, the petitioner was eligible for promotion to the post of Executive

Health Officer. The petitioner was actually promoted vide office order dated

9th March, 2015. The qualification of the petitioner postgraduate Diploma in

Health Sciences in Public Health was included in his service records vide

office order dated 1st July, 2017.

The petitioner argues that as KMC accepted and recorded his

qualification as DPH, accordingly, he ought to be given the benefit of

promotion on and from the day promotion was given to his juniors i.e, on

and from 4th November, 2013. Plainly said, according to the petitioner his

promotion ought to have been given from 4th November, 2013 instead of 9th

March, 2015.

As recorded earlier, the qualification of the petitioner not being in

accordance with the Recruitment Regulations pursuant to which his juniors

were promoted, the petitioner cannot claim promotion relying on his

enhanced educational qualification on and from 4th November, 2013. After

the modified Recruitment Regulations was published on 29th December,

2014 the promotional avenue of the petitioner on completion of ten years of

service opened and the petitioner appears to have been promoted along with

similar non-DPH candidates on 9th March, 2015.

It does not appear that there was any error on the part of the employer

in not promoting the petitioner on 4th November, 2013. On the contrary, it

appears that the petitioner was selected for promotion immediately after the

modified Recruitment Regulations was given effect to by the employer. Had

there been no modification in the recruitment regulations, the petitioner

could not have been selected for promotion as he did not possess the

qualification required for promotion.

In view of the above, the court is of the opinion that the order

impugned herein does not merit interference. No relief can be granted to the

petitioner in the instant case.

The writ petition fails and is hereby dismissed.

No costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties or their advocates on record expeditiously on compliance of usual

legal formalities.

(Amrita Sinha, J.)