Jharkhand High Court
Dr. Kiran Trivedi vs The State Of Jharkhand Through The ... on 24 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4638 of 2023
Dr. Kiran Trivedi, aged about 55 years, wife of Dr. Ajit Kumar Sharma,
resident of Sharma Lane, Opposite G.E.L. Church Complex, Main Road,
PO & PS-Hindpiri, District-Ranchi ... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary/Principal Secretary,
Health, Medical Education and Family Welfare Department, having office
at Project Building, PO & PS-Dhurwa, Town and District-Ranchi
2. Rajendra Institute of Medical Sciences (RIMS) through its Director,
having office at RIMS Campus, PO & PS-Bariatu, District-Ranchi
3. The Director, Rajendra Institute of Medical Sciences (RIMS), having
office at RIMS Campus, PO & PS-Bariatu, District-Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner : Mr. Manoj Tandon, Advocate
Mr. Siddharth Ranjan, Advocate
Ms. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
Ms. Ankita, Advocate
For the Respondent No.1 : Mr. J. F. Toppo, GA-V
Mr. Ajit Kumar, AC to GA-V
For the Respondent-RIMS : Dr. Ashok Kumar Singh, Advocate
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JUDGMENT
CAV on 28/08/2024 Pronounced on 24/09/2024
The instant writ application has been preferred by the
petitioner for the following reliefs:
"(i) For a direction commanding upon the respondents in particular the
respondent Nos.2 and 3 to modify the Office Memorandum contained in
Memo No. 203 dated 30.05.2023 by making necessary correction in the
nomenclature of the promoted post and the post of 'Additional Professor'
be corrected as "Professor".
(ii) To hold and declare that since there is no post of Additional Professor
available at RIMS in the Department of Obstetrics and Gynecology, the
petitioner is entitled for promotion from the post of Associate Professor to
the post of Professor directly, as has been done in the past also by the
RIMS which is evident from the Office Order contained in Memo No.
7372/RIMS, Ranchi dated 23.10.2017.
(iii) For any other appropriate relief or reliefs to which the petitioner is
found to be entitled in the facts and circumstances of this case as also to
do the conscionable justice to the petitioner."
2. The brief facts of the case as disclosed in the instant
application are that the petitioner was initially appointed on the post of
Registrar for which appointment letter was issued on 23.06.2005. She
joined the post of Registrar in Obstetrics and Gynecology Department.
The petitioner remained blemish free and she became eligible for
promotion from the post of Registrar to the post of Assistant Professor in
the pay-scale of Rs.10,000-15,200/- on the date of joining. She was further
promoted from the post of Assistant Professor to the post of Associate
Professor with effect from 01.07.2016 which is evident from office order
dated 07.03.2017 in which the name of this petitioner appears at serial
no.26 and, accordingly, promotion was granted to this petitioner to the post
of Associate Professor in the Department of Obstetrics and Gynecology.
3. Learned counsel for the petitioner submits that the
respondent-Rajendra Institute of Medical Sciences (In short RIMS)
considered the case of promotion of eligible doctors from the post of
Associate Professor to the post of Professor directly in view of the fact that
there was no post of Additional Professor available in RIMS. The said
decision was taken on 12.10.2017 as is evident from the decision of
constituted committee. The Director by virtue of decision dated
14.04.2017, placed the matter before the Departmental Promotion
Committee in which it was specifically mentioned that the actual date of
promotion would be 01.07.2017. Thereafter, several doctors were
promoted from the post of Associate Professor to the post of Professor
directly which is apparent from the office order as contained in Memo
No. 7372/RIMS Ranchi dated 23.10.2017.
4. The case of the petitioner is that she was not considered;
however, she was finally promoted from the post of Associate Professor to
the post of Additional Professor with effect from 01.07.2019 as contained
in Memo No. 203 dated 30.05.2023. Though the petitioner was not
satisfied with her promotion from the date she was promoted, she filed a
representation on 19.07.2023 requesting the Director, RIMS to do the
needful and correct the nomenclature of the promoted post from
Additional Professor to Professor; however, the same was not done.
Learned counsel further draws attention of this Court towards
the regulation which is mentioned in para 17 of the writ application and
submits that the petitioner was having all aforesaid qualification and
experience to hold the post of Professor. He further submits that the
qualification and experience prescribed for Additional Professor is one and
the same as that of Professor.
5. Relying upon the aforesaid submission Mr. Tandon submits
that since there was no post of Additional Professor available in the RIMS;
the respondent-RIMS was duty bound to place the petitioner on the post of
Professor as was done earlier in the year, 2017 with respect to several
other doctors who were similarly situated. Learned counsel reiterated that
when there is no post of Additional Professor available in RIMS, the
petitioner is entitled for promotion from the post of Associate Professor to
the post of Professor directly and the respondent nos.2 and 3 are duty
bound to make necessary correction in office memorandum dated
30.05.2023 and the post of Additional Professor is required to be corrected
as Professor as was done in the past also by RIMS by office order
contained in Memo No. 7372 of 2023 dated 23.10.2017.
6. In reply to the aforesaid submission, Dr. A. K. Singh, learned
counsel appearing for the respondent-RIMS made following submissions:
(i) The Department of Health, Medical Education and
Family Welfare, Government of Jharkhand in exercise of powers
under section 32 of RIMS Act, 2002 notified the RIMS
Regulation, 2014 vide notification dated 08-09-2014.
(ii) Schedule IV of the said notification contemplates the
Assessment Promotion Scheme for the medical faculty of RIMS,
Ranchi.
(iii) The Assessment Promotion Scheme of RIMS, Ranchi is
on the similar lines of promotion scheme of AIIMS, New Delhi.
(iv) As per the said scheme, 75% of Associate Professors with
3 years of service will be considered for promotion as Additional
Professors each year without linkage to the vacancies in the
Grade of Additional Professor.
(v) The promotions under Assessment Promotion Scheme are
granted considering the particular percentage of total number of
faculty members entitled for promotion after completion of
particular period of service. The scheme doesn't suggest that the
promotions are to be granted considering the vacancies of the
sanctioned promotional posts.
(vi) As per the scheme, the promotions are granted without
linkage to vacancies. The person appointed against the post of
Assistant Professor, shall carry forward the said post of Assistant
Professor till his retirement and the said post of Assistant
Professor gets vacant only after the retirement of the occupant of
the said post.
(vii) In view of the Assessment Promotion Scheme, to get
promoted as Additional Professor, it is not required to have a
sanctioned post of Additional Professor.
7. Learned counsel further submits that as per the Assessment
Promotion Scheme of RIMS, Regulation 2014, it is not required to create
any post for granting promotion under the said scheme in the promotional
post. The promotions under Assessment Promotion Scheme are granted
considering the particular percentage of total number of faculty members
entitled for promotion after completion of particular period of service. The
scheme doesn't suggest that the promotions are to be granted considering
the vacancies of the sanctioned promotional posts.
8. It has been submitted that the said grant of promotions of the
year, 2017 doesn't create any right of the petitioners to be granted
promotion in the same line as the grant of earlier promotions are not in
accordance with the Regulation 2014. At that time, there was no Professor
in thirteen Departments and to maintain the UG and PG recognition of
RIMS, the said promotion to the post of Professor was granted. He submits
that the office memorandum contained in Memo No. 203 dated 30-05-
2023 does not require any corrections as the impugned office
memorandum is in accordance with the Regulation 2014.
Relying upon the aforesaid, Dr. Singh submits that an
illegality made earlier cannot take a place of precedent and perpetuate
further. In other words, illegality cannot perpetuate and the earlier office
order which was passed on the recommendation of 5-member Committee
was non-est in the eye of law for two reasons viz. firstly, the Governing
Body is the competent authority to take any decision with regard to any
issue and Governing Body does not constitute only the Chairman; rather
Governing Body constitutes full body and secondly, the Committee which
recommended for promotion in the year, 2017 itself indicates that three of
the doctors who were promoted in year, 2017 were also member of the
said Committee which itself goes to show that there has to be prejudice in
the mind of the Committee members.
9. Having heard learned counsel for the parties and after going
through the respective affidavits and the documents annexed therein it
appears that the previous promotion which was granted is not legal as per
RIMS Regulation, 2014 and hence cannot form the basis of the prayers
contained in the instant writ petition.
From perusal of RIMS Act, 2002 it appears that Section 31
stipulates that the State Government may make rules after consultation
with the Governing Body. It is a settled proposition of law that promotion
is not a fundamental right. It is a statutory right which can be considered in
light of relevant statutory provisions only. Thus, it would be appropriate to
refer the relevant statutory provisions of RIMS Act, 2002 and RIMS Rules,
2002 which read as under:
"RIMS Act, 2002
Section 31: Section 31 of RIMS Act, 2002 provides that the State Government may
make Rules after consultation with the Governing Body of RIMS. Under Section
31(2)(III) of this Act these Rules may provide for the powers and function of the
Chairman of RIMS.
Section 32: Under Section 32 of the RIMS Act, 2002, the Governing Body of RIMS
may make Regulation after obtaining prior approval from the State Government.
Under Section 32(1)VI these Regulation may provide for the powers and functions
of the Chairman of the Governing Body of RIMS.
RIMS Rules, 2002
Rule No. 11: In view of the provisions contained under Rule-11 all sanctioned
posts of teaching cadre can be filled up through open advertisement by the
Governing Body of RIMS on the basis of recommendations of Permanent Selection
Committee."
Thus, sanctioned posts of teaching cadre i.e. Assistant
Professor, Associate Professor, Additional Professor and Professor can be
filled up only through direct appointment on the basis of open
advertisement and not through promotion. As a corollary, sanctioned posts
in teaching cadre are not required for promotion to the next higher grade.
At this stage itself it is also necessary to examine the RIMS
Regulation, 2014, which reads as under:
"RIMS Regulation, 2014
Regulation No. 4: Under Regulation No. 4 of RIMS Regulations, 2014 the
Chairman of the Governing Body of RIMS has been vested with certain powers
with regard to calling the meeting of Governing Body, approval of agenda to be
placed before G.B., presiding over the meeting of the G.B. and giving an easting
vote in case of tie during voting etc.
Regulation No. 11: Under the provisions contained in Regulation No.11 (1) of
RIMS Regulations, 2014 the assessment promotion of teachers in RIMS is to be
done as per the provisions contained in Schedule III, IV, V, VI and XI. Schedule IV
provides for the Assessment Promotion Scheme."
Thus, in view of the statutory provisions, it can safely be held
that the Chairman of Governing Body of RIMS has no powers to take any
decision with regard to appointment and promotion of teachers/members
of teaching cadre.
10. A bare perusal of the Assessment Promotion Scheme shows
that all the promotions envisaged under this scheme are to be given "each
year without linkage to the vacancies in the grade". This means that all the
promotions foreseen herein are to be given without any consideration of
the availability of posts and vacancies in the next higher grade to which a
person is to be promoted. In case of in-situ promotion envisaged under this
scheme, the post on which a person is appointed itself gets upgraded to the
next higher grade. Thus, there is no requirement of availability of a
sanctioned vacant post in the next higher grade. Since the post on which
the person is originally appointed gets upgraded; there is no vacancy in
that grade to be filled up through fresh appointment on that post.
In case of in-situ promotion without linkage to the vacancies
when the person so promoted retires or resigns, a vacancy is created in the
grade and on the post on which he was originally appointed not in the
promotional post which he held on account of this in-situ promotion
without linkage to vacancies. This post held originally by the incumbent
now becomes available to be filled up as per the procedure established by
law.
Similarly, in case of in-situ promotion without linkage to
vacancies the promotion does not occupy and fill up the sanctioned vacant
post of the higher grade to which he is promoted. Those posts remain
available to be filled up as per the procedure established by law. The
person can hold this post even if there is no sanctioned post in the next
higher grade.
11. In the instant case it applies to the petitioner holding and
occupying the unsanctioned post of Additional Professor in the
Department of Obstetrics and Gynecology. When the petitioner was
promoted from the post of Assistant Professor to Associate Professor this
was a case of in-situ promotion without linkage to vacancies. In case of
promotion of the petitioner from the post of Assistant Professor to that of
Associate Professor there was no consideration of availability of vacancies
in the rank of sanctioned posts of Associate Professor.
She was promoted as Associate Professor by virtue of
upgradation of the post of Assistant Professor originally held by her to the
rank of Associate Professor. Since the petitioner was promoted as
Associate Professor by upgradation of the post of Assistant Professor on
which she was originally appointed, no vacancy was created in the rank of
Assistant Professor to be filled up by direct appointment through open
advertisement as per Rule No. 11 of RIMS Rules, 2002. No such fresh
appointment was made, since no vacancy was created in the rank of
Assistant Professor.
12. At the cost of repetition, since the petitioner was promoted as
Associate Professor without linkage to vacancies, she did not occupy any
of the sanctioned vacant posts of Associate Professor in the Department of
Obstetrics and Gynecology. These sanctioned vacant posts in this
Department and for that matter in all the Departments in RIMS remained
available to be filled up by direct appointment through open advertisement.
Accordingly, these sanctioned vacant posts in all grades have
now been advertised to be filled up through direct appointment through
Advertisement Nos. 521 dated 13.03.2024 and 522 dated 13.03.2024. As
stated hereinabove, in the past the petitioner has been granted in-situ
promotion without linkage to vacancies in the grade of Additional
Professor vide office Memorandum No. RIMS/De/Admn./No. 179 dated
06.05.2023.
13. Having regard to the aforesaid discussions, it is evidently
clear that there is no need of availability of sanctioned posts in the rank of
Additional Professor in RIMS in case of in-situ promotion without linkage
to vacancies in any Department including the Department of Obstetrics
and Gynecology.
Thus, the petitioner cannot be granted promotion directly to
the rank of Professor on account of non-availability of sanctioned posts of
Additional Professor in the Department of Obstetrics and Gynecology.
14. So far as promotions granted to eleven Associate Professors
directly to the rank of Professor vide Memo No. 7372/ RIMS Ranchi dated
23.10.2017 (Annexure-7 to the writ petition) is concerned; it is held that
the same was not legal as per RIMS Regulation, 2014 due to the following
reasons:
(i) The Chairman of Governing Body of RIMS has no power and authority
to grant any promotion to a teacher in RIMS, more so in violation of the
provisions contained in Clause 11 r/w Schedule-IV of RIMS Regulation,
2014.
(ii) Even the Governing Body of RIMS has no power and authority to grant
any promotion to a teacher in RIMS in derogation of the provisions
contained in Regulation No. 11 r/w Schedule-IV of RIMS Regulations,
2014 in any situation whatsoever.
(iii) Though the Governing Body is the competent authority to take any
decision with regard to any issue but the Governing Body does not
constitute only Chairman; rather Governing Body constitutes full body
and secondly, the Committee which recommended for promotion in the
year, 2017 itself indicates that three of the doctors who were promoted
in year, 2017 were also member of the said Committee.
15. In view of the foregoing observations, it clearly transpires that
the illegality committed earlier still persists. Article 14 of the Constitution
of India does not envisage negative equality. It is a settled proposition of
law that an illegality cannot be allowed to be perpetuated [refer,
"Kulwinder Pal Singh & Anr. V. State of Punjab & Ors." reported in
(2016) 6 SCC 532].
16. Having regard to the aforesaid discussion, no relief can be
granted to the petitioner and, accordingly, the instant writ application
stands dismissed. However, it is made clear that since it has been held
hereinabove that the promotion granted earlier to some of the Doctors
from Associate Professors to the rank of Professor vide Memo No. 7372/
RIMS Ranchi dated 23.10.2017; was not legal; accordingly, the Governing
Body of Respondent-RIMS would be at liberty to undo the illegality
committed earlier in accordance with law and applicable Rules and
Regulations and following the principles of natural justice.
(Deepak Roshan, J.)
Jharkhand High Court, Ranchi
Dated: 24/09/2024
Amit
AFR/
