Jharkhand High Court
Dr. Manoranjan Nath Sinha vs The State Of Jharkhand Through Its ... on 27 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 1180 of 2019
----------
Dr. Manoranjan Nath Sinha ......... Petitioner.
Versus
1. The State of Jharkhand through its Principal Secretary, Department of
Health, Medical Education and Family Welfare, Ranchi.
2. The Deputy Secretary, Department of Health, Medical Education and
Family Welfare, Ranchi.
3. The Superintendent, Patliputra Medical College Hospital, Dhanbad.
4. The Joint Secretary, Department of Health, Medical Education and
Family Welfare, Ranchi
.......... Respondents.
----------
CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Mr. Shresth Gautam, Advocate
For the Respondents: Mr. Mukesh Kumar Sinha, Sr. SC
Mr. Shadab Bin Haque, AC to Sr. SC
-----------
16/ 27.09.2021 Heard the parties.
Prayer:
2. Petitioner has approached this Court with a prayer for quashing the office
order contained in memo no. 420 dated 28.02.2019 (Annexure-7), whereby the
petitioner has been relieved w.e.f. 28.02.2019 and has been directed to handover
charge to a person nominated by the Head of the Department and has also been
directed to give his joining at Headquarters.
Petitioner has further prayed for declaring that the letter dated 20.02.2019
issued by the Deputy Secretary, Department of Health, Medical Education and
Family Welfare is not applicable to the petitioner as the petitioner is not a Senior
Resident and also declaring that the petitioner stood absorbed as a Lecturer under
the rules of the year 1997.
Factual Matrix:
3. The facts of the case lies in a narrow compass. The petitioner having the
degree of M.B.B.S. was initially appointed by the erstwhile State of Bihar to the
post of Medical Officer, Primary Health Centre, Siswan, Dist. Siwan on
11.03.1988 and pursuant to his appointment, he started discharging his duties.
Meanwhile, in the year 1994, a fresh advertisement was floated by the State of
Bihar for appointment of Resident Medical Officer in different Medical Colleges
of Bihar and at Clause 15 of the said advertisement, it was clearly mentioned that
the eligibility shall be decided on the basis of rules existing as on 31.01.1993 and
further Clause 5(e) provides that appointment of Resident is on tenure basis
which is for a period of three years. It is the case of the petitioner that aforesaid
appointment process was carried on in compliance of order passed by Hon'ble
Patna High Court in CWJC No. 6815 of 1994 (Dr. Arun Kumar Sinha Vs. State of
Bihar) and also because of the ultimatum given by the Medical Council of India.
Pursuant to the said advertisement, petitioner applied for the post of Resident and
after verifying his certificates and testimonials, he was issued appointment letter
dated 21.05.1997. In the said appointment letter, it was mentioned that petitioner
is being appointed under the panel existing as on 1993 and his name figures at Sl.
No. 2 under the panel for the post of Resident Doctor in the Department of
Radiology vide notification dated 21.05.1997. Pursuant to his selection and
issuance of appointment letter, the petitioner gave his joining on the post of
Resident Doctor and thereafter, he was continuously working on the said post.
4. It is the further case of the petitioner that on 21.05.1997, the State of Bihar
framed Bihar Medical Education Service Admission to Cadre and Cadre Posts
Rules, 1997 (for short "1997 Bihar Rules"). At Clause 5(Kha) of the said Rules
provides that posts of Resident Doctor and Registrar shall be converted to the
post of Lecturer. Rule 5(ga) stipulates that the persons working on the said post
will have to give an option in writing to be absorbed in the Bihar Medical
Education Service Cadre, else they would be repatriated to their original cadre.
The petitioner gave his option for being absorbed in the Bihar Medical Education
Service Cadre to the Superintendent, PMCH, Dhanbad on 28.09.2000 and as
such, his cadre was converted into the cadre of Lecturer under the 1997 Bihar
Rules. After creation of State of Jharkhand, the respondents on 27.02.2004
decided that the Registrars and Resident Doctors working in Jharkhand after
21.05.1997 against the 1993 panel shall stand converted and absorbed as
'Lecturer'. It is the further case of the petitioner that again on 07.05.2015, the
respondent issued a notification stipulating that as per the 1997 Bihar Rules, the
Resident Doctors/ Tutors currently working in PMCH, Dhanbad as well as MGM,
Jamshedpur stand converted to the post of Lecturer. It is the specific case of the
petitioner that as per 1997 Bihar Rules, he was working as 'Lecturer' and not as
'Senior Resident' and further, the pay-scale of Senior Resident is Rs. 9300-34800
with Grade pay of Rs.5400, which is different from the pay-scale of the petitioner,
which is Rs.37,400-67,000 with Grade Pay of Rs.10,000.
5. However, to his utter shock and surprise, the respondent No. 3 issued an
office order dated 28.02.2019, whereby the petitioner has been treated as Senior
Resident and has been relieved from his post at PMCH, Dhanbad and further he
has been directed to handover the charge to the person nominated by the Head of
the Department and has also been directed to give his joining at the Headquarters.
Aggrieved by the said transfer order, petitioner has knocked the door of this
Court.
Arguments Advanced by learned counsel for the petitioner:
6. Mr. Shresth Gautam, learned counsel appearing for the petitioner submits
that the impugned transfer order is illegal, arbitrary and dehors the provisions of
the 1997 Bihar Rules and the respondents have wrongly treated the petitioner as
Senior Resident whereas the petitioner has already been converted/ absorbed as
Lecturer under Rule 5 (Kha) of the 1997 Bihar Rules. Learned counsel further
argues that as per Rule 5 (Gha) of the said Rules, an option was required to be
given by all incumbents of the parent cadre i.e. Bihar Health Services working in
different Colleges, either to stay in the present cadre or to join the newly created
Bihar Medical Education Service. The petitioner gave his option for remaining in
the Bihar Medical Education Service cadre. Learned counsel further argues that
these two issues of option and the effect of the 1997 Bihar Rules fell for
consideration before Hon'ble Patna High Court in C.W.J.C. No. 5577 of 1997
wherein it was hold that those incumbents who had given the option shall be
treated as lecturer by operation of law. Learned counsel further argues that in
view of notification No. 77(9) dated 07.05.2015 and memo No. 155 dated
01.09.2015 issued by the Govt. of Jharkhand, the services of the petitioner stood
absorbed as a Lecturer w.e.f. 07.07.1997. Learned counsel further argues that
from perusal of the impugned office order dated 28.02.2019 it is apparent that the
same has been issued in compliance of the order issued by respondent no. 2 on
20.02.2019 whereby the respondent no.2 directed the respondent no. 3 to relieve
the 'Senior Resident' who are posted for more than three years and since the
petitioner was absorbed/ converted as 'Lecturer' the said transfer order is not
applicable to the case of the petitioner. Learned counsel further argues that the
respondents have not at all considered the earlier notification of 1997 whereby it
has been decided that the Registrars and Resident Doctors working in Jharkhand
after 21.05.1997 against the 1993 panel shall stand converted and absorbed as
'Lecturer' and has illegally and arbitrarily, taking shelter of 2018 Rules, the
impugned orders have been issued.
7. Learned counsel further argues that petitioner cannot be said to be covered
under the purview of 2018 Rules, which ex-facie have prospective application
and protects the service conditions of the petitioner under Rule 18 thereof.
Learned counsel further argues that the only issue that have been raised by the
respondents in their counter-affidavit is that the petitioner is not holding the
eligibility for the post of Lecturer. In reply to the same it is stated that petitioner is
holding the eligibility as required at the time of appointment. The Rule 5(Gha) of
1997 Bihar Rules itself provides that the eligibility for an incumbent opting for
the Bihar (now Jharkhand) Medical Education Service Cadre shall be the
eligibility existing at the time of appointment. Learned counsel lastly argues that
action on the part of the respondents is otherwise bad in law and violative of
fundamental and legal rights of the petitioner and is contrary to public interest.
8. To buttress his arguments, learned counsel places heavy reliance on the
following judgments:
(i) Junior Medical Teachers Association, Bihar Vs. State of Bihar
[1998 SCC Online Pat. 29];
(ii) P. Ganeshwar Roa Vs. State of A.P. [1988 Supp. SCC 740];
(iii) N.T. Devin Katti Vs. Karnataka Public Service Commission
[(1990) 3 SCC 157].
Arguments advanced by learned counsel for the respondents:
9. Per contra counter-affidavit has been filed. Mr. Mukesh Kumar Sinha,
learned Sr. SC assisted by Mr. Shadab Bin Haque, learned counsel appearing for
the respondent-State vehemently opposes the contention of learned counsel for
the petitioner and argues that for appointment on the post of Lecturer, Post
Graduate degree in specified subject is required, however, the petitioner was
having the degree of MBBS only which is a Graduate degree and hence, in view
of directives issued by Medical Council of India, the cadre of the petitioner was
treated as Senior Resident. Learned counsel further argues that in compliance of
order dated 07.01.2020, passed by this Court in the instant case and upon
submission of application by the petitioner before the respondent No.1, the
joining of the petitioner has been accepted vide letter dated 21.01.2020 and the
petitioner has been directed to be present before the Health Department and mark
his attendance under Biometric System. Learned counsel further argues that since
there is no sanctioned post of Medical officer in the Headquarters as such, no
work can be taken from the petitioner and it will not be possible to make payment
of salary to the petitioner till he is posted against a substantive post. Learned
counsel further argues that petitioner is simply having a degree of MBBS and as
per norms of MCI, he cannot be accommodated against the post of Lecturer for
which a Post Graduate Degree in the concerned subject is essential. Learned
counsel further argues that petitioner was appointed on the post of Resident
(Radiology) as back as on 21.05.1997 for 3 years but somehow petitioner
continued on the post till 28.02.2019, the date on which he was relieved by the
respondent No. 3 in compliance of notification dated 20.02.2019. Learned
counsel accordingly submits that there is no merit in the instant writ application
and hence, the same deserves to be dismissed out rightly.
Findings of the Court:
10. Be that as it may, having heard the rival submissions of the parties and
upon perusal of the documents brought on record, this Court is of the considered
view that the case of the petitioner needs consideration. Admittedly, petitioner
was appointed in the year 1994 and at that time, minimum qualification for
appointment to the post of Medical Officer was MBBS only. Thereafter, on
21.05.1997, a new Rule namely Bihar Medical Education Service Cadre and
Recruitment Rules, 1997 was framed by the then unified State of Bihar which
formed a new cadre i.e. Bihar Medical Education Service cadre. Rule 5(Kha)
of the said Rules provides that all Resident Doctors and Registrar and those
working on Tenure basis shall be re-designated as Lecturer. As per Rule 5 (Gha)
of the said Rules, an option was required to be given by all incumbents of the
parent cadre i.e. Bihar Health Services working in different Colleges, either to
stay in the present cadre or to join the newly created Bihar Medical Education
Service. The petitioner gave his option for remaining in the Bihar Medical
Education Service cadre. Further, the Hon'ble Patna High Court in C.W.J.C. No.
5577 of 1997 has held that those incumbents who had given the option for
remaining in the Bihar Medical Education Service cadre, shall be treated as
lecturer by operation of law and in view of provisions enshrined under the Bihar
Medical Education Service Cadre and Recruitment Rules, 1997. Thereafter, vide
notification No. 77(9) dated 07.05.2015 and memo No. 155 dated 01.09.2015
issued by State of Jharkhand, the services of the petitioner was absorbed as a
Lecturer w.e.f. 07.07.1997.
11. It is the specific contention of learned counsel for the petitioner that the
2018 Rules is not applicable in the case of petitioner and as such, he cannot be
treated as Senior Resident rather, he should be treated as Lecturer by virtue of
notification of the State of Bihar issued in the year 1997 and by virtue of
operation of law. This Court is in Agreement with arguments advanced by learned
counsel for the petitioner. The issue fell for consideration before the Hon'ble
Patna High Court in case of the Junior Medical Teachers Association, Bihar
through its Secretary and Ors. Vs. State of Bihar & Ors. (supra) and the
Hon'ble Court vide its order dated 14.01.1998 allowed the said writ petition
observing therein that:
"7. The petitioner assert that under clause-5 (Gha) all the
officers working on the aforesaid posts from before shall give
their option in writing within the date mentioned for
remaining in the Medical Education Cadre. Those who will
not give their option in writing shall be reverted to the
original cadre. It has also been stated that all those officers
who do not have requisite qualification and teaching
experience on the date of their appointment on the post
mentioned in the said rule shall be reverted to the original
cadre of Bihar Health Services.
8. In this context the petitioners are aggrieved by the
impugned order at Annexure-3 by which it has been stated
that the persons holding tenure posts of Resident
Medical/Surgical Officer/Registrar on completion of their
tenure shall automatically be reverted back to the basic
Health Services Cadre. The petitioners are objecting the said
Clause in the impugned order at Annexure-3. The petitioner's
contentions are that since they are continuing in the post of
Resident Medical/Surgical Officer/Registrar on the day when
rule came into force, and thereafter they have exercised their
option to remain in the Medical Education Cadre, they
become Lecturer by operation of law. This right which has
been given to them under the rule framed under Art. 309 of
the Constitution and cannot be taken away by the executive
direction contained in Annexure-3.
10. This Court is of the opinion that those petitioners who are
Resident Medical Officers and Registrars on the date of
coming into force of the said rule, namely, 21st May 1997 and
those who have exercised their option, they become lecturer
by operation of law, and in their cases Annexure-3 will not
apply. Annexure-3 is therefore modified to the extent indicated
above."
12. It is also not in dispute that petitioner had given option to remain in Bihar
Medical Education Service cadre to the Superintendent, PMCH, Dhanbad on
28.09.2000 and as such, his cadre was converted to the post of Lecturer under the
1997 Bihar Rules. Thereafter, the respondents on 27.02.2004 took a decision that
Registrars and Resident Doctors working in Jharkhand after 21.05.1997 against
the 1993 panel shall stand converted and absorbed as 'Lecturer'. The same also
finds strength from notification dated 07.05.2015 with a clear stipulation that as
per 1997 Bihar Rules, the currently working Resident Doctors/ Tutors in PMCH
Dhanbad as well as MGM Jamshedpur stand converted to the post of Lecturer
and not as a Senior Resident. Even the pay-scale of Lecturer on which petitioner
was working is Rs.37,400-67,000 with Grade Pay of Rs.10,000, which is different
from that of 'Senior Residents' whose pay-scale is Rs.9300-34800 with Grade
pay of Rs.5400. The petitioner is mainly aggrieved by the action of the
respondent wherein by treating him to be a Senior Resident, he has been relieved
from the post of Lecturer at PMCH at Dhanbad to give joining at the
Headquarters. The 2018 Rules does not apply in the case of the petitioner.
The arguments advanced by the learned counsel for the respondent-State
that petitioner was not having the requisite qualification and as such, he cannot be
absorbed as a Lecturer is not acceptable to this Court as the appointment of the
petitioner was never under challenge and he was appointed on the basis of open
advertisement and selection. The petitioner continued to work for 22 long years
on the post of Lecturer and as such, the right which has been accrued to the
petitioner by operation of law, cannot be snatched away by the Executive Orders.
The law is well settled that any rule cannot operate as retrospective unless it is
mentioned in expressed language.
The Hon'ble Apex Court in case of N.T. Devin Katti Vs. Karnataka
Public Service Commission (supra):
"11. There is yet another aspect of the question. Where
advertisement is issued inviting applications for direct
recruitment to a category of posts, and the advertisement
expressly states that selection shall be made in accordance with
the existing rules or government orders, and if it further
indicates the extent of reservations in favour of various
categories, the selection of candidates in such a case must be
made in accordance with the then existing rules and
government orders. Candidates who apply, and undergo written
or viva voce test acquire vested right for being considered for
selection in accordance with the terms and conditions
contained in the advertisement, unless the advertisement itself
indicates a contrary intention. Generally, a candidate has right
to be considered in accordance with the terms and conditions
set out in the advertisement as his right crystallises on the date
of publication of advertisement, however he has no absolute
right in the matter. If the recruitment Rules are amended
retrospectively during the pendency of selection, in that event
selection must be held in accordance with the amended Rules.
Whether the Rules have retrospective effect or not, primarily
depends upon the language of the Rules and its construction to
ascertain the legislative intent. The legislative intent is
ascertained either by express provision or by necessary
implication; if the amended Rules are not retrospective in
nature the selection must be regulated in accordance with the
rules and orders which were in force on the date of
advertisement. Determination of this question largely depends
on the facts of each case having regard to the terms and
conditions set out in the advertisement and the relevant rules
and orders. Lest there be any confusion, we would like to make
it clear that a candidate on making application for a post
pursuant to an advertisement does not acquire any vested right
of selection, but if he is eligible and is otherwise qualified in
accordance with the relevant rules and the terms contained in
the advertisement, he does acquire a vested right of being
considered for selection is accordance with the rules as they
existed on the date of advertisement. He cannot be deprived of
that limited right on the amendment of rules during the
pendency of selection unless the amended rules are
retrospective in nature."
13. From the counter-affidavit filed by the respondents it appears that a
specific plea has been taken that since petitioner does not fulfill the requisite
qualification i.e. Post Graduate Degree in the relevant field and also failed to
enhance his qualification during his service tenure, he cannot be treated as
Lecturer. The entire arguments advanced by learned counsel for the respondent-
State is based on the aforesaid premise, which are not acceptable to this Court on
the ground that 2018 Rules is not applicable in the case of the petitioner. As the
petitioner becomes a lecturer by operation of law, letter dated 20.02.2019 issued
by the Deputy Secretary, Department of Health, Medical Education and Family
Welfare is not applicable to the petitioner since petitioner cannot be treated as a
Senior Resident.
14. Earlier this petitioner along with similarly situated Doctors moved this
Court in W.P.(S). No. 595 of 2002 and the Hon'ble Court vide its order dated
14.01.2004 was pleased to dispose of the said writ petition observing therein that,
"If such representations are filed by the petitioners, the Secretary shall consider
the cases of the petitioners and after enquiry into the matter, shall take a decision
and pass an appropriate reasoned order, and if it is found that the petitioners
were holding teaching post on 21.05.1997 and had given option for their
retention in teaching cadre in terms of 1997 Rules, he shall issue appropriate
orders in that regard ..............". Admittedly, petitioner was holding teaching
post on 25.09.1997 and had also given option for retention in teaching cadre in
terms of 1997 Rules.
15. As a sequitur to the aforesaid rules, regulations, judicial pronouncements
and legal propositions, this Court declares that the letter dated 20.02.2019 is not
applicable to the petitioner as he is not a Senior Resident. Further letter No. 420
dated 28.02.2019 (Annexure-7) is hereby quashed and set aside.
16. Since this Court vide its order dated 07.01.2020 observed that joining of
the petitioner shall be subject to outcome of the present writ application, the
respondents are directed to act accordingly in view of the observations made
therein and pass appropriate orders in that regard.
17. Resultantly, the instant writ petition stands allowed.
(Dr. S.N. Pathak, J.)
Kunal/-
