Gujarat High Court
Rajnish Ratilal Patel vs State Of Gujarat on 21 July, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6588/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6588 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 6588 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 2584 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 2584 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 2584 of 2020
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MIKU SURESH PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,3,4,5,6,7,8,9
MS.MANISHA SHAH, GOVERNMENT PLEADER with MR.K.M.ANTANI, AGP
(99) for the Respondent(s) No. 1, 2
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/07/2020
COMMON ORAL ORDER
1. Heard Mr.N.K.Majmudar learned advocate for the petitioners and Ms.Manisha Luvkumar, learned Government Pleader with Mr.K.M.Antani learned AGP for respondent nos.1 and 2 and Mr.Chaitanya Joshi, learned advocate appearing for respondent no.3.
2. In both these petitions under Article 226 of the Constitution of India, common prayers in context of common facts have been made by the petitioners.
3. For the sake of convenience, prayers of Special Civil Application Page 1 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER No.6588 of 2020 are reproduced as under:
"A. Admit and allow the present petition.
B. Issue appropriate writ, order or direction directing the
respondents - authorities to conclude the procedure of filing- up the posts by way of promotions for which the DPC has already been constituted and such procedure may be ordered to be completed within the stipulated time period as may be directed by the Hon'ble Court and on the basis of the recommendations made by the DPC to the authorities of the Government, the petitioners may be given promotions;
C. Issue appropriate writ, order or direction upon the respondents - authorities to quash and set aside the action of the respondents - authorities of publishing the advertisement for filling-up the posts by way of direct selection as the two parallel proceedings would not be permissible under the law for filing-up the same number of posts and therefore by way of issuing appropriate writ, order or direction, the advertisements (Annexure - G Collectively) published by the authorities, more particularly, respondent No.3 may be quashed and set aside and further be pleased to declare the said action of publishing the advertisement as illegal, arbitrary, illogical and in violative of Article 14 and 16 of the Constitution of India;
D. Issue appropriate writ, order or direction upon the concerned authorities restraining them to fill-up the posts in question on the basis of the advertisement published (Annexre-G Collectively) and / or to restrain the respondents
- authorities to fill-up / to give appointments on the post in question on ad-hoc or on contract basis until the admission, hearing and final disposal of the petition.
E. Issue appropriate writ, order or direction upon the respondents - authorities to quash and set aside the action of the respondents - authorities of taking decision to fill up the post of Assistant Professor / Associate Professor / Professor in various Government Colleges on 11 months contract basis and that to on the basis of an oral interview procedure only and therefore the said action of respondent authorities may be Page 2 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER quashed and set aside and advertisement under nomenclature of "WALK In INTERVIEW 2020" may kindly be quashed and set aside and the respondents may be restrained from filling up the posts.
F. Pending the admission, hearing and final decision of the petition, be pleased to restrain the respondents- authorities, more particularly respondent No.3 to initiate any further procedure for filling up the posts through direct selection."
4. Facts in brief are as under:
4.1 The petitioners are working in Government Medical Colleges on various posts of Tutors/Assistant Professors and Associate Professors. It is the case of the petitioners that they are possessing M.B.B.S. Post Graduate qualifications in the field of Medicine i.e. M.D., M.S. as well as other various post graduate qualifications.
4.2 According to the petitioners, they have become eligible and entitled to be considered for promotion on various promotional posts after having gained necessary experience under the relevant recruitment rule. It is the case of the petitioners that they have been serving on the respective posts and they have not been promoted to higher posts in the hierarchy though they are eligible under the relevant recruitment rules viz. the Recruitment Rules vide notifications dated 24.08.2017, 26.08.2019 and 16.09.2019.
4.3 According to the petitioners, the Recruitment Rules provide for filing up of vacancies either by way of promotion or by way of direct selection. No ratio of direct Page 3 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER recruitment / promotion is prescribed.
5. The grievance voiced in these petitions is that though the respondent-State has already taken a decision by resorting to the procedure of filling up of the posts through promotion and Departmental Promotion Committees have been constituted in the year 2014 and procedure for making recommendation has been initiated, more than six years thereafter there is no process for preparation of final recommendations for sending the name of the petitioners to the Government of Gujarat so that final orders may be passed for giving promotions on promotional posts.
The petitioners are aggrieved by the procedure being lingered for a very long period which has caused stagnation and adding thereto the State is resorting to filling up such posts either by way of direct recruitment or by way of making contractual appointments.
6. The case of the petitioners further is that they have been constrained to approach this Court because though the exercise of promotions came to be initiated in the year 2014, pending such exercise in respect of the same number of posts, another parallel procedure for filling up the said posts for the same subjects and that too in same Government colleges came to be initiated by issuing advertisements for direct selection. The apprehension of the petitioners is that the posts to which the petitioners are entitled to claim promotion shall be filled in by direct recruitment causing serious prejudice to their rights for promotion. The posts on which the petitioners came to be promoted shall be occupied by direct recruits.
7. Pending the petitions, the petitioners moved Civil Application as Page 4 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER the State sought to fill in these posts through contractual appointments.
8. According to the petitioners, once the DPCs had already been constituted, resorting to direct recruitment or contractual appointments by the State Government would make the case of the petitioners pursuant to a recommendation made by the DPC, redundant. The case of the petitioners is that their seniority will get adversely affected.
In short, it is the case of the petitioners that such a situation will create heart burning to the petitioners who are aspiring for promotions for such a long time.
9. It is in this context, that the petitioners have come before this Court with the prayers as aforesaid.
10. These petitions were heard from time to time. A response was sought from the State Government on the pendency of the recommendations made vis-à-vis the petitioners. Learned Government Pleader Ms.Manisha Luvkumar with Mr.K.M.Antani, learned AGP has appeared and presented a short note which reads as under:
"1. PROCEDURE TO BE FOLLOWED FOR PROMOTIONS.
The procedure to be followed for promoting Class I and Class II officers is as under:-
a. DPC is convened wherein Medical Officers, eligible under provisions of the Recruitment Rules, falling within the zone of consideration for the purpose of promotion are considered by the Departmental Promotion Committee. The minutes of the Committee are drawn and approved by the Page 5 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER Chairman and various members of the DPC.
b. The recommendations of the DPC are forwarded to the State Government for its acceptance. As per the rules of business these recommendations thereafter approved by the highest authority i.e. Hon'ble Deputy CM or Hon'ble CM depending on the cadre of the post.
c. Thereafter, in terms of the GPSC Consultation Rules, proposal is referred to GPSC for its consent. d. After the consent of the GPSC, proposal is forwarded to the State Government for posting and promotion orders. After the same is approved at the highest level i.e. Deputy CM or CM, necessary orders are to be issued.
2. There are approximately 600 vacancies in various cadres in the Health Department ranging from Tutor, Assistant Professor and Associate Professor to Professor.
3. Approximately 284 promotions are under consideration at various advanced levels. Despite the entire Health Department being extremely tied up in tackling with pandemic of COVID - 19, an unprecedented number of 46 DPCs have already been convened and further procedure has been undertaken. The statuses of the various DPC's and the statege of consideration is as under:-
4. 6 DPCs have been convened for a total of 37 medical teachers. After approval of GPSC proposal has been sent to the Government for the issuance of posting and promotion orders.
5. 15 DPCs for promoting 105 Medical Teachers are pending approval of the DPC Chairman and its members.
6. 25 DPCs for promoting 142 Medical Teachers have Page 6 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER been convened and the department has sent the proposal to GPSC.
7. It is categorically submitted that the present recruitment is a stop gap arrangement for making contractual appointments for a period of 11 months.
Undisputedly, in case of promotees as and when necessary promotion orders are passed, they are to be given preference, these contractual appointments in no manner are affecting the rights of any of the promotees pending consideration. Looking to the present scenario, there is an urgent need to fill up the vacancies to meet with the challenges across the State without in any manner affecting the rights of incumbent promotees. The necessary promotion orders shall be issued expeditiously as soon as the procedure prescribed above is completed.
8. These contractual appointments are proposed to be made as stop gap arrangement on contractual basis for 11 months alone. The dire need to fill up these vacancies has compelled the State Government to undertake this exercise on an urgent basis.
9. The say of the petitioners that they only have academic duty is factually not true. It is submitted that Tutors, Assistant Professors, Associate Professors and Professors are required to discharge not just their teaching duties but also their clinical duties.
10. It is contended by the petitioners that the State Government should refrain from undertaking any direct recruitment through GPSC. The Recruitment Rules do not Page 7 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER stipulate the ratio of promotees vis-a-vis direct recruitment leaving it to the State Government to exercise its discretion to meet with the exigency of the situation. The requisitions sent to the GPSC categorically stipulates that the same is subject to revisions at the stage of calling of candidates for interview. This is to ensure that in the event of the promotes being promoted lesser number of recruitments may be required to be undertaken. Not only does the requisition stipulate that the same is revisable, to consider the promotions which are in the pipelines at an advanced stage, communications have also been issued to the GPSC to consider the lesser number of seats or appointments where the candidates are available through promotions. Thus, the candidates which are available through promotions ,shall be given a precedent over direct recruitees and necessary modification in the process is being made. Copy of one such order is annexed herewith as Annexure R-1
11. Medical officers, staff, helpers have been performing an outstanding duty serving humanity day and night during the testing times of this pandemic Covid-19 and their spirit is not only applaudable but also noteworthy. The State is dutybound to appreciate the efforts put in by the frontliners in such times of crisis.
11. Having heard learned counsel for the petitioner Mr.Majmudar and Ms.Manisha Luvkumar learned Government Pleader and having perused the note as aforesaid, the following undisputed scenario emerges.
i. The procedure to be followed for promotion of Page 8 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER Medical Officers is to convene a DPC wherein cases are considered for promotion. The recommendations of the DPC are forwarded to the State Government for its acceptance. Depending on the cadre of the posts the approval is taken from the Deputy Chief Minister / Chief Minister, as the case may be.
ii. The proposal is then referred to GPSC for its consent.
iii. After the consent of the GPSC is received, the same is forwarded to the State Government for issuing promotional orders and posting.
iv. There are approximately 600 vacancies in various cadres in the health department ranging from Tutor, Assistant Professor and Associate Professor to Professor.
v. 284 promotions are under consideration at various advanced levels.
vi. 46 DPCs have already been convened and further procedure had been undertaken. The status of these DPCs is as under:
a. Six DPCs have been convened for 37 medical teachers. After approval of the GPSC proposal has been sent to the Government for issuing promotion and posting orders.
b. 15 DPCs for promoting 105 medical teachers are Page 9 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER pending for approval of the DPC Chairman and its members.
c. 25 DPCs for promoting 142 medical teachers have been convened and the department has sent a proposal to the GPSC.
vii. A categorical assurance has come forth on behalf of the State that the contractual appointments are made purely as a stopgap arrangement looking to the present urgent need to fill up the vacancies. This in no manner shall affect the rights of any promotees and necessary promotion orders shall be issued expeditiously as soon as the procedure is completed.
viii. The recruitment rules do not stipulate the ratio of promotees vis-à-vis direct recruitment, however, the requisition for direct recruitment stipulates that the same is revisable considering that the promotions are in the pipeline and therefore the requisition could be revised to consider lesser number of seats for appointment by direct recruitment.
ix. The State Government in its note has appreciated the outstanding duty that the class of the petitioners as being medical officers are performing in the present pandemic.
12. Considering the above note reproduced hereinabove and the factual situation deducible as made out in para 11 above, it is clear that the State is responsible and aware of its duties as a welfare State which is supposed Page 10 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER to act as a model employer. It is not in doubt that the Supreme Court has repeatedly pronounced that the right of an eligible employee to be considered for promotion is virtually a part of his fundamental right under Article 16 of the Constitution of India. That, the employee has a legitimate expectation for being considered for promotion which cannot be defeated due to inaction on the part of the State Government.
13. Keeping this position of law in mind and the note which reflects the stand of the State Government and shows that the State is responsible in honoring this legitimate expectation of the petitioners, one also cannot lose sight of the fact that DPCs have been constituted in the year 2014 and more than six years have passed but final recommendations for sending the names of the petitioners to the Government of Gujarat for promotions has not been made. It is very sad that the petitioners are awaiting promotion orders since long. Therefore, in order to strike a balance between the stand of the petitioners and the State, this court thinks it fit that now that the DPCs are pending at various stages, the same should be completed within some time frame so that the petitioners as well as the State is relieved of the pending exercise.
14. Accordingly, as the status of the DPCs is elaborated in para 11 above, the respondents are directed to finalize the exercise as so undertaken in the DPCs convened as above and pending at various stages within a period of 3 months from the date of receipt of copy of this order. As per the stand of the Government, 46 DPCs are convened of which several DPCs are at various stages of finalizing their recommendations and accordingly the exercise of these DPCs including of issuing of posting and promotion orders shall be completed within a period of three months from the date of receipt of copy of this order.
Page 11 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021 C/SCA/6588/2020 ORDER15. Since the State is responsible and aware of the present pandemic and the role that the petitioners are carrying out, in the event the State needs further time to comply with the directions as aforesaid, liberty is reserved to apply in case of difficulty.
16. In view of the disposal of the main Special Civil Applications, all the Civil Applications (for direction) will not survive and hence, Civil Applications are also disposed of accordingly.
(BIREN VAISHNAV, J) ANKIT SHAH / A. B. VAGHELA Page 12 of 12 Downloaded on : Fri Feb 12 23:41:41 IST 2021