Dr. (Mrs.) Bratoti Moitra vs State Of Jharkhand Through Chief ...
2022 Latest Caselaw 201 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P. (S) No. 1217 of 2018


1. Dr. (Mrs.) Bratoti Moitra
2. Dr. Sandeep Kumar, S/o Dr. S.N. Prasad
3. Dr. Sandeep Kumar, S/o Sri Ram Dayal Prasad
4. Dr. Upendra Prasad Sahu
5. Dr. Mritunjay Mundu
6. Dr. Mukesh Kumar
7. Dr. Tarique Aziz
8. Dr. (Mrs.) Abha Kumari
9. Dr. Manoj Kumar Prasad
10. Dr. Abhay Kumar
11. Dr. (Mrs.) Rasmi Sinha
12. Dr. Ajit Dungdung
13. Dr. Rishi Tuhin Guriya
14. Dr. P.K. Chaudhari
15. Dr. (Mrs.) Sunanda Jha
16. Dr. Farookh Hassan
17. Dr. (Mrs.) Kiran Trivedi
18. Dr. Krishna Murari
19. Dr. (Mrs.) Neelam Nalini
20. Dr. Rajesh Kumar Chaudhury
21. Dr. Govind Kumar Gupta
22. Dr. (Mrs.) Archana Kumari
23. Dr. Sameer Toppo
24. Dr. Zahid M. Khan                                   ...         ...Petitioners
                         -Versus-
 1. State of Jharkhand through Chief Secretary, Government of Jharkhand, Project
     Building, Dhurwa, Ranchi
 2. The Additional Chief Secretary, Department of Health, Medical Education and
     Family Welfare, Nepal House, Doranda, Ranchi
 3. Rajendra Institute of Medical Science (RIMS), Ranchi through its Director,
     Bariatu, Ranchi                                    ...        ...Respondents
                                ------------

   CORAM:        HON'BLE MR. JUSTICE DR. S. N. PATHAK

For the Petitioners                            :Mr. Anil Kumar Sinha, Sr. Advocate.




                                                              :Mr. Srijit Choudhary, Advocate
            For the Respondent-RIMS                           : Dr. A.K. Singh, Advocate
            For the Resp.-State                               : Mrs. Vandana Singh, Sr. SC-III
                                              -------------
            CAV on 13.09.2021                                 Pronounced on 02.02.2022


Dr. S.N. Pathak, J.             The petitioners have approached this Court for setting aside the order

dated 07.03.2017 issued by the Director-cum-Member Secretary Promotion Committee, RIMS, Ranchi to the extent that the said office order grants promotion to the petitioners from the post of Assistant Professor to Associate Professor w.e.f. 01.07.2016 and not from the date on which the petitioners became eligible for promotion to the post of Associate Professor from Assistant Professor in accordance with the Assessment Promotion Scheme, 2014 formulated by RIMS, Ranchi, which was notified through Notification dated 08.09.2014, namely the Rajendra Institute of Medical Sciences Regulation, 2014. Further, prayer has been made for a direction upon the respondents to consider the case of the petitioners for promotion from the post of Assistant Professor to Associate Professor as they are eligible for the same in accordance with the Assessment Promotion Scheme, 2014 formulated by the RIMS, Ranchi through Notification dated 08.09.2014.

2. The case of the petitioners lies in a narrow compass. The petitioner Nos.1 to 7 & 21 were appointed and had joined as Assistant Professor, whereas rest of the petitioners were appointed and had joined either as Resident or Tutor or Registrar on different dates under the respondents. The petitioner Nos.9 to 20 were granted promotion to the post of Assistant Professor vide Letter No. 5744 dated 30.07.2008 issued by the Director, RIMS, Ranchi. The petitioner No.22 was granted promotion to the said post vide Letter dated 05.08.2008 and petitioner Nos.23 and 24 were granted promotion to the said post vide letter dated 23.08.2008 issued by the Department of Health, Medical Education and Family Welfare. It is specific case of the petitioners that as the case of petitioners were not considered for promotion, one of the petitioner herein moved before this Hon'ble Court by filing a writ petition being W.P.(S) No.3640 of 2015, praying inter alia for a direction upon the respondents to consider the case of the petitioner for promotion to the post of Associate Professor with effective from 2010 and thereafter to the post of Professor from the year, 2014 and to give all the benefits incidental and related to the said post with retrospective effect and this Court vide its order dated 16.12.2016 allowed the said writ petition with the following observation:

"..... Accordingly, it is hereby ordered that in terms of Regulation 11 (II)(i) an exercise for promotion of Assistant Professors in the Grade of Associate Professor shall be undertaken and completed on or before 15.03.2017. It was

further ordered that mandate under 2014 Regulations, which provides that Assessment Board shall meet each year for considering fitness of all persons who have completed the requisite length of service as on 30th of June of that year shall be followed each year. The Assessment Board shall hold its meeting preferably in the month of July, however, subject to just exceptions and all the members of the Board shall make themselves available for the Board's meeting.

5. In so far as, promotion to the post of Additional Professor and Professor is concerned, RIMS shall prepare a gradation list within three months and undertake an exercise for promotion in the grade of Additional Professor and Professor within next three months. This arrangement is only for the year, 2017. After 2017, it is expected that 2014 Regulations shall be adhered to religiously. The gradation list, which shall be prepared each year, shall be uploaded on the web-site and all objections shall be disposed of within 30 days. No objection shall be entertained 30 days after the publication of gradation list. Director, RIMS shall ensure facility for on-line submission of objections, besides an opportunity to submit written objections to the Assessment Board.

3. Thereafter, the petitioners were granted promotion from the post of Assistant Professor to Associate Professor w.e.f. 01.07.2016 vide Memo No. 1621 and Memo No. 1622 dated 07.03.2017 pursuant to which, the petitioners gave their joining to the post of Associate Professor, which was duly accepted vide Memo No.3177 dated 09.05.2017. it is specific case of the petitioners that they were eligible for promotion to the post of Associate Professor after three years in service as Assistant Professor in accordance with the Assessment Promotion Scheme formulation by RIMS, Ranchi, which was notified through Notification dated 08.09.2014 known as the Rajendra Institute of Medical Sciences Regulation, 2014, but they were granted promotion w.e.f. 01.07.2016. So far as, assessment promotion Scheme for the Medical Faculty of RIMS is concerned, the said regulation postulates under Schedule IV that 100% of Assistant Professors with three years of service be considered for promotion as Associate Professor each year without linkage to the vacancies in the grade of Associate Professor. As the respondents have granted promotion to the petitioners from the post of Assistant Professor to Associate Professor prospectively i.e. with effect from 01.07.2016 and not from the date of completion of three years of service as an Assistant Professor, is directly in contravention to the said Regulation, 2014 as also the Medical Council of India Rules, 1998. As the case of the petitioners were not considered for promotion w.e.f. the date on which they became eligible for promotion, they have approached this Court, challenging the impugned order dated 07.03.2017.

4. Assailing the impugned order dated 07.03.2017, Mr. Anil Kumar Sinha, learned Sr. counsel assisted by Mr. Srijit Choudhary, learned counsel, submitted

that the grant of promotion to the petitioners from prospective date is illegal, void and without jurisdiction as the petitioners were liable to be granted promotion from the date when they became eligible and not from a prospective date. The respondents are bound to consider the prayers of the petitioners for promotion to the next higher post in accordance with the Assessment Promotion Scheme, 2014 formulated by the Rajendra Institute of Medical Science, Ranchi, which was notified through Notification dated 08.09.2014. Learned Sr. counsel further submitted that the impugned order is contrary to Anusuchi-IV of Assessment Promotion Scheme for the medical faculty, RIMS, Ranchi because they were granted promotion w.e.f. 01.07.2016. Learned Sr. counsel draws the attention of the Court towards order passed in W.P.(S) No.3640/2015 and submitted that the respondent-RIMS failed to comply the order of this Hon'ble Court, it is an intentional wrong done by the respondents, delay is not explained even after order passed by this Hon'ble Court and delay is attributable to RIMS. The respondent-RIMS adopted the promotion policy of AIMS New Delhi, which was also published in Jharkhand Extra Ordinary Gazette dated 22.09.2014 in which it was mentioned that 'in cases where a junior in the combined seniority list is being considered for assessment, all persons senior to him/her in the seniority list will also be considered even though the seniors do not have the requisite years of service. The senior if found fit will be given national promotion with effect from the date of promotion of his/her junior and for purpose of pay etc., it would be granted to him/her w.e.f. the date of actual promotion i.e. the date on which he completes 4 years service on the grade at RIMS, provided the following two conditions are fulfilled:-

a. Probation should have been completed by him/her successfully. b. The total period of extension granted to join the service should not have exceeded 6 months.

5. The learned Sr. counsel further submitted that the respondent No.3 in its counter-affidavit at para 15 had admitted that as per provision contained in Clause No.1(1) read with Clause No.4 of the Schedule-IV of RIMS Regulation, 2014, the earliest date on which the petitioner could have been considered for promotion was 30.06.2015, however, this could not be done because the gradation list was not prepared and finalized by that date, now therefore, when the petitioners are eligible for promotion with respective due dates and have a right to be considered for promotion in light of the fact that similarly situated persons were promoted with retrospective effect in the year, 2008 while the petitioners herein were not even considered for promotion and as such, delay is attributable to the respondents. Due to the negligent and callous approach of the respondent-RIMS, the promotion of the petitioners were not granted even after orders passed by this Hon'ble Court in W.P.(S) No.3640 of 2015, which was not considered in its totality and thus amounts to contempt of Court. He further

submitted that in the absence of any Regulation during the period from 2002 to 2014 does not mean that the petitioners will loose their right to be considered for promotion in accordance with law with retrospective effect when they became eligible for promotion. Similarly situated persons were promoted in the year, 2008 itself with retrospective effect according to the Medical Council of India Guidelines and as such, the respondents ought to have considered the case of the present petitioners also as per Rules of Medical Council of India.

6. Learned Sr. counsel for the petitioners further submitted that the respondents have failed to explain that why there was delay of 12 years to prepare the RIMS Regulation, 2014 and even thereafter why they failed to implement the same. The respondents have not taken any steps to consider the case of the petitioners for promotion in absence of Regulation in the year when they became eligible for promotion. Prior to coming into effect of Rajendra Institute of Medical Science Regulation, 2014, service conditions of employees of RIMS were guided by Rajendra Institute of Medical Science Rules, 2002, wherein at Clause 15, it was clearly mentioned that :

सेवा की अन्य शर्तें -(1) जब तक अन्यथा उप बं धित ना हो राज्य सरकार के सेवकों पर लागू सेवा की सामान्य शतें वे तन यात्रा एवं दै धनक भत्ता सधहत भत्ते छु ट्टी वे तन योगदान का

समय धवदे श सेवा संबंिी शतों के संबंि में सरकारी धनयम तथा राज्य सरकार द्वारा

समय-समय पर धनगगत आदे श और धवधनश्चय अत्यावश्यक पररवतगन के साथ संस्थान के कमगचाररयों पर तब तक लागू रहें गे जब तक इस संबंि में अधिधनयम की िारा 32 के उपबं िो

के अनुसार संस्थान स्वयं अपनी धवधनयमावली तैयार नहीं कर लेता l

(2) संस्थान धनयमावली की अधिसूचना के 2 वर्षो के अंदर सेवा की सामान्य शते वे तन यात्रा

एवं दै धनक भत्ते शहीद छु ट्टी वे तन इधतहास से संबंधित अपनी धवधनयमावली बनाएगा

(3) संस्थान के सभी पद गैर व्यवसाधयक (नॉन प्रैक्टिधसंग) होंगे l

7. To buttress his argument, learned Sr. counsel for the petitioner places heavy reliance on the following judgment of Hon'ble Apex Court:-

I. P.N. Premachandran Vs. State of Kerala & Ors., reported in (2004) 1 SCC 245.

II. Union of India & Anr. Vs. Hemraj Sing Chauhan & Ors, reported in (2010) 4 SCC 290.

8. Per contra counter-affidavit has been filed.

9. Dr. A.K. Singh, learned counsel for the respondent-RIMS vehemently repudiates the submissions advanced by the learned Sr. Counsel for the petitioner and by supporting the impugned order, submitted that the main grievance of the petitioners is that they shall be granted promotion in accordance with the Assessment Promotion

Scheme, 2014 and as such, as per the provisions contained in Clause No.4 of this Promotion Scheme, the earliest date on which the petitioners could have been considered for promotion was 30th June, 2015. After completion of the assessment process as spelt out in Clause No.6 of the said Scheme, the earliest date with effect from which the petitioner could have been granted promotion was 1.07.2016, not a day earlier and as such, there is no illegality or infirmity in the impugned order. The impugned order regarding promotion to the petitioner w.e.f. 01.07.2016 is exactly as per the direction of this Hon'ble Court passed in W.P.(S) No. 3640/2015. The para 5 of the said order does not apply to the petitioners at all. It is meant for promotion from the post of Additional Professor to Professor. The petitioners herein have been granted promotion from the post of Assistant Professor to Associate Professor w.e.f. 01.07.2016. He further argues that holding eligibility to be considered for promotion w.e.f. a particular date does not give a right to claim promotion w.e.f. that date. So far as the claim of the petitioners to be granted promotion w.e.f. different dates of eligibility is concerned, a Co-ordinate Bench of this Hon'ble Court has already rejected this contention in case of promotion in RIMS in W.P.(S) No.344/2013 (Dr. Satish Chandra Vs. the State of Jharkhand & Ors.).

10. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that admittedly, the petitioners have been considered and granted promotion to the post of Associate Professor, taking into consideration the Assessment Promotion Scheme, 2014. The claim of the petitioners regarding promotion with retrospective effect as per the Rules of Medical Council of India as well as Rules, 2002 and also Rules of State Government is not tenable in the eyes of law. The petitioner have already been considered and granted promotion as per the provisions contained in Clause-4 of Assessment Promotion Scheme, 2014 after completion of the assessment process as spelt out in Clause 6 and as such, the earliest date w.e.f. which the petitioner could have been granted promotion was 01.07.2016. Earlier, similar issue fell for consideration before a co-ordinate Bench of this Court in W.P.(S) No.3640 of 2015 and Co-ordinate Bench of this Court clearly observed that :-

"4. ..... Accordingly, it is hereby ordered that in terms of Regulation 11 (II)(i) an exercise for promotion of Assistant Professors in the Grade of Associate Professor shall be undertaken and completed on or before 15.03.2017. It was further ordered that mandate under 2014 Regulations, which provides that Assessment Board shall meet each year for considering fitness of all persons who have completed the requisite length of service as on 30th of June of that year shall be followed each year. The Assessment Board shall hold its meeting preferably in the month of July, however,

subject to just exceptions and all the members of the Board shall make themselves available for the Board's meeting.

11. The said order has been fully complied with as the petitioners have been granted promotion on 15.03.2017 as per the order of this Court. It was never case of the petitioner at that point of time that promotion should be considered as per the Rules of State Government or Medical Council of India Rules and now when the petitioners have been granted promotion in view of the order of this Court and after accepting the same and joining the promoted post without any demur, they are now claiming promotion from retrospective date as per the Medical Council of India Rule as well as Rules, 2002 and State Government Rules., which is not acceptable to this Court. It is settled principles of law that the employees do not have the right of promotion rather employee has a right to be considered for promotion. Regarding right of consideration, the issue fell for consideration before the Hon'ble Apex Court in case of High Court of Delhi Vs. A.K. Mahajan, reported in (2009) 12 SCC 62, it has been held that:-

21. Now, we find no discussion in the whole judgment as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to the Writ Petitioner No. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential.

22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee.

23. In the present case, it is not as if the concerned Writ Petitioner No. 8 was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, it is incorrect to say that the amendment had the effect of denying him the benefit of consideration, which was available to him. He did continue with that benefit and was actually benefited under the same. This is apart from the fact that the concept of consideration is an uncertain concept. One can understand a pension amount which is already decided or the promotion which is already granted or the seniority which is already conferred upon or the substantive appointment which is already made. If the amendment has the effect of denying this crystallized promotion, seniority or substantive appointment, then certainly the amendment could be held as arbitrary. But that has not happened here. Here, no promotion was already granted or seniority

already fixed, or any substantive appointment already made were affected by the retrospective amendment. The observations in above quoted para 24 have to be understood in that sense.

12. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. A co-ordinate Bench of this Court while dismissing a similar writ petition has reiterated the same that 'I am of the opinion that the eligibility of a candidate entitles the candidate only for consideration of his case for promotion and it can not be said that the promotion must be given to the candidate from the date on which the candidate became eligible for the said promotion. It is well settled that what can be claimed by a candidate is only a right to be considered for promotion. In the instant case, the petitioners have already been considered and granted promotion, which was accepted by the petitioners, no right has accrued to them to claim the said promotion from a particular date after promotion order has been given effect to. This Court is in full agreement with the submissions of the learned counsel for the respondent-RIMS that the petitioners have been granted promotion as per the Assessment Promotion Scheme, 2014 and petitioners have no right as to from which date they should be granted promotion and any claim based on vague, nebulous and non-specific prayers cannot be entertained by this Court. It is settled law that promotion cannot be claimed with the aid of Article 16 inasmuch as no incumbent has a right to be promoted and it is because of this a chance of promotion has not been regarded as encompassed within the right visualized by Article 16.

13. Further, since the Assessment Promotion Scheme, 2014 came into force w.e.f. its publication in the Jharkhand Gazette i.e. on 08.09.2014, claim of the petitioners for promotion from a date earlier to 08.09.2014 is baseless & not maintainable in the eyes of law in view of the settled legal proposition that Rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention to the contrary. The Hon'ble Apex Court in its recent judgment passed in case Assistant Excise Commissioner Kottayam & Ors. Vs. Esthappan Cherian & Anr., reported in (2021) 10 SCC 210, has held thus:-

16. There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary. In CIT v. Vatika Township (P) Ltd. [CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1] this Court, speaking through a Constitution Bench, observed as follows : (SCC pp. 21-22, paras 28-29)

"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."

17. Another equally important principle applies in the absence of express statutory authorisation, delegated legislation in the form of rules or regulations, cannot operate retrospectively. In CIT v. M.C.

Ponnoose [CIT v. M.C. Ponnoose, (1969) 2 SCC 351 : (1970) 1 SCR 678] this rule was spelt out in the following terms : (SCC p. 354, para 5).

"5. ... The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature

it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the persons or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect."

14. Further, the Hon'ble Apex Court in case of Sushil Kumar Vs. State of Haryana & Ors., reported in JT 2022 (1) SC 257, has held thus:

" whether subsequent reconsideration being on the very same outstanding performance, appellant was entitled to retrospective promotions. Held, no merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. Appellant's accolades may not have made a fit case to be recommended in the year, 2004 but the same could make a fit case to be considered in a subsequent year. Further, as the matter falls in the domain of the IF and the CDPC, it must be left to the discretion of the said authorities."

15. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement and taking into consideration the fact that the petitioners have already been granted promotion as per Assessment Promotion Scheme, 2014 and since they had accepted the same without any demur, this Court is not inclined to interfere with the instant writ petition. Accordingly, writ petition stands dismissed.

(Dr. S. N. Pathak, J.)

Punit /-