Madhya Pradesh High Court
Dr. Kailash Narayan Mewafarosh vs The State Of Madhya Pradesh Department ... on 18 April, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 WP.4852.2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE ASHOK KUMAR JOSHI
WRIT PETITION NO.4852 OF 2015
Dr. Kailash Narayan Mewafarosh
Vs.
The State of Madhya Pradesh and another
******************
Shri MPS Raghuvanshi, learned counsel for the
petitioner.
Shri Praveen Newaskar, learned Government
Advocate, for the respondent/State.
********************
Whether approved for reporting : Yes/No
ORDER
(18/04/2018) Per Justice Sanjay Yadav:
Petitioner, Medical Officer (Homoeopathy) in the department Ayush, State of Madhya Pradesh, calls in question the validity of Entry No.10 of Schedule IV of Ayush Department (Gazetted) Services Recruitment Rules, 2013 (hereinafter referred to as "Rules of 2013"). (2) These Rules of 2013 are made by the Governor of Madhya Pradesh in exercise of his powers conferred by proviso to Article 309 of the Constitution of India vide Notification No.F-01-
99-2009-LIX-Ayush, dated 19.08.2013, published in Madhya Pradesh Gazette (Extraordinary), 2 WP.4852.2015 dated 19.08.2013 by superseding the Public Health (Indian System of Medicine & Homoeopathy) Gazetted Service Recruitment Rules, 1987. Rule 5 whereof provides for the classification of the service, the number of posts included in the service and the scale of pay attached thereto as contained in Schedule I. The methods of recruitment as per Rule 6 is by direct recruitment through competitive examination; by promotion of the member of the service included in column (2) of Schedule IV; by transfer of persons who hold in a substantive capacity such posts in such services, as may be specified. That Rules 11 and 13 of the Rules of 2013 respectively provide for direct recruitment by competitive examination and appointment by promotion.
(3) Presently as the issue relates to Entry No.10 of Schedule IV, it stipulates:
SCHEDULE -IV (See Rule 13 & 14) S.N. Name of the Post Name of the Post Minimum Member of from which which Promotion service/ Departmen Promotion is to be is to be made Experience in tal made the post of Promotion column (2) Committee for the promotion to the post in column (3) (1) (2) (3) (4) (5) 10 Assistant Director District AYUSH 5 Years. In 1-
Ayurved/Ayurved Officer /Super- addition to it M.P.P.S.C. Medical Officer/ intendent Ayurved post graduate Chairman/ R.M.O. Ayurved/ Hospital degree in any Member- Female Ayurved /Principal. Govt. clinical Chairman Medical Officer/ Female Ayurved subject of 2. AYUSH Doctor Health Worker Ayurved Principal (Ayurved) Training Center/ recognized by Secretary/ Specialist C.C.I.M. for Secretary Ayurved/Drug specialist AYUSH-
Inspector Ayurved and Member
Post 3.
Graduate Director-
Degree in AYUSH-
Kaya Chikitsa Member
3 WP.4852.2015
Dravyaguna
or
Rasashastra
& Bhaishajya
Kalpana
recognized by
C.C.I.M. for
Drug
Inspector
(Ayur. &
Unani) or
qualification
as per Drugs
& Cosmetics
Act 1940 and
prescribe
qualification
in rule 162 of
rules 1945
(4) The precise grievance raised by the
petitioner who is a Medical Officer
(Homoeopathy) is that with the insertion of (Ayurved) with Ayush Doctor in Column 2 of Entry No.10, the chances of promotion of Medical Officer (Homoeopathy), like the petitioner is taken away. On the said sole ground, petitioner seeks quashment of Entry 10 Schedule IV of the Rules of 2013 and its replacement by Entry 1 of Schedule III. (5) As regard to the relief for quashment of Entry No.10 of Schedule IV on the ground that it takes away promotional entitlement of the petitioner, trite it is that no employee has right or vested right to chances of promotion. In "Ramchandra Shankar Deodhar and others Vs. State of Maharashtra and others [(1974) 1 SCC 317]", it is held:
"15. ......It is now well settled by the decision of this Court in State of Mysore v. G. B Purohit [C.A. No.2281 of 1965, decided on January 25, 1967] that though a right to be considered for promotion is a condition of service, mere 4 WP.4852.2015 chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit's case the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to S. 115, sub-section (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court observed : "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service". It is, therefore, clear that neither the Rules of July 30, 1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage. The proviso to Section 115, sub-section (7) is accordingly not attracted and the Rules of July 30, 1959 cannot be assailed as invalid on ground of non-compliance with that proviso.
(6) In "Mohammed Shujat Ali and others Vs. Union of India and others [(1975) 3 SCC 76]", it is held:
"15. ......It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakar v. Y. Krishna Reddy [1970 SLR 768] where this Court, 5 WP.4852.2015 speaking through Mitter, J., said : "Any rule which affects the promotion of a person relates to his condition of service." But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a, condition of service. This Court pointed out in State of Mysore v. G. B. Purohit [C.A. No.2281 of 1965, dec. on January 25, 1967] that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G. B. Purohit (supra) was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service." Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-
graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced : originally it was fifty percent, then it became thirty-three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not 6 WP.4852.2015 affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115, sub-section (7) was not attracted. This view is completely supported by the decision, of a Constitution Bench of this Court in Ramchandra Shankar Deodhar & Ors. v. The State of Maharashtra [(1974) 1 SCC 317]."
(7) In "State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others [(1981) 4 SCC 130]", it is held:
"16. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not."
(8) In "Reserve Bank of India and others Vs. C.N. Sahasranaman and others [1986 Supp SCC 143]", it is held:
"39. This Court had also observed that the right of promotion should not be confused with mere chance of promotion. Though the right to be considered for promotion was a condition of service, mere chances of promotion were not. See Mohd. Shujat Ali v. Union of India, [1975 1 S.C.R.449]. See also in this connection the observations in R.S. Deodhar v. State of Maharashtra [(1974) 2 SCR 216] at p. 230 of the Reports: (SCC p. 329) and Reserve Bank of India v. C.T. Dighe, [1982 1 S.C.R. 107], 121-122."
7 WP.4852.2015 (9) In "Paluru Ramkrishnaiah and others Vs. Union of India and Another [(1989) 2 SCC 541]", it is held:
"12. In the case of Ramchandra Shankar Deodhar the petitioners and other allocated Tehsildars from ex-Hyderabad State had under the Notification of the Raj Pramukh dated September 15, 1955 all the vacancies in the posts of Deputy Collector in the ex-Hyderabad State available to them for promotion but under subsequent rules of July 30, 1959 fifty per cent of the vacancies were to be filled by direct recruitment and only the remaining fifty per cent were available for promotion and that too on divisional basis. The effect of this change obviously was that now only fifty per cent vacancies in the post of Deputy Collector being available in place of all the vacancies it was to take almost double the time for many other allocated Tehsildars to get promoted as Deputy Collectors. In other words it resulted in delayed chance of promotion. It was, inter alia, urged on behalf of the petitioners that the situation brought about by the rules of July 30, 1959 constituted variation to their prejudice in the conditions of service applicable to them immediately prior to the reorganisation of the State and the rules were consequently invalid. While repelling this submission the Constitution Bench held: (SCC p. 329, para 15) "All that happened as a result of making promotions to the posts of Deputy Collectors divisionwise and limiting such promotions to 50 per cent of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now well settled by the decision of this Court in State of
8 WP.4852.2015 Mysore v. G.B. Purohit that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit case the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service." It is, therefore, clear that neither the Rules of July 30, 1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage."
(10) In "Union of India and others Vs. Colonel G.S. Grewal [(2014) 7 SCC 303]", it is held that:
"28. .......Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service."
(11) In view whereof, the Entry No.10 of Schedule IV of the Rules of 2013 cannot be 9 WP.4852.2015 faulted with merely because the promotional entitlement of the petitioner is taken away. (12) Even otherwise the Rules of 2013 combine three cadres under one service, viz. Madhya Pradesh Ayush Department (Gazette) Service which further provides for channel of promotion in respective cadres. Thus, as per Rule 13 and 14 of the Rules read with Schedule IV an Asst. Homoeopathy Medical Officer is promoted as Homoeopathy Medical Officer. A Homoeopathy Medical Officer is promoted as Astt. Superintendent Homoeopathy Hospital/Senior Homoeopathy Medical Officer/Specialist Homoeopathy who are then promoted as Deputy Director Homoeopathy/Superintendent Homoeopathy Hospital. The Deputy Director Homoeopathy/Superintendent Homoeopathy hospital are then promoted as Joint Director. Similar channel of promotion is provided to the Medical Officers (Ayurved) and Medical Officers (Unani) respectively. Thus, there is no violation of principle of equality guaranteed under Article 14 and 16 of the Constitution. For these reasons also, we perceive no illegality in earmarking a post of promotion in particular stream when similar channel is provided in other stream. (13) In view whereof, since the Entry No.10 of Schedule IV does not violate the right of the petitioner guaranteed under Article 14 and 16 of the Constitution, we perceive no justification in the relief that the Entry No.10 of Schedule IV be replaced by Entry No.1 of Schedule III which 10 WP.4852.2015 deals with direct appointment. (14) Consequently, petition fails and is dismissed. No cost.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
(18/04/2018) (18/04/2018)
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.04.21
12:19:16 -07'00'