Jharkhand High Court
Rajendra Institute Of Medical ... vs The State Of Jharkhand Through ... on 11 September, 2023
1 L.P.A. No.313 of 2021
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L.P.A. No.615 of 2017
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Cont. Case (C) No.1151 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 313 of 2021
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1. Rajendra Institute of Medical Sciences (RIMS in short), P.O. & P.S. Bariatu,
Dist.-Ranchi, through Dr. Ashok Kumar Sharma, Law Officer, RIMS,
Ranchi.
2. The Director, Rajendra Institute of Medical Sciences, P.O. & P.S. Bariatu,
Dist.-Ranchi.
... ... Respondents/Appellants
Versus
1. The State of Jharkhand through Secretary, Department of Health, Medical
and Family Welfare, Office at Nepal House, P.O. & P.S. Doranda, Dist.-
Ranchi.
... ... Respondent/Respondent
2. Manoj Kumar Bakshi, son of Sri Shankar Prasad, Resident of Village-
Dipatoli, P.O. R.M.C.H., P.S. Sadar, Dist.-Ranchi.
.. ... Respondents/Respondents
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L.P.A. No. 615 of 2017
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1. Dr. Rekha Sharma, w/o Dr. Ajit Kumar, r/o Phase-2, 5E Subha Shree
Apartment, Bariatu, P.O. Bariatu, P.S. Bariatu, District-Ranchi
(Jharkhand).
2. Dr. Pranita Shrivastava w/o Dr. Suhash Tetarway, r/o Q. No. 3K/24, Harmu
Housing Colony, P.O. Harmu, P.S. Harmu, District-Ranchi (Jhakrhand).
3. Dr. Camellia Chanda w/o Dr. Satyabrata Patra, r/o Flat No. 1D, Sushma
Palace, Swami Vishnupuri Marg, Burdwan Compound, P.O. Lalpur, P.S.
Lalpur, District Ranchi (Jharkhand).
4. Dr. Jubie Jane Keshari w/o Mr. Nisith Kumar Keshri, r/o HIG/21, Argora
Housing Colony, Argora, Ranchi, P.O. Ashok Nagar, P.S. Ashok Nagar,
District Ranchi (Jharkhand).
5. Dr. Nayantara w/o Dr. B. Rajak, r/o Hariram, Apartment, Flat No.502,
Kanke Road, Ranchi, P.O. Gonda, P.S. Gonda, District Ranchi
(Jharkhand).
6. Dr. Archana, w/o Anil Kumar Kamal, r/o Lajpat Nagar, Near Lala Lajpat
Rai School, P.O. Argora, P.S. Argora, District Ranchi (Jharkhand).
7. Dr. Jitendra Kumar, s/o Late A.P. Sinha, r/o Lower Burdwan Compound,
Ranchi, P.O. Lalpur, P.S. Lalpur, District Ranchi (Jharkhand).
8. Dr. Ashish Kumar, s/o Late Mr. Narayan Gope, r/o Q. No. 60, Doctor's
Colony, Bariatu, P.O. Ranchi University, P.S. Bariatu, District Ranchi
(Jharkhand).
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L.P.A. No.615 of 2017
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Cont. Case (C) No.1151 of 2019
9. Dr. Ira Anupama Soreng, w/o Dr. Punit Samir Soreng, r/o Shristi Enclave,
Block B-117, Kumhar Toli, Purilia Road, Ranchi, P.O. Lalpur, P.S. Lalpur,
District Ranchi (Jharkhand).
10.Dr. Namita Lugun w/o Mr. Nawin Lugun, r/o H. No. 251, Bosco Nagar
Road No.3, Latma Road, Hesag, Hatia, P.O. Hatia, P.S. Hatia, District
Ranchi (Jharkhand).
11.Dr. Pushp Lata w/o Dr. Ramesh Prasad, r/o Saryu Niwas, 36, Purulia Road,
Opposite Swastik TVS Showroom P.O. Lalpur, P.S. Lalpur, District Ranchi
(Jharkhand).
12.Dr. Kumar Ashutosh s/o Late Mahendra Pratap Singh r/o R. Quarter No. 5,
RIMS Campus, Bariatu, P.O. Bariatu, P.S. Bariatu, District Ranchi
(Jharkhand).
... ... Petitioners/Appellants
Versus
1. State of Jharkhand through the Principal Secretary, Department of Finance,
Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
2. The Principal Secretary, Department of Health, Medicine, Education and
Family Welfare, Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur,
District Ranchi.
3. The Director, Rajendra Institute of Medical Sciences, P.O. Bariatu, P.S.
Bariatu, District Ranchi (Jharkhand).
... ... Respondents/Respondents
4. Dr. Anita Kumari, w/o Sri Sunil Kumar Singh, r/o F/24, Ayodhya Enclave,
Cheshire Home Road, P.O. RIMS, P.S. Sadar Town, District Ranchi.
5. Dr. Manju Boipai, w/o Dr. Krishna Birua, r/o Bridgford Public School,
Tipudana, P.O. & P.S. Hatia, District Ranchi.
6. Dr. Mukesh Kumar, age 35 years, s/o Mahesh Kumar, R/o Flat No.201,
Triveni Exotica Gali, Hirapur, Dhanbad, P.O., P.S. Dhanbad.
.. ... Interveners/Respondents
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Cont. Case (Cvl) No. 1151 of 2019
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Dr. Archana, aged about 47 years, w/o Anil Kumar Kamal, R/o Lajpat
Nagar, Near Lala Lajpat Rai School, P.O. Argora, P.S. Argora, District-
Ranchi (Jharkhand)
... ... Petitioner
Versus
1. The State of Jharkhand.
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L.P.A. No.615 of 2017
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Cont. Case (C) No.1151 of 2019
2. Dr. Dinesh Kumar Singh, s/o Not known to the petitioner presently posted
as the Director, Rajendra Institute of Medical Sciences (RIMS), P.O.
Bariatu, P.S. Bariatu, District Ranchi (Jharkhand).
... ... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appl. Nos.1,2,4,5,7-11 : Mr. Abhay Prakash, Advocate
[L.P.A. No. 615 of 2017]
For the Appl. No. 3 : Mr. Rajendra Krishna, Advocate
Mr. Amit Sinha, Advocate
[L.P.A. No. 615 of 2017]
For the Appl. Nos. 6 & 12 : Mr. Shadab Bin Haque
[L.P.A. No. 615 of 2017 & Cont. Case (C) No. 151 of 2019]
For the Pvt. Respondent : Mr. Indrajit Sinha, Advocate
Mr. Arpan Mishra, Advocate
[L.P.A. No. 313 of 2021]
For the R.I.M.S. : Dr. Ashok Kumar Singh, Advocate
Mr. Nilesh Modi, Advocate
Mr. Shivam Singh, Advocate
Mr. Prabhat Kumar, Advocate
For the State : Mr. Ranjan Kumar, AC to Sr. SC-I
[L.P.A. No. 313 of 2021 & Cont. Case (C) No. 151 of 2019]
: Mr. Jai Prakash, AAG-IA
Mr. A.K. Geasen, AC to AAG-IA
[L.P.A. No. 615 of 2017]
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C.A.V./Reserved on 18.08.2023 Pronounced on 11/09/2023
Per Sujit Narayan Prasad, J.:
1. It needs to refer herein that the order under challenge in L.P.A. No. 313 of
2021 is dated 02.09.2021 passed by the learned Single Judge of this Court
in W.P.(S) No. 6311 of 2012 which pertains to the issue of appointment of
residents/senior residents while the order under challenge in L.P.A. No.
615 of 2017 is dated 06.12.2017 passed by the learned Single Judge of
this Court in W.P.(S) No. 2274 of 2015 which pertains to the issue of
appointment of Tutors in RIMS, Ranchi.
2. The issue in both the writ petitions was regarding whether residents/senior
residents/tutor is the permanent post and the writ petitioners who have
been appointed either as residents or senior residents or tutors are for a
tenure of three years or their appointment is permanent in nature.
3. The writ petition being W.P.(S) No. 6311 of 2012 decided on 02.09.2021,
subject matter of L.P.A. No. 313 of 2021, has been answered in favour of
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L.P.A. No.615 of 2017
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Cont. Case (C) No.1151 of 2019
the writ petitioner, namely, Manoj Kumar Bakshi, by quashing and setting
aside the order as contained in Memo No. C-815 dated 28.10.2012. While,
the writ petition being W.P.(S) No. 2274 of 2015 decided on 06.12.2017,
subject matter of L.P.A. No. 615 of 2017, has been dismissed declining to
pass any positive directions.
4. Therefore, the issue in both the appeals are almost similar regarding
consideration of the issue as to whether the holder of the post of
residents/senior residents/tutors are having right to continue on the said
posts, hence, both the appeals have been tagged together for analogous
hearing, as such, the same are being heard together.
5. One contempt petition being Cont. Case (Cvl) No. 1151 of 2019 has been
filed for non-compliance of the order dated 16.01.2018 passed in L.P.A.
No. 615 of 2017. The outcome of L.P.A. No. 615 of 2017 will decide the
fate of the instant contempt petition.
6. The letters patent appeal being L.P.A. No. 313 of 2021 under clause 10 of
the Letters Patent is directed against the order/judgment dated 02.09.2021
passed by the learned Single Judge of this Court in W.P.(S) No. 6311 of
2012 by which the learned Single Judge while allowing the writ petition
has quashed and set aside the order as contained in Memo No. C-815
dated 28.10.2012 by which the services of the writ petitioner has been
terminated and directed to reinstate the writ petitioners in service with
further direction of holding the writ petitioner entitled for promotion and
all consequential benefits.
The letters patent appeal being L.P.A. No. 615 of 2017 under clause
10 of the Letters Patent is directed against the order/judgment dated
06.12.2017 passed by the learned Single Judge of this Court in W.P.(S)
No. 2274 of 2015 by which the prayer sought for upon the respondents to
declare the post of Tutor in RIMS, Ranchi as a permanent post prior to
coming into force of RIMS Rule with effect from 08.09.2014; and to
allow the writ petitioners to continue on the post of Tutor of different non-
clinical branches in RIMS, Ranchi and allow subsequent benefits of
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promotion as their services were permanent and not tenure based, has
been rejected by dismissing the writ petition.
7. The brief facts of the case as per the pleading made in the writ petition,
which require to be enumerated herein, read as under:
L.P.A. No. 313 of 2021:
An advertisement dated 23.03.2004 was published in daily
newspaper inviting application for appointment on various posts including
the post of Residents/Tutors in different departments. The writ-petitioner
having requisite qualification for appointment of Residents/Senior
residents applied to the post and pursuant thereto; he was appointed vide
letter no. 5569 dated 20.09.2005.
Thereafter, the writ-petitioner was notified as resident along with
other residents working in other departments. Further, vide Memo No.
4844 dated 24.06.2008 the Director has extended the service of the
petitioner along with several other senior residents.
It is the case of the writ petitioner that several other appointees,
appointed after the writ petitioner have been granted promotion as
Assistant Professor even before completion of minimum requirement of
three years by backdating the consideration of their entry in service but
the case of the writ petitioner had not been considered.
The petitioner, thereafter, filed writ petition being W.P.(S) No. 323
of 2011; but, the same was dismissed due to non-appearance of the
counsel. Pursuant thereto, the writ-petitioner filed another writ petitioner
being W.P.(S) No. 6311 of 2012 which has been allowed with direction to
reinstate the writ petitioners vide order dated 02.09.2021, hence, the
instant appeal.
L.P.A. No. 615 of 2017:
The writ petitioners, in pursuance of the advertisement of 2007 and
2008, applied for the post of Tutor and on being qualified, joined the said
post at RIMS.
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Cont. Case (C) No.1151 of 2019
Vide memo no. 6491 dated 05.09.2008, the Director, RIMS
forwarded a list of teachers who were subsequently promoted to the post
of Assistant Professor wherefrom it is apparent that the teachers posted as
Tutors were also promoted to the post of Assistant Professor.
It is the case of the writ petitioners that the post of Tutor was
considered to be permanent post but the dispute regarding the post of
Tutor as tenure-based post arose after enactment of RIMS Services Rules
which came into force w.e.f. 08.09.2014. On 18.04.2015, in the 40 th
Meeting of the Governing Body of the RIMS, Ranchi it was decided that
post of Tutor was tenure-based post and as such, considering all the posts
as vacant, new recruitment must be made by way of advertisement.
Being aggrieved by the said decision, the writ petitioners
approached before the authorities with a prayer not to disturb them from
the post of Tutor and further to advertise only those posts which are lying
vacant.
Thereafter, when no heed had been paid to the prayer of the writ
petitioners, the writ petitioners approached before this Court by filing writ
petition being W.P.(S) No. 2274 of 2015, wherein, vide order dated
06.12.2017, learned Single Judge has refused to interfere with by
dismissing the writ petition.
8. (i) It appears from the factual aspect so far as it relates to W.P.(S) No.
6311 of 2012 that in pursuance of the advertisement dated 23.03.2004, by
which applications were invited for appointment on various posts
including the post of Residents/Tutors in different departments. The writ-
petitioner claiming to have requisite qualification for appointment of
Residents/Senior residents applied to the post and pursuant thereto; he
was appointed vide letter no. 5569 dated 20.09.2005. Thereafter, the
petitioner was notified as resident along with other residents working in
other departments. Further, vide Memo No. 4844 dated 24.06.2008 the
service of the writ-petitioner was extended along with several other senior
residents.
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Cont. Case (C) No.1151 of 2019
(ii) The writ petitioner had earlier filed writ petition being W.P.(S) No.
323 of 2011 was filed but the same was dismissed due to non-appearance
of the counsel. Thereafter, the writ petition being W.P.(S) No. 6311 of
2012 had been filed.
(iii) The grievance agitated that as per advertisement as well as in the
letter of appointment it was mentioned that the post of residents was
permanent and appointment was on probation for two years. However, at
the bottom of letter of appointment, hand written entry was made to the
effect that the post of Resident/Tutor is tenure post for three years though
there was no such condition in the advertisement.
(iv) Further grievance of the writ petitioner is that the other senior
residents, namely Dr. G. Minz was appointed after the writ-petitioner on
21.10.2005 has also been granted promotion as Associate Professor on
31.07.2008 even before completion of minimum requirement of three
years. The other doctors, namely, Dr. B. Kumar, Dr. A. K. Kamal, Dr.
Bela R. Kerketta and others have also been granted promotions even
though they have been appointed together with the writ petitioner.
(v) Thus, the grievance of the writ petitioner in sum and substance
before the writ court was that other similarly situated persons who were
appointed along with the petitioner and those who were taken on lien and
were given job pursuant to the appointment of this petitioner; all were
given promotion as such; pick and choose method has been adopted by
the respondent- RIMS.
(vi) The other grievance was raised in the writ petition regarding the
publication of the advertisement dated 07.06.2012 which according to the
writ petitioner was against the M.C.I. regulation, inasmuch as, an
experience of five years is required and not four years, hence, the said
advertisement was sought to be quashed and set aside.
(vi) The writ petitioner, during pendency of the writ application, has
filed an amendment application challenging the order as contained in
Memo No. C-815 dated 28.10.2012; whereby the service of the writ-
petitioner whose name appears at serial no.1 has been terminated in the
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garb of cancellation of extension of service as Senior Resident beyond
three years. The said interlocutory application being I.A. No. 918 of 2013,
was allowed by this court vide order dated 10.04.2013.
Another interlocutory application being I.A. No. 5633 of 2015 was
filed by the writ petitioners challenging the Advertisement dated
23.09.2015 issued for the appointment of the post of senior residents as
also for stay in the process of recruitment.
(vii) The contention was raised before the writ court that in the
Advertisement dated 23.03.2004 inviting applications for appointment on
various posts including the post of residents there was no mention that the
post of resident was for three years; rather from perusal of the
advertisement itself it transpires that the only criteria was that the
incumbents for the above mentioned posts must possess required
academic qualification of Teaching and Research experience as prescribed
by Medical Council of India.
(viii) The ground has also been agitated by referring to Clause-2 of the
appointment letter wherein it was indicated that the posts were permanent
subject to probation of two years. However, at the bottom of the letter of
appointment, a hand written clause has been added that the post of
Resident/Tutor will be tenure post for three years. The contention,
therefore, was raised before the writ court that the posts since was
permanent post with the condition of probation for two years subject to
their absorption in service, hence, they ought to have been promoted to
the post of Assistant Professor but instead of granting the promotion to the
higher post of Assistant Professor, his service has been dispensed with on
the ground that the tenure to hold the post of resident/senior resident is for
three years as per the stipulation made to that effect in Hindi script as
under condition no.12 to the offer of appointment.
(ix) Further ground has been taken that the writ petitioner has been
discriminated since other similarly situated employees have been
promoted, as such, there is no reason to not grant the same relief.
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9. (i) While, on the other hand, RIMS had appeared and contested the
case by referring to clause 2 of the offer of appointment. Ground was
taken that the offer of appointment itself suggest as under clause 2 that the
appointment was against the permanent post but for the period of two
years on probation, the same will be temporary. The services can be
absorbed under the regular establishment if the services will be found to
be satisfactory.
(ii) Under Clause 2 it has been stipulated although in Hindi written
script that the post of resident will be for a period of tenure of three years.
It was pleaded therefore that if the condition of the appointment letter as
under clause 2 will be taken into consideration, it is not in dispute that the
post of resident is permanent in nature. The appointment so made against
the permanent post of resident with the condition that two years period
will be said to be on probation/temporary. The services of one or the other
if found to be satisfactory during the aforesaid period, the services of such
candidate will be absorbed in the regular establishment. If the aforesaid
condition will be considered along with condition no.12 then it would be
evident that the post of resident is for a fixed period of three years.
(iii) The ground, was taken that the post of resident was only for the
tenure of three years and the same was referred in the offer of
appointment hence, it is not open for the writ petitioner to claim
regularization in the post of resident.
(iv) It was further agitated by making reference to the advertisement
that there is specific reference that the terms and conditions of the services
referred to the abovementioned post is as per the rules and regulations of
the RIMS.
(v) The ground has been taken that the scheme was formulated as
would be evident from the proposed senior resident scheme in Rajendra
Institute of Medical Sciences, Ranchi was drawn up by taking decision by
making reference there that the senior resident non-academic would be
three years contract service.
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(vi) The ground has been taken that even accepting the fact that the
others have been granted promotion but the same since was in the teeth of
the statutory command since the post of Assistant Professor cannot be
filled up through promotion rather it is to be directly filled up as per the
provision of Rule 11 of the RIMS Rules, 2002.
But, the State Government without taking into consideration the
aforesaid statutory provision has granted few of the persons promotion as
Assistant Professor which cannot be a ground to claim parity since their
promotion is itself is illegal since dehores the rules and hence, if any
appointment/promotion is not in consonance with the rules, there cannot
be any parity since Article 14 of the Constitution of India does not
envisages negative equality.
10. The learned Single Judge on appreciation of the rival submissions and
taking into consideration that there is no condition to come to the
conclusion that the post of resident/senior resident is only for tenure of
three years in absence of any provision in this regard as on the date when
the advertisement was issued, the plea which was taken on behalf of the
RIMS, had been discarded. Further consideration has been given that the
other similarly situated residents/senior residents had been granted
promotion to the post of Assistant Professor.
11. These two grounds led the learned Single Judge to allow the writ petition
by quashing and setting aside the order of termination with a direction for
reinstatement and consequential promotion to the post of Assistant
Professor.
The aforesaid order has been challenged by the appellant-RIMS by
filing the appeal being L.P.A. No. 313 of 2021.
12. It appears from the factual aspect of L.P.A. No. 615 of 2017 that the writ
petitioners have been appointed in pursuance of the advertisement as
appended as Annexure-2 to the paperbook. The offer of appointment has
been given which contains a condition as under clause 2 that the
appointment is against the permanent post. As under clause 12, a Hindi
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written clause has been referred for the post of residents/tutors to be a
tenure post for the period of three years.
13. The claim of the writ petitioners is that they have been appointed against
the permanent post after following the well laid down procedure as under
Article 14 of the Constitution of India as tutor and is continuing as such,
save and except, the appellant no.3, the claim of the writ petitioners that
since they are continuing as 'Tutor' since the last 14-15 years, as such,
they have become entitled for absorption in service as per the condition
stipulated under clause 2 of the offer of appointment.
14. Since they have been allowed to continue fairly for a long period which
means that their services are satisfactory and hence, they are fit to be
absorbed in the regular services.
15. The RIMS has taken the same ground as has been taken in W.P.(S) No.
6311 of 2012 as referred hereinabove.
16. The learned Single Judge, on consideration of the rival submission, has
dismissed the writ petition by giving a specific finding that the post of
tutor is a tenure post and as such, the writ petitioners are not having a
right to claim permanent post which is the subject matter of the appeal
being L.P.A. No. 615 of 2017.
Argument of Dr. Ashok Kumar Singh, learned counsel for the RIMS:
17. Dr. Ashok Kumar Singh, learned counsel has submitted that the post of
residents/senior residents/tutors is a permanent post making it a tenure
post of three years for the holder of the post which would be evident from
the proposed scheme dated 20.04.2004, whereby and whereunder, the
proposal was sent to the State Government of making remuneration
therein that the post of senior resident non-academic is a three years
contract service.
18. It has been contended that the aforesaid proposal was concurred by the
Health, Medical Education and Family Welfare Department, Government
of Jharkhand which would be evident from the due communication made
under the signature of Under Secretary to the Government dated
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08.07.2004 wherein it was communicated to the Director, RIMS that on
thoughtful consideration of the said proposal, the same has been decided
to be implemented w.e.f. 01.05.2004. It has further been referred therein
that the Finance Department has also concurred for the purpose of giving
remuneration.
The reference of the notification dated 06.08.2004 issued under the
signature of Director, Rajendra Institute of Medical Sciences, Ranchi has
been made, whereby and whereunder, the RIMS has notified that the
recommended bond and other guidelines will be applicable for the doctors
working in the residency scheme.
It has been contended that under the residency scheme, the same
has been approved by the competent department i.e., Health, Medical
Education and Family Welfare Department, Government of Jharkhand
wherein the proposal was for senior resident to be of a tenure post for
three years basis upon which the RIMS has also notified as per the
notification dated 06.08.2004, as such, it is incorrect on the part of the
writ petitioner to take the ground that no rule regarding the fact that the
resident/senior residents is available.
19. It has further been contended that even accepting that there was no rule
but it would be evident from the offer of appointment as per clause 2 read
with clause 12 wherein it has specifically been referred that the post of
resident/senior resident/tutors is permanent and the appointment was
made against the permanent post but for a period of two years subject to
satisfactory services, the services will be absorbed in the regular
establishment which suggest that the appointment is against the tenure
post.
20. The aforesaid condition as under clause 2 further been fortified from
clause 12 of the offer of appointment wherein the post of resident/senior
resident/tutors has been held to be tenure of three years. It has been
contended that the offer of appointment specifically provides the post of
resident/senior resident/tutors to be of a tenure of three years which the
writ petitioners have seen from their naked eyes at the time when they
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have given their joining but without making any objection has accepted
the terms and conditions of the offer of appointment but the same is now
been challenged.
21. Further contention has been made that once the offer of appointment has
been accepted by the writ petitioners by giving their joining to the post it
is not available for such appointees to turn around and question the terms
and conditions of the appointment.
22. Learned counsel has further argued by making reference of the RIMS
Rules, 2002 wherein all the teaching posts are to be filled up by way of
direct recruitment. The writ petitioner are claiming to be promoted to the
post of Assistant Professor which is not permissible in the light of the
Rule 11 of the Rules, 2002 wherein there is no mode of recruitment to fill
up the post by way of promotion so far as it relates to teaching cadre.
23. It has been contended that the residents/senior residents/tutors are tenure
posts not under the teaching cadre and further as per Rule 11 of the Rules,
2002 the post of teaching cadre is to be filled up through direct
recruitment hence, there is no question of consideration of the grievance
of the writ petitioner for allowing them to continue in service as also by
granting them promotion to the post of Assistant Professor.
24. It has further been submitted that the post of Assistant Professor is a
teaching post as would be evident from the guidelines of the Medical
Council of India wherein specific reference has been made regarding
senior residents that senior resident is one who is doing his/her residency
in the concerned post graduate subject after obtaining PG degree
(MD/MS) and is below 40 years of age.
25. Further it has been contended that the National Medical Council has also
considered the post of tutors/administrators/resident doctors to be under
non-teaching faculty.
26. The argument, therefore, has been advanced that when residents/senior
residents/tutors are not under teaching cadre, as such, as per the provision
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of Rule 11 of the Rules, 2002 there cannot be any consideration of
promotion from the said posts to Assistant Professor.
27. Further argument has been advanced that the spirit of Medical Council of
India is also that the post of residents/senior residents/tutors is to be a
tenure posts for three years.
28. Further contention has been made that it would be evident from the
advertisement as appended in L.P.A. No. 313 of 2021 although there is no
reference in the post of tutor to be for three years however, the senior
residents has been shown to be for a tenure of three years but the RIMS
after having realized the typographical error so far as skipping the word
'tenure of three years' so far as tutors are concerned, has come out with
the corrigendum which has been brought on record by way of
interlocutory application being I.A. No. 16452021 dated 17.03.2021 and
related documents to that effect running from page-35 to be published in
the papers for notifying to all the concerned.
29. It has further been submitted that the issue has already been decided by
the co-ordinate learned Single Judge of this Court while considering the
same issue as would be evident from the order dated 30.10.2012 passed in
W.P.(S) No. 3368 of 2012 in the case of Randhir Kumar vs. The State of
Jharkhand and Ors. and according to the learned counsel, the case of the
Randhir Kumar is exactly similar to that of the case of Manoj Kumar
Bakshi, the writ petitioner/respondent herein in L.P.A. No. 313 of 2021.
The said Randhir Kumar has raised the similar issue but it has been held
therein that the post of senior resident is only for a period of three years
and as such, no right is accrued for claiming the said post and further for
promotion to the higher posts.
30. It has further been submitted that the said order has been carried to the
letters patent appeal being L.P.A. No. 467 of 2012 but the co-ordinate
Division Bench of this Court has refused to interfere with the
finding/conclusion arrived at by the learned Single Judge in the order
dated 30.10.2012 passed in W.P.(S) No. 3368 of 2012. It has further been
submitted that the orders passed in W.P.(S) No. 3368 of 2012 and L.P.A.
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No. 467 of 2012 has been brought to the notice of the learned Single
Judge but there is no finding to that effect as would be evident from the
order passed by the learned Single Judge in W.P.(S) No. 6311 of 2012, as
such, the order impugned is fit to be quashed and set aside.
31. The further contention has been made that so far as the order impugned in
L.P.A. No. 615 of 2017 is concerned, the same needs no interference since
in the aforesaid writ petition, the learned Single Judge has taken into
consideration the very spirit of the post of tutor and came to the
conclusive finding that the post being tenure in nature, there cannot be any
direction for regularization.
32. Further contention has been made that the view as has been taken by the
learned Single Judge in the order passed in W.P.(S) No. 2274 of 2015 is
based upon the order passed by the Division Bench in L.P.A. No. 467 of
2012, hence, no interference is required.
Argument of Mr. Indrajit Sinha, learned counsel:
33. Learned counsel for the respondent no.2 (private respondent) has
submitted regarding the publication of the advertisement dated 07.06.2012
which according to the writ petitioner was against the M.C.I. regulation,
inasmuch as, an experience of five years is required and not four years,
hence, the said advertisement was to be quashed and set aside.
It has further been submitted that the writ petitioner, during
pendency of the writ application, has filed an amendment application
challenging the order as contained in Memo No. C-815 dated 28.10.2012;
whereby the service of the writ-petitioner whose name appears at serial
no.1 has been terminated in the garb of cancellation of extension of
service as Senior Resident beyond three years.
The said interlocutory application being I.A. No. 918 of 2013, was
allowed by this court vide order dated 10.04.2013. Another interlocutory
application being I.A. No. 5633 of 2015 was filed by the writ petitioners
challenging the Advertisement dated 23.09.2015 issued for the
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appointment of the post of senior residents as also for stay in the process
of recruitment.
The contention has been raised that in the Advertisement dated
23.03.2004 inviting applications for appointment on various posts
including the post of residents there was no mention that the post of
resident was for three years; rather from perusal of the advertisement itself
it transpires that the only criteria was that the incumbents for the above-
mentioned posts must possess required academic qualification of
Teaching and Research experience as prescribed by Medical Council of
India.
The ground has also been agitated by referring to Clause-2 of the
appointment letter wherein it was indicated that the posts were permanent
subject to probation of two years. However, at the bottom of the letter of
appointment, a hand written clause has been added that the post of
Resident/Tutor will be tenure post for three years. The contention
therefore has been raised that the posts since was permanent post with the
condition of probation for two years subject to their absorption in service,
hence, they ought to have been promoted to the post of Assistant
Professor but instead of granting promotion to the higher post of Assistant
Professor, his service has been dispensed with on the ground that the
tenure to hold the post of resident/senior resident is for three years as per
the stipulation made to that effect in Hindi script as under condition no.12
to the offer of appointment.
Further ground has been taken that the writ petitioner has been
discriminated since other similarly situated employees have been
promoted, as such, there is no reason to not grant the same relief.
Argument of Mr. Rajendra Krishna, learned counsel:
34. It has been submitted that in none of the advertisements, the post of
"Tutor' was marked as Tenure' post rather the post of "Tutor' was
permanent and all consequential benefits related to the service conditions
were extended similar to other employees of RIMS, Ranchi. The persons
employed as a "Tutor' were directly promoted to the post of Assistant
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Professor provided they possessed the requisite qualification as prescribed
by the Medical Council of India.
Submission has been made that post of 'Tutor' was never a tenure
post and it's only RIMS Rule, 2014, effective from 08.09.2014 i.e. the
date on which RIMS Service Rule came into force, the post of 'Tutors'
was marked as Tenure Post.
Further submission has been made that Agenda No. 4 - 14 of the
23rd General Body Meeting of RIMS, Ranchi held on 23.03.2010, the
Director, RIMS, Ranchi was of the firm opinion that the post of "Tutor'
are of permanent nature however in absence of statutory rule mentioning
service conditions of the employees of RIMS, it was taken to be 'Tenure'
based post for time being till RIMS Service Rule is finalized. The said
Service Rule was notified on 08.09.2014.
Attention of this Court has been drawn towards Memo No. 141(2),
dated 31.05.2004 and further submitted that till date there are many
employees in RIMS and other Medical Colleges of State of Jharkhand
who are functioning as a 'Tutors' and the 'Tutors' were directly promoted
to Assistant Professors in different clinical subjects.
It has been submitted that pursuant to Notification No. 162 (7B),
dated 31.07.2008, many Tutors and Senior Residents had been directly
promoted to the post of Assistant Professors without any interview or
advertisement and even the Rule of Medical Council of India is silent to
the effect as to whether the post of 'Tutor' is tenure based or not and it
only provides requisite qualification for the post.
It has been submitted that during the periods 2005, 2007 and 2008
when the writ petitioner had been appointed on the post of 'Tutors', there
was no statutory rules framed by the State Government or RIMS, Ranchi
and the appointments were made on the basis of executive instructions
issued from time to time. There was no executive instruction which
prescribes fixed tenure i.e. 3 years for the post of 'Tutors'. Therefore,
submission has been made that the RIMS Rule, 2014 cannot be applied
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retrospectively which may affect and prejudice rights of the writ
petitioners.
35. We have heard the learned counsel for the parties, perused the documents
available on record as also the finding recorded by the learned Single
Judge in the impugned orders.
36. The following issues are required to be considered:
(i) Whether the judgment passed by the Division Bench in L.P.A. No.
467 of 2012 binds the learned Single Judge on the principle of
binding precedence?
(ii) Whether the condition stipulated in the offer of appointment
clarifying therein that the post of resident/senior resident/tutor is a
tenure post for three years binds?
(iii) The direction for reinstatement in service as resident/senior
resident/tutor and in consequence thereof, promotion to the higher
post of Assistant Professor as directed in W.P.(S) No. 6311 of 2012
is justified?
(iv) Whether the order passed by the learned Single Judge in W.P.(S)
No. 6311 of 2012 is a correct law or the order passed in W.P.(S)
No. 2274 of 2015 is the correct one?
37. The emphasis of the argument of the learned counsel for the RIMS is that
the issue involved in both the appeals have been already decided by the
writ court in W.P.(S) No. 3368 of 2012 wherein the post of resident has
been treated to be a tenure post for three years, as such, the learned writ
court while passing the order in the said writ petition has held that taking
into consideration the nature of appointment which is for a period of three
years, there cannot be any direction for continuation in service as a matter
of right. Further there cannot be any direction for grant of promotion to
the higher post.
38. The said order passed by the writ court in W.P.(S) No. 3368 of 2012 has
been affirmed by the co-ordinate Division Bench of this Cout in L.P.A.
No. 467 of 2012, therefore, the order passed by the writ court in W.P.(S)
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no. 3368 of 2012 will be said to be merged in the order passed by the
Division Bench in L.P.A. No. 467 of 2012.
39. The principle of merger is well settled that the moment the order passed
by the lower forum is being affirmed by the higher forum, the order
passed by the lower forum will lost its existence due to its merger with the
order passed by the higher forum. Reference in this regard be made to the
judgment rendered by the Hon'ble Apex Court in Kunhayammed v. State
of Kerala, (2000) 6 SCC 359, in particular at paragraph 7, 8, 12 and 42,
which reads as under:
"7. The doctrine of merger is neither a doctrine of constitutional law nor a
doctrine statutorily recognised. It is a common law doctrine founded on
principles of propriety in the hierarchy of justice delivery system. On more
occasions than one this Court had an opportunity of dealing with the
doctrine of merger. It would be advisable to trace and set out the judicial
opinion of this Court as it has progressed through the times.
8. In CIT v. Amritlal Bhogilal and Co.1 this Court held:
"There can be no doubt that, if an appeal is provided against an order
passed by a tribunal, the decision of the appellate authority is the
operative decision in law. If the appellate authority modifies or reverses
the decision of the tribunal, it is obvious that it is the appellate decision
that is effective and can be enforced. In law the position would be just
the same even if the appellate decision merely confirms the decision of
the tribunal. As a result of the confirmation or affirmance of the
decision of the tribunal by the appellate authority the original decision
merges in the appellate decision and it is the appellate decision alone
which subsists and is operative and capable of enforcement;"
12. The logic underlying the doctrine of merger is that there cannot be more
than one decree or operative orders governing the same subject-matter at a
given point of time. When a decree or order passed by an inferior court,
tribunal or authority was subjected to a remedy available under the law
before a superior forum then, though the decree or order under challenge
continues to be effective and binding, nevertheless its finality is put in
jeopardy. Once the superior court has disposed of the lis before it either
way -- whether the decree or order under appeal is set aside or modified or
simply confirmed, it is the decree or order of the superior court, tribunal or
authority which is the final, binding and operative decree or order wherein
merges the decree or order passed by the court, tribunal or the authority
below. However, the doctrine is not of universal or unlimited application.
The nature of jurisdiction exercised by the superior forum and the content
or subject-matter of challenge laid or which could have been laid shall have
to be kept in view.
42. "To merge" means to sink or disappear in something else; to become
absorbed or extinguished; to be combined or be swallowed up. Merger in
law is defined as the absorption of a thing of lesser importance by a greater,
whereby the lesser ceases to exist, but the greater is not increased; an
absorption or swallowing up so as to involve a loss of identity and
individuality."
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The decision in Kunhayammed v. State of Kerala (Supra) was
followed by a three-Judge Bench decision of Hon'ble Apex Court in
Chandi Prasad v. Jagdish Prasad reported in (2004) 8 SCC 724,
wherein at paragraphs 23 and 24 it has been held which read
hereunder as:-
"23. The doctrine of merger is based on the principles of propriety in the
hierarchy of the justice delivery system. The doctrine of merger does not
make a distinction between an order of reversal, modification or an order of
confirmation passed by the appellate authority. The said doctrine postulates
that there cannot be more than one operative decree governing the same
subject-matter at a given point of time.
24. It is trite that when an appellate court passes a decree, the decree of the
trial court merges with the decree of the appellate court and even if and
subject to any modification that may be made in the appellate decree, the
decree of the appellate court supersedes the decree of the trial court. In
other words, merger of a decree takes place irrespective of the fact as to
whether the appellate court affirms, modifies or reverses the decree passed
by the trial court."
The decision in Chandi Prasad v. Jagdish Prasad (Supra) was
followed by a two-Judge Bench of Hon'ble Apex Court in Shanthi v. T.D.
Vishwanathan reported in (2018) SCC OnLine SC 2196 wherein it has
been held at paragraph 7 which reads as under:-
"7. ... When an appeal is prescribed under a statute and the appellate
forum is invoked and entertained, for all intents and purposes, the suit
continues. When a higher forum entertains an appeal and passes an order
on merit, the doctrine of merger would apply. The doctrine of merger is
based on the principles of the propriety in the hierarchy of the justice
delivery system. The doctrine of merger does not make a distinction between
an order of reversal, modification or an order of confirmation passed by the
appellate authority. The said doctrine postulates that there cannot be more
than one operative decree governing the same subject-matter at a given
point of time."
40. It is evident from the aforesaid position of law as has been settled by the
Hon'ble Apex Court in the judgment referred hereinabove that the order
passed by the writ court in W.P.(S) no. 3368 of 2012 will be said to be
merged in the order passed by the co-ordinate Division Bench of this
Court in L.P.A. No. 467 of 2012.
41. The question herein will be that if the same issue has been decided by the
higher forum, will it not bind the lower forum on the principle of binding
precedence.
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42. Law in this regard is well settled as has been held by the Hon'ble Apex
Court in Official Liquidator vs. Dayanand and Ors., (2008) 10 SCC 1, at
paragraphs-84, 86 & 88 which read as under:-
"84. In State of Bihar vs. Kalika Kuer, the Court elaborately considered the
principle of per incuriam and held that the earlier judgment by a larger
Bench cannot be ignored by invoking the principle of per incuriam and the
only course open to the coordinate or smaller Bench is to make a request
for reference to the larger Bench.
86. In Central Board of Dwaoodi Bohra Community vs. State of
Maharashtra, the Constitution Bench interpreted Article 141, referred to
various earlier judgments including Bharat Petroleum Corpn. Ltd. vs.
Mumbai Shramik Sangha and Pradip Chandra Parija vs. Pramod Chandra
Patnaik and held that "the law laid down in a decision delivered by a Bench
of larger strength is binding on any subsequent Bench of lesser or co-equal
strength and it would be inappropriate if a Division Bench of two Judges
starts overruling the decisions of Division Benches of three Judges. The
Court further held that such a practice would be detrimental not only to the
rule of discipline and the doctrine of binding precedents but it will also lead
to inconsistency in decisions on the point of law; consistency and certainty
in the development of law and its contemporary status - both would be
immediate casualty (Central Board of Dawoodi Bohra Community case,
SCC p. 682, paras 12 & 10).
88. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj, the Court
noted that by ignoring the earlier decision of a coordinate Bench, a Division
Bench of the High Court directed that part-time tube-well operators should
be treated as permanent employees with same service conditions as far as
possible and observed: "26. Judicial discipline is self-discipline. It is an
inbuilt mechanism in the system itself. Judicial discipline demands that
when the decision of a coordinate Bench of the same High Court is brought
to the notice of the Bench, it is to be respected and is binding, subject of
course, to the right to take a different view or to doubt the correctness of the
decision and the permissible course then open is to refer the question or the
case to a larger Bench. This is the minimum discipline and decorum to be
maintained by judicial fraternity."
43. It is, thus, evident that the order passed by the higher forum is binding
upon the learned Single Judge.
44. But, herein, it appears that the learned Single Judge while passing the
order dated 02.09.2021 in W.P.(S) No. 6311 of 2012 impugned in L.P.A.
No. 313 of 2021, the same bears no finding in the impugned order even
though the order passed by the learned Single Judge in W.P.(S) no. 3368
of 2012 as also the order passed by the co-ordinate Division Bench of this
Court in L.P.A. No. 467 of 2012 have been brought to the notice by
making it part of the paperbook.
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45. This Court, therefore, is of the view that the order passed by the co-
ordinate Division Bench of this Court in L.P.A. No. 467 of 2012 is having
binding precedence upon the learned Single Judge. Accordingly, the issue
no.1 is answered.
46. The other issues i.e., issues no.(ii); (iii) and; (iv) as referred above are
concerned, since they are interlinked, therefore, the same are being taken
up together as under.
47. Although, we are of the view that since the issue has already been decided
by the co-ordinate Division Bench of this Court, as such, there is no need
to further delve upon the issue but the argument has been advanced,
therefore, this Court deems it fit and proper to answer the same.
48. The contention has been raised that the post of resident/senior
resident/tutor is not a tenure post rather it is a permanent post.
49. But, we are not in agreement with the aforesaid submission due to the
following reasons coupled with the fact that the said issue has already
been decided by the co-ordinate Division Bench of this Court in L.P.A.
No. 467 of 2012 and whatever reason is being assigned herein that will be
in addition to the order passed by the Division Bench in the aforesaid
case:
(i) The offer of appointment reflects the post of residents/senior
residents for three years. So far as it relates to the advertisement in
L.P.A. No. 313 of 2021, however, there is no reference of the post
to be tenure but it is evident from the offer of appointment wherein
clause 2 which is specific that the same will be on probation for the
period of two years and the service found to be satisfactory, the
services can be absorbed in the regular establishment.
(ii) Further, it would be evident from the offer of appointment that
there is condition as written in clause 12 although in hand written
referred therein that the post of resident is a tenure post for the
period of three years.
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It is settled position of law that the condition stipulated in the
appointment letter binds the parties. Herein, in pursuance of the
condition stipulated in the appointment letters, the writ petitioners
after accepting the same had joined as Tutors and now is
questioning the condition as stipulated under clause 12. The same is
not permissible due to the principle of approbate and reprobate, i.e.,
accepting the part of the document which suits and not accepting
the part which does not suit. Reference in this regard be made to the
judgment rendered by the Hon'ble Apex Court in R. N. Gosain vs.
Yashpal Dhir, (1992) 4 SCC 683. Paragraph-10 of the said
judgment is being reproduced as hereunder:
"10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that "a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and then
turn round and say it is void for the purpose of securing some
other advantage". [See : Verschures Creameries Ltd. v. Hull and
Netherlands Steamship Co. Ltd. [(1921) 2 KB 608, 612 (CA)] ,
Scrutton, L.J.] According to Halsbury's Laws of England, 4th
Edn., Vol. 16, "after taking an advantage under an order (for
example for the payment of costs) a party may be precluded from
saying that it is invalid and asking to set it aside". (para 1508)"
In State of Punjab and Ors. vs. Krishan Niwas, AIR 1997
Hon'ble Supreme Court 2349 the Hon'ble Apex Court at
paragraph-4 has laid down that once the employee has accepted the
correctness of the order and then acted upon it, the same cannot be
questioned by the concerned.
In Suzuki Parasrampuria Suitings Private Limited vs.
Official Liquidator of Mahendra Petrochemicals Limited (In
Liquidation) and Ors., (2018) 10 SCC 707 the Hon'ble Apex Court at
paragraphs 12 & 13 has laid down which reads as hereunder:
"12. A litigant can take different stands at different times but cannot
take contradictory stands in the same case. A party cannot be
permitted to approbate and reprobate on the same facts and take
inconsistent shifting stands. The untenability of an inconsistent stand
in the same case was considered in Amar Singh v. Union of
India [Amar Singh v. Union of India, (2011) 7 SCC 69 : (2011) 3
SCC (Civ) 560] , observing as follows: (SCC p. 86, para 50)
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"50. This Court wants to make it clear that an action at law is
not a game of chess. A litigant who comes to court and invokes its
writ jurisdiction must come with clean hands. He cannot prevaricate
and take inconsistent positions."
13. A similar view was taken in Joint Action Committee of Air Line
Pilots' Assn. of India v. DGCA [Joint Action Committee of Air Line
Pilots' Assn. of India v. DGCA, (2011) 5 SCC 435] , observing:
(SCC p. 443, para 12)
"12. The doctrine of election is based on the rule of estoppel--the
principle that one cannot approbate and reprobate inheres in it. The
doctrine of estoppel by election is one of the species of estoppels in
pais (or equitable estoppel), which is a rule in equity. ... Taking
inconsistent pleas by a party makes its conduct far from satisfactory.
Further, the parties should not blow hot and cold by taking
inconsistent stands and prolong proceedings unnecessarily.""
Further, the terms and conditions available in the offer of
adornment to such an appointment which does not govern that the
service condition is binding upon the parties. If one party is not
following the same, the same will be breach of the terms and
conditions of the appointment letters and in that view of the matter,
there cannot be interference by the Court of Law otherwise the
same will lead to re-writing the terms and conditions of the contract
arrived at in between the parties, which is not permissible.
Reference in this regard be made to the judgment rendered by the
Hon'ble Apex Court in Union Territory of Pondicherry and Ors
Vs. P.V. Suresh and Ors., reported in (1994) 2 SCC 70. At
paragraph 11 of the aforesaid decision, it has been held that the
Court has no jurisdiction to alter the terms or re-write the contract
between the parties. Paragraph 11 is being referred as under:-
"11. In the circumstances of this case, our inquiry is limited to the
question whether the contract was so constructed that loss was
inherent and implicit in it; if so, it ought to be modified. Otherwise,
the Court has no jurisdiction to alter the terms or rewrite the
contract between the parties.
(iii) The ground has been agitated that in the offer of appointment since
clause 12 is in hand written script, as such, the same has got no
reliability but we are not in agreement with such submission reason
being that it is not the argument or also the case that at the time
when the offer of appointment was received by the writ petitioners,
there was no reference of clause 12 to the effect that the post of
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resident is a tenure post for a period of three years, hence, at this
moment, it is not available for the writ petitioners to take the
ground that the same since is hand written script, therefore, the
same is not admissible.
(iv) The argument so far as questioning clause 12 is concerned, the
same is not permissible to be questioned once they have accepted
and acted upon the same by rendering their services as also got
extension.
Law in this regard is well settled that once the terms and
conditions has been accepted by a party concerned, it is not
available for such party to turn around and question the same.
Reference in this regard be made to the judgment rendered by the
Hon'ble Apex Court in Dr. G. Sarana Vs. University of Lucknow
& Ors. [(1976) 3 SCC 585]. For ready reference, paragraph 15 of
the said judgment is quoted hereunder:-
"15. We do not, however, consider it necessary in the present case
to go into the question of the reasonableness of bias or real
likelihood of bias as despite the fact that the appellant knew all the
relevant facts, he did not before appearing for the interview or at
the time of the interview raise even his little finger against the
constitution of the Selection Committee. 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
not now open to him to turn round and question the Constitution of
the Committee. This view gains strength from a decision of this
court in Manak Lal's case where in more or less similar
circumstances, it was held that the failure of the appellant to take
the identical plea at the earlier stage of the proceedings created an
effective bar of waiver against him. The following observations
made therein are worth quoting: It seems clear that the appellant
wanted to take a chance to secure a favourable report from the
tribunal which was constituted and when he found that he was
confronted with unfavourable report, he adopted the device of
raising the present technical point."
Likewise, the Hon'ble Apex Court in Omprakash Shukla
Vs. Akhilesh Kumar Shukla and Ors. [(1986) (supp) SCC 285], has
held that if a candidate had appeared in the examination without
protest, he cannot invoke the jurisdiction of the High Court under
Article 226 realizing that he would not succeed in the examination.
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Further reference in this regard is made to the judgment
rendered by the Hon'ble Supreme Court in Marripati Nagaraja and
Others Vs. Govt of Andhra Pradesh and Ors. [(2007) 11 SCC 522]
wherein it has been held that if the appellants had appeared at the
examination without any demur, they did not question the validity of
fixing of the said date before the appropriate authority, therefore,
they were estopped and precluded from questioning the selection
process.
(v) The ground has also been taken that there was no rule available at the
time when appointment was made. But we are not impressed with
such submission on two grounds, i.e.,
(a) That the Rules, 2002 is there of RIMS wherein the Rule 11
stipulates that all the teaching cadre posts are to be filled up by
way of direct recruitment. For ready reference, the extract of
Rules, 2002 is being referred as under:
"11. पद ों पर नियुक्ति । (1) (i) शैक्षणिक संवर्ग के सभी पद ं पर णियुक्ति, खुले णवज्ञापि
तथा - शै क्षणिक संवर्ग के पद ं हेतु स्थायी चयि सणिणत द्वारा की र्ई अिुशंसाओं के
आधार पर शासी पररषद द्वारा की जायेर्ी। ऐसी सभी नियुक्तिय ाँ सोंनिद के आध र पर
भी निशेष सेि - शर्त निध त रण कर की ज सकेगी
(ii) शैक्षनणक सोंिगत के सभी पद ों के निए शैक्षनणक य ग्यर् एिों अिु भि िही ह ग ज
भ रर्ीय निनकत्स पररषद, भ रर्ीय दन्त पररषद, भ रर्ीय िनसिंग पररषद अथि ऐसी नकसी
अन्य िैध निक पररषद, जैस ि गू ह , के द्व र निध तररर् नकय गय ह ।
स्पष्टीकरण: इि नियम ों में शैक्षनणक सोंिगत के पद ों से र् त्पयत है ऐसे पद नजन्हें सम्बद्ध :- /
प्र सोंनगक िैध निक पररषद द्व र अपेनक्षर् अनिि यतर् ओों क ध्य ि में रखर्े हुए श स पररषद
द्व र शैक्षनणक सोंिगत क पद घ नषर् नकय ह
(2) श सी पररषद ऐसे सरक री सेिक ों क भी नियुि कर सकेगी नजन्ह ि
ों े सोंस्थ ि द्व र नद
गये खुिे निज्ञ पि के प्रत्यु त्तर में आिेदि नकय ह र्थ नियुक्ति के एक िषत के भीर् सोंस्थ ि
में सम य नजर् ह िे केनिए र्ैय र ह ों
(3) श सी पररषद द्व र अनधनियम की ध र 14 (iii) के प्र िध ि के अिुस र आों र्ररक
नित्तीय सि हक र की नियुक्ति की ज येगी इस प्रक र नियुि नकये गये आों र्ररक नित्तीय
सि हक र क क यतक ि र्ीि िषों क ह ग
(4)उप निदे शक (प्रश सि) के पद पर नियुक्ति, श सी पररषद द्व र खुिे निज्ञ पि के म ध्यम
से-िगत- १ एिों समूह "ए" के पद ों के निए स्थ यी ियि सनमनर् की अिुशोंस ओों के आध र पर
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उि य ग्य उम्मीदि र ों में से की ज येगी ज २०० शय्य ि िे अस्पर् ि क प्रबोंधि के प ों ि िषों
के अिुभि के स थ अस्पर् ि प्रश सि / अस्पर् ि प्रबोंधि में निप्ल म य निग्रीध री ह ।ों ऐसे
उम्मीदि र के उपिबध ि ह प िे की क्तस्थनर् में श सी पररषद, र ज्य सरक र द्व र सम्यक
रुप से अिुशोंनसर् पैिि से भ रर्ीय प्रश सनिक सेि के नकसी अनधक री अथि र ज्य
प्रश सनिक सेि के ऐसे पद नधक री ज अपर नजि दण्ड नधक री (मनजस्ट्र े ट) से अन्यूि स्तर
क ि ह , कम से कम र्ीि िषों के निए प्रनर्नियुक्ति के आध र पर नियुि कर सकर्ी है I
(5) एक िेख पद नधक री ह ग नजसकी नियुक्ति श सी पररषद द्व र की ज येगी (6) जबर्क
अन्यथ उपबोंनधर् ि ह , नकसी पद पर सभी नियुक्तिय ाँ िगत- १ एिों "ए" क नट क पद समूह
के निए गनिर् स्थ यी ियि सनमनर् अथि इस प्रय जि थत गनिर् र्दथत सनमनर् की
अिुशोंस ओों के आध र पर खुिे निज्ञ पि द्व र की ज येगी। ऐसी नियुक्तिय ाँ निनशष्ट, शर्ों एिों
पररक्तस्थनर्य ों पर सोंनिद के आध र पर भी की ज सकेगी (7) सोंस्थ ि क एक निगर िी
पद नधक री ह ग नजसकी नियुक्ति झ रखण्ड सरक र के निगर िी निभ ग से पर मशत कर
श सी पररषद द्व र की ज येगी I"
(b) The teaching cadre has been defined in the guidelines of
Medical Council of India by bifurcating it into two parts, i.e.,
faculty members and non-faculty members. Under faculty
members, teaching cadre has been referred and under non-
faculty members, resident/senior resident/tutor has been
referred.
(c) It also needs to refer herein that the notification issued by the
Medical Council of India wherein the post of senior residents
has been shown that senior resident is one who is doing his/her
residency in the concerned post graduate subject after obtaining
PG degree (MD/MS) and is below 40 years of age. For ready
reference, the extract of the MCI guidelines is being referred as
under:
"Senior Resident is one who is doing his/her residency in the
concerned post graduate subject after obtaining PG degree
(MD/MS) and is below 40 years of age."
(vi) It further appears from the fact that the residents/senior
residents/tutors being tenure posts for a period of three years and is
under non-faculty members, therefore, can it be said that the holder
of the said post can have a right to claim continuity on the said post.
The law is well settled that if the nature of appointment is for a
tenure for a fixed period and to that effect, a candidate knows very
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well as the case herein is and on acceptance of the terms and
conditions if they have joined their services as also continued but
merely because they have continued for a period on the ground of
any extension granted by the respondent-RIMS, that cannot be a
ground to claim continuity in service.
50. The power of creation of post is vested upon the employer and once the
post is in the nature of tenure for a particular period, the nature cannot be
changed merely one or the other have been allowed to continue in service.
Further, the post of tutor is concerned, the basic underlying idea for such
post is to provide opportunity to all who are doing his/her residency in the
concerned PG subject after obtaining PG degree. If in such circumstances,
the services of one or the other will be allowed to be continued then the
question would be that how the opportunity will be given to the students
who are undergoing PG courses.
51. The object, therefore, is that the students who are undergoing PG degree
courses either MD or MS will have an opportunity to have the teaching
experience for a period of three years so that they be eligible for the
purpose of Assistant Professor, the basic entry post as per the structure of
cadre in any medical institute including the RIMS.
52. The basic cadre post earlier was of the post of Lecturer as per the MCI
guidelines but subsequently the post of Lecturer has been re-designated to
the post of Assistant Professor under the teaching cadre.
53. Rule 11 of Rules, 2002 since is very specific that all the teaching post is to
be filled up by way of direct recruitment hence, there is no question of
granting promotion to the candidate working in the capacity of
resident/senior resident/tutor otherwise, the student who is working as
resident/senior resident/tutor will be said to be under the teaching cadre
and the same will be treated to be the basic cadre for the purpose of
granting promotion to the post of Assistant Professor. But, that is not the
scheme as would be evident from the MCI guidelines as referred
hereinabove.
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54. The argument by putting reliance upon the clause-2 of the offer of
appointment wherein it has been stipulated that on completion of two
years of satisfactory service, one or the other Tutor will be absorbed, does
not imply that absorption in the regular establishment in view of the
discussion made in the preceding paragraphs otherwise the very
scheme/rules of recruitment of the of the post of Assistant Professor
which is the basic cadre will become redundant.
55. This Court, after taking into consideration the purport of the guidelines of
the Medical Council of India, Section 11 of Act, 2002 of the RIMS, is of
the view that the interpretation so made by the appellants that the word
'absorption (samayojan)' construed to be a regular incumbency of one of
the other Tutors, but, the same cannot be accepted otherwise the post of
Tutor will become the basic cadre and the post of Assistant Professor will
become the next hierarchical post and will be feeder post of Associate
Professor but the guideline of MCI and the Rules, 2002 does not reflect
the same to be the correct one rather the MCI Regulation also suggest that
the Tutors is only for the purpose of providing opportunity to the PG
course students.
Further, the Act, 2002 also reflects the basic cadre post to be the
Assistant Professor to be filled up through direct recruitment. Therefore,
coupled with clause-2 with clause-12 of the offer of appointment the post
of Tutor will be said to be held by one or the other Tutors against the
permanent post of Tutor for the period of three years only.
56. Exactly the similar view has been taken by the co-ordinate Bench of this
Court in Randhir Kumar vs. The State of Jharkhand and Ors. affirmed by
the Division Bench of this Court in L.P.A. No. 467 of 2012.
57. So far as the ground taken that the other similarly situated have been
continued in service and they have been promoted also to the post of
Assistant Professor.
58. Learned counsel for the RIMS has not disputed the aforesaid fact rather it
has been submitted that it was not the decision of the governing council of
the RIMS who is the competent body to take any decision under the
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Rules, 2002 since the RIMS is an autonomous body wherein as per
Section 12 of the RIMS Act, 2002 all powers have been vested in the
governing body related to financial and administrative power and with
regard to the affairs of the RIMS. For ready reference, Section 12 of the
RIMS Act, 2002 is being referred as under:
"(12) शासी पररषद् की शक्तियााँ - (i) श सी पररषद् के प स सोंस्थ ि के म मि ों से सोंबोंनधर् पूरी
प्रश निक एिों नित्तीय शक्तिय ाँ र्थ शक्तिय ों के उपय ग र्थ सोंस्थ ि के िक्ष् ों एिों उद्दे श् ों के अिुकूि
सोंस्थ ि के सभी क यों एिों कृत्य ों क सोंि िि क प्र नधक र ह ग -
(ii) पररषद् क सोंस्थ ि के ि नषतक बजट क अिुम नदर् करिे एिों स्वीकृनर् हे र्ु उसे र ज्य सरक र के
प स भेजिे की शक्ति ह गी । र ज्य सरक र स्वीकृनर् प्र प्त करिे के उपर न्त श सी पररषद् क बजट में
श नमि नकसी भी मद पर व्यय की मोंजूरी दे िे क पूर अनधक र ह ग :
यनद नकसी नित्तीय िषत के दौर ि नकसी क यतक्रम क धि दे िे क प्रस्त ि ह , नजसे उस नित्तीय िषत के
प्र क्किि में श नमि िही ों नकय गय ह , ऐसी क्तस्थनर् में श सी पररषद् अिुपूरक बजट हे र्ु र ज्य सरक र
से अिुम दि प्र प्त करे गी ।
(iii) ध र -6 में निनदत ष्ट क यों के निष्प दि हे र्ु की गयी क रत ि ई में सोंस्थ ि के खिो क पूर करिे हे र्ु
श सी पररषद् क सोंस्थ ि की निनध के उपय ग की नित्तीय शक्तिय ाँ ह गी I
(iv) श सी पररषद् के प ि सोंस्थ ि की निनध से व्यय सोंबोंधी िही शक्तिय ाँ ह ग
ों ी ज ि क निनध से व्यय
करिे के म मिे में र ज्य सरक र के प स है ।
(v) र ज्य सरक र द्व र निनमतर् नियम ों के अधीि रहर्े हुए श सी पररषद् क सोंस्थ ि में पद ों के सृजि एिों
सम पि क अनधक र ह ग ।
(vi) श सी पररषद् नकसी भी धमतद य, न्य स निनध, िन्द य प्रनर्द ि क प्रबोंधि और प्रश सि स्वीक र
कर सकर् है , बशर्े इिमें ऐसे क ई उपबन्ध ि ह ज सोंस्थ ि के उद्दे श् ों के प्रनर्कूि और निर धी ह ।
(vii) श सी पररषद् क अिुषोंगी सेि ऐों, जैसे कैटररों ग, िॉन्ड्री सेि एाँ , एम्बुिेन्स सेि एाँ भी आिश्कर्
समझे ज िे पर ब ह्य स्र र् ों से प्र प्त कर सकर्ी है परन्तु श सी पररषद् बुनिय दी सेि ओों क ि ह्य स्त्र र् ों
से प्र प्त िही ों कर सकेगी ।
(viii) श सी पररषद् क नियम ों र्थ निनियम ों द्व र निध त ररर् फीस एिों अन्य शुल् ों के आर नपर् एिों
सोंस्थ ि के दे ख भ ि एिों निक स हे र्ु, प्र प्त र नश के उपय ग की शक्ति ह गी ।
(ix) श सी पररषद् र ज्य सरक र की पूि त िुमनर् से ध र -32 के प्र िध ि िुस र अनधसूिि ज री कर
निनियम ों क निम त ण कर सकर्ी है ।
(x) श सी पररषद् अपिी शक्तिय ों क सोंकल्प द्व र क यतक ररणी सनमनर्, अध्यक्ष उप ध सोंस्थ ि के
निदे शक य सोंस्थ ि के अन्य पद नधक ररय ों क , प्रत्य य नजर् कर सकर् परन्तु श सी पररषद् नियम ों
र्थ निनियम ों के निम त ण की शक्तियI, सोंस्थ ि के ि नषतक बजट स्वीकृर् करिे की शक्ति, सोंस्थ ि में
उपिब्ध निनधय ों के निशेष अिुद ि य द ि के म ध्यम से स्वीकृनर् दे िे की शक्ति र्थ शैनक्षक सोंक य
पद ों पर नियुक्ति की शक्ति क प्रत्य य नजर् िही ों कर सकर् ।"
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59. The contention has been made, therefore, that the State even though was
not having any power in view of the provision of Section 12 but then too
appointment has been made as would appear from the offer of
appointment made in favour of the concerned candidate who have been
allowed to continue either as resident/senior resident/tutor as also have
been granted promotion to the post of Assistant Professor. But the ground
has been agitated that even accepting that the candidate are allowed to
continue and they have also been granted promotion but the question
which is to be looked into that on the ground of any illegality committed
by any establishment, does it confer any right to claim parity on the
ground of illegality.
60. This Court, on appreciation of the aforesaid argument, is of the view that
the law does not permit so far as the RIMS establishment is concerned as
per Rules, 2002 and RIMS has been made to be an autonomous body
being created through the statute, i.e., RIMS Act, 2002, as such, the RIMS
is to be governed by its statutory rules, i.e., in terms of the provision of
RIMS Act, 2002.
61. Since Section 12 as contained in the Act, 2002 confers power only to the
governing body of the RIMS for the purpose of taking financial and
administrative decision and hence, in that view of the matter, it was not
open for the State to take any decision by making appointment otherwise
it will lead to undue interference with the internal affairs of the RIMS and
the consequence would be that the very autonomy of the RIMS will be at
stake as the case herein is.
62. Reference of Section 29 is also required to be made wherein it has been
referred therein that so far as the evasive control is concerned, the RIMS
has to comply with such direction of the State Government which are
issued under the declared policy to ensure improvement in the medical
education, medical treatment and efficient administration as well as to
achieve aims and objectives of the RIMS. For ready reference, Section 29
of the RIMS Act, 2002 is being referred as under:
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"(29) र ज्य सरक र क नियोंत्रण सोंस्थ ि र ज्य सरक र द्व र समय-समय पर निगतर् ऐसे निदे श ों क
अिुप िि करें गI ज सों स्थ ि के कुशि प्रश सि एिों इसके िक्ष् ों एिों उदे श् ों क आगे बढ िे एिों
र ज्य सरक र क र ज्य में निनकत्स नशक्ष एिों निनकत्सीय सुनिध के सोंिद्धत ि की घ नषर् िीनर् के
अिुरूप ह ।"
63. This Court, therefore, by taking into consideration the statutory command
and the view of the Legislature in carving out the RIMS Act, 2002 which
itself suggest that the autonomy of the RIMS cannot be interfered with by
the State Government but the functionary of the State Government has
interfered with by passing the order for continuation and promotion to
some of the candidates.
64. This Court, on the basis of the provision of Act, 2002, is of the considered
view that the condition of the promotion so made by the State
Government dehores the rules of the RIMS although the same has been
accepted by the RIMS which does not mean that the same will be allowed
to continue on the ground of parity.
The same is based upon the principle that we are living in the realm
of positive equality as the Article 14 envisages. Article 14 does not
envisages negative equality. Reference in this regard be made to the
judgment rendered by the Hon'ble Apex Court in State of Bihar & Ors.
vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 wherein at
paragraph-30 it has been laid down hereunder as :-
"The concept of equality as envisaged under Art. 14 of the Constitution is a
positive concept which cannot be enforced in a negative manner. When any
authority is shown to have committed any illegality or irregularity in favour
of any individual or group of individuals other cannot claim the same
illegality or irregularity on ground of denial thereof to them. Similarly
wrong judgment passed in favour of one individual does not entitle others to
claim similar benefits."
Reference in this regard may also be made to the judgment
rendered in Basawaraj & Anr. Vs. Special Land Acquisition Officer,
(2013) 14 SCC 81, in particular, paragraph 8, which reads hereunder as:
"8. It is a settled legal proposition that Article 14 of the Constitution is not
meant to perpetuate illegality or fraud, even by extending the wrong
decisions made in other cases. The said provision does not envisage
negative equality but has only a positive aspect. Thus, if some other
similarly situated persons have been granted some relief/benefit
inadvertently or by mistake, such an order does not confer any legal right
on others to get the same relief as well. If a wrong is committed in an earlier
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case, it 22 cannot be perpetuated. Equality is a trite, which cannot be
claimed in illegality and therefore, cannot be enforced by a citizen or court
in a negative manner. If an illegality and irregularity has been committed in
favour of an individual or a group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the jurisdiction of the
higher or superior court for repeating or multiplying the same irregularity
or illegality or for passing a similarly wrong order. A wrong order/decision
in favour of any particular party does not entitle any other party to claim
benefits on the basis of the wrong decision. Even otherwise, Article 14
cannot be stretched too far for otherwise it would make functioning of
administration impossible."
Likewise, the Hon'ble Apex Court in Kulwinder Pal Singh & Anr
Vs. State of Punjab & Ors, (2016) 6 SCC 532 at paragraph 16 held
hereunder as:
"16. The learned counsel for the appellants contended that when the other
candidates were appointed in the post against dereserved category, the
same benefit should also be extended to the appellants. Article 14 of the
Constitution of India is not to perpetuate illegality and it does not envisage
negative equalities. In State of U.P. v. Rajkumar Sharma it was held as
under: "
15. Even if in some cases appointments have been made by mistake or
wrongly, that does not confer any right on another person. Article 14 of the
Constitution does not envisage negative equality, and if the State committed
the mistake it cannot be forced to perpetuate the same mistake."
65. Herein also, there should not be any continuation of the candidate who
were working as resident/senior resident/tutor as also cannot be allowed to
be promoted as Assistant Professor but giving go-by to the statutory
provision, they are being continued.
66. We are not making any comment upon their continuation since it is not
the issue herein but the question herein is whether the illegality which has
been committed by the decision of the State having been adopted by the
RIMS, can be said to be a ground to grant benefit of parity.
67. The answer of this Court will be in negative since if the same will be
allowed, the same will be allowed to perpetuate illegality which is not
permissible. Reference in this regard be made to the judgment rendered by
the Hon'ble Apex Court in State of Orissa and Anr. vs. Mamata
Mohanty, (2011) 3 SCC 436, paragraph-37 of the said judgment reads as
under:
"37. It is a settled legal proposition that if an order is bad in its inception, it
does not get sanctified at a later stage. A subsequent action/development
cannot validate an action which was not lawful at its inception, for the
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reason that the illegality strikes at the root of the order. It would be beyond
the competence of any authority to validate such an order. It would be ironic
to permit a person to rely upon a law, in violation of which he has obtained
the benefits. If an order at the initial stage is bad in law, then all further
proceedings consequent thereto will be non est and have to be necessarily
set aside. A right in law exists only and only when it has a lawful origin."
68. The further instance of the other candidates have been taken who were
working in the Mahatma Gandhi Medical College and Hospital by the
learned counsel for the writ petitioner in L.P.A. No. 615 of 2017 wherein
it has been tried to be impress upon the Court by referring to the order by
which the services of some of the tutors have been confirmed but the
argument in this regard as has been made that the same cannot be of any
aid to the appellant since they are in the Mahatma Gandhi Medical
College and Hospital.
69. This Court, on appreciation of the rival submissions on this ground, is of
the view that the RIMS being an autonomous body, a creator under the
statute, as such, the appointment is to be made directly in terms of the
provision but it cannot be disputed by anyone that in the State of
Jharkhand save and except, RIMS, all the medical colleges either MGM
or Patliputra, etc., are having no autonomous status rather they are under
the direct control of the State Government.
70. Therefore, if the services of the candidates working in the Mahatma
Gandhi Medical College and Hospital have been confirmed the same,
according to our considered view, will have no aid to the case of the writ
petitioners.
71. Mr. Rajendra Krishna, learned counsel for the writ petitioner/appellant
no.3 in L.P.A. No. 615 of 2017 has relied upon the Rules, 1997. But, we
are of the view that the Rules, 1997 will not have any effect after
bifurcation of the State and more particularly, after the enactment of the
RIMS Rules, 2002.
72. One of the arguments has been raised by referring to the advertisement
wherein reference of the post of Tutor has been shown to be tenure for a
period of three years but we, after going through the corrigendum issued
in this regard on 17.02.2006, is of the view that the said corrigendum,
with
L.P.A. No.615 of 2017
with
Cont. Case (C) No.1151 of 2019
wherein, it has been clarified the post to be for a tenure of three years, is
having no substance.
73. This Court, after having discussed the fact in entirety and taking into
consideration the fact that the issue has already been decided by the co-
ordinate Division Bench of this Court in L.P.A. No. 467 of 2012 but the
learned Single Judge while passing the order dated 02.09.2021 in W.P.(S)
No. 6311 of 2012 has not appreciated the fact in right perspective and
even not followed the binding precedence of the judgment passed by the
co-ordinate Division Bench even though the same was available on
record.
Further, the writ petitioners have also not disputed that the issue
which has been decided in L.P.A. No. 467 of 2012 is on different fact or
the legal premise, therefore, this Court is of the view that the order dated
02.09.2021 passed in W.P.(S) No. 6311 of 2012 suffers from error.
Accordingly, the same is quashed and set aside.
74. In the result, the appeal being L.P.A. No. 313 of 2021 stands allowed,
accordingly, disposed of.
In consequence thereof, writ petition being W.P.(S) No. 6311 of
2012 stands dismissed.
75. So far as L.P.A. No. 615 of 2017 is concerned, we are of the view that the
order impugned therein is on consideration of the factual aspect as
discussed hereinabove as also will be said to be based upon the
finding/conclusion arrived at by the co-ordinate Division Bench in L.P.A.
No. 467 of 2012, therefore, the order dated 06.12.2017 passed in W.P.(S)
No. 2274 of 2015 requires no interference.
76. In the result, the appeal being L.P.A. No. 615 of 2017 is dismissed.
77. Pending interlocutory application(s), if any, also stands disposed of.
Cont. Case (Cvl) No. 1151 of 2019:
78. The instant contempt case has been filed against alleged non-compliance
of the order dated 16.01.2018 passed in L.P.A. No. 615 of 2017, whereby
and whereunder, the order passed by the learned writ Court in W.P.(S)
with
L.P.A. No.615 of 2017
with
Cont. Case (C) No.1151 of 2019
No. 2274 of 2015 has been stayed during pendency of the appeal being
L.P.A. No. 615 of 2017 without taking into consideration the fact that the
Director, RIMS, Ranchi has terminated the services of the petitioner,
namely, Dr. Archana, who happens to be appellant no.6 in L.P.A. No. 615
of 2017.
79. This Court is of the view that due to the dismissal of L.P.A. No. 615 of
2017, the instant contempt case also deserves to be dismissed.
80. Accordingly, the instant contempt case is dismissed.
(Sujit Narayan Prasad, J.)
I agree,
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 11/09/2023
Saurabh/-
N.A.F.R.
