Jharkhand High Court
The State Of Jharkhand vs Dr. Tulsi Mahto on 14 August, 2023
L.P.A. No.52 of 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.52 of 2021
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1. The State of Jharkhand.
2. The Secretary, Department of Health, Medical Education
and Family Welfare, Government of Jharkhand, having its
office at Nepal House, Doranda, P.O. & P.S. Doranda, District
: Ranchi, State : Jharkhand.
... ... Respondents/Appellants
Versus
1. Dr. Tulsi Mahto, aged about 67 years, son of Late Khiru
Mahto, Resident of Quarter no.03, Doctors Colony, RIMS
Campus, Bariatu, P.O. & P.S. Bariatu, District : Ranchi,
Jharkhand. ... ... Petitioner/Respondent
2. RIMS, having office at RIMS Campus, P.O. & P.S.
Bariatu, District : Ranchi.
3. Chairman, Governing Body RIMS, having office at RIMS
Campus, P.O. & P.S. Bariatu, District : Ranchi, Jharkhand.
4. Director, RIMS, having office at RIMS Campus, P.O. &
P.S. Bariatu, District : Ranchi, Jharkhand.
... ... Respondents / Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Sachin Kumar, Addl. Advocate General-II
Mr. Deepak Kr. Dubey, AC to AAG-II
For the Resp. No.1 : Mr. Rajendra Krishna, Advocate
Mr. Pratyush Shounilya, Advocate
Mr. Manish Kumar, Advocate
Mr. Shubham Mayank, Advocate
Mr. Aayush Avant Srivastava, Advocate
For the Resp. RIMS : Dr. Ashok Kumar Singh, Advocate
Mr. Nilesh Modi, Advocate
Mr. Prabhat Kumar, Advocate
Mr. Shivam Singh, Advocate
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ORAL JUDGMENT
Order No.12 : Dated 14th August, 2023
Per Sujit Narayan Prasad, J.
1. The instant intra-court appeal, preferred under Clause
10 of the Letters Patent, is directed against the
order/judgment dated 18.12.2020 passed by learned Single
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Judge of this Court in W.P.(C) No.6691 of 2019 whereby and
whereunder the decision taken by the authority as under
order dated 31.12.2018 has been quashed and set aside by
remitting the matter before the Respondent No.2 to consider
the case of the petitioner afresh within a period of eight weeks
from the date of receipt/production of the copy of the order
considering that in view of notification dated 27.05.2004, the
doctors of different departments have been provided
promotion which has been contended in paragraph nos. 17,
18 and 19 of the writ petition and not rebutted by the
respondents and there is no reason why the said documents
will not apply in the case of the petitioner.
2. Brief facts of the case as per the pleadings made in
the writ proceeding, which are required to be enumerated
herein, read as under :-
3. It is the case of the petitioner that he was
appointed on 26.06.1981 as Medical Officer and in the year
1984, the petitioner was posted as Tutor in Pharmacology
Department in Darbhanga Medical College at the time of
erstwhile State of Bihar. On 01.01.1985 the petitioner was
transferred and posted as Tutor in Forensic Medicine in
M.G.M. Medical College, Jamshedpur. While he was posted as
such, the petitioner was given promotion on the post of
Assistant Professor, Forensic Medicine with effect from
31.08.1988. Thereafter, the petitioner was transferred and
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posted to R.M.C.H., Ranchi as Assistant Professor, Forensic
Medicine, Ranchi.
4. It is the further case of the petitioner that as per M.C.I.
Rules, the petitioner was given promotion on the post of
Associate Professor, Forensic Medicines with effect from
31.08.1993. Further, after completion of 4 years as Associate
Professor, an Associate Professor should be promoted on the
next higher post as Professor after completion of 4 years as
per M.C.I. Rules as well as Promotion Rules notified in the
year 1990 and 1997.
5. The petitioner has completed 4 years on 31.08.1997 and
was entitled to be promoted on the post of Professor with
effect from that date. The Cadre Rules which was framed in
the year 1997 also adopted the MCI Rules regarding
promotion given to the higher post in which rendering four
years' service as Associate Professor was essential criteria for
promotion to the post of Professor. Therefore, the petitioner
should have been given promotion on 31.08.1997, but
unfortunately, the petitioner was given promotion on the post
of Professor in Forensic Medicine by Notification No. 102(2)
dated 08.04.2004 but the said promotion was given with
effect from 05.11.2003.
6. The petitioner represented before the respondent
authorities by series of representations for rectifying the
earlier order of promotion on the post of Professor by giving
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him promotion with effect from 31.08.1997 and not from
5.11.2003.
7. It is the further case of the writ petitioner that the State
Government has given retrospective promotion to the various
Associate Professors working in the different Medical Colleges
under the State of Jharkhand from the date they have
completed four years as Associate Professor, on the post of
Professor. Accordingly, the same treatment should be given to
the petitioner since vacancy was available in the year 1997.
8. The Department of Health vide Notification contained in
Memo No. 137 (2) dated 27.05.2004 has rectified the number
of sanctioned posts in RIMS/RMCH by modifying Annexure-A
which also contains number of sanctioned post of teachers
(doctors) in the RMCH/RIMS. While rectifying by aforesaid
Notification, it has been stated that the correct number of
sanctioned posts were not incorporated in Annexure-A,
therefore, "Annexure-1" is being issued which will replace
"Annexure-A" showing the correct number of sanctioned
posts at the time of creation of RMCH (1960), which was
converted to RIMS under the RIMS-Act, 2002.
9. From perusal of Notification dated 27.05.2004, it is
evident that there was already three sanctioned posts of
Professor in FMT at the time of establishment of the then
RMCH but due to clerical error, the aforesaid three posts
were not disclosed in the chart prepared, rather, only two
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posts of Professor in FMT was disclosed. Therefore, there was
requirement for issuance of Notification dated 27.5.2004 and
as per aforesaid notification, there are 03 sanctioned posts
for Professor of FMT in RIMS. As such, there is no
impediment in giving promotion to the petitioner as Professor
with effect from 31.08.1997.
10. The writ petitioner filed several representations/requests
for shifting his date of promotion on the post of Professor
with effect from 31.08.1997 but when his request was not
acceded to, he was compelled to prefer writ petition before
this Court being W.P. (S) No. 4078/2010. That writ petition
was disposed of on 19.9.2018 by directing the petitioner to
file representation annexing the relevant documents for his
retrospective promotion to the post of Professor with effect
from 31.08.1997 instead of 05.11.2003. The Governing Body
of the RIMS has been directed to consider the claim of the
petitioner and to pass a final order in accordance with extant
the Rules and the Guidelines of the RIMS-Act and Rules,
2002 within a reasonable period more preferably within a
period of 12 weeks from the date of receipt of copy of the
representation and pass an appropriate order.
11. Thereafter, the claim of the writ petitioner has been
rejected vide order contained in Memo No. 385 (II) dated
31.12.2018 on the ground that in the year 1997 there was
only one sanctioned post against which late Dr. K.P.
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Shrivastava was working. Therefore, the petitioner was rightly
given retrospective promotion on the post of Professor, FMT
with effect from 05.11.2003, against which writ petition being
W.P.(S) No. 6691 of 2019 has been preferred which has been
disposed of vide order dated 18.12.2020 whereby and
whereunder the decision taken by the authority as under
order dated 13.12.2018 has been quashed and set aside by
remitting the matter before the Respondent No.2 to consider
the case of the petitioner afresh. Against the aforesaid order
passed in the writ petition, the State has preferred the
instant appeal.
12. It appears from the factual aspect as referred
hereinabove based upon the pleading that the writ petitioner
was appointed on 26.06.1981 as Medical Officer. He was
posted as Tutor sometime in the year 1984 in the
Pharmacology Department in Darbhanga Medical College in
the erstwhile State of Bihar. He was transferred and posted
as Tutor in Forensic Medicine in M.G.M. Medical College,
Jamshedpur on 01.01.1985. The writ petitioner was granted
promotion on the post of Assistant Professor, Forensic
Medicine with effect from 31.08.1988. He, working from one
post to other, was finally promoted to the post of Professor
with effect from 05.11.2003, while the writ petitioner claims
to be promoted with effect from 31.08.1997. The aforesaid
grievance having not been redressed, the writ petitioner
L.P.A. No.52 of 2021
preferred writ petition being W.P.(C) No.6691 of 2019.
13. The ground has been agitated before the learned
writ court that even though the post was available as on
31.08.1997 but the promotion to the post of Professor in
Forensic Medicine and Toxicology (FMT) Department has
been denied to be given from 31.08.1997, rather, it has been
granted from 05.11.2003.
14. The writ petitioner has relied upon the Government
notification dated 27.05.2004 wherein three posts were
available on the day when the Rajendra Medical College and
Hospital, Ranchi (Now RIMS) was established. As such, the
post even if was available on 31.08.1997 of Professor under
the FMT Department, but for no fault of the writ petitioner he
has been denied the said promotion with effect from
31.08.1997 and has been granted with effect from
05.11.2003.
15. The State as also the RIMS, has denied the
aforesaid contention and submitted before the learned writ
court that there was only one vacancy as on 31.08.1997. As
such, the writ petitioner was not granted promotion to the
post of Professor. The post having fallen vacant only on
05.11.2003, hence, promotion to the said post was granted.
16. The learned Single Judge has appreciated the rival
submissions and by putting reliance upon Government
notification dated 27.05.2004, the impugned decision
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negating the promotion with effect from 31.08.1997 has been
quashed and set aside by remitting the matter back before
the Respondent No.2 to take decision afresh in view of
notification dated 27.05.2004, which is the subject matter of
the instant appeal.
17. Mr. Sachin Kumar, learned Additional Advocate
General-II, appearing for the appellant State of Jharkhand,
has submitted that the learned Single Judge has failed to
appreciate the very fact that the only one post in the Forensic
Medicine and Toxicology Department (FMT) was available as
would appear from the details furnished to that effect dated
13.10.1995 under the seal and signature of the Principal,
Rajendra Medical College and Hospital, Ranchi. Hence, there
cannot be any promotion if one post was already filled up as
on 31.08.1997. But this aspect of the matter has not been
appreciated by the learned Single Judge. Hence, the
impugned judgment suffers from an error.
18. Per contra, Mr. Rajendra Krishna, learned counsel
appearing for the respondent-writ petitioner, has submitted
that the so called communication dated 13.10.1995 was not
placed before the learned writ court and, as such, there is no
question of consideration of the aforesaid letter. Further, the
same cannot be said to be valid, since, the same has not been
issued by the competent State authority, who is the master of
creation of post, rather, the same is by the Principal of
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Rajendra Medical College and Hospital. Hence, the same
cannot be relied upon.
19. It has been submitted that here the decision of the
State is to be looked into which is the basis of the claim of the
writ petitioner, i.e., 27.05.2004 whereby and whereunder it
has been stipulated that the details of the post faculty wise,
as per Annexure-A, appears to be wrongly issued and, as
such, the same is to be replaced by Annexure-1.
20. It has been submitted that as per Annexure-A to
the Government notification dated 27.05.2004, the post of
Professor in FMT Department is two (02). However, the
aforesaid number of posts in the FMT Department has been
rectified as three (03) by virtue of Annexure-1 and for that
purpose the Government has come out with the notification
dated 27.05.2004.
21. The contention, therefore, has been made that the
very basis of the claim of the writ petitioner for granting
promotion as Professor in the FMT is the Government
notification dated 27.05.2004 wherein the State Government
is admitting the fact that on the date of establishment of the
R.M.C.H., as per the guideline of the Medical Council of India,
the details of the teaching post was issued as per
Annexure-A. But after verification of certain documents and
on verification of the recommendation of the Medical Council
of India, it was found that certain discrepancy, due to
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inadvertence, has been crept up and, as such, Annexure-A
has been replaced by Annexure-1 wherein the FMT is having
three (03) posts.
22. Learned counsel for the respondent-writ petitioner,
on the aforesaid premise, has submitted that the said
notification itself clarifies that the number of posts of
Professor in FMT is more than one as on 31.08.1997, hence,
there was no reason to deny the promotion with effect from
31.08.1997.
23. The learned Single Judge, on consideration of the
aforesaid aspect of the matter, has considered the decision
taken by the authority to be erroneous and accordingly
quashed and set it aside. Therefore, the impugned order
suffers from no error and hence, the instant appeal if fit to be
dismissed.
24. We have heard learned counsel for the parties,
perused the documents available on record as also the
finding recorded by the learned Single Judge in the impugned
order.
25. The undisputed fact in this case is that the writ
petitioner is claiming his promotion as Professor with effect
from 31.08.1997, however, he has been granted promotion
with effect from 05.11.2003. The basis of claiming promotion
as Professor, FMT with effect from 31.08.1997 is the
notification dated 27.05.2004 issued by the State of
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Jharkhand. While the State of Jharkhand is disputing the
same basing reliance upon a communication dated
30.10.1995 issued by the Principal, R.M.C.H. as has been
brought on record in this memo of appeal.
26. The question which requires to be considered
herein is that -
Whether the Government notification issued in the
name of the Governor of the State is to be relied by the
court of law or a tabular chart of the posts or by making
reference of the post by the Principal of the college is to
be given reliance?
27. The law is well settled that any medical college is to
be established only after clearance by the Medical Council of
India. It is the Medical Council of India, who after thorough
enquiry/inspection is to give clearance for establishment of a
medical college or hospital depending upon the requirement.
Herein also, the Medical Council of India has given clearance
for creation of certain posts Faculty wise vide notification
dated 27.05.2004 issued in the name of the Governor of the
State through the Health, Medical Education and Family
Welfare Department, Government of Jharkhand (Health,
Education and Research).
28. It would be evident from the aforesaid notification
which contains the reference of notification No.101(2) dated
08.04.2004 by which the Rajendra Institute of Medical
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Science, formerly known as the Rajendra Medical College and
Hospital, Ranchi, was having the details of the created
teaching posts as per the parameter of the Medical Council of
India, as contained under Annexure-A.
29. But, subsequently on the basis of the verification of
the documents, the details of the created teaching posts have
been found to have wrong reference under Annexure-A,
therefore, Annexure-A was superseded by Annexure-1 by
virtue of notification dated 27.05.2004 which will be treated
to be part of the notification no.101(2) dated 08.04.2004, for
ready reference the content of the said notification is being
referred hereunder as :-
झारखण्ड सरकार
स्वास्थ्य चिचकत्सा चिक्षा एवं पररवार कल्याण चवभाग
चिचकत्सा चिक्षा एवं िोध
सं०सं०-2 / स्था-3-19/04137 (2) / स्वा० रााँ िी चिनां क 27/5/04
अधिसूचना
इस चवभाग के अचधसूिना संख्या - 101 (2) चिनां क 08-04-2004 द्वारा राजेन्द्र
आर्युचवज्ञान संस्थान, रॉिी पूवुवर्ती राजेन्द्र चिचकत्सा महाचवद्यालर् अस्पर्ताल रााँ िी की स्थापना के
समर् भारर्तीर् चिचकत्सा पररषि् द्वारा चनधाु ररर्त मापिं ड के अनयसार सृचजर्त िैक्षचणक पिों की
चववरणी एनेक्चर ए द्वारा चनगुर्त की गई थी। बाि में उपलब्ध कागजार्तों से पार्ा गर्ा चक
भारर्तीर् चिचकत्सा पररषि द्वारा कालान्तर में स्नार्तकोत्तर चडग्री एवं चडप्लोमा कोसु के चलए
स्वीकृर्त िैक्षचणक पि चलचपकीर् भूलवि इसमें समाचहर्त नहीं चकर्ा जा सका है ।
अर्तः एनेक्चर "ए" को चवलोचपर्त करर्ते हुए उसके स्थान पर एनेक्चर "1" को
प्रचर्तस्थाचपर्त चकर्ा जार्ता है । र्ही एनेक्चर "1 चनगुर्त अचधसूिना 101 (2) चिनां क
08-04-2004 का भाग माना जार्ेगा।
झारखण्ड राज्यपाल के आिे ि से
ह०/- 26/5/2004
(प्रेम प्रकाि िमाु )
सरकार के सचिव
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30. It appears from Annexure-A that the number of
post of Professor in the FMT Department has been shown to
be two (02). But after its substitution by Annexure-1, the
number of posts under FMT Department has been shown to
be three (03).
31. The whole claim of the writ petitioner is based
upon the Government notification dated 27.05.2004 and
same is the basis of interfering with the impugned decision
by which the claim of the writ petitioner was denied for
promotion from 31.08.1997 by the impugned order dated
31.12.2018 passed by the Administrative Authority.
32. It appears from the pleading made that the
contention regarding the notification dated 27.05.2004 has
not been disputed that on the basis of notification dated
27.05.2004 the doctors of the different departments have
been provided promotion which has subsequently been
pleaded in paragraph 17, 18 and 19 of the writ petition. Even
though comprehensive counter affidavit was filed before the
writ court but the said statement was not rebutted. The said
admitted fact is also the basis of passing the order by the
learned Single Judge as would appear from the ultimate
paragraph of the impugned judgment.
33. The State has filed the appeal even though the fact
about granting promotion on the basis of the Government
notification dated 27.05.2004 so far as the different
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departments are concerned, have not been disputed. The
specific pleading to that effect has been made in paragraph
17, 18 and 19 of the writ petition but herein the claim of the
writ petitioner is contested.
34. So far as the non-rebuttal of the specific pleading
regarding promotion having been granted as Professor in the
different departments has been admitted is concerned, the
same, according to our considered view, cannot be disputed
since, it is based upon the conscious decision taken by the
State as would appear from notification dated 27.05.2004
issued in the name of the Governor of the State. Once the
notification has been issued by the State in the name of the
Governor, there is no question to have objection by the State
itself. Such objection could have been taken if the State
would have come out with any decision in supersession to the
decision already taken by virtue of notification dated
27.05.2004 but it is not the case herein.
35. The learned counsel for the appellant, however, has
tried to impress upon the Court by filing a document which
was not available before the writ court, i.e., the details of the
post given by the Principal of the Rajendra Medical College
and Hospital dated 13.10.1995 wherein the details of the post
has been shown to be one (01) under the FMT Department.
36. But the question herein would be :-
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(i) What is the admissibility of the said detail of the post
furnished by the Principal of the said college?
(ii) Can the said detail will prevail upon the decision
taken by the State Government dated 27.05.2004?
(iii) Is it available to the State to question their own
decision regarding the creation of post based upon
the parameter fixed by the Medical Council of India?
37. This Court is of the view that once the decision has
been taken by State dated 27.05.2004, which is the basis of
passing the order by learned Single Judge, it is not available
for the State to question its own decision but even then the
said decision is being questioned by the State itself.
38. This Court is having impression that filing of this
appeal is for the ulterior motive for the reason as referred
hereinabove and only for the purpose of misuse of the judicial
proceeding, which this Court deprecates.
39. This Court, in view of the aforesaid reason, is of the
view that the claim of the writ petitioner has been directed to
be considered by interfering with the impugned decision by
the learned Single Judge based upon the notification dated
27.05.2004 issued by the State Government and the post of
Professors have been filled up in the other departments of the
RIMS, there is no reason to come to the conclusion that the
learned Single Judge has decided the claim by showing
interference in the impugned order, has committed any error.
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40. Accordingly and based upon the reasons referred
hereinabove, this Court is of the view that the State has failed
to make out a case even for filing the instant appeal.
41. Accordingly, the instant appeal fails and is
dismissed.
42. Consequently, I.A. No.710 of 2021 also stands
dismissed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Birendra/ A.F.R.
