Jharkhand High Court
Dr. Krishna Kumar Lal vs The State Of Jharkhand And Ors. on 24 September, 2007
Equivalent citations: [2008(3)JCR221(JHR)], AIR 2008 (NOC) 1269 (JHAR.) = 2008 (1) AIR JHAR R 554, 2008 LAB. I. C. (NOC) 544 (JHAR.) = 2008 (1) AIR JHAR R 554 2008 (1) AIR JHAR R 554, 2008 (1) AIR JHAR R 554, 2008 (1) AIR JHAR R 554 2008 LAB. I. C. (NOC) 544 (JHAR.) = 2008 (1) AIR JHAR R 554, 2008 LAB. I. C. (NOC) 544 (JHAR.) = 2008 (1) AIR JHAR R 554
Author: Amareshwar Sahay
Bench: M. Karpaga Vinayagam, Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. In the present writ petition the petitioner has prayed for declaring Section 14 (v) of Rajendra Institute of Medical Sciences Act, 2002 read with Rule 19 of Rajendra Institute of Medical Sciences Rules to be ultravires and violative of Articles 14 and 16 of the Constitution of India and also for quashing the notification dated 08/01/2005 contained in Annexure-7 to the writ application, notifying the absorption of the services of those employees, who were already working in Rajendra Medical College 8b Hospital (herein after called as RMCH for the sake of convenience) on the basis of their option. Further prayer of the petitioner in the writ petition is for giving direction to the respondents to give opportunity to all the members of the State Health, Medical Education Department cadre for absorption of the services in Rajendra Institute of Medical Sciences (herein after referred as RIMS in short for convenience).
2. The petitioner is presently posted as Assistant Professor in the Department of Eye, in M.G.M. Medical College Hospital, Jamshedpur and his wife Smt. Lalita Xhess is posted in RIMS at Ranchi as Medical Officer Clinical Pathology.
3. The State of Jharkhand by enacting RIMS Act, 2002, converted Rajendra Medical College and Hospital at Ranchi popularly known as RMCH in short into Rajendra Institute of Medical Sciences in short RIMS.
4. Section 14 (v) of the RIMS Act provides that the Institute will utilize the services of the Officers and employees of nursing college and nursing school as also the services of the employees of Rajendra Medical College Hospital, Ranchi (RMCH) because before the merger or conversion of RMCH into RIMS, those employees were a part of the workforce of RMCH and the employees of the Institute will continue to have the status of civil public service under the Government of Jharkhand till as per the rules they opt for their absorption of services in the Institute within a time frame.
5. The State Government has also framed rules in that regard, namely, Rajendra Institute of Medical Sciences Rules, 2002. Rule 19 of the said rule provides that all the State Government employees posted in RIMS on the date of the RIMS Act, 2002, came into force, may give their options within one year, for absorption of their services in the RIMS and all those, who do not give their option within the said prescribed period, their services shall be returned to the State Government for being posted elsewhere by the Health and Medical Education Department of the Government of Jharkhand. For ready reference Section 14 (v) of the RIMS Act, 2002 and Rule 19 of the RIMS Rules are reproduced herein below:
14(v) laLFkku uflZx egkfo|ky; rFkk uflZx fo|ky; lfgr jktsUnz fpfdRlk egkfo|ky;ks ,oa vLirky ds vf/kdkjh;ks ,oa deZpkjh;ks dh lsokvks dk mi;ksx djuk] D;ksafd jktsUnz fpfdRlk egkfo|ky; ,oa vLirky dk jktsUnz vk;qfoZKku laLFkku esa foy; ls iwoZ mudk dk;Zcy vfLrRo esa Fkk A laLFkku ds ;s deZpkjh rc rd >kj[k.M+ ljdkj ds vlSfud yksd lsod gksaxs tc rd dh fu;eksa es fd, izko/kku ds vuqlkj] ,d fuf'pr le; lhek ds Hkhrj os laLFkku esa lek;kstu gsrq fodYi ugh nsrs A Rule 19. lekos'ku @ lek;kstu%& bl vf/kfu;e ds izoZru ds le; laLFkku es inLFkkfir ljdkjh lsodksa dks vf/kfu;e ds izoZru dh frfFk ls laLFkku esa lek;ksftr gksus gsrq fodYi izLrqr djus gsrq ,d o"kZ dk le; fn;k tk;sxk A oSls ljdkjh lsod tks fu/kkZfjr le; lhek ds Hkhrj lek;kstu gsrq fodYi ugh nsaxs mUgs jkT; ljdkj }kjk jkT; esa vU;= inLFkkfir djus gsrq LokLF; ,oa fpfdRlk f'k{kk foHkkx] >kj[k.M+ ljdkj dks okil dj fn;k tk;sxk A The English translation of the aforesaid provisions reads as follows:
Rajendra Institute of Medical Sciences Act. 2002: Act 14 (v) of 2002 The institute shall utilize the services of officers and employees of the Rajendra Medical College and Hospital including the Nursing College and Nursing School as their strength existed prior to the conversion of the Rajendra Medical College and Hospital into the Rajendra Institute of Medical Sciences. These employees of the Institute shall be civil servants of the Government of Jharkhand unless they exercise the option to be absorbed in the Institute within such time period as provided in the rules.
Rule 19. Absorption: All employees of the state government posted in the Institution on the date of this Act has come into force may give their option for absorption of their services in the Institute within one year. All Government employees who do not give their option within the prescribed period, they shall be returned to the state government for being posted elsewhere by the Health and Medical Education Department of the Government of Jharkhand.
6. The grievance of the petitioner is that the option for absorption of the services was sought for only from such employees, who, on the date of coining into force of the RIMS Act, were posted in RIMS, According to the petitioner, the provision of Section 14 (v) of the RIMS Act and Rule 19 of the RIMS Rules are discriminatory and are violative of Articles 14 and 16 of the Constitution of India for the following reasons:
(i) The employees posted in the Rajendra Medical College Hospital (RMCH) on or before coming into force of the RIMS Act as well as the employees posted in the other medical colleges of the State including M.G.M. Medical College, Jamshedpur where the petitioner is posted belong to one cadre, i.e. Health Education Cadre and their service conditions are similar and, therefore, the petitioner as well as the other employees of the other medical colleges situated in the State should have been allowed to give their option for absorption in RIMS.
(ii) Since the RIMS Act or in the RIMS Rule did not provide any provision for seeking option from such other employees, who belong to the Health Education Cadre also and; therefore, it is arbitrary and discriminatory.
(iii) The employee posted in RMCH and the employees posted in other medical colleges situated in the State of Jharkhand including M.G.M. Medical College Hospital, Jamshedpur, belong to one cadre, i.e. medical teaching cadre and, therefore, they are entitled to be treated equally.
(iv) The State Government by the impugned statute has created a class within class by restricting the opportunities to exercise option for absorption in the service of RIMS only to those members of the cadre posted at RIMS. Such classification is not based on intelligible differentia and has no nexus with the object sought: to be achieved.
(v) Since the cadre bifurcation of the employees of the State Health Services has not been decided finally and is still pending therefore, the Governing body of RIMS could not have taken any final decision regarding absorption of the employees of RMCH till final allocation of the cadre by the State of Bihar and State of Jharkhand.
7. The State of Jharkhand has filed counter affidavit controverting the stand of the petitioner and it has been stated therein that after coming into force of the Rajendra Institute of Medical Sciences Act 2002 with effect from 15/08/2002, RIMS has become autonomous body. 50% of the employees working in the erstwhile Rajendra Medical College and Hospital, were absorbed in RIMS, whereas, remaining 50% of the posts were to be filled up through open advertisement by direct recruitment therefore, the petitioner was free to apply against the said 50% of the vacancy which was to be filled up through open advertisement and direct recruitment. It is also stated in the counter affidavit filed by the State that the writ petitioner's wife, who was posted in RMCH, had herself given option for absorption in RIMS knowing fully well that her Doctor husband is posted at Jamshedpur in M.G.M. Medical College. As a matter of fact she was free, not to opt to be absorbed in the RIMS. In fact, she opted for her absorption and she was absorbed also in the RIMS. Instead of opting for absorption his wife could have represented to be transferred to the place of posting of her husband in M.G.M. College Hospital, Jamshedpur.
8. Respondent No. 4 RIMS, has filed a separate counter affidavit, wherein it is stated that the Doctors working in the erstwhile RMCH, continued in the Teaching Faculty after creation of RIMS. They were given the opportunities to exercise their option for absorption, which does not violate any provision of the Constitution nor it is discriminatory in any manner rather an opportunity was already given to a separate class of Teachers and other employees working in RIMS since they were serving in the RMCH for a long time and, therefore, they constitute a separate class for the purpose of their absorption.
It is further stated in the said counter affidavit that out of total teaching posts, only 200 posts were filled up by absorption and the rest post was to be filled up from the persons working in the teaching cadre of the State of Jharkhand, therefore, the question of any discrimination does not arise. It is also stated therein that RIMS advertised for filling up of the teaching posts for direct recruitment and the petitioner had also applied pursuant to the said advertisement and, therefore, the petitioner cannot make a grievance that he has not been given any opportunity for his appointment in RIMS.
9. A counter affidavit has also been filed on behalf of some of the private respondents, in which it is stated that the writ petitioner had also applied against the vacancy so advertised by RIMS for the post of Assistant Professor in the Department of Eye in the year 2006. The petitioner as well as other four Doctors, were called for the interview and out of those five, only two Doctors namely, Dr. Vandana Prasad and Dr. Lalit Sanga were selected, whereas the writ petitioner was not found fit in the interview and, therefore, he was not selected for the said post. In support of that statement a copy of the result of the interview has been annexed as Annexure- A/1 to the counter affidavit.
These facts have not been disputed by the petitioner in his rejoinder to the counter affidavit.
It is also stated in the counter affidavit that the cadre division is a matter that relates to Bihar Reorganization Act, 2000 and no final list has yet been published and the absorption of the employees and Doctors working in RMCH or in the RIMS it is not going to affect in any way. It has been pointed out that in W.P.S. No. 4858/2002 (Dr. Anubha Vidyarthi-State of Jharkhand and Ors.) and in W.P.S. Nos. 841, 745 and 754/2004 (Dr. Lalit Minz, Dr. Kumar Vijay Raj Singh, Dr. Ashok Kumar Choudhary v. State of Jharkhand and Ors.) this Court has already held that the State Government has no authority to post any Doctor or Staff in the RIMS from outside and it has also been held that any Doctor posted in RIMS cannot be transferred or posted outside the Institute. The extract of the order passed in the aforesaid writ petitions arc quoted herein below:
W.P.S. No. 4858 of 2002...
The question arises whether the Slate Government can transfer or post an officer/employee from or at RIMS, Ranchi or not.
Admittedly, the petitioner was posted in P.S.M. Department of Rajendra Medical College and Hospital, Ranchi (RMCH). It was made autonomous and converted as Rajendra Institute of Medical Sciences (RIMS, Ranchi) w.e.f. 15th August 2002 in pursuance of "Rajendra Institute of medical Sciences Act, 2002 (Act 10 of 2002). On the date, the Institute was made autonomous; admittedly, the 5th Respondent was not posted in the Institute, but in the Additional Primary Health Centre.
...
From the aforesaid provision, it will be evident that the Institute has a right to utilize the services of the officers and employees of RMCH, Ranchi though they remain Government servants of the State of Jharkhand. The power of utilizing the services having entrusted with RIMS till a decision is taken in respect to absorption of one or other officer/employees, the State Government cannot act against the aforesaid statutory provisions of the Act, 2002. The Institute (RIMS) having made autonomous transfer and posting by the State Government, in normal course, in such Institute does not arise.
...
The Institute (RIMS) having made autonomous since 15th August 2002, the State has no right to post any person in such Institute (RIMS) there being no such provision to fill up any post by posting of the Government officers/employees.
...
W.P.S. Nos. 841, 745 and 754 of 2004 In these writ petitions the petitioners have prayed for a direction upon the respondents particularly respondent No. 3, the Director, Rajendra Institute of Medical Science, Ranchi [shortly RIMS) to accept their joining in the RIMS.
...
As noticed hereinabove, after the RIMS became autonomous body under the Act and power of appointment of teaching and non-teaching staffs having been vested with the Selection Committee, the State Govt. has no jurisdiction to transfer and post the Medical Officers to RTMS.
10. The learned Counsel appearing for the petitioner submitted that it is a settled principle of law up to the Supreme Court that in order to examine as to whether a particular law is violative of Article 14 of the Constitution or not, the Court has to see as to whether the classification has any nexus with the object sought to be achieved and as to whether the classification is based on intelligible differentia. To substantiate the said point the learned Counsel has relied on the decision of the Supreme Court in the case of "P. Vajravelu Modaliar v. The Special Deputy Collector for Land Acquisition, West Madras and Anr. and the case of "Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors. " and the case of "Comptroller and Auditor General v. Kamlesh Vadilal Mehta" and the case of "Govind A. Mane and Ors. v. State of Maharashtra and Ors. reported in AIR 2000 SC 1576".
11. Elaborating his argument the learned Counsel for the petitioner by referring the object of the RIMS Act mentioned in Section 5 of the said Act, has submitted that the objects, for which RMCH was converted into RIMS by RIMS Act have been mentioned in the said provision are (i) to achieve high standard in graduation and post graduation level of medical education (ii) to encourage educational and research activities in the field of medical education and allied subjects (iii) to encourage all employed in the health related activities including dentistry for education as well as training and to provide better facilities (iv) to provide quality health services on the basis of conventional and state of art (developed) facilities and (v) to achieve autonomy in providing facilities and services but Section 14 (v) of the said Act does not have any nexus with the objects of the Act and, therefore, it is violative of Article 14 of the Constitution. According to the learned Counsel for the petitioner, the impugned provision of Section 14 (v) of the Act, if it is tested in the touch stone of twin test as laid down by the Apex Court it would appear that neither the classification has any nexus with the object sought to be achieved nor it is based on intelligible differentia.
12. On the other hand, on behalf of the State it has been contended that on perusal of Section 14 (v) of the RIMS Act, 2002 read with Rule 19 of the RIMS Rules, it would appear that while enacting the said Act it has specifically been mentioned that the Institute (RIMS) will utilize the services of officers and employees of Nursing College and Nursing School as also the services of the employees of RMCH on the ground that before the merger of RMCH into RIMS, these employees were part of the work force of RMCH. From perusal of Rule 19 of the RIMS Rules, it would further appear that the employees, who were posted in RMCH on the date when the Act came into force, were given liberty to give their option for absorption of their services in the Institute (RIMS) within one year. It has also been provided therein that if the said option was not exercised by the employees within a period of one year, then their services were to be returned to the State Government for being posted elsewhere.
13. It has further been submitted on behalf of the State that the employees, who were working in RMCH, constituted a different class in themselves since they were treated as a part of the work force of RMCH before its merger into RIMS. Apart from that 50% of the teaching posts were to be filled up through open advertisement by direct recruitment and only 50% posts were to be filled up by absorption from the employees, who were already working in RMCH prior to its conversion into RIMS, therefore, there was no discrimination at all.
14. Now let us examine the case law cited on behalf of the petitioner. In the case of "Harkchand Ratanchand Bantlia and Ors. v. Union of India and Ors. " while examining the constitutional validity of the Gold (Control) Act, 1968, the Supreme Court in para-23 has held as follows:
When a law challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object. In the present case both the tests are satisfied and we hold that Sections 27 and 39 of the impugned Act do not violate the guarantee under Article 14 of the Constitution.
15. In the case of "P. Vajravelu Modaliar v. The Special Deputy Collector for Land Acquisition, West Madras and Anr. " the Apex Court held that under Article 14 of the Constitution of India the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. The said classification has to pass two tests, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group; and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.
16. The same principle has been followed in the case of "Comptroller and Auditor General v. Kamlesh Vadilal Mehta" ."
17. From the facts in the case of "Govind A. Mane and Ors. v. State of Maharashtra and Ors. reported in AIR 2000 SC 1576", it appears that the appellants before the Supreme Court had pass 12th examination, with a percentage of marks ranging from 63 to 65%, sought admission in B.Ed. Course. But they were not successful and, consequently, they approached the High Court under Article 226 of the Constitution where they challenged selection of candidates for admission on the grounds that the district wise distribution of seats among four districts, namely, Parbhani, Nanded, Beed and Latur to the extent of 200 seats, 460 seats, 310 seats and 640 seats respectively was bad and the district wise distribution of seats was violative of Article 14 of the Constitution because it had no nexus with the classification and object ought to be achieved. The Supreme Court relying on the decision in the case of "A. Perijakaruppan v. State of Tamilnadu reported in AIR 1971 SC 2030" held that there was no material to show the nexus between the district wise distribution of seats and the object sought to be achieved and, therefore, the district wise quota fixed for admission for the B.Ed course was held to be violative of Article 14 of the Constitution of India.
18. For the point under consideration it is important and relevant to notice the decision of the Supreme Court in the case of "Charanjit Lal Chowdhury v. Union of India " wherein it has been held that in order to test as to whether any provision of statute is violative of Article 14 of the Constitution of India or not the following seven principles are to be applied:
(i) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people that its laws arc directed to problems made manifest by experience and its discriminations are based on adequate grounds.
(ii) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.
(iii) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate treatment.
(iv) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(v) Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough.
(vi) If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
(vii) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.
19. In the present case, Section 14 (v) of the RIMS Act, which has already been quoted in the foregoing paragraph, clearly makes out that the employees and doctors, who were already working in RMCH constituted a different class in themselves because-they were treated as a part of the work force of RMCH. The petitioner, who was working and posted in MGM Medical College and Hospital, Jamshedpur, cannot equate himself with the Doctors, who were already employed and working in RMCH prior to the coming into force of RIMS Act, 2002. Since, RMCH was being converted into RIMS and, therefore, 50% of the leaching posts of RIMS was provided to be filled up from the work force already working in RMCH and 50% of the teaching posts was to be Tilled up by direct recruitment and, therefore, in our view, it cannot be said that Section 14 (v) of the RIMS Act or Rule 19 of the RIMS Rules are in any manner discriminatory. The classification of employees and Doctors working in RMCH is quite reasonable and is based on intelligible differentia especially when those employees and Doctors constitute the work force of RMCH prior to constitution of RIMS.
20. No doubt that the writ petitioner as well as the Doctors, who were working in RMCH before coming into force of the RIMS Act, 2002 belong to the same cadre but the Doctors, who were posted and were working in RMCH on the date on which the RIMS Act came into force, constituted a different class than those Doctors, who were posted in other medical colleges in the State of Jharkhand. The Doctors, who were working in RMCH on the date the RIMS Act came into force, were part of the work force of RMCH and, therefore, option was invited from those Doctors and employees, who were the work force in RMCH whereas the writ petitioner was the part of the work force of M.G.M. Medical College and Hospital, Jamshedpur and, therefore, he belonged to a different class. Therefore, it cannot be said that the petitioner or any similarly situated person have been discriminated by not giving them option for absorption in RIMS. Therefore, in our view, even after applying the twin tests as laid down by the Supreme Court in the decisions noticed above, we do not find any reason to hold that the provisions of RIMS Act and the Rules under challenge are in any way violative of Article 14 of the Constitution of India.
21. So far as the point that the cadre bifurcation of the employees of the State Health Services has not yet been decided finally and is pending but, in our view, that does not affect the constitutional validity of Section 14 (v) of the RIMS Act or Rule 19 of the RIMS Rules. Therefore, this point, raised by the petitioner has no legs to stand.
22. It has already been noticed above that 50% of the teaching posts, which was to be filled up by direct recruitment, was advertised and the writ petitioner was applied and was also called for interview but he could not succeed in the final selection and, thereafter, he, after becoming unsuccessful, has filed this writ petition challenging the constitutional validity of Section 14 (v) of the RIMS Act and Rule 19 of the RIMS Rules.
23. For the reasons stated hereinabove and by relying on the decision of the Supreme Court in the case of "Charanjit Lal Chowdhury" (Supra) and the case of "Harakchand Ratanchand Banthia (Supra), we hold that the provision of Section 14 (v) of the RIMS Act, 2002 and Rule 19 of the RIMS Rules are valid and are not violative of Article 14 or 16 of the Constitution of India. Accordingly, this writ petition is dismissed.
In the facts and circumstances of the case, there shall be no order as to cost.
M. Karpaga Vinayagam, C.J.
24. I agree.