Madhya Pradesh High Court
Dr. (Mrs.) Kavita N. Singh vs The State Of Madhya Pradesh on 17 July, 2017
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HIGH COURT OF MADHYA PRADESH : JABALPUR
{SINGLE BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI}
Writ Petition 7222/2017
Dr. (Mrs) Kavita N Singh and two others
Versus
State of Madhya Pradesh and six others
Shri Shashank Shekhar, Advocate for petitioners.
Shri Samdarshi Tiwari, Dy. Advocate General for respondent Nos.1 to 5.
Shri Anoop Nair, Advocate for respondent No.6.
Shri R.N.Singh, Senior Advocate assisted by Shri Akshay Pawar,
Advocate for respondent No.7.
ORDER
(17.7.2017) Invoking the jurisdiction under Article 226 of the Constitution of India and challenging the order impugned dated 9.5.2017 Annexure P/8 (wrongly mentioned as Annexure P/7) and to declare it in contravention to Clause-1 of the Policy dated 3.9.2011, this petition has been preferred by the petitioners interalia contending that the petitioner No.1 is holding the post of Associate Professor with effect from 13.7.2005 for last more than 11 years whereas petitioner No.2 is holding the post of Associate Professor with effect from 24.12.2007 for last more than nine years. Both have completed three year of qualifying service as an Associate Professor and acquired the eligibility to consider their case for promotion as Professor. It is said that the post of Professor (Gynecology) is vacant since 31.3.2014 but their case has not been considered. One of the petitioner has filed Writ Petition No.4127/2016, which is pending for consideration. Petitioner No.3 was appointed as Assistant Professor on 24.6.2003 and thereafter she was promoted as 2 Associate Professor on 7.10.2015 and she is one of the senior most Associate Professor in the department.
2. It is stated that Netaji Subhash Chandra Bose Medical College, Jabalpur is an autonomous body and is governed by Swashasi Chikitsa Mahavidyalaya Ke Samvardhan Evam Samviliyan Sambandhi Niyam (Chikitsa, Dant, Nursing Vidyalaya Taha Mansik Aarogya Shala Ke Liye) Rules, 1998 (hereinafter shall be referred to as ''Rules of 1998''). Rule 20 of the Rules of 1998 deals with the appointment on the post of Dean, Professor, Associate Professor, Assistant Professor, Paramedical Officer and Administrative Officers. The said appointment shall be made under the prevalent rules of the State Government. In the Medical Education Department, the appointment on the post of Dean, Professor, Associate Professor, Assistant Professor may be made as per the Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1987 (hereinafter shall be referred to as ''Rules of 1987''). Rule 6 deals the methods of recruitment; Rule 7 deals the appointment to the Service; Rule 8 deals the conditions of eligibility of direct recruits.; Rule 13 deals the Appointment by promotion; Rule 14 deals the conditions of eligibility for promotion; Rule 15 deals the preparation of list of suitable officers; Rule 16 deals the consultation with the Committee and thereafter the appointment may be made from the select list on promotion.
3. In the present case, the contract appointment of respondent No.7 after her retirement as Professor and Head of Department (for brevity 'HOD') of Gynecology has been challenged by the petitioners interalia contending that such appointment was made in terms of the GAD Policy dated 3.9.2011 but looking to the fundamental spirit of the said policy, if the candidates having eligibility for promotion are 3 available then the contract appointment shall not be given on such post. In reference to the provisions as contained in Rules 6(4) and 7 of the Rules of 1987, it is submitted that the contract appointment cannot be equated to the appointment on the regular cadre post if the eligible persons are available as per the GAD Policy dated 3.9.2011. It is also contended that if any other method of recruitment is required to be adopted not contemplated under Rule 6(1) then with prior approval of the General Administration Department, such method of recruitment to the service other than those specified in Sub-rule (1) for such post may be made prescribing such method of recruitment in the service otherwise no such appointment may be made without following the procedure for selection as specified therein.
4. Respondent No.7 has already attained the age of superannuation on 31.3.2017 from the post of the Professor and who was also holding the post in Incharge Dean. The said post is a promotional post and in case the eligible candidates are available, the contract appointment is not permissible on such promoted post, therefore, urged the order impugned dated 9.5.2017 Annexure P/8 passed by the respondent Nos. 1 to 5 is contrary to the Rules of 1987 and also contrary to the spirit of the policy dated 3.9.2011, which may be quashed. It is further urged that as per Annexure R/1, the respondent No.7 has also been given the charge on the post of Dean though her name was not recommended by the Committee, because several other eligible candidates are available, therefore also, the contract appointment is also not in conformity to law.
5. The respondent Nos. 1 to 5 have filed their reply interalia contending that the respondent No.7 has been temporarily assigned the charge on the post of Dean on joining by her as Professor-HOD and the order has already 4 been executed, therefore, the grant of interim relief is not permissible. On the merits of the case, it is urged that none of the employee has fundamental right to claim promotion to a particular post and he/she has right of consideration and on found fit by the Departmental Promotion Committee (for short 'DPC') the promotion may be ordered. It is said that in a bunch of the writ petitions questioning the provision for reservation in the Madhya Pradesh Public Service (Promotion) Rules 2002 was put to challenge before this Court. After the judgment of this Court, the State Government has filed S.L.P No.13954/2016 wherein Hon'ble the Supreme Court has directed to maintain status-quo. However, the State Government at present is not convening the regular D.P.C in their departments.
6. The respondent No.7 was holding the regular post of Professor (Gynecology) and was also the Incharge Dean of Netaji Subhash Chandra Bose Medical College, Jabalur, who has attained the age of superannuation on 31.3.2017, however, the said post stood vacant. Under the policy dated 3.9.2011, she was appointed on contract basis for one year and the charge of the Dean has been withdrawn from Dr.Rajesh Tiwari, who has also filed the writ petition in this regard. During the currency period of the order of status-quo passed by Hon'ble the Supreme Court, looking to the interest of the institution as per the proposal made by the Chairman of the Autonomous College, who is the Commissioner Jabalpur Division Jabalpur, the matter was processed looking to the public interest as revealed from the said proposal. Thus, the respondent No.7 is appointed on contract basis for a period of one year or till the promotion of the regular incumbent whichever is earlier as per Annexure R/5, therefore, the said appointment is only to the extent of stop 5 gap arrangement made temporarily by the Government. It is said that she is eligible to be appointed as per the minimum qualification for Teachers in the Medical Institution Regulation, 1998. In addition, as per the Medical Council of India Guideline, one post of the Professor is essentially required to be posted to continue the P.G.course, therefore also, the appointment has rightly been made. The plea of discrimination as asserted in the writ petition is not tenable because the negative equity invoking the writ jurisdiction cannot be directed. The respondent No.7 has filed written objection for grant of interim relief adopting all the pleas as taken by the respondent Nos.1 to 5.
7. Heard learned counsel Shri Shashank Shekhar, Advocate for petitioners, Shri Samdarshi Tiwari, Deputy Advocate General for respondent Nos.1 to 5, Shri Anoop Nair, Advocate for respondent No.6, Shri R.N.Singh, Senior Advocate assisted by Shri Akshay Pawar, Advocate for respondent No.7.
8. Shri Anoop Nair, Advocate for respondent No.6 contends that he is having nothing to say in the matter of contract appointment and it is with the State Government and the petitioners. Learned Senior Counsel for respondent No.7 has strenuously urged that the petitioners do not have any locus to challenge the contractual appointment of respondent No.7, which was made in terms of the Policy dated 3.9.2011, which is the mode specified as per Rule 6(4) of the Rules of 1987. Under such circumstances, interference in this petition is not warranted.
9. After hearing learned counsel for the parties and looking to the facts of the present case, it is not in dispute that the respondent No.7 has attained the age of superannuation on 31.3.2017 when she was holding the substantive post of the Professor (Gynecology) and Incharge 6 Dean of Netaji Subhash Chandra Bose Medical College, Jabalpur. It is also not in dispute that services of the petitioners and respondent No. 7 are governed by the Rules, which are known as Madhya Pradesh Medical Education (Gazetted) Service Rules, 1987. As per Rule 6 Schedule-II, the post of Professor is required to be filled up 100% by way of promotion. The said rules have been framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. As per Rule 2(g), the ''service'' means the Madhya Pradesh Medical Education (Gazetted) Service to which the classification of scale of pay has been specified in Schedule-I. The post of Professor in department-wise has been specified from Serial Nos.5 to 29 in Schedule- I. Rule 6 deals the method of recruitment, which is by way of direct recruitment by selection or competitive examination; by promotion of the members of service and by transfers of persons who hold in a substantive capacity such posts in such services, as may be specified in this behalf. The post of Professor is the post which is to be filled up 100% by way of promotion and no other mode is prescribed to fill up that post. The person recruited under Clause (b) or (c) of Sub-rule 1 to Rule 6 shall not exceed the percentage shown in Schedule-II of the number of duty posts. The method of recruitment ought to be adopted for filling up of the posts during particular period of recruitment and the number of persons to be recruited by each method shall be determined on each occasion by the Government in consultation with the Commission. Sub-rule (4) to Rule 6 is having overriding effect by which if in the opinion of the Government, the exigencies of the service so require, the Government may with prior concurrence of the Department personal Administration Reform & Training adopt such method of recruitment to the 7 service other than those specified in said sub-rule, for such post as it may, by order issued in this behalf, prescribe. Rule 7 creates embargo that all appointments to the service after the commencement of these rules shall be made by the Government and no such appointment shall be made except after selection by one of the methods of recruitment specified in Rule 6. The aforesaid rules are relevant in the context of the Rule 20 of the Swashasi Chikitsa Mahavidyalaya Ke Samvardhan Evam Samviliyan Sambandhi Niyam (Chikitsa, Dant, Nursing Vidyalaya Taha Mansik Aarogya Shala Ke Liye) Rules, 1998. Rule 20 specifies that the post may be filled up as per the rules of the State Government. However, there cannot be any doubt that the method of recruitment, process of selection, appointment by way of direct recruitment or promotion in any of the Medical College, functioning in the Medical Education Department concerning to the post of the Dean, Professor, Associate Professor, Assistant Professor shall be governed by the Rules of 1987 subject to exclusion of Rule 6(4) of the Rules of 1987.
10. It is not in dispute that the appointment of respondent No.7 has been made on contract basis under the policy dated 3.9.2011. The post of Professor is a promotional post and it can be filled up 100% by promotion. In the said context, the spirit of the policy is required to be quoted, which is reproduced as under:-
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11. On perusal of the contents of the policy dated 3.9.2011, it is crystal clear that the contract appointment may be made in most exceptional situation looking to the public interest, because continuation of the said officer or employee may be in the immediate interest of the Government. The work, which is being performed by the said person, cannot be performed by any other person in the department. In case the posts are required to be filled up by promotion and the persons possess the eligibility of such promotion are available then contract appointment on such post shall not be made. Meaning thereby the appointment on contract basis is in rare of the rarest or in the exceptional case only in the public interest when the work done by such person cannot be performed by any other person but if the said post is of the promotional cadre post and the eligible candidates are available to fill up the said post then the contract appointment on the promotional post shall not be made.
12. It is to be noted here that undisputedly the petitioner Nos.1 and 2 are eligible and possess the qualification for promotion to the post of Professor (Gynecology) but because the Government has not convened the D.P.C, therefore, the petitioner Nos.1 and 2 have not been considered for promotion. As per the above clause, why the D.P.C was not convened, is not relevant; the relevancy is of holding the eligibility for the promotional post by the regular 9 cadre employees, on availability, contract appointment on promotional post should not be made. Therefore, making a proposal to fill up the promotional post of Professor (Gynecology) by the Commissioner Jabalpur Division Jabalpur, who is the Chairman of the autonomous body, despite having eligible candidates available, is contrary to the original spirit of the policy of contract appointment. In view of the aforesaid, it can safely be observed that the reason for not convening the D.P.C is not germane in the context of the language of Clause-1 of the policy dated 3.9.2011, infact on having eligible candidates, the recommendations of contract appointment on promotional post shall not be made.
13. Now reverting to the argument that the policy dated 3.9.2011 for contractual appointment issued by the G.A.D may be accepted as the method of recruitment specified in Rule 6(4) of the Rules of 1987. In this regard, if the language of sub-rule (4) of Rule 6 is considered then it emphasizes that if in the opinion of the Government, the exigencies of the service so require the Government may with prior concurrence of the G.A.D adopt such method of recruitment to the service. The word ''to the service'' would amplify the service under Madhya Pradesh Medical Education (Gazetted) Service. However, the method of contract appointment specified in the Policy dated 3.9.2011 would not cover under Rule 6(4) to fill up the promotional post. In this regard, it can safely be observed that the method of recruitment provides appointment to the eligible candidates corresponding to Rule 8 on possessing the eligibility of qualification etc and by way of promotion as prescribed in Rules 13,14,15,16,17 of the Rules of 1987, therefore, the contract appointment under the Policy dated 3.9.2011 would 10 not cover under Rule 6(4) of the Rules of 1987. However, the appointment of respondent No.7 made on the post of Professor, who has been given the charge of HOD (Gynecology) and Dean, is contrary to the rules and original spirit of the contract appointment. It is not a case of appointment on promotional post on contract basis after inviting application from various aspirants. In case the promotional post is required to be filled up in exigency of service adopting the method of recruitment carved out by Government on contract basis, the Government may adopt the fair procedure, inviting application from the other eligible candidates, specifying the method of recruitment for service, for the purpose of Rule 6(4) of the Rules of 1987 but the circular dated 3.9.2011 cannot partake the character of the recruitment under Rule 6(4) of the Rules of 1987.
14. In addition to the aforesaid as directed by this Court on 17.5.2017, the relevant record of the appointment of respondent No.7 was called for. The photocopy of the said record has been brought for perusal of this Court. On perusal thereof, it is apparent that the Commissioner Jabalpur Division Jabalpur while making the recommendation on 27.2.2017 referred the work done by the respondent No.7 while she was posted as Dean in Paragraph Nos.1 and 2. In Paragraph No.3, it was mentioned that 3-4 projects are still there and for their implementation her services are required. The Commissioner Jabalpur Division Jabalpur has not explained that why the said work cannot be performed by the other incumbents available in department. It has also not been specified by the Commissioner that the promotional post of Professor for which the eligible persons are available, how the said post can be filled up by a contract appointment of respondent No.7. On submitting the said proposal, it was 11 processed by the Director of Medical Education vide its letter dated 6.3.2017 and on 30.3.2017 the meeting was convened in circulation wherein the approval has been granted by the Principal Secretary G.A.D, Principal Secretary Medical Education, Principal Secretary Finance Department recommending her name for the post of Professor (Gynecology) for a period of one year or to fill up the said post whichever is earlier. But by the subsequent order, she has been given the charge of HOD and Dean of the College meaning thereby despite availability of eligible persons for promotion in the regular cadre, a retired person has been brought to work as HOD and Dean allowing her to sit on the head of regular cadre employee.
15. Looking to the spirit of the policy of the contract appointment dated 3.9.2011, on availability of the eligible candidates the promotional post is not required to be filled up then how the Committee had made the recommendation contrary to the spirit, has not been explained by the Government. Merely performing some work by a person in a nice manner would not be a ground to presume that only that person would perform the remaining work even after attaining the age of superannuation and the other persons, who are waiting for their turn in queue and devoted their entire career, would not be in a position to perform the said work. It is relevant to note that the contract appointment cannot be equated to the regular appointment because the appointments made under the Rules 0f 1987 are subject to the compliance of Article 320(3) of the Constitution of India to fill up the post of gazetted services. However, if the said process has been started to continue contrary to the Rules of 1987 and spirit of the policy of the contract appointment, the regular employees, who are in queue awaiting their 12 promotion, would be debarred by their right and such action cannot be said to be equitable, reasonable, just and fair on the part of the State Government. Infact such an act can only be termed as arbitrary, which cannot be allowed to stand.
16. In addition to the aforesaid, it is to be noted here that after attaining the age of superannuation by the respondent No.7, she was appointed on contractual basis giving the charge of HOD and Dean contrary to recommendations of the Committee vide order dated 11.5.2017, who would write the C.Rs of all the regular employees i.e. Professors, Associate Professors, Lecturers of the Netaji Subhash Chandra Bose Medical College, Jabalpur. The aforesaid cannot be recognized as a reasonable act of the respondents particularly looking to the Clause (g) of the Policy dated 3.9.2011 by which the C.Rs of the contract employee himself is required to be written to assess their work. It is to be noted here that if the contract employee has been made the H.O.D of Gynecology and Dean of the Medical College, Jabalpur then who would write the C.Rs of the said contractual employee having real evaluation of her work is also an issue of consideration.
17. In this context, to adjudge the fairness on the part of the State Government with respect to the other employees, the pleadings made in this writ petition in Paragraph No.5.9 cannot be ignored by which it is apparent that the various Associate Professors and Assistant Professors have been given the charge of the H.O.D due to non-availability of the Professors in the said department because of not convening the D.P.C. However, in the context of the discussion made hereinabove, on availability of the senior most Associate Professor in the department not giving the charge to him for the post of Professor though given in 13 other departments and appointing a contract employee after attaining the age of superannuation and making her H.O.D and Dean can be termed as unfair and unreasonable action of the respondents. Thus, it can safely be held that the appointment of respondent No.7 as Professor (Gynecology), which is a promotional post in Netaji Subhash Chandra Bose Medical College, Jabalpur and can be filled 100% by way of promotion and even on availability of the eligible person, it is contrary to the spirit of the policy of the contract appointment dated 3.9.2011, therefore, petitioners are having locus to challenge the appointment of respondent No.7 who is appointed contrary to the policy as apparent from the above discussion. Therefore, the appointment of respondent No.7 as Professor on contract basis and the order of giving the consequential charge of the H.O.D and Dean are hereby quashed.
18. Accordingly, this petition succeeds and is hereby allowed. The impugned order dated 9.5.2017 (Annexure P/8) and the consequential order passed by the respondent No.1 stands quashed. In the facts and circumstances of the case, the parties are directed to bear their own costs.
(J.K.Maheshwari) Judge amit 14