Bombay High Court
Manish S/O Jaideorao Bhavatkar vs State Of Maharashtra, Through ... on 8 September, 2022
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
J-wp2197.20.odt 1/47
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.2197 OF 2020
Manish s/o. Jaideorao Bhavatkar,
Aged 42 years,
Occupation : Service,
R/o. 85, Old Chavre Nagar,
Near Lalit Kala Kendra,
Jaripatka, Nagpur. : PETITIONER
...VERSUS...
1. State of Maharashtra,
through its Secretary,
Medical College and Drugs Department,
Mantralaya, Mumbai-440 032.
2. The Director,
Medical Education and Research Centre,
Mumbai.
3. The Dean,
Government Medical College and Hospital,
Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri M.G. Bhangde, Senior Advocate with Shri S.S. Sarda, Advocate
for Petitioner.
Ms. N.P. Mehta, Assistant Government Pleader for Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : A.S.Chandurkar & Urmila Joshi-Phalke, JJ.
Arguments heard on : 1st August, 2022
Judgment delivered on : 8th September, 2022.
ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)
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1. The challenge to the order passed by the Maharashtra Administrative Tribunal, Nagpur Bench Nagpur dated 18.12.2019 by which claim of the petitioner for deemed date of promotion was rejected.
2. The petitioner has come with the case that he belongs to Scheduled Caste category and his caste claim was validated by the Committee. It is further contention of the petitioner that he is qualified as Master's Degree in Occupational Therapy in the year 2007. As he was qualified, he was appointed as Occupational Therapy Class-III, at Government Medical College, Aurangabad on 18.6.2003 and since then he is in continuous service. He had worked at Aurangabad from 2003 to 2005 as Occupational Therapist. Thereafter he was transferred to Government Medical College, Nagpur. On 1.1.2009 Government had published state-wise seniority list of Medical Education and Research, Mumbai, wherein he was listed at Serial No.11. On 27.11.2007 respondent No.2-Director, Medical, Education and Research, Mumbai issued communication to the respondent No.3-Government Medical College and Hospital and called the information to fill up the post of Lecturer in Occupational Therapy. Accordingly, respondent No.3-Government Medical College and Hospital recommended the name of petitioner along with L.U. ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 3/47 Sakhare. Both are from Scheduled Caste category vide letter dated 29.1.2008. As per the Government notification conditions for the appointment to the post of Lecturer in Occupational Therapy should be made either from the person by nomination or from the candidates who possessed the Degree in Occupational Therapy. The Government of Maharashtra also issued Resolution on 29.3.1997, wherein it was clarified that the vacancy should be filled either by nomination or through promotion. The petitioner further contended that he belongs to Scheduled Caste and is possessing Master's Degree. The required qualification as per Academic Notification No.9/2008 of Maharashtra University of Health Sciences is Master's Degree. It is further contention of the petitioner that in absence of Rules, the Rules of Maharashtra University of Health Sciences would prevail. He was entitled for promotion on the post of Lecturer in Occupational Therapy from deemed date 5.1.2008. Accordingly, he preferred representation on 5.1.2008, 28.11.2008, 6.2.2009, 18.4.2009, 30.5.2009, 8.6.2009, 6.11.2009 and 5.8.2010. Thereafter, he had approached to the Maharashtra Administrative Tribunal and filed application. During the pendency of the said application, respondent No.3-Government Medical College and Hospital promoted him as Assistant Professor Occupational Therapy w.e.f. 13.9.2019. ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 4/47
3. It is further grievance of the petitioner that one Ms. Sophia Azad, who had joined service on 22.2.1999 and one Mrs. Leena Deshpande on 13.11.1999 were promoted w.e.f. 22.1.2009 though they were not qualified. He claimed that his deemed date of promotion should be 5.1.2008. However, the Maharashtra Administrative Tribunal had not considered the same and wrongly rejected his claim of deemed date of promotion. By way of amendment petitioner has challenged the communication of State Government dated 1.11.2010 (Annexure-5A) whereby petitioner was denied promotion to the post of Assistant Professor/Lecturer in subject Occupational Therapy. Being aggrieved with the same, he preferred this petition.
4. The petition is opposed by the respondents on the ground that the 'Occupational Therapy School and Centre' is the only Government institute pertaining to Occupational Therapy education which works under Government Medical College, Nagpur. Initially in the cadre of Assistant Professor Occupational Therapy Grade-B, there were only three sanctioned posts. In 2016 three additional posts were created. Thus, number of sanctioned posts in the cadre of Assistant Professor Occupational Therapy Grade-B increased to six. The Medical Education and Drugs Department since beginning had ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 5/47 empowered the Divisional Selection Board, constituted under the Chairmanship of Dean of respective Government Medical College, to make temporary appointments for the post of Assistant Professor till the appointment of regular candidates. It was a stop-gap arrangement at local level to meet academic and administrative exigencies as all three posts of Assistant Professor were vacant. The Dean of Government Medical College, Nagpur had appointed two candidates to the said post on temporary basis. The State Cabinet in 2009 took a policy decision to regularize temporary services of the Assistant Professor working in all Government Medical Colleges, who had completed two years of temporary services till 15.1.2009. Thus, temporary services of the two candidates i.e. Ms. Sophia and one Mrs. Leena Deshpande working on the post of Assistant Professor Occupational Therapy came to be regularized vide Government Resolution dated 22.1.2009.
5. It is further contended by the respondents that the petitioner, who was working as 'Occupational Therapist' possessed the Master's Degree in Occupational Therapy in 2007. There were no notified recruitment rules till 2019 for the post of Assistant Professor, Occupational Therapy. However, draft recruitment rules were in existence framed for appointment to the post of Assistant Professor. ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 6/47 As per the draft recruitment rules appointment to the post of Assistant Professor could be made by nomination and promotion. Master's Degree was not the requisite qualification for promotion to the post of Assistant Professor, Occupational Therapy, Grade-B. The only requisite qualification for the said post was Bachelor's Degree. There were several candidates who were seniors to the petitioner possessing the Bachelor's Degree in Occupational Therapy. Therefore, the petitioner could not get promotion. The claim of the petitioner that he was the only eligible candidate for promotion possessing higher qualification, has no foundation. As per the draft recruitment Rules said posts can be filled in by both the ways i.e. by promotion and nomination. As per the policy decision taken by the State Cabinet in 2009 temporary services of 399 Assistant Professors along with two candidates working on the post of Assistant Professor Occupational Therapy Grade-B were regularized. Thus, out of three posts two from nomination quota were filled in by the way of regularization of temporary service and only one post remained to be filled. Therefore, for remaining single post social reservation was not applicable as per the Resolution dated 21.9.1998 of the General Administration Department of the State. In 2010, DPC recommended another candidate who was holding requisite qualification and senior to the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 7/47 petitioner. Thus, the claim of the petitioner is that one post was reserved for Scheduled Caste category and as he belongs to said category, he was eligible for promotion is rejected by the respondents. In 2016, three additional posts were created in the cadre of Assistant Professor Occupational Therapy. Therefore, said posts were to be filled from nomination and promotion quota. It was also necessary to frame the recruitment Rules. The recruitment rules were notified in 2019. Thus, the petitioner was promoted to the said post accordingly as per his qualification and seniority. It is contended by the respondents that in the above mentioned facts and circumstances the petitioner was not eligible for promotion as per draft recruitment rules and the seniority till new recruitment rules are notified. Therefore, the claim of the petitioner to grant deemed date of promotion is without any foundation and the same deserve to be rejected.
6. Heard Shri M.G. Bhangde, learned Senior Advocate for the petitioner. He reiterated the contention as mentioned in the petition. As per his contentions it is not disputed that there were no notified recruitment rules till 2019 for appointment of the post of Assistant Professor. He also denied the contentions of the respondents that Master's Degree was not requisite qualification for promotion to the post of Assistant Professor, Occupational Therapy. He submitted that ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 8/47 as per the information received by him under the Right to Information Act, 2005 Ms. Sophia H. Azad was temporarily appointed to the post of Assistant Professor, Occupational Therapy till candidate holding MD/MS degree available. It is thus clear that post graduate qualification was necessary for appointment/promotion to the post of Assistant Professor. He submitted that the Maharashtra University of Health Sciences, Nashik had issued Academic Notification dated 26.3.2008 whereby qualification and experience of Occupational Therapy teachers have been laid down. As per the said norms the prescribed qualification is Master's Degree in Occupational Therapy. He further submitted that the advertisement was issued on 16.12.2008. In response to the said advertisement one Shri Pritam Jeevan Shende had applied for appointment to the post of Lecturer who was holding degree Bachelor of Occupational Therapy. He was not possessing the Master's Degree in Occupational Therapy which was required qualification for appointment to the post of Lecturer. As he was not possessing the requisite qualification his candidature was rejected. He approached the Maharashtra Administrative Tribunal by filing Original Application No. 234/2009. He challenged the order of Tribunal by filing Writ Petition No.228/2010. This Court set aside the order of Tribunal and remanded the matter to the Tribunal for fresh ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 9/47 decision in accordance with law. Thereafter, Tribunal had decided the matter and held that it was open to the appointing authority, in absence of recruitment rules, to prescribe educational qualification required for the post in question and dismissed the Original Application. The said order was not challenged by Shri Pritam Jeevan Shende and it has become final. Thus, there were no recruitment rules for appointment/promotion to the post of Lecturer/Assistant Professor in Occupational Therapy. He further submitted that as per the information received by him under the Right to Information Act, 2005 Master's degree in Occupational Therapy was required for promotion to the post of Assistant Professor. Normally, teachers with higher qualification are eligible to teach the students, who aspired for lower degree. He submitted that the petitioner was illegally denied the opportunity and the candidates, who were not possessing the Master's Degree were appointed to the post of Assistant Professor. Therefore, he preferred representation which were not considered by the respondents. Though he is promoted on 13.9.2019, but his deemed date of promotion should be 5.1.2008. The learned Tribunal had not considered the same and wrongly rejected his claim.
7. In support of his contention learned counsel for the petitioner relies upon R.K. Sabharwal and others Vs. State of Punjab ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 10/47 and others, reported in (1995) 2 SCC 745, wherein it is held by the Apex Court that when the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. There is no justification to operate the roster thereafter. It is further held that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. He further relied upon M.R. Thyagarajan, Mechanic, Integranted Fisheries Project, Koshi Vs Secretaryindia, Represented by its Union of to Government, Ministry of Agriculture, New Delhi and others reported in 2014 SCC Online Ker 25893, in this case para No.8 of this case reads as under :
"8. That apart, insofar as the challenge raised by the petitioner against the appointment of the 5th respondent is concerned, he proceeds on the basis that the cadre strength is 4 and therefore if 25% direct recruitment quota is applied, only one person can be directly recruited. According to him, if reservation is applied to that one post, it amounts to 100% reservation, which is impermissible. We are unable to agree. The question of 100% reservation, arises only in the case of single isolated post. To ascertain whether a post is a single isolated post or not, one has to look at the cadre strength. Insofar ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 11/47 as this case is concerned, if the cadre strength is examined, it can be seen that it is 4. Therefore, even if one post is earmarked for direct recruitment and the rules of reservation are applied to that single post, it cannot be said that the post is a single isolated post and that, therefore the rules of reservation are inapplicable."
8. On the other hand, Ms. N.P. Mehta, learned Assistant Government Pleader for the respondents submitted that only qualification required was Bachelor's Degree. The candidates, who were seniors to the petitioner were appointed. As there was only one post is to be filled prior to 2016 and reservation rules are not applicable to the singular post, therefore it was filled up by nomination. In the year 2016 additional three posts were sanctioned. There were no recruitment rules till 2019. The recruitment rules were notified in 2019 and thereafter petitioner was promoted to the post accordingly as per his qualification and seniority. She submitted that the claim of the petitioner regarding the deemed date of promotion i.e. 5.1.2008 has no foundation and liable to be dismissed.
9. Heard both the parties at length. Perused the record. In addition to the submissions petitioner relied upon the caste validity certificate issued to him on 14.12.1993. He also relied upon his degree certificate which shows that he was qualified as Master in Occupational Therapy. Admittedly, he passed the Master of ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 12/47 Occupational Therapy in April 2007. It revealed from the record that the petitioner entered in service on 18.6.2003. He worked at Aurangabad as Occupational Therapist from 2003 to 2005 in a Class-III post. He transferred to Nagpur at Government Medical College in 2005. The record further shows that prior to petitioner entered in service one Ms. Sophia Azad, who joined service in 1999 i.e. from 22.2.1999 was promoted as an Associate Professor on 22.11.2001. Initially, her appointment was for the period from 22.11.2001 to 21.3.2002 and her services are regularized as per the notification issued on 22.1.2009. Another candidate Mrs. Leena Deshpande was appointed for the same period and her services were also regularized as per the resolution dated 22.1.2009. Thus, it appears from the record that prior to petitioner entered in service two posts were filled up by nomination and Ms. Sophia Azad and Mrs. Leena Deshpande and were promoted as Associate Professor in the year 2001 itself and their services were regularized as per the Government Resolution dated 22.1.2009. It is an admitted position that initially i.e. upto 2016 there were only three sanctioned posts in the cadre of Associate Professor Occupational Therapy Grade-B. As per the rules adopted for promotion were by both ways i.e. by promotion and nomination. As per the policy decision taken by the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 13/47 State Cabinet in 2009 temporary services of 399 Assistant Professors along with two candidates working on the post of Assistant Professor Occupational Therapy Grade-B were regularized. Thus, out of three posts, two posts from nomination quota were filled in by the regularization of temporary service, only one post remained to be filled. Therefore, for remaining single post social reservation was not applicable as per the Government Resolution dated 21.9.1998 of the General Administration Department, Mantralaya, Mumbai.
10. The petitioner had claimed that one post was reserved for Scheduled Caste category and as he belongs to the said category he was eligible for promotion, but he was not promoted for the said post. It is apparent from the communication that on 27.11.2007 Director, Medical Education and Research communicated with Dean, Government Medical College, Nagpur by which information was called about the employees, who are working from the period 2002 to 2007 along with their ACR to consider them for the post of Associate Professor. In response to the said communication Dean, Government Medical College, Nagpur vide communication dated 29.1.2008 informed the names of two employees i.e. Manish Bhavatkar (petitioner) and Shri L.U. Sakhare, both are from Scheduled Caste. The communication dated 17th August, 2010 on which petitioner has ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 14/47 relied upon vide Annexure-5 shows that communication was by Medical Education and Drugs Department states that promotion to the post of Associate Professor Occupational Therapy is by nomination and promotion. Said communication further discloses that three posts were sanctioned out of which two are already filled. Both the two posts which were filled are from the Open category and remaining one post is from the reserved category i.e. from Scheduled Caste. However, it was suggested that said fact is to be ascertained from the General Administration Department. As per the communication dated 1st November, 2010 by the Section Officer to the Presenting Officer, Maharashtra Administrative Tribunal dated 1st November, 2010 discloses that it was informed that as the single post is available for promotion and social reservation is not applicable to the said post which is single post. Learned Assistant Government Pleader also placed reliance on notification dated 21.9.1998 which shows that social reservation was not applicable to a single post. Thus, only one post was remained to be filled. Though petitioner claims that said post was reserved for Scheduled Caste category, but said contention is not supported by any document. Petitioner has placed reliance on R.K. Sabharwal and others Vs. State of Punjab and others (supra), wherein Hon'ble Apex court has defined 'posts' and 'vacancies' and ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 15/47 observed that :
"the expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."
11. The Hon'ble Apex Court has further examined the likely result if the roster is permitted to operate in respect of vacancies arising after the total posts in a cadre are filled and held that in the event of non-availability of a reserved candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner.
12. Here in the present case Government had passed Resolution dated 21.9.1998 and resolved not to apply reservation to a single post. Admittedly, said Resolution is not challenged by the petitioner in the present petition. Admittedly, one Deepak Asia was ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 16/47 promoted on Ad-hoc basis as he submitted an application in response to the advertisement published on 16.12.2008 to fill up the posts from reserved category. Admittedly, petitioner had not competed with the other five candidates by submitting the application. After the said Deepak Asia no promotions were made as Assistant Professor Occupational Therapy. Thus, the facts of the cited case shows that the observation of the Hon'ble Apex court are with a view to the question raised in the petition before the Hon'ble Apex Court regarding when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserved points, it has to be taken that the posts shown at the reserved point are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. Here in fact nothing is on record to show that by way of roster the remaining one post was reserved for the reserved category i.e. Scheduled Caste. Therefore, the contention of the petitioner that he was not promoted from the said category is not sustainable.
13. The petitioner also relied upon M.R. Thyagarajan, Mechanic, Integranted Fisheries Project, Koshi Vs Secretaryindia (supra), wherein challenge was raised by the petitioner against the appointment of fifth respondent on the basis that the cadre strength is ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 17/47 four and therefore if the 25% recruitment quota is applied only one person can be directly recruited. It is further contended by the petitioner before the Hon'ble Apex Court if reservation is applied to that one post it amounts to 100% reservation which is impermissible. It was not accepted by the Hon'ble Apex Court and held that question of 100% reservation arises only in the case of single isolated post to ascertain whether a post is a single isolated post or not one to look at the cadre's strength. Insofar as this case is concerned, if the cadre's strength is examined, it can be seen that it is four. Therefore, even if one post is earmarked for direct recruitment and the rules of reservation are applied to that single post, it can be said that the post is single isolated post and that the rules of reservation are inapplicable. The case in hand shows that initially prior to 2016 only three posts were created, two posts were already filled up before the petitioner entered in the service, nothing is on record to show that single isolated post was reserved. Reply filed by the respondent before the Maharashtra Administrative Tribunal shows that efforts were taken by the respondent to fill up the said posts by publishing the advertisement on 16.12.2008 calling the application from reserved category candidate. Five candidates had submitted the application but the petitioner had not competed by submitting application. Out of ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 18/47 them one Deepak Asia was selected on Ad-hoc basis. Thus, even if the contention of the petitioner is accepted that he was entitled for the promotion on the post which was reserved for the category then also the record shows that when advertisement was published on 16.12.2008 to fill up the said post from reserved category petitioner had not competed with other candidates of reserved category by submitting the application. Now subsequently the petitioner has no right to say that he was entitled for the said post on the basis of Master's Degree in the Occupational Therapy. As earlier two posts were filled before the petitioner entered in service and for remaining one post petitioner had not competed with other candidates though he was having an opportunity to get promoted on the basis of his higher education. Subsequently, in the year 2019 i.e. on 1.6.2019 recruitment rules are finalized and as per the new recruitment rules the qualification fixed was Master's Degree. Prior to that required qualification was Bachelor's Degree. Immediately after the finalization of the said recruitment rules as the petitioner was having qualification of Master's Degree he was promoted on 13.9.2019. Therefore, it is crystal clear that earlier promotions are in the light of the guidelines issued by the Director, Occupational Therapy dated 16.3.1979.
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14. On the other hand, it is specifically stated by the learned Assistant Government Pleader that said social reservation is not available to the single post as per the Government Resolution dated 21.9.1998. She has produced the said Resolution vide Annexure-C. Admittedly, there were no draft rules to fill up the post of Associate Professor. Admittedly, the services of the petitioner are governed by the Medical Education and Drugs Department, Mantralaya. The seniority list produced on record by the petitioner shows that it was maintained by the Director, Medical Education and Research. The seniority list which was produced by the petitioner dated 1.1.2009 shows the petitioner was at Serial No.11. The next seniority list on which the petitioner is relied upon is of dated 1.1.2019, wherein petitioner was shown at Serial No.4. Thus, it could be seen that prior to 13.9.2009 there was no recruitment rules and appointments and promotions were governed by Medical Education and Research Department, Mantralaya, Mumbai.
15. It is vehemently submitted by the learned senior counsel Shri Bhangde that the petitioner was possessing Master's Degree. As per the qualification required for the post of Associate Professor declared by the Maharashtra Health Science University is Master's degree, however the respondents had promoted the persons who are ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 20/47 having Bachelor's Degree. He relied upon the notification issued by the Maharashtra University of Health Sciences which shows that for the post of Associate Professor required qualification is Master's Degree in Occupational Therapy. On the other hand, learned Assistant Government Pleader Ms. N.P. Mehta, submitted that there were no recruitment rules in existence for the post of Associate Professor. Prior to 2016 only three posts were created and in 2016 three additional posts were created, out of which two posts were already filled up and the services of earlier post filled up were regularized as per the policy decision taken by the State Cabinet. Thus, temporary services of two candidates working on the post of Associate Professor Occupational Therapy came to be regularized vide Government Resolution dated 22.1.2009. She has submitted the copy of the said Government policy decision dated 22.1.2009 vide Annexure-A.
16. The petitioner who was working as a Occupational Therapist Grade-C had possessed the Master's degree in Occupational Therapy. Admittedly, there were no notified recruitment rules till 2019. As per the draft recruitment rules appointment to the post of Assistant Professor Occupational Therapy Group-B could be made by nomination and promotion and the requisite criteria was "by ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 21/47 promotion of Occupational Therapist possessing a degree in Occupational Therapy of statutory University." She has produced on record the said notification Annexure-B. The recitals of the said notification shows that the Medical Education and Drugs Department, Mantralaya, Mumbai issued a notification mentioning that in exercise of the powers conferred by the Proviso of Article 309 the Constitution of India and in supersession of all existing rules, orders or instructions made in these behalf by the Governor of Maharashtra is hereby pleased to make the following rules regulating recruitment to the post of Lecturer in Occupational Therapy in Government Medical College under Directorate of Medical Education and Research i.e. Medical Department of Government Of Maharashtra. As per the said rules appointment to the post of Lecturer in Occupational Therapy, School and Centre in the Government Medical Colleges under Directorate of Medical Education and Research i.e. Medical Department of Government of Maharashtra shall be made either;
(a) by promotion of Occupationtist at Occupational Therapy School and Centre possessing the qualifications and experience prescribed for appointment by nomination; or
(b) by nomination for amongst candidates, who :
(i) unless already in the service of Government are not more than 32 years of age;
(ii) possesses a degree in Occupational Therapy of statutory university an ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 22/47 equivalent qualification or B.Sc. degree in any subject with a diploma in Occupational Therapy;
17. Thus, relevant portion of the said notification shows that for the post of Lecturer in Occupational Therapy, School and Centre the required qualification was degree in Occupational Therapy of a statutory University or an equivalent qualification or B.Sc. Degree in any subject with a diploma in Occupational Therapy. As already observed that the services of the petitioner and the Government Medical Colleges were under the governance of Medical Education and Drugs Department, Mantralaya, Mumbai. The notification was issued in exercise of powers conferred by the Proviso of Article 309 of the Constitution of India. It further appears from the communication between the Government of Maharashtra, Medical Education and Drugs Department and Director, Medical Education and Research that there were no recruitment rules framed. Therefore, on 23.5.2017 Section Officer of Medical Education and Drugs Department, Mantralaya communicated with Director, Medical Education and Research and sought the information whether any recruitment rules are available if not then the guidelines issued by the Maharashtra Health Science University are to be obtained and forwarded to them. Accordingly, on 14.6.2017 said guidelines are forwarded by the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 23/47 Director, Medical Education and Research to the Principal Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai. It further revealed from the notification issued by the Medical Education and Drugs Department that appointment to the post of Lecturer in Occupational Therapy School and Centre in the Government Medical College under Directorate of Medical Education and Research shall be made either by promotion of Occupationtist at Occupational Therapy School and Centre possessing the qualification and experience prescribed for appointment by nomination. It is from the candidates who possess a degree in Occupational Therapy of a statutory University and equivalent qualification or B.Sc. Degree in that subject. On 1st June, 2019, Medical Education and Drugs Department issued a Government Resolution regarding the promotion to the post of Associate Professor and Lecturer. By the said notification dated 1st June, 2019 it is stated that in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India and in supersession of all existing rules, orders or instruments issued in these behalf the Governor of Maharashtra is hereby pleased to make following rules regulating recruitment to the post of Professor Group-A, Associate Professor Group-A and Assistant Professor Group-B in the Occupational Therapy School and Centre under the Directorate ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 24/47 of Medical Education and Research under the Medical Education and Drugs Department of the Government of Maharashtra. As per Clause 4 of the said notification appointment to the post of Professor Group-A is described and as per Clause 5 appointment to the post of Associate Professor Group-A in Occupational Therapy School and Centre shall be made either ;
"(a) by promotion of a suitable person on the basis of seniority, subject to fitness from amongst the person holding the post of Assistant Professor in the Occupational Therapy School and Centre having not less than 5 years of regular service on that post; or
(b) by nomination on the recommendation of Selection Board from amongst the person who
(i) are not more than 40 years of age;
provided that the age limit shall be relaxed upto 5 years in case of persons belonging to reserve category. It further provided that the age limit shall be relaxed upto 5 years in case of persons who are already in Government service.
It further provides that the person belonging to reserve categories, who are already in Government service can avail benefit of age relaxation either as government employee or persons belonging to reserve category.
To possess post graduate degree;
Possess experience of not less than five years as Assistant Professor in the recognized institution acquired after obtaining post graduate degree."
Clause 6 of the said notification states about the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 25/47 appointment to the post of Assistant Professor Group-B in Occupational Therapy School and Centre shall be made either;
(a) by promotion of suitable person on the basis of seniority, subject to fitness, from amongst persons holding the post of Occupational Therapist in Government Medical Colleges and having not less than three years of regular service on the post after obtaining Post Graduate Degree.
18. Thus, it is crystal clear that promotions to the post of Lecturer, Associate Professor, Assistant Professor prior to 2019 were governed by the notification issued by Medical Education and Drugs Department and as per the said notification required qualification was degree in Occupational Therapy of a statutory University and or equivalent qualification or B.Sc. degree in any subject with a diploma in Occupational Therapy. After this notification dated 1 st June, 2019 petitioner was promoted as a Associate Professor on 13th September, 2019.
19. The petitioner relied upon the eligibility criteria as per the guidelines issued by the Maharashtra University of Health Science, but as observed that as per the notification issued on 22 nd January, 2009 the services of petitioner are regulated by Directorate of Medical Education and Research. The seniority list is also maintained by the Directorate of Medical Education and Research. The communication ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 26/47 dated 23.5.2017 from Medical Education and Drugs Department, Mantralaya to Director, Medical Education and Research shows that if rules regarding promotion for the post of Associate Professor, if not available then the guidelines issued, if any, by Maharashtra University of Health Science would be made available. Accordingly, on 14.6.2017 Director, Medical Education, Research clarified that promotions were given as per the earlier notification and forwarded the guidelines issued by the Maharashtra Health Science and University. It is also clear from the Government Resolution dated 21.9.1998 that singular post for which social reservations are not applicable. In accordance with said Government Resolution, Medical Education and Drugs Department on 1.11.2010 issued communication to Presenting Officer, Maharashtra Administrative Tribunal that reservation is not available to single post. Prior to 1.11.2010 as per the reply filed by the respondents before the Maharashtra Administrative Tribunal on 16.12.2008 advertisement was published to fill up the said post from reserved category. Five candidates had submitted their applications. Petitioner had not submitted the application. This fact is not denied by the petitioner either before the Maharashtra Administrative Tribunal or before this Court. From the said five candidates admittedly Selection Committee had selected Shri ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 27/47 Deepak Balram Asia on ad-hoc basis. Thus, it is crystal clear that though opportunity was with the petitioner to compete along with other candidates of the reserved category, the petitioner had not opted to compete with them by submitting the application. Moreover, petitioner had not put anything on record to show that the post was reserved for Scheduled Caste. Entire record shows that promotion for the post of Lecturer, Associate Professor in the Government Medical Colleges were governed by the Directorate of Medical Education and Research. The promotion shall be made either;
(a) by promotion or Occupationtist at Occupational Therapy School & Centre possessing the qualification & experience prescribed for appointment by nomination; or
(b) by nomination earlier to 13th September, 2019 the promotions were made as per the old notification which is filed on record the petitioner as well as by the respondent at Annexure- B and Annexure-IV.
20. At the cost of repetition the facts and circumstances on record shows that the petitioner joined service as Occupational Therapist on 18.6.2003. He worked at Aurangabad as Occupational Therapist Class-III post from 2003 to 2005. He was transferred to Nagpur at Government Medical College in 2005. On 27.11.2007 the respondent No.2 Director, Medical Education and Research Centre issued a letter to the respondent No.3 to fill up the post of Lecturer in ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 28/47 Occupational Therapist and as per the letter dated 27.11.2007 for promotion to the post of Lecturer conditions stipulated was candidates should have experience of three years of teaching in Physiotherapy or B.Sc. The respondent No.3 Dean Government Medical College recommended the names of petitioner and one Shri L.U. Sakhare who belonged to Scheduled Caste on 29.1.2008. As per the letter of Section Officer of the Government of Maharashtra, Medical Health Department, Mantralaya, Mumbai remaining post of Lecturer is to be filled from reserved category. As per the communication by the Section Officer and as per the Government Resolution dated 21st September, 1998 for a solitary post reservation is not applicable. In view of said Resolution it was communicated to the Presenting Officer, Maharashtra Administrative Tribunal that reservation is not applicable to single post vide communication dated 1.11.2010. In 2016, three more posts were created for Lecturer Occupational Therapy which are to be filled up from Class-III. As per the contention of the petitioner two posts were filled who were not having the qualification i.e. Master's degree, but the record shows that Ms. Sophia H. Azad and Mrs. Leena Deshpande were appointed temporarily to the post of Associate Professor in Occupational Therapy for 120 days as per the order issued on 21.11.2001. Their services ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 29/47 were regularized as per the Government Resolution dated 22.1.2009. Thus, these two posts were filled prior to petitioner entered in the service. For filling up one post advertisement was published to fill up the said post from reserved category on 16.12.2008. Five candidates have submitted their applications. Petitioner had not submitted his application. These facts are contended by the respondents in their reply before the Maharashtra Administrative Tribunal. This fact is not denied by the petitioner. From the said five candidates Selection committee had selected Shri Dipak Balram Asia. After the promotion of these three persons there was no further promotion made in the post of Associate Professor. In 2016, three additional posts were created and now number of sanctioned posts in the cadre of Associate Professor Occupational Therapy increased to six. Admittedly, till 1.6.2019 there were no recruitment rules for appointment to the post of Associate Professor. As per the draft recruitment rules to the post of Associate Professor Occupational Therapy Grade-B could be by nomination and promotion. As per the earlier notification required qualification was degree in Occupational Therapy of a statutory University or equivalent qualification or B.Sc. Degree in any subject with diploma in Occupational Therapy. By the notification dated 1.6.2019 recruitment rules are approved and as per Clause (6) the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 30/47 required qualification to the post of Associate Professor was Master's Degree. Accordingly, petitioner was promoted on 13.9.2019. Thus, the contention of the petitioner that his claim was not considered is not sustainable. Earlier to the petitioner three posts were filled up by nomination as per the qualification enumerated in earlier notification. Though the petitioner relied upon the guidelines of Maharashtra University Health Science but services of the petitioner are governed by the Medical Education and Drugs Department, Mantralaya and therefore the recruitment rules fixed by the said Department are applicable to the petitioner. The petitioner has also claimed deemed date of promotion from 5.1.2008.
21. It was urged by the learned Senior Advocate for the petitioner Shri Bhangde that requisite qualification for promotion to the post of Associate Professor in Occupational Therapy was Master's degree in Occupational Therapy. It is a matter of record that prior to 2019 there were no recruitment rules for promotion. Prior to 2016 in Government Medical Colleges and Hospital only three posts were sanctioned for Assistant Professor in Occupational Therapy. Out of three posts, two posts were filled by nomination in 2001. The criteria applied for said promotion as per previous notification issued by the Medical Education and Drugs Department, State of Maharashtra. ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 31/47 Clause (3) of said notification reads as :
"3. Appointment to the post of Lecturer in Occupational Therapy, School & Centre (G.S.S.Cl. II) in the Government Medical colleges under Directorate of Medical Education & Research, i.e. Medical Department of Government of Maharashtra, shall be made either :
(a) By promotion of Occupationtist at Occupational Therapy School & Centre possessing the qualifications & experience prescribed for appointment by nomination : or
(b) By nomination for amongst candidates who :
(i) Unless already in the service of Government are not more than 32 years of age.
(ii) Possess a degree in Occupational Therapy of a statutory University or an equivalent qualification or B.Sc. Degree in any subject with a diploma in Occupational Therapy, and
(iii) Possess practical and/or teaching experience in Occupational Therapy in a Departmental attached to a Medical College for not less than three years,
(iv) Provided that the age limit/period of experience may be relaxed by Government on the recommendation of the Commission/the appointing authority on the recommendation of the selecting authority in favour of candidates having exceptional qualification or both provided further that preference may be given to candidates having exceptional qualification or experience or both provided that if Candidates with prescribed period of experience are not available in sufficient number those with experience of a shorter period may please be considered."
22. Thus, Ms. Sophia Azad and Mrs. Leena Deshpande were ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 32/47 promoted initially for the period of 120 days from 22.11.2001 to 21.3.2002. Their services were regularized as per Government Resolution dated 22.1.2009. Thus, two posts out of three posts were filled in 2001 itself before the petitioner entered in service. As per the existing norms in view of notification of Government of Maharashtra, only one post was remained to be filled. Though the learned Senior Advocate for the petitioner submitted that Master's Degree was the required qualification but the guidelines issued by Maharashtra University of Health Science and draft rules of recruitment issued by the Director, Occupational Therapy on 16.3.1979 only Bachelor Degree was required. Accordingly, earlier two promotional posts were filled. There were no directions to Dean, Medical College and Hospital either from Director, Medical Education and research or from Medical Education and Drugs Department, Government of Maharashtra to apply guidelines issued by the Maharashtra University of Health Science. The notification issued by the Maharashtra University of Health Science bearing No.9/2008 was issued in accordance with the decision taken in Academic Council meeting dated 14.5.2008. As per the said guidelines also for the post of Lecturer required eligibility was Master's Degree and for Assistant Lecturer Bachelor's Degree in Occupational Therapy was the eligibility ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 33/47 criteria. There was no communication either from Directorate of Medical Education and Research or from Medical Education and Drugs Department, Government of Maharashtra to Medical Colleges that while governing policy of promotions the norms notified by Maharashtra University of Health Science to be applied. First time Section Officer from Medical Education and Research, State of Maharashtra communicated with Director, Medical Education and Research on 23.5.2017 contending that;
ß¼1½ lgk¸;d izk/;kid] O;olk;ksipkj 'kkGk o dsanz ;k inkph 'kklukpk dzekad o fnukad rlsp Lok{kjh vlysyh lsok izos'k fu;ekph vf/klwpuk miyC/k ukgh- lnj izr miyC/k d#u ns.;kr ;koh-
¼2½ ojhy izek.ks lsok izos'k fu;ekph izr miyC/k ulY;kl ;kiwohZ ns.;kr vkysY;k inksUuR;k d'kkP;k vk/kkjs ns.;kr vkY;k gksR;k] ;kckcrgh [kqyklk djkok-
¼3½ lgk¸;d izk/;kid O;olk;ksipkj 'kkGk o dsanz ;k inkps vf/klwphr dsysys lsok izos'k fu;e miyC/k ulY;kl lnj inkojhy ljGlsosus vFkok inksUurhus fu;qDrh dj.;klanHkkZrhy 'kS{kf.kd vgZrsckcr egkjk"Vª vkjksX; foKku fo|kihB ;kaP;k ekxZn'kZd lwpuk miyC/k vkgsr fdaok dls] vlY;kl R;kph izr miyC/k d#u ns.;kr ;koh-Þ Accordingly, vide letter dated 14.6.2017 Director, Medical Education and Research informed that ;
ß¼1½ lgk¸;d izk/;kid] O;olk;ksipkj 'kkGk o dsanz ;k inkph 'kklukpk dzekad fnukad rlsp Lok{kjh vlysyh lsokizo's k fu;ekph vf/klwpusph izr lapkyuky;krhy vfHkys[;kph rikl.kh dsyh vlrk ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 34/47 Lok{kjh vlysyh lsokizos'k fu;ekph vf/klwpusph izr miyC/k ukgh-
¼2½ ojhy lsokizos'k fu;ekph izr miyC/k ulY;kl ;kiwohZ ns.;kr vkysY;k inksUuR;k d'kkP;k vk/kkjs ns.;kr vkY;k gksR;k- lgk¸;d izk/;kid] O;olk;ksipkj 'kkGk o dsanz ;k inkaP;k uksVhfQds'kuP;k vk/kkjs fnY;kps fnlwu ;sr vkgs- rlsp lnjhy inkojhy fu;qDrh o inksUurh 'kklu Lrjko#u ns.;kr vkysY;k vkgsr-
¼3½ lgk¸;d izk/;kid] O;olk;ksipkj 'kkGk o dsanz ;k inkps vf/klwphr dsysys lsokizos'k fu;e miyC/k ulY;kl lnj inkojhy ljGlsosus vFkok inksUurhus fu;qDrh dj.;klanHkkZrhy 'kS{kf.kd vgZrsckcr egkjk"Vª vkjksX; foKku fo|kihB ;kaP;k ekxZn'kZd lwpuk miyC/k vkgsr fdaok dls] vlY;kl R;kph izr miyC/k d#u ns.;kr ;koh vls dGfoys vkgs- ;kckcr vls uewn dj.;kr ;srs dh] lgk¸;d izk/;kid] O;olk;ksipkj 'kkGk o dsanz ;k inkps vf/klwphr dsysys lsokizos'k fu;e miyC/k ulY;kl lnj inkojhy ljGlsosus vFkok inksUurhus fu;qDr dj.;klanHkkZrhy 'kS{kf.kd vgZrsckcr egkjk"Vª vkjksX; foKku fo|kfiB ;kaP;k ekxZn'kZd lwpukph izr lkscr tksMyh vkgs-Þ Accordingly, Director, Medical Education and Research, Mumbai forwarded the guidelines issued by the Maharashtra University of Health Science to Principal Secretary, Medical Education and Drugs Department, State of Maharashtra.
23. Thus, it is crystal clear that initial promotions were given as per notification issued by the Medical Education and Drugs Department. The said promotions were given on 21.11.2001 which is before petitioner entered in service. Needless to state that process of promotion, maintaining seniority list was done by the Office of the Directorate, Medical Education and Research. The Directorate of ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 35/47 Medical Education and Research is governed by the Department of Medical Education and Drugs Department, Government of Maharashtra.
24. Thus, only one post of Assistant Professor in Occupational Therapy was vacant in Government Medical College and Hospital in 2005 when petitioner was transferred from Aurangabad to Nagpur. As per the learned Senior Advocate for the petitioner said post was reserved for Scheduled Caste. Admittedly, there is no specific communication that remaining post was reserved for Scheduled Caste. To buttress the said contention he relied on communication from Director, Medical Education and Research to Dean, Medical College and Hospital, Nagpur dated 27.11.2007. By this letter the Director, Medical Education and Research sought information regarding eligible candidates having degree in Occupational Therapy or B.Sc. for the post of Assistant Professor. Accordingly, Dean Medical College and Hospital forwarded information of eligible candidates including the name of petitioner. The Dean, Medical College and Hospital had forwarded both the names of candidates who belonged to Scheduled Caste. On 5.1.2008 petitioner had made representation to consider his name for promotion to the post of Assistant Professor, Occupational Therapist. It further revealed from the communication ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 36/47 between the Section Officer, Medical Education and Drugs Department, State of Maharashtra, Mantralaya with Smt. Rashmi Sahadev Chavan that representation of petitioner would be considered in meeting 7.7.2010. It is further appears that on 5.4.2010 Section Officer had prepared a note in respect of proposal forwarded by Director, Medical Education dated 15.2.2010 for promoting Assistant Professor in Occupational Therapy Class-III. It revealed from the said communication that the promotional post is of Class-II of Pay Scale 15600-39100, Grade Pay 6000. It further states that three posts were sanctioned in the category of Assistant Professor in Occupational Therapy and said posts are to be filled through Maharashtra Public Service Commission by way of nomination or promotion. Out of which two posts were already filled up and regularized as per the Government Resolution dated 22.1.2009. Both the filled posts are of Open category. It further revealed from the said communication that remaining one post falls within the promotion quota and said post is to be filled up from the reserved category Scheduled Caste. However, this fact is to be ascertained from the General Administration Department, Mantralaya Mumbai. The noting dated 19.4.2010 maintained by the Medical Education and Drugs Department shows that one post which remained to be filled up for which reservation is ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 37/47 not applicable as per the Government Resolution dated 21.9.1998. Ms. N.P. Mehta, learned Assistant Government Pleader also placed reliance on the said Government Resolution dated 21.9.1998. Said Government Resolution states that ;
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2- gs vkns'k] 'kkldh;@fue'kkldh;
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25. On the basis of the communication from the Section Officer, Medical Education and Drugs Department and Government Resolution dated 21.9.1998 it revealed that single post which remained to be filled for which reservation was not applicable. The fact further revealed from the communication by the Medical Education and Drugs Department to Presenting Officer, Maharashtra Administrative Tribunal which is filed on record by the petitioner. In the said communication it is also mentioned that as only one post is remained vacant therefore social reservations are not applicable for ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 38/47 the said single post. Admittedly, the petitioner had filed application bearing Original Application No.604/2010 before the Maharashtra Administrative Tribunal, Mumbai. As per the contention of the respondents before the Maharashtra Administrative Tribunal the third post of Lecturer/Assistant Professor in the subject of Occupational Therapy was advertised in the newspaper dated 16.12.2008 inviting applications for the post of Lecturer in various subjects including post of Lecturer in Occupational Therapy to be filled in by the Divisional Selection Board on temporary basis. It is further submitted by the respondents that the post of Lecturer in the subject of Occupational Therapy was shown reserved for Scheduled Caste. Five candidates submitted their application forms, however, applicant had not submitted his application form. Out of five candidates Selection Committee had selected Dipak Balram Asia and accordingly appointment order was issued to him as DSB i.e. Divisional Selection Board Lecturer initially for 120 days vide order dated 15.1.2009 on certain terms and conditions. The respondents have taken same stand in the present writ petition also. It is submitted by the respondents that though the petitioner who was working as an Occupational Therapist Grade-C possessed the Master's Degree in Occupational Therapy in 2007 and since 2008 he made several representations ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 39/47 asking to promote him as Assistant Professor Grade-B claiming thereby that he is the only candidate possessing higher educational qualification. He had also claimed that remaining one vacant post was reserved for the Scheduled Caste category and he belongs to the said category. However, there were no notified recruitment rules till 2019 for the post of Assistant Professor Occupational Therapy Grade-B. However, draft recruitment rules were in existence framed for appointment to the post of Assistant Professor Occupational Therapy Grade-B. As per the draft recruitment rules appointment to the post of Assistant Professor Occupational Therapy Grade-B could be made by nomination and promotion as well. As per the said draft rules criteria fixed for promotion to the post of Assistant Professor Occupational Therapy Grade-B was as follows :
"By promotion of a Occupational Therapist possessing a degree in Occupational Therapy of a Statutory University."
26. She had submitted the copy of the draft rules vide Annexure-B. Admittedly, as per the draft rules Annexure-B required qualification enumerated in it is Bachelor's Degree in Occupational Therapy. Thus, Shri Dipak Balram Asia, who was senior to the petitioner was promoted as ad-hoc Lecturer and he was continued as per the order of Tribunal dated 26.8.2010. It is submitted by the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 40/47 learned Assistant Government Pleader that all the three posts are filled up as per the existing norms of promotion all the three persons were seniors to the petitioner and accordingly they were promoted.
27. It is an admitted position that initially only three posts were sanctioned in Government Medical College and Hospital at Nagpur in the cadre of Assistant Professor in Occupational Therapy. As mentioned earlier there was no communication or existing guidelines to the Directorate of Medical Education and Research that in absence of any recruitment rules the guidelines issued by Maharashtra University of Health Science to be applied. Even the said guidelines issued vide Academic Notification No.9/2008 states that for appointing the teaching staff for the post of Assistant Lecturer Bachelor's Degree in Occupational Therapy would be required. First time there was communication between the Section Officer, Medical Education and Drugs Department and Directorate, Medical Education and Research by which the guidelines issued by the Maharashtra University of Health Science were called. It is also an admitted position that initial two posts were filled in 2001 itself and remaining posts was filled after following due process of law by publishing advertisement and one Shri Dipak Balram Asia was selected out of five candidates. The petitioner had not competed in the said process. ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 41/47 Therefore, he was not selected. Subsequent notification No.6/2016 was issued by the Maharashtra University of Health Science, Nashik, wherein the University had revised norms and eligibility criteria for Assistant Professor/Lecturer was changed and as per the revised norms Master's Degree in Occupational Therapy was required for the post of Assistant Professor/Lecturer. Admittedly, these norms were revised on 11.2.2016. The said revised norms made applicable from Academic Session 2016-2017. Thus, even if the submission of the learned Senior Advocate for the petitioner is taken into consideration admittedly, when initial two candidates i.e. Ms. Sophia H. Azad and Mrs. Leena Deshpande were appointed at that time there was no requirement of the rules that the candidate should have Master's Degree in Occupational Therapy. The only requirement as per the notification issued by the Medical Education and Drugs Department as well as Maharashtra University of Health Science bearing No.9/2008 as regards the eligibility criteria was a Bachelor's Degree in Occupational Therapy. First time the said criteria was revised by Maharashtra University of Health Science, Nashik by its revised notification dated 11.2.2016. Therefore, the contention of the petitioner that though he was the only person having Master's Degree was entitled to be promoted to the post is not sustainable. On the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 42/47 contrary, it appears that all the three candidates who were promoted were not only senior but they were possessing the requisite eligibility. It is an admitted position that the recruitment rules were finalized by the Government of Maharashtra by issuing Resolution on 1st June, 2019, as per the clause of Resolution the eligibility criteria for the post of Assistant Professor Group-B was Master's Degree in Occupational Therapy. For the reference said clause (6) of the said Government Resolution dated 1.6.2019 reads as under :
"6. Appointment to the post of Assistant Professor, Group B in Occupational Therapy School and Centre shall be made either,-
(a) by promotion of a suitable person on the basis of seniority, subject to fitness, from amongst persons holding the post of Occupational Therapist in the Government Medical Colleges and having not less than three years of regular service on that post after obtaining Post Graduate Degree;
or
(b) by nomination on the
recommendation of Selection Board from amongst the persons, who,-
(i) are not more than thirty eight years of age :
Provided that, age limit shall be relaxed upto five years in case of persons belonging to reserved categories:
Provided further that, age limit shall be relaxed also upto five years in case of persons who are already in Government service :
Provided also that, the persons belonging to reserved categories who are already in the Government service can avail benefit of age relaxation either as Government employees or persons belonging to reserved categories ; and ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 43/47
(ii) possess a Post Graduate Degree."
28. Accordingly, the petitioner was promoted on 13.9.2019 as Assistant Professor Occupational Therapy. His promotional order is on record at Annexure-11. Said order discloses that he was promoted to the said post from Open category. This order itself is sufficient to show that the post was not reserved for Scheduled Caste.
29. The petitioner had claimed deemed date of promotion. It is well settled that no retrospective promotion or seniority can be granted from a date when an employee has not even been born in the cadre. It is held by the Hon'ble Apex Court in Nani Sha and others. Vs. State of Arunachal Pradesh and others, reported in AIR 2007 SC 2356 that no retrospective promotion or seniority can be granted from a date when an employee has not even been born in the cadre, so as to be adversely affect those who were appointed validly in the meantime. The Hon'ble Apex Court had referred another judgment of the Hon'ble Apex Court in the said decision. In State of Uttaranchal and another vs. Dinesh Kumar Sharma, reported in (2007) 1 SCC 683 has clearly held that the seniority is to be reckoned not from the date when the vacancy arose, but from the date on which the appointment is made to the post. In State of Uttar Pradesh vs. Ashok Kumar ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 44/47 Shrivastava reported in (2014)14 SCC 720 it is held by the Hon'ble Apex Court that it is clear as day that what is meant by reckoning of seniority from the date of vacancy in the context of the facts of the said judgment has been wholly misunderstood by the High Court. It is further held by the Apex Court that interse seniority in a particular service has to be determined as per the service rules. Seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. In Pawan Pratap Singh and others Vs. Reevan Singh and others, reported in (2011) 3 SCC 267 it is held by the Hon'ble Apex Court that the legal position with regard to determination of seniority in service can be summarized as follows :
"30. From the above, the legal position with regard to determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules.
The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 45/47 requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time."
30. In K. Meghachandra Singh and Others vs. Ningam Siro and others, reported in (2020) 5 SCC 689. The Hon'ble Apex Court while considering the issue of seniority discussed various earlier judgments of the Hon'ble Apex Court and held in para 40 that, 'these three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre.'
31. In the above said circumstances the facts and the documents on record clearly establish that the candidates who were promoted earlier to the petitioner were eligible for the said post. They were possessing the required qualification for the said post. Moreover ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 46/47 they were promoted by following due process of law. Nothing is on record to show that said post was reserved for Scheduled Caste. On the contrary Government Resolution dated 21.9.1998 shows that social reservations are not applicable for the single post. The notification issued by the Medical Education and Drugs Department, Government of Maharashtra and the Notification No.9/2008 issued by the Maharashtra University of Health Science also enumerates the required qualification for the post of Assistant Professor as a Bachelor's Degree. Accordingly, promotions were made. The order passed by the Maharashtra Administrative Tribunal, Nagpur admittedly is not a reasoned order. The said order only states that there were no previous recruitment rules for the promotion of Assistant Lecturer and rejected the application. Learned Tribunal ought to have passed a reasoned order to support its conclusion. However, no grounds are made out by the petitioner to grant deemed date of promotion as 5.1.2008, as it is well settled that, promotion could not be granted retrospectively. The Original Application was liable to be dismissed on aforesaid grounds. Thus, the writ petition is devoid of merits and is liable to be dismissed. Hence, we pass following order :
::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 ::: J-wp2197.20.odt 47/47
ORDER The writ petition is dismissed. No costs.
(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.) okMksns ::: Uploaded on - 08/09/2022 ::: Downloaded on - 09/09/2022 20:15:43 :::