Jharkhand High Court
Dr. Priyanka Kumari; vs The State Of Jharkhand; on 24 March, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3497 of 2020
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W.P.(S) No. 4433 of 2020
In W.P. (S) No. 3497 of 2020
1. Dr. Priyanka Kumari;
2. Dr. Anubhuti;
3. Dr. Anjani Kumar Shukla;
4. Dr. Neerav Dutta;
5. Dr. Tanya khaitan;
6. Dr. Sweta Tekriwal;
7. Dr. Vishal;
8. Dr. Pratik;
9. Dr. Rahul Kumar Singh;
10. Dr. Rishav Singh;
11. Dr. Manish Gautam;
12. Dr. Bhawana Gupta;
13. Dr. Ruchika Gupta;
14. Dr. Rohit; ... ... ... PETITIONERS
- VERSUS-
1. The State of Jharkhand;
2. The Principal Secretary, Department of Health, Medical
Education and Family Welfare, having its office at Nepal
House, P.O. and P.S. - Doranda, District - Ranchi;
3. The Director, Rajendra Institute of Medical Science (RIMS),
P.O. and P.S. - Bariatu, District - Ranchi.
... ... ... RESPONDENTS
4. Dr. Tapan Kumar Mandal
5. Dr. Sparsh Bhaskar Srivastava
6. Dr. Priyaranjan;
7. Dr. Sugandha Verma
... ... ... INTERVENORS/RESPONDENTS 4 TO 7
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Dr. Barun Dev Kumar ... ... ... PETITIONER
-VERSUS-
1. The State of Jharkhand;
2. The Principal Secretary, Department of Health, Medical
Education and Family Welfare, having its office at Nepal
House, P.O. and P.S. - Doranda, District - Ranchi;
3. The Director, Rajendra Institute of Medical Science (RIMS),
P.O. and P.S. - Bariatu, District - Ranchi.
... ... ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Abhishek Sinha, Advocate
Mr. Raunak Sahay, Advocate
For the Respondents (RIMS) : Dr. Ashok Kumar Singh, Advocate
Mr. Shivam Singh, Advocate
Mr. Madhu Priya, Advocate
For the Respondents - State : Ms. Priyanka Boby, AC to GA-I
Ms. Shilpi, AC to SC (Mines)-II
For the Intervenors Mr. Deepak Kumar, Advocate.
Mr. Sanjay Kumar Pandey No.2, Adv
C.A.V. ON 10.03.2022 Pronounced on 24.03.2022
Dr. S.N. Pathak, J The issues involved in both the writ petitions are same,
similar and identical and as such they have been tagged and heard
together on various dates and are being disposed of by this
common order.
PRAYER
2. The writ petitioners in both these writ petitions have
knocked the door of this Court for a direction upon the respondents
to regularize their services to the post of Tutor under the
respondents - RIMS and allow them to work to the said post.
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FACTS
OF THE CASE
3. As per factual matrix, an advertisement no. 910, dated
19.02.2016 and advertisement no. 2250, dated 28.03.2017 were
floated for appointment of Tutors in various Department of RIMS.
Being eligible, petitioners applied for the same and after following
the due procedures, they were appointed upon found fit vide
appointment letters dated 06.12.2017 to the tenure post of Tutor in
the Pay Scale of Rs.9.300 - 34,800 + Grade Pay of Rs.5,400 for a
period of three years. Petitioners fulfill all the requisite educational
and other qualifications and since the date of their appointments,
they are discharging their duties to the said teaching post of Tutor
in different Departments (Dental Institute) under the respondent -
RIMS.
4. It is case of the petitioners that in Clause 19(ii) of the
Notification dated 22.09.2014, issued in the Jharkhand Gazette, it
has been mentioned that persons shall be appointed for a fixed
tenure of three years. As per Clause (iv) of the said Clause-19, it is
evident that the persons working on temporary basis or on adhoc
basis, defined in Clause (iii) and (iv) of the Clause-19, shall not
claim for regularization in the Institute. From the appointment
letters issued by the respondents, it is evident that at Sl. No. 1, the
post on which petitioners have been appointed, is a Tenure post and
is for a period of three years. From the said appointment letter, it is
clear that petitioners are not working on temporary basis or on
adhoc basis.
5. It is further case of the petitioners that a resolution dated
11.05.2015 was issued by the respondents - State in which at
column-1, it has been clearly stated that the post of Tutor comes
under the category of teaching post and the same is a sanctioned
post. Petitioners are concerned with the post of Tutor, which is
reflected at Sl. No. 5 of the said Resolution.
6. Petitioners apprehended that they may be terminated
from the service upon completion of three years of tenure from the
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date of their appointment and as such they made representation
before the respondents for redressal of their grievances but no
decision has been taken and hence this writ petition.
ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS
7. Mr. Anil Kumar Sinha, learned Sr. Counsel appearing on
behalf of the petitioners assisted by Mr. Abhishek Sinha and Mr.
Raunk Sahay submitted that admittedly the post of Tutor comes
under the Teaching Post. As per Resolution dated 11.05.2015,
there are two categories of posts - One Teaching and another Non-
Teaching and all the posts are permanent in nature, as would be
evident from the advertisements dated 19.02.2016 and 28.03.2017
itself. It is in the year 2016 and 2017, the advertisements had been
issued and petitioners had no options but to accept terms and
conditions of the advertisement. Learned Sr. counsel further argued
that the posts are sanctioned posts and petitioners have been
continuously working after being selected and there is no
complaint from any corner and as such their cases may be
considered for regularisation.
8. Learned Sr. Counsel further argued that the post of Tutor
is an inductive post in RIMS. Petitioners are qualified Dentists and
have also completed their Post Graduate in different Branches of
Dentistry and as such their services will be governed by the Rules
framed by the Dental Council of India and not by Medical Council
of India and/or any Senior Residency Scheme. Learned Sr. Counsel
further argued that the Dental Council of India has clearly
differentiated between the post of Tutor and Sr. Residents as they
are having different nature of duties. The Dental Council of India
Rules clearly states that the post of Tutor is a teaching post and for
appointment to the post of Professor, Reader and Lecturer, which
are also teaching post, the minimum qualification is BDS with one
year experience. Rule 2014 of the RIMS Rule is not applicable in
case of the petitioners and this is a fit case for their regularisation.
RIMS is an autonomous body and under the RIMS Act and Rules,
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2002, there is no provision for tenure post and since petitioners are
working against the sanctioned posts, their services may be
regularised. The RIMS cannot be allowed to adopt pick and choose
method in the matter of retention and/or termination of service of
Tutors in different wings as in Nursing College of RIMS, the post
of Tutor is permanent and regular whereas in the case of Dental
College, the petitioners have been denied regularisation. In the
other States also, the post of Tutor is regular in Dental Colleges.
The Rules framed by Dental Council of India has been given
complete go-bye in the State of Jharkhand and for that petitioners
cannot be made to suffer. Learned Sr. Counsel submitted that
'Beggars cannot be choosers and have no bargaining powers when
it comes for their livelihood' and further submitted that at the time
of appointments, petitioners had no options but to accept the terms
of appointment.
9. To buttress his arguments, learned Sr. Counsel for the
petitioners heavily relied upon the following Judgments:
(i) Central Inland Water transport Corpn. Ltd. Vs. Brojo Nath
Ganguli reported in AIR 1996 SC - Vol. II, Page - 1571
(Relevant para-90, 92 and 113);
(ii) State of Jharkhand Vs. Binay Kumar reported in 2015 92)
JBCJ 215 (relevant para-6, 7 and 9]
(iii) Pani Ram Vs. Union of India and others passed in Civil
Appeal No. 2275 of 2019
ARGUMENTS ADVANCED ON BEHALF OF THE
RESPONDENTS - RIMS
10. Dr. Ashok Kumar Singh, learned counsel appearing on
behalf of the RIMS vehemently opposes the contention of learned
Sr. Counsel appearing on behalf of the petitioners and submitted
that petitioners in the instant case were fully aware of the terms and
conditions and rules envisaged in the advertisement and it cannot
be said that they were prejudiced. The advertisements and selection
were made against the sanctioned tenure teaching post and at this
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stage, upon completion of their tenure, it is not open for the
petitioners to turnaround and challenge the advertisement which
they have accepted earlier in toto, the same is not tenable in the
eyes of law. In the instant case, it is crystal clear that advertisement
and selection was made only against the tenure post, which after
expiry of term, cannot be extended and as such, writ petitions
deserve to be dismissed. Petitioners have failed to point out any
illegality or any infirmity in the entire process. Petitioner have tried
to make out a case for their regularization, which is not at all
tenable in view of the fact that it will stop the chances of new
incumbent to get a chance of training etc.
11. Harping upon the RIMS Regulations, 2014, learned
counsel submitted that the post of Tutor is a tenure post for three
years only and the same cannot be blocked for future as the new
incumbents have to come and go. The petitioners cannot deny that
in their appointment letters itself it was clearly mentioned that the
post is a tenure post for a period of three years and any claim
for promotion or extension of tutorship on any ground will not
be entertained. It is petitioners who have willingly accepted the
terms and conditions incorporated in the appointment letters and
now at this stage they cannot bargain with the management. The
new Tutors/ Residents/ Senior Residents/ Registrars are to be
recruited through a fresh selection process every year and replacing
the old one who demit the posts upon completion of fixed tenure of
three years. The outgoing Tutors/ Residents/ Registrars/ Senior
Residents can apply afresh for appointment against the sanctioned
vacant entry level posts of teaching cadre i.e. Assistant Professor
through a selection process based on open advertisement. The post
of Tutor is not the feeder post of an Assistant Professor. There is no
promotional avenue or hierarchy of promotion and/or chances of
regularization of Tutors. There is no scheme of promotion from the
post of Tutor to any higher grade/ rank and the Tutors must move
out at the expiry of fixed tenure of three years and be available to
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be appointed as an Assistant Professor through open competition,
not through promotion. There is regular replacement system of
Tutors/ Residents which ensures that the new batch of Post
Graduate students get an opportunities to be trained as a Tutors and
be available to be appointed as an Assistant Professor. If the
existing Tutors/ Residents like the petitioners do not move out
upon completion of three years, there will be no opportunity for
training of the new batches of Post Graduate Students as Tutors/
Senior Residents and then will create a serious problems as it
would block the opportunities for the new incumbents. Once such
Tutors/ Senior Residents are relieved from RIMS after training of
three years, the next batch of fresh Post Graduate Students can get
opportunity to be trained as Specialists to the post of Tutors/ Senior
Residents and this cycle must be kept going uninterrupted. In this
process a sufficient number of trained specialists can be produced
to cater the health needs of the Society. These systems have been
adopted in order to meet the need for a Premier Post Graduate
Medical Institute of the State. RIMS has to produce sufficient
numbers of trained medical human resources to cater needs of the
State through on the job training. They could then be given an
opportunity to work in different districts and newly created medical
institutions. The main goal behind these tenure posts is to create
trained medical personnel to cater the health needs of the people of
Jharkhand. Once the tutors are allowed to continue till their age of
retirement, then the seats will be blocked and the others would not
be able to get an opportunity of getting trained as a specialists after
their post graduation whereas if the system of three years duration
is continued, within a period of thirty years, the Institute would be
able to generate at least 600 specialist Tutors/ Senior Residents if
the strength of 20 tutors is taken into account, which will be in a
larger public interest.
12. Learned counsel further argued that claim of the
petitioners for continuation in service beyond the period of three
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years is against the relevant statutory provisions and terms and
conditions incorporated in the advertisement and letters of
appointment. Learned counsel further argued that a fresh batch of
Tutors are waiting for their turn as the selection process had
already been started and interview is over but the results could not
be published because of status quo granted by this Court and as
such, this writ petition may be dismissed with a direction to
complete the process of selection at the earliest for which interview
has already been completed, so that future of aspirants may not be
affected and best facilities could be provided to the people of
Jharkhand.
13. Learned counsel further argued that the writ petitions are
not maintainable in view of the fact that petitioners had participated
in the selection process and after being appointed against the tenure
post of three years, they are asking for regularization which is not
sustainable in the eyes of law. A tenure teaching post cannot be
made permanent as there is no hierarchy for any further promotion
against the said tenure post of Tutor. Learned Counsel has relied
upon the Judgments as under:
(i) S.C. Singh Vs. State of Uttarakhand and others reported in
(2019) 2 SCC 364 [Para-10 and 14];
(ii) Raj Balam Prasad and others Vs. State of Bihar and others
reported in (2018) 12 SCC 50 [Para-18 to 23];
(iii) Central Electricity Supply Utility of Odhisa Vs. Dhobei
Sahoo and others reported in (2014) 1 SCC 161 [para-49];
(iv) State of Maharashtra and others Vs. Anita and others
reported in (2016) 8 SCC 293 [Para-2, 14, 15 and 16]
(v) Pragati Mahila Samaj and another Vs. Arun, son of
Laxman Zurmure and others reported in (2016) 9 SCC 255
[Para-19 to 26];
(vi) R. Venugopal Vs. Union of India reported in (2008) 5 SCC
[Para-32];
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(vii) Secretary, State of Karnataka Vs. Uma Devi reported in
(2006) 4 SCC 1 [Para-43 and 47];
ARGUMENTS ADVANCED ON BEHALF OF STATE
14. Ms. Priyanka Boby, AC to learned GA-I and Ms. Shilpi,
AC to learned SC (Mines)-II, learned counsel appearing on behalf
of State - respondents adopts the arguments advanced on behalf of
RIMS. Learned counsel further argued that prescription of
qualification etc. for a post is a matter of recruitment policy. The
employer is authorised to prescribe the qualification etc. as a
condition of eligibility. It is not the role of the constitutional court
to expand the ambit while exercising power of judicial review.
Petitioners have failed to show any malafide on part of the
respondents in not allowing them to work after completion of their
tenure. The RIMS is governed by the Medical Council as also
under the AIIMS Regulations and not by the Dental Council. The
grounds raised by the petitioners are not sustainable in the eyes of
law and writ petition deserves dismissal.
15. Referring to various paragraphs of the counter affidavit,
learned counsel submitted that the RIMS, Ranchi is an autonomous
body and is governed by the RIMS Act, 2002, RIMS Rules, 2002
and the RIMS Regulation, 2014 framed thereunder. Dental College
works under the RIMS and has been established in terms of the
Act, Rules and Regulations. Learned counsel further argued that in
terms of S. No. 10 in Schedule-III of RIMS Regulation, 2014, the
post of Tutor/ Senior Resident is a Tenure post for three years
which is also evident from the appointment letters issued to the
petitioners.
16. Learned counsel further argued that the terms and
conditions of Residency Scheme (brought on record vide
Annexure-A Series to Counter Affidavit filed by respondent no. 2,
dated 08.01.2021) of the Government of India, Ministry of Health
and Family Welfare Department, which has been introduced in
replacement of the system of House Surgeons, Post Graduate
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Students and Registrars in Central Institutions and Hospitals vide
Letter No. 11014/ 27/ 74 - ME (PG), Dated 22.04.1974, it has been
clarified that the tenure of Senior Resident will be three years.
The Senior Residents serving in the institutions/ hospitals under
the direct control of government will be treated as temporary
government servant.
17. Learned counsel further argued that as per guidelines of
Medical Council of India, the post of Tutor/ Demonstrator/
Resident/ Registrar are the equivalent posts. The Post Graduate
students of non-clinical departments are called Tutor and the
students of clinical departments are called Senior Residents.
Petitioners cannot take the benefits of Resolution issued by the
State Government dated 11.05.2015 which states that the post of
Tutor comes under the category of teaching post and is a
sanctioned post. In the case of RIMS, the post of Tutor is
completely a tenure post and it provides opportunity to the fresh
batches of students to serve the society in a better way. The process
of getting trained cannot be stopped by blocking the post of Tutors
by regularising the petitioners. The tenure appointee cannot claim
permanence or continuance of his/her tenure or regularisation of
his/ her services. Had the appointments would have disclosed to
have been made on regular or permanent basis, there is every
possibility that others would have also participated who did not
actually want to join the post for a limited tenure of three years and
as such, if claim of the petitioners would be allowed, it would
violate the provisions of Articles 14 and 16 of the Constitution of
India.
18. Learned counsel further argued that RIMS, Ranchi is an
autonomous body at par with AIIMS, New Delhi. In the AIIMS
also, the post of Senior Residents is a tenure post for three years
only as per the residency scheme of the Government of India.
Learned counsel argued that in terms of RIMS Regulation, 2014,
the service of Tutor/ Senior Resident of Dental College could not
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be regularised and as such these writ petitions are fit to be
dismissed.
ARGUMENTS ADVANCED ON BEHALF OF INTERVENORS
19. Mr. Deepak Kumar, learned counsel appearing on behalf
of the Interveners adopting the arguments advanced on behalf of
learned counsel appearing on behalf of RIMS as also on behalf of
State submitted that the post of Tutor is a Tenure post for a period
of three years only. The interveners are the candidates who
appeared in walk-in-interview conducted pursuant to the
subsequent advertisement and because of continuance of writ
petitioners on the said post, they have been deprived from getting
as trained specialists upon their appointment to the post of Tutors.
Learned counsel further argued that as per RIMS Regulations,
2014, it has clearly been mentioned that in the Department of
Medicine and Dentistry, the appointment of Senior Residents and
Tutors will be made twice in a year and post of Senior Residents
and Tutors will be a Tenure Post for a period of three years only.
Petitioners cannot be allowed to block the posts which otherwise
will adversely affect the society at large as it will create scarcity of
trained tutors. Learned counsel further argued that the Tutors/
Senior Residents are appointed in order to provide opportunity to
the Post Graduate Students to be trained as a Tutors and be
available for appointment as an Assistant Professor, which is entry
level post of Teaching Cadre and if the existing tutors are allowed
to hold the post even after expiry of three years, there will be no
opportunity for training of the new batches of the Post Graduate
students as Tutors/ Senior Residents. Once a person is appointed to
the tenure post, his/her appointment to the said post begins when
he joins the post and destined to end on completion of tenure. It is
settled principle of law that appointment made on 'Tenure' basis
for a specific period of time comes to an end by efflux of time and
persons holding the said post can have no right to continue on the
said post.
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Learned counsel further argued that interveners and
others had appeared in the examination conducted by the RIMS but
the results have not yet been published in view of status quo
granted by this Court. The continuance of petitioners on the post
has adversely affected the interveners and others and it is
detrimental to the interest of medical fraternity. This writ petition
may be dismissed and the respondent - RIMS may be directed to
proceed with the process of selecting fresh batch of Tutors for
which Interview has already been conducted.
FINDINGS OF THE COURT
20. Before going into merits of the case, it would be proper
to examine the advertisement as also the appointment letters issued
to the petitioners. The very first line of the Advertisement No.
2250, Dated 28.03.2017, which has been brought on record vide
Annexure-1/1 reads as under:
"This Advertisement is in continuation of Advt. No. 910,
dated 19.02.2016 of RIMS Ranchi. Applications with
complete bio-data are invited for filling up the under
mentioned posts on Tenure basis for 03 years in different
Departments of Dental Institute under Rajendra Institute
of Medical Sciences, Ranchi, An Autonomous Institute
under the Government of Jharkhand."
After the selection, the appointment letters were issued
to the petitioners which has been brought on record vide
Annexure-2 Series. From Clause-1 of the said appointment letter, it
is clearly evident that the post is a tenure post for a period of three
years. Said Clause-1 and 2 of the appointment letter reads as under:
"1. This post is a tenure post for a period of three yrs
(3 Yrs.).
2. Any claim for promotion or extension of Tutorship
on any ground will not be entertained."
Further, from perusal of Jharkhand Gazette
(Extraordinary), dated 22nd September, 2014, it is evidently clear
that the post of Tutor/ Senior Resident is a Tenure Post for a
period of three years only.
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21. After going through arguments advanced by learned
counsel for the parties across the bar and from perusal of
documents brought on records, it appears that no case is made out
for any interference in these writ petitions for the following facts
and reasons:
a. Petitioners have accepted the terms and conditions of the
advertisement as well as the appointment letters. It is settled
principles of law that once appointments are made and process
of appointment is complete by way of joining the said post, the
petitioners who have duly participated in the process of
appointment accepting the terms and conditions of
advertisement, cannot challenge the same. Once petitioners
have submitted themselves to the jurisdiction of the
respondents, they are precluded from challenging the same.
b. The Hon'ble Apex Court in the case of 'Raj Balam Prasad
and others Vs. State of Bihar and others' reported in (2018)
12 SCC 50, it has been held at para-18 as under:
"18. In our opinion also, when the appointment of the
appellants (writ petitioners) was made for a fixed period in
exercise of the powers under Rule 57-A and the said
appointment period having come to an end in the year 1991
after granting some extension, we fail to appreciate as to
how the appellants could claim to remain in service after
1991.
19. One cannot dispute that the State has the power to
appoint persons for a temporary period under the Act and
the Rules framed thereunder and once such power was
exercised by the State, the status of such appointee
continued to be that of temporary employee
notwithstanding grant of some extensions to them for some
more period.
20. In other words, the grant of extension to work for some
more period to the writ petitioners could never result in
conferring on them the status of a permanent employee
or/and nor could enable them to seek regularisation in the
services unless some Rule had recognised any such right in
their favour.
21. That apart, when the period fixed in the appointment
orders expired in the year 1991 then there was no scope for
the appellants to have claimed continuity in service for
want of any extension order in that behalf.
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22. We have perused the Circular dated 16-4-2008
(Annexure P-7) issued by the State. This circular only says
that if any temporary persons are appointed for a particular
project and if they are found to be of some utility, their
services can be regularised as per Rules.
23. As mentioned above, so far as the cases of these
appellants are concerned, their representations were
examined by the State but were rejected finding no merit
therein. One of the reasons for rejection of the
representation was that the services of the appellants had
already come to an end in 1991 and, therefore, no orders to
regularise their services could now be passed after such a
long lapse of time.
c. Admittedly regularization is not right of an employee who
has been appointed on a post of which tenure is fixed. In a
tenure post, appointment comes to an end at the end of said
tenure and the same cannot be extended. The Constitutional
Bench of the Hon'ble Apex Court in the case of Secretary,
State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1,
has held that it is not open to the Court to prevent regular
appointment at the instance of an employee whose period of
employment has come to an end. The theory of legitimate
expectation cannot be successfully advanced by temporary,
contractual or casual employees. It cannot also be held that the
State has held out any promise while engaging these persons
either to continue them where they are or to make them
permanent. The State cannot constitutionally make such a
promise. It is also obvious that the theory cannot be invoked to
seek a positive relief of being made permanent in the post. In
the instant case, the said post is a tenure post and made for
Training purposes and there are no promotional hierarchy. The
service will come to an end after fixed period of time.
d. Petitioners cannot claim equality and in the instant cases,
there is no violation of provisions of Articles 14 or 16 of the
Constitution of India as there cannot be equality in illegality.
The Hon'ble Apex Colurt in the case of Bihar Eastern
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Gangetic Fishermen Cooperative Society Ltd. Vs. Sipahi
Singh reported in (1977) 4 SCC 145, has observed as under:
"... ... ... A writ of mandamus can be granted only in a
case where there is a statutory duty imposed upon the
officer concerned and there is a failure on the part of that
officer to discharge the statutory obligation. The chief
function of a writ is to compel performance of public
duties prescribed by statute and to keep subordinate
tribunals and officers exercising public functions within
the limit of their jurisdiction. It follows, therefore, that in
order that mandamus may issue to compel the authorities
to do something, it must be shown that there is a statute
which imposes a legal duty and the aggrieved party has a
legal right under the statute to enforce its performance."
Therefore, it can comfortably be said that no legal right has
accrued in favour of the petitioners and the State has no
obligation to regularize the petitioners on the said post which
admittedly is a tenure post. This Court in the case of Randhir
Kumar Vs. State of Jharkhand and others passed in W.P.(S)
No. 3368 of 2012 and affirmed in L.P.A. No. 467 of 2012 has
held that the post of Senior Resident is not permanent and they
cannot be promoted as Assistant Professor nor can they
continue to same as Senior Resident after expiry of tenure
period.
e. The Hon'ble Apex Court in the case of G. Sarana (Dr.) v.
University of Lucknow & Ors. Reported in (1976) 3 SCC 585
has held that the candidate who participated in the selection
process cannot challenge the validity of the said selection
process after appearing in the said selection process and taking
opportunity of being selected. Para-15 of the said Judgment is
reproduced herein below:
"15. ... ... He seems to have voluntarily appeared
before the committee and taken a chance of having a
favourable recommendation from it. Having done so, it
is now not open to him to turn round and question the
constitution of the committee."
It is settled principle of law that once terms and conditions
of the advertisement have been accepted by the petitioners, it
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cannot be challenged after appearing in the examination and
when the results have been declared.
f. The Hon'ble Apex Court in the case of Post Doctoral
Research Associates of S.V. University, Dr. K. Krishna Reddy
and others Vs. Union of India and others reported in (2002) 5
SCC 24 has held in para-8 as under:
"8. In V.P. Chaturvedi (Dr.) v. Union of India [(1991)
4 SCC 171] this Court followed the decision rendered in
V.l. Chandra Case [(1990) 3 SCC 38] and similar
directions were given in that case also. This Court in Dr.
Ajay Kumar Jain case [(2000) 4 SCC 186] examined the
Scheme of appointment as Pool Officer and under
Scientists' Pool Scheme or as Scientist Fellow under the
Scheme of Quick Recruitment of Scientists (Fellows) for
major projects on contract basis for a limited period and
held that it did not entitle them to regularization of their
services or absorption in CSIR and distinguished the
decision in Prathibha Misra case [(1997) 35 ATC 501]
which we have adverted to earlier."
g. The Hon'ble Apex Court in the case of Union of India and
others Vs. N. Murugesan and others reported in (2022) 2 SCC
25 has held in para-37 and 38 as under:
"37. We have already dealt with the principles of law
that may have a bearing on this case. There is no element
of an unequal bargaining power involved. Nobody has
forced the respondent to enter into a contract. He indeed
was an employee of the Society for 23 years. We do not
wish to go into the question as to whether it is a case of
re-employment or not, as the fact remains that the
respondent wanted the job, which is why there was an
unexplained and studied reluctance to raise the issue of
him being a permanent/regular employee, but only at the
fag end of his tenure.
38. The first of the representations was made on 30-
12-2014, followed by others. The conduct speaks for
itself. Hence, on the principle governing delay, laches,
and acquiescence, followed by approbation and
reprobation, Respondent 1 ought not to have been
granted any relief by invoking Article 226 of the
Constitution of India. On the interpretation of the Rules,
we have already discussed that there is no prohibition in
law for a tenure appointment. We are dealing with a post
that stands at the top realm of the administration. There
is an intended object and rationale attached to the post.
It is the incumbent of the post who has to carry forward
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the object and vision in the field of research. As noted
earlier, there is certainly an overwhelming public
interest involved. The employer has a load of discretion
available. In the absence of any arbitrariness, one cannot
question its wisdom. After all, a decision has been taken
at the highest level. We cannot infer that materials have
not been placed before taking the decision. The Division
Bench [N. Murugesan v. Union of India, 2019 SCC
OnLine Kar 514] was not right in holding that the
highest constitutional authority on the executive side was
misled by the lower officials. We find no place for such
an inference. A conscious decision has been made to go
for a tenure appointment in the interest of the Society.
Similarly, a conscious decision was also made to go for a
fresh recruitment."
h. The arguments advanced by learned Sr. Counsel appearing
for the petitioners that since the post of Tutor is a permanent
sanctioned post, therefore, it cannot be said to be a tenure post,
is not acceptable to this Court. The post is always permanent in
nature and adversely the said post, which is also sanctioned, is
only for three years and after that those who are appointed,
have to make rooms for others for Training and get
Specialisation and move further.
i. The earlier post of House Surgeon have now been replaced
by the Tutors/ Residents/ Sr. Residents whose selections are
made every year and after completion of their tenure, they have
to demit the posts for others. The RIMS is admittedly guided
by its own Rules and Regulations and also of the Medical
Council of India. Since petitioners are working under RIMS,
they are bound to follow the Rules and Regulations of RIMS as
well as Medical Council of India. Their appointments have
been made following the Rules of RIMS and that of the
Medical Council of India. Now at this juncture they cannot take
a 'U Turn' that they are guided by Dental Council of India and
not by the Medical Council of India since they have already
accepted the same at the very inception i.e. at the time of their
initial appointment.
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j. If the petitioners are allowed to continue on the said post,
the entire purpose of appointment on the said post of Tutor
shall be frustrated as others who are waiting to be appointed,
are being deprived of the opportunities to be trained as
specialist upon their appointment on the post of Tutor, due to
status quo and non-publication of result, which is against larger
public interest.
k. The reliance of learned Sr. Counsel in the case of Pani
Ram Vs. Union of India and others passed in Civil Appeal
No. 2275 of 2019, does not come to their rescue as the case in
hand is different from the ratio laid down in those cases. It has
clearly been held that this principle, however, will not apply
where the bargaining power of the contracting parties are equal
or almost equal. It is not a case where the petitioners were in
need of a job and were not in a bargaining position. Petitioners
were fully aware that the post of Tutor is a post of Training
which comes to an end after a period of three years and as such
being fully conscious of facts, they accepted the offer of
appointment and at this stage they cannot challenge the same
and disturb the new lot of Trainees who are waiting for their
turn. Similarly situated persons have never been considered for
regularization after their appointment on a tenure posts.
l. Learned Sr. Counsel appearing on behalf of petitioners has
also placed heavy reliance in the case of State of Jharkhand
and others Vs. Vinay Kumar reported in 2015 SCC OnLine
Jhar 398 : (2015) 2 JBCJ 212 (HC). The ratio decided in the
said case is also not attracted and is of no help to the petitioners
in the instant cases. In the said case the case of similarly
situated persons were considered for appointment and it was
only petitioner's case which was turned down and
distinguished as earlier he had accepted the appointment letter.
Here the case is entirely different and not a single person has
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been considered for regularization and as such case of the
petitioners is hereby distinguished.
22. As a cumulative effect of the aforesaid rules, guidelines,
judicial pronouncement, I do not find any interference is warranted
in the instant writ petitions. Consequently, the writ petitions merits
dismissal and are hereby dismissed. Interim orders dated
25.11.2020 and 09.03.2021 respectively stand vacated.
23. As a sequel thereof, all pending Interlocutory
Applications also stand disposed of.
(Dr. S.N. Pathak, J.)
High Court of Jharkhand at Ranchi
Dated 24.03.2022
AFR
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