Gujarat High Court
Prashant Mukundbhai Bhanshali vs Amc Medical Education Trust on 9 August, 2023
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 11 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 6735 of 2020
With
R/LETTERS PATENT APPEAL NO. 1046 of 2022
In SPECIAL CIVIL APPLICATION NO. 5787 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1046 of 2022
In SPECIAL CIVIL APPLICATION NO. 5787 of 2020
==========================================================
PRASHANT MUKUNDBHAI BHANSHALI
Versus
AMC MEDICAL EDUCATION TRUST
==========================================================
Appearance:
DEV D PATEL(8264) for the Appellant(s) No. 1
MR UDAY M JOSHI(380) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
RULE UNSERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 09/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Both these Appeals under Clause 15 of the Letters Patent
arise from common judgment and award of learned single Judge
dated 9.12.2021.
2. By order dated 14.10.2019 passed by Gujarat Education
Institutions Services Tribunal, Ahmedabad, in application No.97
of 2017 filed by the applicant- appellant, partially allowing the
said application, the decision of the respondents reflected in
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
communication dated 4.9.2015 of not giving promotion to the
applicant- appellant, was set aside. Respondent Nos.1 and 2
were directed by the Tribunal to treat the applicant to be eligible
for promotion with effect from 1.1.2000 and to give promotion
with consequential benefits.
2.1 The aforementioned order dated 14.10.2019 gave rise to
two Special Civil Applications filed by the appellant- petitioner.
2.2 In Special Civil Application No.6735 of 2020, the prayer
was to set aside order dated 14.10.2019 passed by the Tribunal,
whereas in the other Special Civil Application No.5787 of 2020,
the prayer was made to hold that the conduct on part of the
respondents from 2008 till 14.10.2019, that is the date of order
of Tribunal, in not considering the petitioner- applicant for the
promotion to the post of Professor, was illegal.
2.3 Before the Tribunal, it was prayed to set aside the order
dated 4.9.2015 whereby the promotion to the applicant was
denied. It was further prayed that the applicant was eligible to
the post of Professor of Medicine from 29.9.2008 as per the
prevalent Rules of Medical Council of India and also to declare
that the petitioner was deemed to have been promoted from
1.1.2012. The applicant prayed for to grant all consequential
benefits of the promotional post from the said date.
3. It was the case of the applicant before the Tribunal that he
joined the services at V.S.Hospital attached to the NHL Medical
College from 1.1.1997 as full time Assistant Professor of
Medicine. He resigned on 30.4.1997. Thereafter the petitioner-
appellant joined as honorary Assistant Professor of Medicine
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
with effect from 1.1.2000. There he completed five years of
experience on 30.8.2004. The petitioner-appellant was
thereafter promoted as Associate Professor of Medicine from
28.9.2004. It was the case that as per the Rules of Medical
Council of India, the applicant was eligible to be promoted on
the post of Professor of Medicine from 29.9.2008. It was the case
that though there were vacancies, the promotion was not given
to him.
3.1 It was thus say of the case of the appellant that he was
appointed as Assistant Professor of Medicine on 1.1.1997 and
was reappointed on 1.1.2000. He came to be promoted as
Associate Professor of Medicine on 28.9.2004. It was the case of
the applicant that at that time, the prevalent Rules made him
eligible for promotion on 29.9.2008 upon completion of four
years on the post of Associate Professor, however, since the post
was not vacant, no promotion was granted.
3.2 According to the case of the petitioner, three promotional
posts became available on 1.1.2012 and two promotional posts
were available on 30.4.2013, however, the respondent Trust did
not report the vacancies to the Departmental Promotion
Committee. The non-reporting of vacancies deprived the
petitioner of promotion, it was stated.
3.3 The meeting of the Departmental Promotion Committee
was held on 28.7.2015. At that time, on the ground that as per
the requirement of the minimum qualification for Teachers in
Medical Institutions (Amendment) Regulations, 2009, the
eligibility was changed than what was prevalent in the year
2008. The appellant did not have the required minimum four
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
research publications in Indexed National Journals. This
requirement was prescribed in the aforesaid Rules of 2009 for
promotion to the post of Professor.
3.4 Against the judgment and order of tribunal which held the
applicant was entitled to promotion from 1.1.2012, A.M.C
Medical Educational Trust filed petition in which it was
contended that the tribunal was not justified in holding that the
respondent No.2 was eligible to get promotion to the post of
Professor. It was the contention that since the second
requirement of having four research publication was not
possessed by the respondent No.2, he was not liable to be
promoted.
3.5 As against that, the case of the applicant- respondent No.2
was that it was due to not reporting of the vacancies at the
relevant point of time that he was kept out of promotion. It was
the submission that eligibility conditions for promotion as
prevalent, when the vacancies were available would apply and
that the petitioner was entitled to promotion. It was also
contended that the amended regulations provided that during
the period from 24.7.2009 to 25.7.2013, the promotion would be
made in accordance with the Rules prevalent before the
amendment.
4. Learned single Judge considered the rival contentions to
hold that relief to be promoted could not be granted de hors the
Rules. It was observed by learned Single Judge that on account
of the fact that the A.M.C Medical Education Trust did not put
forth its case before the tribunal effectively, the petitioner
cannot earn premium when he was not eligible. Learned single
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
Judge reasoned that it was statutory requirement of eligibility to
be promoted to the post of Professor namely that the candidate
who have four research publication in the national journal. As
per the Rules prevalent, it was the requirement which was not
fulfilled by the respondent No.2. Learned single Judge observed
that merely because the A.M.C. Medical Education Trust failed
to produce sufficient evidence before the tribunal that itself
would have entitled the applicant- respondent No.2 to get relief
when he was not eligible for promotion.
5. This court is in complete agreement with the reasoning of
learned single Judge in holding that the respondent No.2 was
not entitled to the promotion as he did not fulfill the criteria as
per the prevalent regulations which were the regulations at that
time when question of his promotion was actually considered by
the Departmental Promotion Committee. The amendment
regulations subsequently came into force in 2009 provided that
for the purpose of holding the post of Professor, the requirement
was that the Associate Professor should have completed three
years in recognized medical college and should have a minimum
four research publication in Indexed National Journal.
Admittedly, the petitioner lacked these qualifications.
5.1 The aspect that before the amended regulations
prescribing additional eligibility came into force, the respondent
No.2 was liable to be promoted, but his case was not considered
for want of reporting of vacancies, could not be the factor to be
applied, much less an outweighing factor. The principle is that
the regulations and the criteria prevalent at that juncture when
case of considering the promotion actually arose, the criteria
prevalent at that time would apply.
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
6. In Punjab University vs. Subhash Chander and Anr.
[AIR 1984 SC 1413], the subject matter was the regulations
regarding giving some percentage of marks as grace marks to
the candidate appearing in the University examination. In that
case the student joined the MBBS course in the year 1965,
however appeared in the final examination of the course in the
year 1974. In the meantime, in the year 1970, regulations came
to be amended reducing the percentage of grace mark. The
Supreme Court held that the amendment cannot be held
retrospective and the candidate would be governed by the
amended regulations. It was held that the declaration that the
candidate failed by virtue of amended regulation as regards
grace marks was not invalid. It was observed that there was no
element of retrospectivity in the change brought by the
amendment. The amendment could not be said to be
retrospective, stated the Apex Court in its operation, stated the
Apex Court, merely because though introduced in 1970, it was
applied to the candidate who appeared for the final examination
in 1974, after he joined the course earlier in the year 1965.
6.1 The Supreme Court proceeded to observe thus,
"No promise was made or could be deemed to have been
made to him at the time of his admission in 1965 that there
will be no alteration of the rule or regulation in regard to
the percentage of marks required for passing any
examination or award of grace marks and that the rules
relating there to which were in force at the time of his
admission would continue to be applied to him until he
finished his whole course. "
(Para 11)
6.2 The proposition of law laid down by Supreme Court in
NEUTRAL CITATION
C/LPA/11/2022 ORDER DATED: 09/08/2023
undefined
Punjab University (supra), would apply in the present case.
The principle to be applied is that when the case of the
petitioner for promotion was actually considered, the eligibility
criteria in the instant case had undergone a change. As in the
above case, the new regulations regarding grace marks would
apply at the time when the student-candidate passed out the
MBBS in the same way, when actually the promotion was
granted to the petitioner, he was required to fulfill the criteria of
eligibility prevalent at such juncture.
6.3 It is the criteria of eligibility in vogue at the time when the
case of the petitioner for promotion was actually considered,
would matter. As already noted, the petitioner did not have the
eligibility prescribed in the amended regulation, which came
into force in the meantime as he did not have the requisite
number of publications to his credit which was indispensable
part of eligibility.
7. For all the aforesaid reasons, the challenge to the
judgment and order of learned single Judge stands meritless.
Both the Letters Patent Appeals are dismissed.
In view of dismissal of the Appeals, the Civil Application
will not survive, it is accordingly, disposed of.
(SUNITA AGARWAL, CJ )
(N.V.ANJARIA, J)
Mansi
