Sangeeta Aggarwal & Others vs State Of Punjab & Others
2022 Latest Caselaw 5902 P&H

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                                                       LPA No. 1347 of 2017
                                                     Reserved on: 11.03.2022
                                                  Pronounced on: 02.06.2022

Dr. Sangeeta Aggarwal and others
                                                               ....Appellants

                                         Versus
State of Punjab and others
                                                               ....Respondents

CORAM: HON'BLE MR. JUSTICE G. S. SANDHAWALIA
       HON'BLE MR. JUSTICE VIKAS SURI

Present:     Ms. Alka Chatrath, Advocate for the appellants.

             Ms. Monica Chhibber Sharma, Senior D.A.G. Punjab.

             (The proceedings were conducted through video
             conferencing, as per instructions.)

                                     *******

VIKAS SURI, J.

1. This intra-court appeal has been filed by the writ petitioners

against the judgment dated 31.05.2017 passed by the learned Single Judge in

CWP No.12672 of 2017 titled 'Dr. Sangeeta Aggarwal and others vs. State

of Punjab and others'. The claim agitated in the writ petition was not

entertained on the ground that order dated 28.02.2013 (Annexure P-25) was

sought to be challenged in the year 2017 and that it was within the domain of

the executive as to whether the officers or persons who have substantial part

of the service career in Medical/Dental Colleges as Member of the Teaching

Faculty should be repatriated or not and as such is the prerogative of the

State for resolving any issue arising there from, as per the need and in public

interest. It was also held that the writ petitioners could not have a lien over

such posts by raking up the issue of the order dated 28.02.2013 in the year

2017.

                               1 of 15

 LPA-1347-2017                                                             [2]

2. The facts in brief, noticed by the learned Single Judge are that

the appellants were appointed as Medical Officers (Dental) with the

Department of Health and Family Welfare in pursuance to the advertisement

issued by the Punjab Public Service Commission. They were governed by

the Punjab Dental Service erstwhile (Class-II) Rules, 1968, as per the

appointment letter (Annexure P-1). The writ petitioners, four in number

have indicated their dates of joining in para No.3 of the writ petition, ranging

from 10.12.1990 to 16.03.1999. After being appointed as Medical Officers

(Dental), the writ petitioners served in Rural Dispensaries/Primary Health

Centres in the State of Punjab. The writ petitioners were transferred/ posted

by respondent No.1 in Govt. Dental College and Hospital, Amritsar/ Patiala

as Medical Officer against the posts of Demonstrator/Senior Lecturer for

teaching BDS (Bachelor of Dental Surgery) students in Govt. Dental College

and Hospital and later designated as Demonstrator. The said appointment

was done after getting 'No Objection Certificate' from their parent

Department of Health and Family Welfare, Punjab. Reference can be made

to the transfer/posting orders, Annexures P-2 to P-6, as Demonstrator/

Assistant Professor. Reference has also been made to the Punjab Dental

Education Service (Class-II) Rules, 1977 (hereinafter referred as '1977

Service Rules') for regulating the conditions of the service of the persons

appointed to the Punjab Dental Education Class-II service.

3. The mode of recruitment is provided under Rule 10 of the 1977

Service Rules. As per the said Rule, the three modes of appointment to the

post of Demonstrator are (i) direct appointment, (ii) by promotion and (iii)

by way of transfer or deputation from any officials already in service of

Govt. of India or the State Government. The qualifications stipulated for

appointment to the post of a Demonstrator (Dental), as appearing in

2 of 15

LPA-1347-2017 [3]

Appendix-B to the Service Rules, a person should have passed BDS degree

from a recognized University or equivalent qualification with atleast 6

months experience as House Surgeon in a recognized Dental College and

Hospital and should not have taken more than two additional attempts in

passing all the University professional examinations during the BDS course

with atleast 60% marks in the final BDS examination.

4. The petitioners were working as Medical Officers (Dental) and

posted in the Medical Colleges, Dental Colleges and Ayurvedic Colleges,

who were re-designated as Tutor/Lecturer-cum-Medical Officer vide order

dated 08.08.2008 (Annexure P-7) passed by the Secretary to Govt. of

Punjab, Department of Medical Education and Research. The said order

noticed that the re-designated Medical Officers were engaged in teaching in

their own pay scale for the strengthening of Teaching Faculty. The terms and

conditions of service were to remain same as per the original orders PCMS

and PCDS etc. It is also reflected from the record that the aforementioned

postings had been done on account of the acute shortage of Teaching staff as

per DC norms. Thereafter, the Govt. promoted/selected six Medical Officers

(Dental) as Assistant Professors from the Department of Dentistry vide order

dated 22.07.2008 (Annexure P-9), endorsed on 23.07.2008. The writ

petitioners had also applied for appointment as Assistant Professor but they

were not selected. It is also pleaded that before the writ petitioners could

agitate their grievance against order dated 22/23.07.2008 (Annexure P-9),

Secretary to Govt. of Punjab, Department of Medical Education and

Research partially kept in abeyance the promotion orders regarding the post

of Assistant Professor (Dentistry) vide subsequent order dated 25.07.2008

(Annexure P-10). In the writ petition it is averred that the respondents with

an objective to deprive the writ petitioners from their adjustment as Assistant

3 of 15

LPA-1347-2017 [4]

Professor, initiated a move in the year 2011 to transfer them from teaching

post to a non-teaching post by transferring them back on the post of Medical

Officer (Dental) in the PCMS cadre, despite them having discharged their

duties to the entire satisfaction of the respondents. Thus, it was highlighted

that there was acute shortage of teaching staff in Govt. Dental Colleges and

Hospital.

5. The writ petitioners anticipating their transfer, approached the

Court by way of filing CWP No.8480 of 2011 titled 'Dr. Sangeeta Aggarwal

and others vs. State of Punjab and others' and vide interim order dated

27.04.2011 relieving of the petitioners from the college was stayed as an

interim measure. Other persons had also filed petitions and as such a batch

of five writ petitions came to be heard together. The above noticed interim

order merged in the final order dated 29.08.2011 (Annexure P-16), whereby

the aforesaid writ petition was disposed of by a common order with the

following directions:-

"i) The State Government shall address the grievances of the petitioners and other similarly placed medical officers who have spent sufficient number of years as members of the Teaching Faculty in Medical Dental College(s) and see as to how many of them can be adjusted in public interest as a part of teaching faculty. The adjustment can be made keeping in view that no stagnation is caused to the directly recruited members of the teaching faculty.

ii) The adjustment in the Medical/Dental Colleges would necessarily follow the consequential service benefits including promotion as was decided earlier and thereafter only the orders like dated 23.7.2008 (Annexure P-9) can be given effect.

iii) The State Government shall constitute a Committee of five experts including (i) the Director, Health and Family Welfare and (ii) the Director, Medical Education and

4 of 15

LPA-1347-2017 [5]

Research as its members and the appropriate decision on directions (i) and (ii) above shall be taken only after considering the view point of the Expert Committee.

iv) The Committee shall submit its report to the State Government within three months from the date of receipt of a certified copy of this order.

v) Till then, the petitioner or other similarly placed medical officers shall not be repatriated, however, their promotion shall also be kept in abeyance.

Dasti."

6. It is also the pleaded case that in pursuance to the aforesaid

directions, the writ petitioners submitted detailed representation, which was

followed by a reminder dated 16.02.2012. A perusal of the communication

dated 16.02.2012 (Annexure P-17) reveals that in compliance to the order

dated 29.08.2011, the State Govt. had constituted an Expert Committee vide

order dated 17.10.2011 and the said Committee had also commenced its

work and the affected officers working in the Govt. Dental Colleges in

Patiala and Amritsar were called for personal hearing. The Medical Officers

(Dental) had also submitted some documents in support of their case before

the said committee. It is averred that no orders were communicated to the

petitioners much less the decision of the said committee. The respondents

fixed a meeting of the Departmental Promotion Committee on 10.07.2013,

wherein against 13 posts of Assistant Professors, the names of 10

recommended persons for promotion was to be considered without deciding

the fate of the writ petitioners. Vide order dated 08.07.2013 (Annexure

P-22), the promotion orders made earlier vide order dated 23.07.2008

(Annexure P-9) were cancelled/rejected.

7. A perusal of the order dated 08.07.2013 would reveal that it

was passed in compliance to the directions contained in the order dated

5 of 15

LPA-1347-2017 [6]

29.08.2011 (Annexure P-16), which has been noticed above, while disposing

of a bunch of the writ petitions filed by the affected doctors being CWP

No.7200 of 2011 (Dr. Jagan Jyot vs. State of Punjab and others), CWP

No.8219 of 2011 (Dr. Parul Gupta and another vs. State of Punjab and

others), CWP No.8480 of 2013 (Dr. Sangeeta Aggarwal and others vs. State

of Punjab and others), CWP No.7668 of 2011 (Dr. Sheetal Kumar vs. State

of Punjab and others) and CWP No.13053 of 2011(Dr. Nitin Verma and

another vs. State of Punjab and others).

8. The writ petitioners have also urged that since no order was

conveyed, an application dated 14.08.2013 was submitted for seeking

information under the Right to Information Act but the Public Information

Officer had only supplied copy of order dated 08/09.07.2013. The appeal

preferred against non-furnishing of information also did not bear any fruit.

9. Reliance has been placed on the Expert Committee's report

(Annexure P-24), perusal of which reveals that the said Committee had

unanimously recommended to adjust the Medical Officers in Dental

Colleges under the promotion quota of above 75% posts of Senior Lecturer

amongst the Demonstrators, keeping in view the fact that they have been

working for a number of years and further there is provision of recruitment

by transfer. However, the Secretary to Govt. of Punjab, Department of

Medical Education and Research did not accept the report of the said

Committee vide order dated 28.02.2013 (Annexure P-25) and as a matter of

material fact took serious note of the factum that it had not included remarks

of the representatives of the Personnel Department while considering the

matter. It has also been noticed by the learned Single Judge that the

impugned order dated 28.02.2013 (Annexure P-25) has been challenged by

way of CWP No.15605 of 2013 titled as 'Jagan Jyot and others vs. State of

6 of 15

LPA-1347-2017 [7]

Punjab and others', by a few similarly situated affected persons and vide the

interim order dated 23.07.2013 repatriation of the petitioners therein was

stayed.

10. The basic grievance raised by the writ petitioners is that action

of the respondents in not recognizing the teaching experience gained by

them while working on the post of Demonstrator/Assistant Professor and

discharging the duties as Medical Officers-cum-Lecturers is wholly illegal,

arbitrary, discriminatory and deserves to be quashed by issuing an

appropriate writ owing to the shortage of teaching staff in Dental Colleges.

Moreover, rejection of the Committee's report is also irrational and does not

have sound logic. The post of Demonstrator and Senior Lecturer is governed

by the 1977 Service Rules and essential qualifications for appointment to the

post of Demonstrator have been provided in Appendix-B to the said Rules as

noticed above. The writ petitioners emphatically urged that they have the

requisite qualification for being adjusted in Medical/Dental Colleges for

imparting education to the students seeking medical degrees and rest their

case.

11. The learned Single Judge while dismissing the writ petition,

categorically noticed that the writ petitioners never challenged the order

dated 28.02.2013 within a reasonable time and the same had been challenged

by them for the first time in the year 2017. No explanation had been given

for not challenging the aforesaid order despite the information having been

sought under the RTI Act. It was thus held that it cannot be believed that the

affected persons had filed writ petitions and obtained interim stay and the

writ petitioners claiming to be similarly effected were not aware of the same.

It has also been noticed that interim stay order was not applicable to the writ

petitioners. Secondly, it was held that the writ petitioners basically had been

7 of 15

LPA-1347-2017 [8]

adjusted on deputation basis till the posts were filled up and that the

selection process and qualification for the post of Demonstrator is totally

different. The selection process for the post of Senior Lecturer is also

different. Medical Officer (Dental) comes under the Health Department as

per the Punjab Dental Service Rules and its criteria is also different, as well

as the seniority maintained in the respective cadre. It was concluded that the

petitioners could not have a lien on such posts by raking up the issue at a

much delayed stage. The writ petitioners not having taken the necessary

steps at appropriate stage cannot be allowed to raise a challenge at their own

sweet will and they were aware of the consequences of such inaction.

12. We have heard learned counsel for the parties and with their

assistance perused the available record.

13. Learned counsel for the petitioners has contended that the

petitioners have been officiating against the posts of Demonstrator/Senior

Lecturer for teaching B.D.S. students for a long time and have thus acquired

valuable experience, which would satisfy the qualification required for the

said posts. While referring to the directions passed in the earlier petition

filed by the writ petitioners along with a batch of other writ petitions,

wherein directions dated 29.08.2011 were issued pursuant to which the order

dated 08.07.2013 came to be passed, strenuous effort has been made to

impress upon this Court that the said order was never communicated to the

writ petitioners. Thus, the delay is sought to be covered up in this manner

without addressing it directly. It is also contended that the writ petitioners

obtained information under RTI and being threatened of being

relieved/transferred from their respective posts to non-teaching posts, by

repatriating them to Health and Family Welfare Department after issuance of

communications dated 30.05.2017, Annexures P-26 and P-27, they sought to

8 of 15

LPA-1347-2017 [9]

invoke the extra ordinary jurisdiction.

14. Per contra, the State counsel has defended the order passed by

the learned Single Judge. It has been submitted that even in appeal before

this Court, the writ petitioners have not offered any explanation as to why

they did not raise challenge to the order dated 28.02.2013 (Annexure P-25)

within a reasonable time, whereas the affected persons who were vigilant

had approached the Court and were also protected by the interim orders in

their favour. It is, thus, submitted that after having initially approached the

Writ Court in the year 2011, the writ petitioners chose to sit in the gallery

and watch as to how turn of events take place. It is, thus, contended that the

writ petitioners having chosen not to challenge the order dated 28.02.2013

(Annexure P-25) at the appropriate time and having accepted the same as

such, cannot be now permitted to catch the once missed train at this belated

stage, to now jump on the bandwagon. The delay of about four years is thus

stated to be on account of acquiescence and as such fatal to the case of the

petitioners.

15. It is a matter of fact that the writ petitioners along with others

had earlier approached the Writ Court in the year 2011 and had also been

protected vide interim order dated 27.04.2011 from being relieved from the

medical college(s). The said writ petitions were finally disposed of by

issuing directions to the State Government on 29.08.2011. It is also not

disputed that the writ petitioners along with similarly situated Medical

Officers (Dental) had submitted documents in support of the case before the

Committee constituted in compliance to the directions dated 29.08.2011.

The matter was considered by the Government and finally concluded vide

order dated 08.07.2013. It is also a matter of fact that some of the affected

Medical Officers (Dental) had raised challenge to the order dated 28.02.2013

9 of 15

LPA-1347-2017 [10]

by way of filing CWP No. 15605 of 2013 (Jagat Jyot and others vs. State of

Punjab and others) and their repatriation had been stayed as an interim

measure vide order dated 29.03.2013. We are informed that the said writ

petition is pending adjudication before another learned Single Judge and

three other writ petitions are also tagged with the said case.

16. A perusal of the information furnished vide communication

dated 23.12.2013 (Annexure P-23), with reference to the writ petitioners'

representation dated 14.08.2013 under RTI, copy of order dated 08.07.2013

endorsed on 09.07.2013 (Annexure P-22) had been supplied to the

petitioners along with the opinion of Advocate General, Punjab dated

20.12.2012. A perusal of the said order (Annexure P-22) reveals that the

complete case history from the very beginning has been noticed in detail and

the speaking order dated 28.02.2013 vide which the report of the expert

Committee had been rejected, was specifically referred to while cancelling

the promotion orders dated 23.07.2008 and 25.07.2008. The concluding

portion of the said order reads as under:-

"6. In the light of the advice of the Learned Advocate General, Punjab A and as per the speaking order issued by the Govt. vide No. 13/79/2011 3GE3/1073-78 dated 28.02.2013 vide which the report of the expert Committee has been cancelled/rejected, the order No. 1/25/2006 2GE3/4553-62 dated 23.07.2008 vide which the Medical Officer PCMS were promoted from the post of Demonstrator to the post Senior Lecturer and order order No. 1/25/2007-2GE3/4653-62 dated 25.07.2008 holding the order in abeyance, both two orders dated 23.07.2008 & 25.07.2008 are hereby cancelled.

This order shall be implemented immediately."

17. Despite the aforesaid information admittedly having been

furnished, the writ petitioners chose to rest their oars and at that stage chose

of their own volition not to further agitate their grievance, if any. Thus, we

10 of 15

LPA-1347-2017 [11]

are of the prima facie view that there was acquiescence on the part of the

writ petitioners to passing of the orders dated 28.02.2013 (Annexure P-25)

and 08.07.2013 (Annexure P-22). It is apparent from the record that the

appellants had chosen not to further question the decision of the State

Government and as such they became fence-sitters. The said situation

continued in the following years as well, till the communications dated

30.05.2017 (Annexures P-26 and P-27) were issued, when the writ

petitioners woke up from their slumber and sought to make an attempt to

seek interim protection. In light of the above factual matrix, the writ petition

came to be instituted in the year 2017, from which the present intra-court

appeal has arisen.

18. It is well settled that the law helps those who help themselves

and does not come to the rescue of the persons who choose to sleep over

their rights. The writ petitioners also cannot seek complete parity with the

vigilant litigants, who had timely approached the Writ Court in the year

2013. Acquiescence, delay and laches would be well recognised exceptions

to dismiss the claim sought to be raised at a belated stage. In service

jurisprudence, applicability of the said principle would also depend on the

factum whether the subject matter of the decision impugned touches upon

policy matters i.e. affecting a class of persons or is a judgment in personam.

Reliance in that regard can be placed upon the judgment of the Apex Court

in State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and

others, (2015) 1 SCC 347, wherein the afore-noticed exception has been

discussed and it was held as under:-

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

                               11 of 15

 LPA-1347-2017                                                               [12]

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject- matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C.

Sharma v. Union of India [ (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their

12 of 15

LPA-1347-2017 [13]

petition does not suffer from either laches and delays or acquiescence."

19. In view of the above, we are of the considered opinion that the

impugned order dated 28.02.2013 (Annexure P-25) is a policy matter, final

decision of which would affect the entire class of persons, including those

who were petitioners in the earlier writ petitions instituted in the year 2011,

which were disposed of on 29.08.2011 by issuing the directions noticed

earlier. The other issue that would arise for consideration in the present

situation would be whether the appellants would still be entitled to interim

protection against their proposed cancellation of deputation and reversion to

the parent department, at this belated stage.

20. In U.P. Jal Nigam and another vs. Jaswant Singh and

another, (2006) 11 SCC 464, the Apex Court had followed its earlier taken

view that the Courts should be very slow in granting indulgence to litigants

who do not rise to the occasion in time for seeking judicial redress, while

posing the question as to should the Courts come to the rescue of persons

guilty of waiver and acquiescence. The relevant portion of the said judgment

reads as under:-

"13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent.

Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents

13 of 15

LPA-1347-2017 [14]

would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"

21. It may be noticed at the cost of repetition that the appellants

have not given any explanation even before this Court, as to what pre-

empted them from seeking judicial review even after information under RTI

was furnished, as had been done by few other similarly situated persons. It

has been rightly held by the learned Single Judge that it cannot be believed

that the appellants were not aware of those orders, as the effected party had

already filed writ petition and obtained interim stay and the said stay order

was not applicable to the writ petitioners/appellants herein.

22. There might be valid reasons not to grant interim protection to

the appellants on account of their own conduct but it may not be appropriate

to non-suit the writ petitioners, especially when the policy affecting their

rights was under scrutiny of the writ Court being subject matter in writ

petitions pending before another learned Single Judge. It was desirable that

before passing of the impugned judgment the litigating parties would have

made a mention and taken active steps for getting the matters clubbed, so

that all cases could have been heard together and decided accordingly.

23. Needless to say, since the writ petition was dismissed in limine

without calling for a response, we are not commenting on the merits of the

controversy which is subject matter of challenge in Jagat Jot (supra), lest it

14 of 15

LPA-1347-2017 [15]

prejudices either of the parties. Nothing observed herein-above be taken as

an expression of opinion and shall have no affect on the merits of the case.

24. In view of the above discussion, we are of the considered view

that this intra-court appeal is liable to be allowed in part and it would be

have been appropriate if the writ petition was heard along with Jagan Jot

(supra), as the same impugned policy decision of the State is subject matter

of that writ petition.

25. Accordingly, the Letters Patent Appeal is partly allowed and

the impugned judgment dated 31.05.2017 dismissing the writ petition is set

aside; the writ petition is restored to its original number and the same is

ordered to be heard with CWP No. 15605 of 2013 titled 'Jagan Jot and

others vs. State of Punjab and others', stated to be posted for 03.11.2022.

Needless to observe, it would be not open for the learned Single Judge to

hear the writ petitioners on the prayer for interim relief now, but the case of

appellants would be considered on merits regarding their absorption.

              (G. S. SANDHAWALIA)                      (VIKAS SURI)
                      JUDGE                               JUDGE


June 02, 2022
Sachin M.


              Whether speaking/reasoned         Yes/No
              Whether reportable                Yes/No




                               15 of 15