Madhya Pradesh High Court
Dr. Abhishek Goyal vs Union Of India on 25 May, 2017
WP-8323-2016
(DR. DEEPTI CHAURASIA Vs UNION OF INDIA)
25-05-2017
WRIT PETITION No. 8323 of 2016
Dr. Deepti Chaurasia
Vs.
Union of India and others.
For Petitioner : Shri N.S.Ruprah, Advocate
For Respondent No.1 : Shri J.K.Jain, ASG.
For Respondent No.2 & 3 : Shri Rajendra Jaiswal,
Advocate.
WRIT PETITION No. 7495 of 2016
Dr. Neeraj Nagaich
Vs.
Union of India and others.
For Petitioner : Shri N.S.Ruprah, Advocate
For Respondent No.1 : Shri J.K.Jain, ASG.
For Respondent No.2 &3 : Shri Rajendra Jaiswal,
Advocate.
WRIT PETITION No. 7662 of 2016
Dr. Abhishek Goyal
Vs.
Union of India and others.
For Petitioner : Shri N.S.Ruprah, Advocate
For Respondent No.1 : Shri J.K.Jain, ASG.
For Respondent No.2 & 3 : Shri Rajendra Jaiswal,
Advocate.
ORDER
(25.05.2017.) Per : Sujoy Paul J.
This order shall govern disposal of connected W.P. No.7495/16 and 7662/16. The facts are taken from W.P. No.8323/16.
2. Petitioner is aggrieved by advertisement dated 2.3.2016 and its amendment dated 11.4.2016 (Annexure P/1). The grievance of the petitioner is that numerous subjects/ disciplines have been grouped together and total number of Professors, Additional Professors, Associate Professors and Assistant Professors have been calculated and reservation roster has been applied in such a way that all the posts which falls on roster point are reserved.
3. Petitioner intended to submit her candidature for the post of Additional Professor in the subject of microbiology. It is contended that there exists a single post of Additional Professor (microbiology) and, therefore, the said post could not have been reserved in the impugned advertisement. In the advertisement, the said post is reserved for the candidate of OBC community.
4. Shri N.S.Ruprah,learned counsel for the petitioner submits that the action of respondents in grouping/ clubbing different posts is wholly impermissible. By taking this court to the document relating to grouping made for various departments, it is submitted that such grouping is not permissible. Reliance is placed on the âReport of Methodology for Reservation Rosterâ in each of six individual AIIMS at Bhopal, Bhubaneshwar, Jodhpur, Patna, Rishikesh and Raipur. Clause-18 of this report deals with Bhopal AIIMS. It is submitted that respondents have clubbed together the posts of (i) Community Medicine/ Family medicine, (ii)Forensic medicine/ Toxicology, (iii) Microbiology, (iv) Pathology/Lab Medicine and (v) Pharmacology. Learned counsel for the petitioner placed heavy reliance on the judgment of Supreme Court in the case of Dr. Chakradhar Paswan Vs. State of Bihar-(1988) 2 SCC 214 and another judgment in State of Karnataka Vs. K.Govindappa-(2009) 1 SCC-1. It is argued that grouping of isolated posts is not permissible merely because they carry the same pay scale. On the strength of K.Govindappa (supra), Shri Ruprah contended that the real test for the purpose of grouping is whether a single post in a particular discipline should be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. It is strenuously contended that in order to apply reservation within a cadre, there must be plurality of posts. In absence of interchangeability of posts in different discipline, each single post must be treated as a solitary post for the purpose of reservation. It is further argued that aforesaid posts mentioned in clause-18 of the said report belong to different disciplines and those posts are not interchangeable. Hence, such grouping runs contrary to the judgment of Supreme Court and, therefore, reservation applied by grouping the posts is bad in law.
5. Per contra, Shri J.K.Jain, ASG and Shri Rajendra Jaiswal for the respondents contended that AIIMS is creation of All India Institute of Medical Science Act, 1956 (No.25 of 1956) (hereinafter referred to as âAIIMS Actâ).
6. Shri Jain urged that section 25 of AIIMS Act envisages that the institute shall carry out such directions as may be issued to it from time to time by the Central Government for efficient administration of this Act. Section 26 is relied upon to contend that the Central Government is the supreme authority to take a decision in relation to different aspects/ disputes.
7. Learned counsel for the respondents submits that as per the aforesaid provisions of AIIMS Act, the Ministry of Home Affairs or the Nodal department, namely, the Department of Personnel Training, is competent to issue appropriate directions.
8. Shri Jain, relied on Office Memorandum dated 28.1.1952 (Annexure R-1) issued by Ministry of Home Affairs. He also relied on Annexure R-2 issued by the same Ministry on 12.12.1974. On the strength of these Office Memorandums, it is contended that the respondents are competent to apply reservation roster and reserve adequate number of posts as per roster. In addition, they are competent to undertake the exercise of grouping in relation to certain posts to be filled-up through direct recruitment.
9. The stand of respondents is that on the basis of AIIMS Act and OMs mentioned hereinabove, the respondents are competent to take a decision regarding grouping of the posts. It is submitted that a Committee was constituted for the purpose of taking decision regarding grouping. The said Committee submitted its report in which posts in five disciplines were decided to be grouped together. It is submitted that the said decision is neither without authority of law nor suffers from any other irregularity. He placed reliance on R.K.Sabharwal Vs. State of Punjab- AIR 1995 SC 1371.
10. Shri Rajendra Jaiswal, learned counsel for the other side relied on Annexure R-5 (brochure of Reservation for SC/ST and OBC). It is submitted that grouping of post is permissible and its methodology is prescribed in Chapter-V (Annexure R-5). By placing heavy reliance on this document, Shri Jaiswal submits that the following particulars are required to be taken into account for the purpose of taking decision regarding grouping- (i) Designation and number of each post, (ii) group to which post belong i.e Group A,B,C or D, (iii) Scale of Pay of each post, (iv) method of recruitment for each post as per Recruitment Rules and (v) minimum qualification prescribed for direct recruitment of each post. It is contended that after taking into account the relevant factors, the decision of grouping was taken and no fault can be found in such a decision. It is submitted that reservation was applied on the basis of the grouping which is in consonance with the enabling provisions.
11. No other point is pressed by learned counsel for the parties.
12. I have heard the parties at length and perused the record.
13. In the aforesaid factual back drop, it is clear that petitioner has assailed the impugned recruitment process on twin ground. Firstly, it is contended that singular post of Additional Professor in the subject of Microbiology cannot be reserved. Otherwise, it will amount to 100% reservation on the said solitary post. Secondly, it is submitted that grouping of posts made by the respondents is impressible because different singular posts are not interchangeable.
14. The respondents in their return stated that the faculty post having similar nomenclature and qualification in different departments were clubbed together for the purpose of finalizing the reservation roster. For this purpose, the source of power is drawn from OM dated 28.01.1952 and OM dated 12.12.1994 (Annexure-R/1 & R/2). It is further averred that isolated individual posts in similar cadre can be grouped together for the purpose of reservation in cases of direct recruitment. In Para No.9 of the return, it is stated that grouping comprising of different disciplines were formed and each group is considered as separate unit. The vacancies were determined on the basis of available vacancies in each subject including in a particular group after determining the vacancy in the group. The posts were reserved following reservation rules, rosters and further ceiling of 50% reservation.
15. The stand of the respondents is that in the present case the post based roster for the cadre strength upto 14 post has been applied. It is specifically pleaded in para 14 that it was felt necessary by the answering respondent to fill up the singular post by the candidate belonging to reserved category. A particular post of a particular department cannot constitute a cadre in itself even if there is a singular vacancy because it cannot be taken as separate unit for the purpose of determining the vacancy. The reservation of faculty posts was based on grouping of posts which is permissible taking into account the status, salary and qualification.
16. In W.P. No.7495/2016, the post in question is Assistant Professor in Gastroenterology, whereas in W.P. No.7862/2016 the post involved is Associate Professor in Pulmonary Medicine. During the course of arguments ,learned counsel for the parties fairly admitted that question involved in these batch of petitions are common. For this reason, these matters were analogously heard, and decided by this common order.
17. In view of aforesaid stand of the parties, it is clear that post in question in these three petitions are singular post in the relevant subject. The grouping was made permissible by DOP & T instruction and as per the report (Page no.56). The grouping of posts was done by taking into account the status, salary and qualification. In the considered opinion of this Court, the existence of power to club the posts together cannot be doubted. However, it is necessary to remember that existence of power is one thing and justifiability or propriety while exercising such power is another thing. Accordingly, merely because there exists an enabling provision or the respondents are empowered to undertake the exercise of grouping of posts, it cannot be said that grouping in all circumstances will be justifiable. The judicial review of grouping is permissible on the touch stone of principles laid down by the Supreme Court.
18. The petitioner in para No.6.4 of the petition has categorically pleaded that grouping of posts is arbitrary as the posts are neither interchangeable nor do they form a singular cadre. The respondents have not denied these averments and did not produced any material to show that the posts in question are interchangeable.
19. In the considered opinion of this Court, the point involved in this case is no more res integra. The Supreme Court in the case of Dr. Chakradhar Paswan (Supra) opined that although the pay scale of three Deputy Directors was identical, the posts were belonging to different branches of indigenous medicine. In the said case, the Government grouped together all Class-I posts viz. the posts of Directors as well as of Deputy Directors in the subjects of Homoeopathy, Unani and Ayurvedic Medicines. The Apex Court held that three posts of Deputy Directors of Homoeopathy, Unani and Ayurvedic are distinct and separate as they pertains to different disciplines and each one is an isolated post by itself carried in the same cadre. In no uncertain terms, it was made clear that there can not be any grouping of isolated posts even if they are carried on the same scale.
20. The judgment of Dr. Chakradhar Paswan (Supra) has been considered by the the Constitutional Bench of the Supreme Court in the case reported in 1998 (4) SCC 1, [Post Graduate Institute of Medical Education & Research, Chandigarh vs. Faculty Association & others]. The principle laid down in the case of Dr. Chakradhar Paswan (Supra) were approved by the Supreme Court. Para 34 of the judgment reads as under:
2. â34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework.
The decision of this Court to this effect over the decades have been consistent.â
21. In the case of K. Govindappa (Supra), the Apex Court opined that while there can be no difference of opinion that the expressions âcadreâ, âpostâ and âserviceâ cannot be equated with each other, at the same time the submissions at single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.
22. The judgment of Dr. Chakradhar Paswan (Supra) was again followed in 2011 (4) SCC 120 [State of Uttar Pradesh & others vs. Bharat Singh & others].
23. In view of the aforesaid judgments of the Supreme Court, it is clear that the singular post of different disciplines cannot be clubbed together unless it is shows that such posts are interchangeable. It is further held that all these posts are isolated posts in different disciplines and they do not form singular cadre . The grouping of such isolated posts is impermissible. The respondents have not placed any material on record to show that the posts are interchangeable. Their grouping is based on the consideration of status, salary and qualification. As noticed, the status and salary alone is not determinative. So far as the qualification is concerned, merely because qualification is same does not means that a person having qualification in âAâ subject can performed the duties of âBâ subject. For example, there is no material to show that a candidate having qualification in the subject of Microbiology can perform the duties of Pharmacology or vise versa. Putting it differently, the candidates in the stream of Microbiology and Pharmacology may having degree or qualification of same status, but there subjects are different. Unless it is shown that their subjects are same and there posts are interchangeable, grouping is wholly impermissible.
24. In view of aforesaid analysis, I am constrained to hold that although respondents have power of grouping posts, their action in grouping the isolated post of different subjects is unjustifiable and runs contrary to the law laid down by the Supreme Court in the aforesaid cases. If said action is upheld, it will amounts to permitting 100% reservation on singular post which will be against the constitutional mandate. In the return, the respondents have contended that similar recruitment in other AIIMS was not challenged and appointments have been made accordingly. In my view this cannot be a ground to upheld the impugned action, Merely because similar action has not been challenged in other AIIMS, impugned action cannot be upheld.
25. For the reasons mentioned hereinabove, the impugned advertisement to the extent it relates to the posts in question are set aside. The grouping of the aforesaid posts cannot be countenanced. The impugned orders/action to the extent indicated hereinabove are set aside. The petitions are allowed.
Saif/MKL (SUJOY PAUL) JUDGE MKL