Manipur High Court
Dr. Salam Kenny Singh vs The Union Of India Through Its Secretary on 21 March, 2025
Digitally signed by
KHOIROM KHOIROM
BIPINCHANDR BIPINCHANDRA SINGH IN THE HIGH COURT OF MANIPUR
Date: 2025.03.21
A SINGH 14:28:18 +05'30'
AT IMPHAL
WP(C) No. 707 of 2022
1. Dr. Salam Kenny Singh, aged about 49 years, S/o
Salam Shyamananda Singh of Thangmeiband
Khomdram Selungba Leikai, PO & PS Lamphel,
Imphal West District, Manipur - 795004.
.... Petitioner
-Versus-
1. The Union of India through its Secretary, Ministry of
Health & Family Welfare, Government of India,
having its office at Nirman Bhawan, New Delhi -
110011.
2. Regional Institute of Medical Sciences, Imphal
through its Director, having its Office at RIMS
Campus at Lamphel, PO & PS Lamphel, Imphal
West District, Manipur - 795004.
3. The Joint Secretary (NE), Ministry of Health &
Family Welfare, Government of India, having its
Office at Nirman Bhawan, New Delhi - 110011.
.... Respondents
With WP(C) No. 605 of 2022
1. Dr. T. Kambiadkik, aged about 41 years, S/o T. Chinkol, resident of Qtr No. 14, Type V, RIMS Doctors Colony, PO & PS Lamphel, Imphal West District, Manipur - 795004.
2. Dr. S. Damrolien, aged about 44 years, S/o Lamkhokhai Kipgen, resident of New Checkon Maring Lane, P.O & P.S. Imphal East, Imphal East District, Manipur-795005.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 1 .... Petitioners
-Versus-
1. The Union of India through its Secretary, Ministry of Health & Family Welfare, Government of India, having its office at Nirman Bhawan, New Delhi - 110011.
2. Regional Institute of Medical Sciences, Imphal through its Director, having its Office at RIMS Campus at Lamphel, PO & PS Lamphel, Imphal West District, Manipur - 795004.
3. The Joint Secretary (NE), Ministry of Health & Family Welfare, Government of India, having its Office at Nirman Bhawan, New Delhi - 110011.
.... Respondents With WP(C) No. 606 of 2022
1. Dr. Sunilkumar Singh Salam, aged about 49 years, S/o Salam Ningthemjou Singh, resident of Chingamakha Ningthoujam Leikai, Leewa Road, P.O & P.S. Singjamei, Imphal West District, Manipur - 795003.
2. Dr. Chabungbam Gyan Singh, aged about 45 years, S/o Ch. Ibotombi Singh, resident of Heirangoithong Maibam Leikai, P.O & P.S. Singjamei, Imphal West District, Manipur - 795003.
3. Dr. Yumnam Priyobarta Singh, aged about 45 years, D/o Yumnam Tombi Singh, resident of Sagolband Moirang Leirak, P.O & P.S. Imphal, Imphal West District, Manipur - 795001.
4. Dr. Khagokpam Ambala Devi, aged about 47 years, D/o (L) Kh. Amar Singh, resident of Awang Kongpal Laishram Leikai, P.O & P.S. Porompat, Imphal East District, Manipur - 795005.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 2
5. Dr. Yumkhaibam Sobita Devi, aged about 53 years, D/o Y. Kamal Meitei, resident of Laipham Khunou Makha Leikai near Hyundai showroom, Dingku Road, P.O. Lamlong, P.S. Lamphel, Imphal East District, Manipur - 795005.
6. Dr. Laitonjam Chinglensana, aged about 49 years, S/o L. Rajendra Singh, resident of Singjamei Thongam Leikai, Opposite SROY Club, P.O & P.S. Singjamei, Imphal West District, Manipur -
795003.
7. Dr. Loukrakpam Nataraj singh, aged about 43 years, S/o (L) Loukrakpam Ibomcha, resident of Sagolband Tera Lukram Leirak, P.O & P.S. Imphal, Imphal West District, Manipur - 795001.
.... Petitioners
-Versus-
1. The Union of India through its Secretary, Ministry of Health & Family Welfare, Government of India, having its office at Nirman Bhawan, New Delhi - 110011.
2. Regional Institute of Medical Sciences, Imphal through its Director, having its Office at RIMS Campus at Lamphel, PO & PS Lamphel, Imphal West District, Manipur - 795004.
3. The Joint Secretay (NE), Ministry of Health & Family Welfare, Government of India, having its Office at Nirman Bhawan, New Delhi - 110011.
.... Respondents W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 3 With WP(C) No. 621 of 2022
1. Dr. Ksh. Raju Singh, aged about 56 years, S/o (L) Ksh. Mangi Singh, resident of Nongmeibund Pung Makhong, P.O & P.S. Porompat, Imphal East District, Manipur. PIN - 795005.
2. Dr. T, Jeetenkumar Singh, aged about 51 years, S/o T. Biramani Singh, resident of Khurai Shingabam Leikai, P.O & P.S. Porompat, Imphal East District, Manipur - 795005.
3. Dr. Nicola Carissa Lyngdoh langrai, aged about 51 years, D/o Goldstar Nongrum, resident of Uripok Tourangbam Leikai, P.O Lamphel, P.S. Imphal, Imphal West District, Manipur. PIN: 795004.
4. Dr. Sorokhaibam Babina, aged about 52 years, D/o (L) S. Chaoba singh, resident of Khurai Chingangbam Leikai, P.O & P.S. Porompat, Imphal East District, Manipur. PIN: 795005.
5. Dr. Paonam Shyamasakhi Devi, aged about 57 years, D/o Paonam Naran Singh, resident of Wangkhei Yonglan Leirak, P.O & P.S. Porompat, Imphal East District, Manipur. PIN: 795005.
6. Dr. R.K. Praneshwari Devi, aged about 57 years, D/o (L) R.K. Gopalsana Singh, resident of Heirangoithong Aheibam Leirak, P.O. Imphal, & P.S. Singjamei, Imphal West District, Manipur. PIN:
795001.
7. Dr. Ningthoujam Anita Devi, aged about 51 years, D/o N. Khomdon Singh, resident of Thangmeiband Hijam Leikai near Laijingthou Lampak, P.O. Lamphel, P.S. Imphal, Imphal West District, Manipur. PIN: 795004.
8. Dr. Memchoubi Phanjoubam, aged about 44 years, D/o Ph. Tombi singh, resident of Yumnam Leikai Lairembi Awang, Indo Burma Road, P.O. Imphal, P.S. Singjamei, Imphal West District, Manipur. PIN:795001.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 4
9. Dr. Ksh. Mamta Devi, aged about 50 years, W/O L. Manoranjan Singh, resident of Kwakeithel Mayaikoibi. P.O & P.S. Lamphel, Imphal West District, Manipur. PIN: 795001.
10. Dr. Puyam Sobita Devi, aged about 55 years, W/o Dr. Lukrakbam Saratchandra Singh, resident of Tera Lukrakpam Leikai, P.O & P.s. Lamphel, Imphal West District, Manipur. PIN: 795004.
.... Petitioners
-Versus-
1. The Chairman, Executive Council, Society of the Regional Institute of Medical Sciences (RIMS), Imphal Manipur, Pin: 795004 represented by Secretary (Ministry of Health & Family Welfare) Government of India, having its office at Nirman Bhawan, New Delhi - 110011.
2. The Regional Institute of Medical Sciences, Imphal through its Director, having its Office at RIMS Campus at Lamphel, PO & PS Lamphel, Imphal West District, Manipur - 795004.
3. The Joint Secretary (NE), Ministry of Health & Family Welfare, Government of India, having its Office at Nirman Bhawan, New Delhi - 110011.
4. The Deputy Secretary (NE) Ministry of Health & Family Welfare, Government of India, having its office at Nirman Bhawan, New Delhi. PIN: 110011.
.... Respondents W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 5 BEFORE HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI For the petitioners : Mr. L. Anand, Sr. Advocate Mr. S. Biswajit, Sr. Advocate Mr. K. Roshan, Advocate For the respondents : Mr. Kh. Samarjit, DSGI Date of hearing : 21.02.2025 Date of order : 21.03.2025 JUDGMENT & ORDER (CAV) [1] Heard Mr. L. Anand, learned Sr. counsel appearing for the petitioners in WP(C) No. 605 of 2022 & WP(C) No. 606 of 2022; Mr. S. Biswajit, learned Sr. counsel appearing for the petitioner in WP(C) No. 707 of 2022; Mr. K. Roshan, learned counsel appearing for the petitioner in WP(C) No. 621 of 2022 and Mr. Kh. Samarjit, learned DSGI assisted by Mr. Nongdamba, learned counsel appearing for the respondents.
[2] These writ petitions were filed by the petitioners under Article 226 of the Constitution of India praying inter - alia for issuance of a writ in the nature of mandamus/certiorari or any other appropriate order (s) -
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 6 In WP(C) No. 707 of 2022 the petitioner is praying:
(i) to admit the Writ Petition, call for the records of the case and issue rule nisi calling upon the Respondents to show cause as to why the prayers prayed for by the Petitioner should not be granted. And, after hearing them your Lordships may make the rule absolute;
(ii) to issue a writ in the nature of mandamus/certiorari or any other appropriate writ for quashing the portion i.e. "as notional date of promotion without any financial benefits. Financial benefits be given after 24th March, 2022 in all the promoted faculty members" occurred in the promotion order No. B/3343/2020-RIMS(TSP)/1020 dated 26.05.2022 issued by the Regional Institute of Medical Sciences (RIMS for short) thereby directing the Respondents for suitable modification/rectification in the said promotion order for granting the entitled financial benefits from the date of effective promotion i.e. w.e.f 01.02.2019 in respect of the petitioner in the fact and circumstances of the present case;
(iii) to direct the respondents for granting the entitled arrear to the petitioner by virtue of the promotion Order dated 26.05.2022 within a stipulated timeframe preferable within 2(two) months;
(iv) to pass any other appropriate order(s) or direction(s) that this Hon'ble Court deem fit and proper; and
(v) to award cost of the Petition to the petitioner.
In WP(C) No. 605 of 2022, WP(C) No. 606 of 2022 the petitioners are praying:
(i) to admit the present writ petition;
(ii) to issue rule nisi calling upon the respondents to
show cause as to why prayer sought for by the
petitioner shall not be granted in the facts and circumstances of the present case;
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 7
(iii) to issue a writ in the nature of writ of Certiorari or any other appropriate writ or order (s) for quashing/setting aside the impugned portion of the order bearing No. B/3343/2020-RIMS (TSP) dated the 26th May, 2022 (Annexure -A/1) issued by the Regional Institute of Medical Sciences, Imphal wherein financial benefits were given only after 24th March, 2022 to the petitioners with a humble prayer for giving a direction to the respondents to provide financial benefits from the effective date of promotion i.e. 1.1.2019 applicable to the petitioners.
(iv) to set aside the impugned portion of pay structure in the order dated 26.05.2022 (Annexure A/1) and correct the pay anomaly by directing the respondents to give corresponding higher pay matrix under 7th CPC from the date of its implementation in the facts and circumstances of the present case;
(v) to direct the respondents to release the aforementioned financial benefits including arrears in favour of the petitioners within a period of 2 months.
(vi) To direct the respondents for giving financial benefits by treating the petitioners equally with other similarly situated faculty members (Doctors) who were previously extended promotions under Time Scale Promotion at Regional Institute of Medical Sciences, Imphal;
(vii) Pass any order (s) which the Hon'ble Court may deemed fit and proper in the facts and circumstances of this case and in the interest of justice.
In WP(C) No. 621 of 2022 the petitioners are praying:
(i) to admit the present writ petition;
(ii) to issue rule nisi calling upon the respondents to
show cause as to why prayer sought for by the
petitioner shall not be granted in the facts and circumstances of the present case;
(iii) to issue a writ in the nature of writ of Certiorari or any other appropriate writ or order (s) for quashing/setting aside the impugned portion of the letter No. U.12025/16/2021 (NE) dated 23.05.2022 (Annexure A/1) of Ministry of Health and Family Welfare, Government of India and a portion of the W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 8 order bearing No. B/3343/2020-RIMS (TSP) dated the 26th May, 2022 (Annexure -A/2) issued by the Regional Institute of Medical Sciences, Imphal wherein financial benefits were given only after 24th March, 2022 in all the promoted faculty members in terms of Ministry of Health and Family Welfare (North East Section) dated 2305.2022, including the petitioners who were promoted to the post of Professor w.e.f 1.2.2019.
(iv) To direct the respondents for giving financial benefits w.e.f. 1.2.2019 by treating the petitioners equally with other similarly situated faculty members (Doctors) who were promoted to the post of Professor as previously extended under Time Scale Promotion at Regional Institute of Medical Sciences, Imphal;
(v) To direct the respondents to release the entitled financial benefits of the petitioners for the period from 1.2.2019 to 24.3.2022.
(vi) Pass any order (s) which the Hon'ble Court may deemed fit and proper in the facts and circumstances of this case and in the interest of justice.
[3] Vide order dated 14.08.2023 of this Court, since the issues involved in W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022 and W.P.(C) No. 621 of 2022 are similar in nature, the cases have been clubbed together and therefore, the said cases are taken up together for disposal.
[4] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 submitted that the case of the petitioners are that they are presently serving as Professor/Associate Professor/Assistant Professor by virtue of the promotion order dated 26.05.2022, of which a portion W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 9 thereof is being challenged herein. It is submitted that the petitioners have rendered more than 5/6 to 8/9 years of service in the grade of Associate Professor/ Assistant Professor/ Demonstrator/ Registrar and have got all the essentials and requisites qualification for consideration of promotion to the post of Professor/Associate Professor/Assistant Professor under the Time Scale Promotion (TSP for short) Rules, 1991 introduced by the Regional Institute of Medical Sciences (RIMS for short) since the year 1993 and the TSP is being continued as such when RIMS Administration was transferred to the Ministry of Health & Family Welfare, Government of India w.e.f. 01.04.2007. It is also submitted that the petitioners have been serving and rendering their services to the best satisfaction of their superior officers and also without any adverse remarks against them from any quarter till date.
Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 have submitted that Time Scale Promotion Rules, 1991 of the RIMS is in the nature of a flexible complementing Scheme wherein no additional posts are created, the existing persons on the basis of critical assessment are promoted to the next higher level of scales are upgraded without altering the combined authorized strength of posts. This is mostly a scheme with an object to remove discontentment and frustration due to lack of opportunity for promotion in normal courses. W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 10 It is further submitted that as per Rule 6A to TSP, the promotion under the rules are made on the basis of a common eligibility list as on 1st February of every year covering all officers and Departments in the respective Sub-cadres concerning all specialties and by taking into consideration the ACRs of last 5(five) years and the petitioners have also fulfills all the requirements as contemplated under rule 6(C) of TSP for promotion of Professor/ Associate Professor/ Assistant Professor from Associate Professor/ Assistant Professor/ Demonstrator/Registrar.
[5] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 submitted that vide memorandum dated 03.12.2020 circulated by the respondent No. 2 in favour of the petitioners, it is clearly notified that they were in the zone of consideration for promotion to the post of Professor/Assistant Professor/Associate Professor under Time Scale Promotion Rule, 1991 on 01.02.2019 calling upon them to submit their bio-data and publications. Thereafter, a DPC was held on 03.04.2021 by duly constituting a committee of RIMS and the petitioners were recommended for promotion to the post of Professor/Associate Professor/Assistant Professor under TSP, 1991 for the year 2019. The proceeding of the DPC meeting dated 03.04.2021 was submitted by the Respondent No. 2 to the appointing authority i.e. W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 11 the Secretary (H & FW), Ministry of Health & Family Welfare, Government of India vide letter dated 04.04.2021 for according approval. However, the declaration of the DPC result and approval of appointment thereof was stalled for a long time and the representation of the petitioners dated 29.11.2021 regarding declaration of the DPC result were also not considered by the respondent No. 1. [6] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 submitted that they were promoted to post of Professor/ Associate Professor/ Assistant Professor vide order dated 26.05.2022 under Time Scale Promotion Rules for the year 2019 w.e.f. 1st February, 2019 as notional date of promotion without any financial benefits. However, the petitioners were given financial benefits only after 24th March, 2022 by depriving all their entitled rights to enjoy their respective pay scale and other admissible allowances for the post of Professor/Associate Professor/Assistant Professor w.e.f. from the date of promotion i.e. 1.2.2019. It is further submitted that the respondents had arbitrarily, illegally and unreasonably deprived the financial benefits for the period from 1.2.2019 till 24.3.2022 (for more than three years) which shall commensurate with their promotion to the post of Professor/Associate Professor/Assistant Professor under Time Scale Promotion Rules, 1991 for the year 2019 w.e.f. 1.2.2019. It is further W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 12 submitted that the act of the respondents amount to discriminatory, bias, malafide and victimization of the petitioners. [7] Learned senior counsel for the petitioner in WP(C) No. 707 of 2022 submits that vide representation No. 6/CC/TSP/TAMOA/ 2022 dated 08.06.2022, the Teachers' and Medical Officers' Association (TAMOA 2021-2023), a registered body under Manipur Societies Registration Act, 1989 under Registration No. 462/M/SR2010 requested the Hon'ble Union Minister of Health & Family Welfare, Government of India to reconsider the decision of notional promotion and to kindly accord full financial benefits w.e.f. 01.02.2019 for Time Scale Promotees for the year 2019 for Doctors in Regional Institute of Medical Sciences, Imphal, but till date no response is received from the concerned authority.
[8] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 submitted that at the time of issuance of the above mentioned promotion order dated 26.05.2022, a set of writ petitions being WP(C) No. 944 of 2021; WP(C) No. 942 of 2021, WP(C) No. 943 of 2021 were pending for adjudication. In the said writ petitions, the petitioners have prayed for directing the respondents to declare the DPC held on 03.04.2021 for promotion to the post of Professor/ Associate Professor/ Assistant Professor under the Time Scale W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 13 Promotion Rules, 1991 for the year 2019 in the Regional Institute of Medical Sciences within a stipulated period of time. The writ petitions were taken up and heard together on 13.06.2022 and the same were disposed of accordingly thereby granting liberty to challenge the promotion order dated 26.05.2022 as per Rules. It is further submitted that subsequently after the Hon'ble Court's Order dated 13.06.2022, the petitioners have submitted their joining report as Professor/Associate Professor/Assistant Professor w.e.f. 01.02.2019 to the concerned authority through the Prof. & Head, Department of Medicine on 22.06.2022. The said joining reports were made under protest for not being granted the due financial benefits w.e.f. the date of effecting his promotion i.e. 01.02.2019.
[9] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 further submitted that there is no case of giving notional date of promotion without any financial benefits in the history of giving promotion to the faculty members of the Regional Institute of Medical Sciences. In support of their submission the learned counsels for the petitioners submits order dated 13.07.2015, 06.01.2017, 25.04.2019, 19.09.2020 etc., issued by RIMS which strengthen their submission. It is further submitted that in the earlier cases of promotions in RIMS under TSP, DPC were also not held in time and promotions were W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 14 deferred, however, promotions were granted w.e.f. 1st February of every year as per rule 6(A)(i) of TSP along with the financial benefits from their respective date of promotion. But, in the case of the petitioners, the respondent No. 2 have issued the order dated 26.05.2022 in an arbitrary manner and the petitioners were subjected to discrimination by illegally depriving of their entitled rights to enjoy the pay scale and other admissible allowances commensurate to the post of Professor/Associate Professor/Assistant Professor w.e.f. the date of promotion i.e. 01.02.2019 this act of the authority is bias and without any uniformity in the administration procedure. [10] Learned counsels for the petitioners in WP(C) No. 707 of 2022; WP(C) No. 605 of 2022; WP(C) No. 606 of 2022; and WP(C) No. 621 of 2022 further submitted that the grade pay mentioned in the promotion order dated 26.05.2022 is Rs. 7000/- and Rs. 10000/- although as per the 7th CPC pay structure, there is no matching/correspondent pay level for Pay Band 4 + grade pay Rs. 10000 (Professor), Pay Band 4 + grade pay Rs. 7000 (Associate Professor) and Pay band 3 + grade pay Rs. 7000 (Assistant Professor). In this regard, the Regional Institute of Medical Sciences (RIMS) communicated the Under Secretary (NE), Ministry of Health & Family Welfare, Government of India, Nirman Bhawan, New Delhi in respect of Revision of Pay of Professors/Associate Professors/Assistant Professors W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 15 consequent upon implementation of 7th Pay Commission in its letter dated 18.09.2020. In this regard, the RIMS authority has already issued an order by fixing the pay of the Assistant Professor of RIMS, Imphal at the lowest level of PB4 in the Pay Matrix of 7th CPC i.e. level 13 pending with grade pay of Rs. 8700/-. Thereafter, on 05.08.2022, the RIMS authority has answered a query of the Ministry of Health & Family Welfare, Government of India in respect of the grade pay of the Associate Professor by confirming that the same is of Rs. 8700/- not Rs. 7000/-.
It is further submitted that the order dated 26.05.2022 suffers from unfair, arbitrary, bias, mala fide as the same issued without application of mind and against the very essence, spirit and object of Time Scale Promotion Rules, 1991 which is a scheme to remove discontentment and frustration due to lack of opportunities for promotion in normal course. The promotion to the post of Professor/Associate Professor/ Assistant Professor was long overdue to the petitioners as they are the eligible candidates for consideration of promotion for year the year 2019 under Time Scale Promotion Rules, 1991.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 16 [11] Being aggrieved the petitioners have filed the present writ petitions on the following grounds:-
a) The petitioners have a good prima facie case and the balance of convenience is in favour of the petitioner to quash the portion i.e. "as notional date of promotion without any financial benefits. Financial benefits be given after 24th March, 2022 in all the promoted faculty members" occurred in the promotion Order No. B/3343/2020-RIMS (TSP)/1020 dated 26.5.2022 issued by the Regional Institute of Medical Sciences (RIMS for short) thereby directing the Respondents for suitable modification/ rectification in the said promotion order for granting the entitled financial benefits from the date of effective promotion i.e. w.e.f. 1.2.2019 in respect of the petitioner OR any other direction(s) which the Hon'ble Court may deem fit and just in the fact and circumstances of the present case;
b) The petitioners submitted that the promotion order dated 26.5.2022 issued by the authority is in complete violation of principles of natural justice and has been issued arbitrarily, mala fide without any rhyme or reason and without following the due procedure of law;
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 17
c) The petitioners submitted that they are once appreciated by the Prime Minister Officer (PMO) and Ministry of Health and Family Welfare (MOHFW) as Frontline Warriors of COVID 19 are being deprived of their entitled financial and other benefits;
d) The petitioners submitted that denying the entitled financial benefits from the date of retrospective promotion by considering all financial benefits from the date of the approval/ date of amendment of Time Scale Promotion (24th March, 2022) of the Time Scale Promotion (time lapse for financial benefits is 3 years) by the authority, amounts to punishing the doctors for their dedicated health care services;
e) The petitioners submitted that authority is bound to answer as to
(i) why should the date of effectiveness of the ongoing Time Scale Promotion for the year 2019 be the 24th March 2022, i.e. the date of the approval by the Ministry?
(ii) Is it uniformly applied in all time scale/ time bound promotional schemes of the medical W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 18 institutes under the Ministry? The petitioners further submitted that the effective date for Time Scale Promotion approval given by the Ministry for the year 2018 (vide File No. U/12025/22/2016-NE dated 16.9.2020) is from 1.2.2018 and not 16.9.2020 i.e. date of issuance of Order.
f) The petitioners submitted that seniority list of the faculty members in RIMS have 1st February as the date of their appointment/ joining unless they are recruited by an open advertisement till date as Time Scale Promotion have been effective from the 1st February of the promotion year and every year. No such precedence of Time Scale Promotion 2019 has been encountered so far wherein Time Scale Promotion has been made effective from the date of approval by the Ministry.
g) The petitioners submitted that despite frantic attempts made by the Ministry of Health and Family Welfare (MOHFW) during the year 2008 to 2012 to bring a uniform promotional scheme in RIMS, Imphal, it could not come to a conclusion due to logistics. Since, then, Time Scale Promotion (TSP for short) has been enforced with a directive from the MOHFW that "the existing TSP W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 19 will be continued till adoption of DACP is finalised/ approved vide No. U.12025/13/2012-NE dated 6.6.2012.
h) The petitioners submitted that the word 'notional' relates to a phenomenon which does not exists/ evident in reality i.e. hypothetical or imaginary or existing based on theory and the application of the same upon the petitioner and other faculty member for the first time without any rhyme and reason amounts to bias and victimization of the petitioner and other concerned faculty members. The petitioner further submits that the petitioner and other faculty members were given notional date of promotion without any financial benefits w.e.f. 1.2.2019 without giving any reason whatsoever amounts whimsical and bias act of the authority,
i) The petitioners submitted that giving financial benefit after 24.3.2022 to the promoted faculty members including the petitioner is not feasible in the eye of law as the said dateline as decided by the RIMS Authority is without any legal provisions. It is further submitted that such financial benefits which had been provided to other faculty members from the effective date of their promotions cannot be denied to the petitioner without W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 20 any valid reason and he further submits that the proper authority to take such decision by amending the earlier decision is the Executive Council of the RIMS Society and it was not done in the present case,
j) The petitioners submitted that the RIMS Authority in earlier occasions had given the financial benefits to all the promoted faculty members w.e.f. the effective date of promotion as done earlier and as such the RIMS Authority has to act in parity in respect of all the faculty member especially with the petitioner's case. It is further submitted that the act of the RIMS Authority amounts to wilful discrimination, bias amongst its faculty members and the same amounts to violation of equality enshrined in the Article 14 of the Constitution of India; [11] Per contra, learned senior counsel for the respondents submitted that as on the date of DPC held on 03.04.2021 and as on 01.02.2019 i.e. the effective date of promotion sought by the petitioner, the promoted faculty members were not eligible but were made eligible after the approval of competent authority for amendment of the Time Scale Promotion Rules, 1991 on 24.03.2022 on the basis of recommendation of review DPC.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 21 It has also been submitted that before the amendment of the TSP rules, 1991 for promotion of teaching faculty, the Rule 6 (C) (V) of the Time Scale Promotion Rules, 1991 read as:
"Provided that the total number of Associate Professors shall not exceed the total number of Assistant Professors in the Regional Institute of Medical Sciences, Imphal as a whole".
Further, the Rule 6 (B) (i) of the Time Scale Promotion Rules, 1991 read as:
"The appointing Authority shall upgrade 22% of total regular posts of Associate Professor to the grade of Professor in the scale of pay Rs. 14,300-400-18300/-".
Further, it has been submitted that while examining the DPC proceedings held on 03.04.2021 for promotion of teaching faculties under Time Scale Promotion Rules, 1991 for the year 2019 in the Ministry, it was observed that the strength of Assistant Professors have been shown as 54 and after promotion of 10 Assistant Professors to the grade of Associate Professors, the strength of Assistant professors remain at 44 (54-10); whereas, the strength of Associate Professor became 45 (35+10), after time scale promotion. The strength of Associate Professors thus exceeded the strength of Assistant Professor. Thus, only nine Assistant Professors ought to be promoted to the post of Associate Professors under the provision of the Time Scale Promotion Rules, 1991 which is contrary to the above mentioned provision of the TSP Rules, 1991.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 22 It has been submitted that the provisions of Rule 6(B) (i) of the Time Scale Promotion Rules, 1991 imposed a ceiling of 22% of total regular post of Associate Professor. The number of such regular post was 46 and therefore, 22% of the ceiling came out to be 10.12 rounded to 10. However, as per the RIMS letter dated 22.09.2021, the sanctioned post of Professor is 29 and therefore, additionally only 10 persons could be promoted under the Time Scale Promotion Rules, 1991.
Later on, in pursuance of the Ministry's Letter No. U.12025/16/2021-NE dated 24.03.2022, Rule 6 (B) (i) & 6 (C) (v) in the scheme of Time Scale Promotion Rules, 1991 was amended by RIMS vide order No. B/3343/2020-RIMS(TSP) dated 26.03.2022 as under:
Rule 6 (B) (i): The Appointing Authority shall upgrade 22% of total regular posts of Associate Professor to the grade of Professor in the scale of pay Ra. 14300-400- 18300/-on yearly basis.
Rule 6 (C) (v) provided that the total number of Associate Professors shall not exceed the total number of Assistant Professors in the Regional Institute of Medical Sciences, Imphal as a whole on yearly basis.
Thereafter, in pursuance of the Ministry's letter dated 01.04.2022 conveyed approval of competent authority for promotion of teaching faculty of RIMS for the year 2019 with immediate effect.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 23 Considering the grievances of faculty, Secretary, MoHFW in his capacity as Chairman, Executive Council took a view on the matter and the Ministry's letter dated 23.05.2022 conveyed the decision that 01.02.2019 shall be treated as notional date of promotion without any financial benefits. Financial benefits were to be given after 24.03.2022 i.e. the date of the amendment of the TSP Rules, 1991. [12] Learned senior counsel for the respondents further submitted that the recommendation of DPC proceedings held on 03.04.2021 for promotion of teaching faculties under TSP Rules, 1991 for the year 2019 were received on 05.05.2021 & 15.05.2021 respectively by the Ministry after which certain clarifications were sought from RIMS and the clarifications were received by the Ministry on 23.09.2021. Further, the recommendations of the DPC dated 03.04.2021 was considered and examined by the Ministry and thereafter, the competent authority of the Ministry vide letter No. 12025/16/2021-NE dated 03.02.2022 referred the matter back to RIMS with the following comments:
"DPC Proceedings needs to be further examined in light of provision laid in existing rules without creating any imbalance in hierarchy in the institute and if desired, RIMS may propose suitable amendments in the scheme by following due procedure".
After the approval of competent authority for amendment of the TSP Rules, 1991 on 24.03.2022 on the basis of recommendation of review DPC in pursuance of Ministry's letter No. U.12025/16/2021-NE W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 24 dated 24.03.2022, the result of the DPC for promotion of teaching faculty under Time Scale Promotion Rules, 1991 for the year 2019 was declared on 01.04.2022 in pursuance of the Ministry's letter dated 01.04.2022. It is further submitted that after giving promotion to the petitioners to the post of Professor/Associate Professor/Assistant Professor under Time Scale Promotion Rules, 1991 for the year 2019, the petitioner's pay was fixed notionally at the higher pay level under 7th CPC at Pay Level-14, Pay Level-13 and Pay Level - 11 w.e.f. 01.02.2019 as there is no corresponding pay of PB4 + GP Rs. 10000 (Pre-revised), PB4 + GP Rs. 7000 (Pre-revised) and PB3 + GP Rs. 7000 (Pre-revised) in the 7th CPC Pay Matrix. However, financial benefit arising from the above notional pay fixation was given after 24.03.2022. [13] Learned senior counsel for the respondents further submitted that the petitioners were promoted to the post of Professor/ Associate Professor/Assistant Professor in the Scale of Pay of Rs. PB4+ GP Rs. 10000/- (Pre-revised), Rs. PB4+ GP Rs. 7000/- (Pre-revised) and PB3 + GP Rs. 7000 (Pre-revised) in the 7th CPC Pay Matrix in pursuance of the Ministry letter No. U.12025/16/2021-NE dated 23.05.2022 under Time Scale Promotion Rules for the year 2019 w.e.f. 01.02.2019 as notional date of promotion. The Financial benefit was given after 24.03.2022 i.e. the date of amendment of TSP Rules, 1991 to all promoted faculty members for the year 2019. After promoting the petitioners to the post of Professor/Associate Professor/Assistant W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 25 Professor under TSP Rules, 1991 for the year 2019, the petitioners were granted the higher pay level under 7th CPC as the pay scale of the promoted Professor/Associate Professor/Assistant Professor was fixed provisionally at Level-14, Level-13 and Level-11 of the 7th CPC w.e.f. 01.02.2019. However, financial benefit arising from the above notional pay fixation was given after 24.03.2022.
[14] Learned senior counsel for the respondents further submitted that as on the date of DPC held on 03.04.2021 and as on 01.02.2019 i.e. the effective date of promotion sought by the petitioners, the promoted faculty members were not eligible but were made eligible after the approval of competent authority for amendment of the Time Scale Promotion Rules, 1991 on 24.03.2022 on the basis of recommendation of review DPC. The Secretary, MoHFW in his capacity as Chairman, Executive Council had taken a view on the matter and decided that 01.02.2019 be treated as the notional date of promotion without any financial benefits for the promoted faculty members under the Time Scale Promotion for the year 2019. The Financial benefit was given after 24.03.2022 i.e. the date of amendment of Time Scale Promotion Rules, 1991 to all promoted faculty members of the year 2019. After promoting the petitioners to the post of Professor/Associate Professor/Assistant Professor under TSP Rules, 1991 for the year 2019, the pay scale of the promoted Professor/Associate Professor/Assistant Professor was fixed at Level-14, Level-13 And Level-11 of the 7th CPC W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 26 as there is no corresponding pay of PB4 + GP Rs. 10000/- (Pre- revised), PB4 + GP Rs. 7000/- (Pre-revised) and PB3 + GP Rs. 7000/- (Pre-revised) in the 7th CPC Pay Matrix.
[15] Learned senior counsel for the respondents submitted that Rules 6 (A) (i) of the Time Scale Promotion Rules, 1991 read as:
"The promotion under these rules shall be made on the basis of a common eligibility list as on 1st February of every year covering all officers and Departments in the respective sub-cadres covering all specialists."
It is apparently a procedure and doesn't say anything about effective date of promotion and financial benefits from their respective date of promotion. It may be interpreted from this statement that eligibility criteria is to be checked and the list is to be prepared as on 1st February of every year. It is further submitted that as on 01.02.2019 recommended faculties for the year 2019 were not even eligible due to restriction in the scheme which was amended later on and also, nothing has been mentioned in the time scale promotion scheme about the effective date of promotion and financial benefits from their respective date of promotion.
Later on, the Secretary, MoHFW in his capacity as Chairman, Executive Council had taken a view on the matter and decided that 01.02.2019 be treated as the notional date of promotion without any financial benefits for the promoted faculty members under W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 27 the Time Scale Promotion for the year 2019. The Financial benefit was given after 24.03.2022 i.e. the date of amendment of TSP, Rules 1991 to all promoted faculty members of the year 2019. Further, it is submitted that even in case, if financial benefits with retrospective effect was granted by mistake to other faculty or otherwise, the said mistake or error cannot be cited as a precedent for the purpose of extending the financial benefits in violation of the provision of the Time Scale Promotion Scheme/Rules. Right to equality is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state or its Instrumentalities to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily or irregularly extended to others.
[16] Learned senior counsel for the respondent also submitted that the competent authority had already taken a view on the matter and decided that 01.02.2019 be treated as the notional date of promotion without any financial benefits for the promoted faculty members under the Time Scale Promotion for the year 2019. The Financial benefit was given after 24.03.2022 i.e. the date of amendment of Time Scale Promotion Rules, 1991 to all promoted faculty members relating to the year 2019.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 28 [17] On the contrary learned counsels for the petitioners in their reply affidavit further submitted that the allegation of the respondents that "the promoted faculty members were not eligible but were made eligible after the approval of competent authority for amendment of the TSP Rules, 1991 on 24.03.2022 on the basis of recommendation of review DPC" is a false and misleading statement. It is submitted that the petitioners were allowed to participate in the D.P.C held on 03.04.2021 on being found eligible for promotion to the post of Professor/Associate Professor/Assistant Professor under TSP Rules, 1991 for the year 2019 and in pursuance of the memorandum dated 3.12.2020 circulated by the RIMS calling upon the petitioners to submit their bio-data.
It is further submitted that as per the aforesaid memorandum dated 3.12.2020, it clearly stated that the petitioners were in the zone of consideration for promotion to the post of Professor/Associate Professor/Assistant Professor under the Time Scale Promotion Rule 1991 on 1.2.2019. The petitioners were very much eligible as on 01.02.2019 for consideration of promotion to the post of Professor/Associate Professor/Assistant Professor under TSP Rules 1991 and it is not sustainable to assert that the petitioners were made eligible after approval from the competent authority. The competent authority cannot apply its arbitrary law on its own against the TSP Rules W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 29 1991 as against the petitioners and hence, the petitioners are bound by the same TSP Rules since, its inception in the year 1991 till today.
It has been submitted that the respondents statement that "...in pursuance of the Ministry's Letter No.U.12025/16/2021-NE dated 24.03.2022, Rule 6(B) (i) & 6(C) (v) in the scheme of Time Scale Promotion Rules, 1991 was amended by RIMS vide order No. B/3343/2020-RIMS(TSP) dated 26.03.2022 as under" creates a doubt as to how the amendment of the said Rules was done without inviting any clarifications/objections from the petitioners. The Ministry's letter dated 24.03.2022, order of the RIMS dated 26.03.2022 and 23.05.2022 are highly required and the respondents may be directed to produce the same before this Hon'ble Court for proper adjudication of the present case.
Further, the learned senior counsels for the petitioners denied the statement made by the respondents in his affidavit -in- oppositions where it is specifically stated that 01.02.2019 shall be treated as notional date of promotion without financial benefits and financial benefits were to be given after 24.03.2022 i.e. the date of the amendment of the TSP Rules, 1991. Mentioned is also made that at the time of giving Time Scale Promotion in the year 2018 (vide File No. U/12025/22/2016-NE dated 16.9.2020) by the Ministry it was counted from 1.2.2018 (effective date of promotion) and not from 16.9.2020 i.e. date of issuance of order (approval by the ministry). Hence, the W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 30 competent authority should consider the Time Scale Promotion Rules, 1991 of the petitioners in parity with those of the earlier Time Scale Promotees. The petitioners should be treated equally as done in the case of their predecessors since they have also been rendering their continued regular services for the last many years without any break. The action of the respondents authorities giving promotion under Time Scale Promotion Rules with effect from 01.02.2019 as notional date of promotion and Financial benefits given after 24.3.2022 without any rhymes and reasons amounts to bias and victimisation of the petitioners.
[18] Learned senior counsel for the petitioners further submitted that the effective date of promotion of the petitioners is from 01.02.2019 for the post of Demonstrator/Registrar/Assistant Professor/Associate Professor to Assistant Professor/Associate Professor/Professor under Time Scale Promotion Rules 1991. However, it is submitted that due to delay by the Respondent authorities, the DPC was finally held in the year 2021 and the result of the DPC was kept silent for long and ultimately, vide order dated 26.05.2022, the promotion of the petitioner was approved w.e.f. 01.02.2019 as notional date of promotion without any Financial benefits. However, it is reflected in the said order that the financial benefits will be given after 24th March, 2022 in all the promoted faculty members which is arbitrary, illegal and not tenable in the eye of law. Further the illegal act W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 31 of the respondents is discriminatory as financial benefits was given in the earlier similar matters of the same institute. [19] Learned senior counsel for the petitioners submitted that the impugned order dated 26.05.2022 specifically stated that "........the following doctors are promoted to the post and pay scale under Time Scale Promotion Rules for the year 2019 w.e.f. 1st February, 2019 as notional date of promotion without any financial benefits. Financial Benefits be given after 24th March, 2022 to all the promoted faculty members: .........."
However, in earlier occasions the RIMS authority had given financial benefits to all the faculty members who were given retrospective promotion w.e.f. the effective date of promotion as done earlier. Further, it is submitted that the object of Time Scale Promotion Scheme is to remove discontentment and frustration amongst the faculty members due to lack of opportunity for promotion in normal courses. However, the action of the RIMS authority thereby giving Financial benefit arising from the above notional pay fixation after 24.3.2022 violates the TSP Rules, 1991, which is discriminative in nature and bias amongst the faculty members and the same amounts to violation of Article 14 of the Constitution of India. [20] Learned senior counsel for the petitioners further submitted that while giving notional promotions to an eligible candidate as per the said time bound promotion with delay on the part of the W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 32 administration, it should be kept in mind that time scale promotion in respect of specialist is purely time bound, listing of eligible candidate on 1st February every year is based on the durations of the completed service, research paper publication and acceptable ACRs- meaning thereby, these candidates are eligible for promotion in all respect on 1st February, of the particular year. While giving notional promotions, all these facts should not be undermined by the authority concerned. Moreover, the authority failed to give any explanation as to why Time Scale Promotion for the specialist should not be given to the eligible candidate including the petitioners on the cut-off date i.e. 1st February of the year and in the present case 1.2.2019. It is further submitted that the said Rule explicitly pointed out that if the candidate is eligible on the cut-off date of 1st February every year, they have to be promoted. Further, Time Scale promotion being a time bound regular phenomenon, notional promotion has no relevance to an already eligible person as eligibility is defined every year as on the cut-off date i.e. 1st February of every year.
It is further submitted that TSP Rules, 1991 amended on 24.3.2022 after the date of eligibility of the petitioners on 01.2.2019 or the date of DPC 3.4.2021 cannot be applicable retrospectively. Further, Time Scale Promotion is a continuous process in RIMS Imphal since, the introduction of said Rule on 1991 and no new Rules for promotion was introduced before the promotion of the petitioners and hence, notional W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 33 promotion in case of the petitioners is not applicable and the petitioners should be promoted retrospectively w.e.f. their date of eligible for promotion i.e. 01.2.2019 with all the financial benefits. Further, the petitioners cannot be denied to their entitlement because of the delay on the part of the respondent authorities.
[21] Learned counsel for the petitioners relied upon the following judgments in support of their cases;
1. WP(C) No. 1104/2013, 2874/2013 and 2884/2013 [Umesh Kumar Moza vs. Govt. of J & K & Anr.] para no. 28, 29 & 30.
"28. As for the merits of the case, a perusal of the order dated 9.7.2010 passed in favour of Dr. Vinod Kumar Bhat granting him the Second and the Third Time Bound Promotions w.e.f. 1.4.1994 and 1.4.1999 respectively, reveals that without any justification, a different yardstick has been applied by the respondent to the petitioner for the very same relief while issuing the impugned order dated 18.7.2011, whereunder he was granted the notional pay-scale of 4100-5300/- (pre- revised) w.e.f. 1.4.2003, but was not given the monetary benefits thereunder and w.e.f. 1.4.2011, when the said pay-scale was granted to him "monetarily". In other words, only the amount payable w.e.f. 1.4.2011 was ordered to be released in favour of the petitioner while depriving him of the monetary benefit of the upgraded pay scale for a period of eight years reckoned from 01.04.2003. No rationale has been offered for dividing the Third Time Bound Promotion granted to the petitioner in two parts at the time of issuing the impugned order; nor is there any justification for doing so when a similarly placed Assistant Surgeon employed with the respondent, namely, Dr. Vinod Kumar Bhat was granted real time benefits of the Time Bound Promotions.
29. The plea of the learned counsel for the respondents that Rule 2.43 of the J&K Financial Code Volume-1 prohibits re-opening of old cases and the present case ought to be treated as an old case is taken note of only to be rejected. The present matter cannot be treated as a "re-opening of an old case for the simple W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 34 reason that the respondents did not issue the impugned order by re-opening the petitioner's case. In fact, the impugned order came to be passed for the first time and it was not on the basis of any representations made by the petitioner for enhancement of his pay scale by grant of any upgradation. Having unilaterally taken a decision to pass an order dated 18.7.2011, the respondents cannot be permitted to discriminate against the petitioner by declining to grant him the monetary benefits payable w.e.f. 1.4.2003, the date from which he was granted the Third Time Bound Promotion. The petitioner, who is an Assistant Surgeon (Migrant), is similarly placed as Dr. Vinod Kumar Bhat, Assistant Surgeon (Migrant) and he ought to have been treated on the same footing for grant of similar relief as was granted to his colleague.
30. In view of the aforesaid findings, this Court is of the opinion that the impugned order dated 18.7.2011 granting the Third Time Bound Promotion to the petitioner ought to be modified by deleting the words, "notionally" and "monetarily" therefrom. Accordingly, the present petition is allowed and the respondents are directed to amend the order dated 18.7.2011, by granting the Third Time Bound Promotion in the pay- scale of 4100-5300/-(pre-revised) in favour of the petitioner w.e.f. 1.4.2003. It is further directed that the entire monetary benefits payable to the petitioner under the Third Time Bound Promotion shall be payable from the date of his entitlement and the arrears shall be released in favour of the petitioner within three months from today, failing which the said amount shall carry simple interest payable by the respondents @9% per annum, till realization. The petitioners in the two connected petitions shall also be entitled to similar relief as granted to the petitioner in W.P.(C) 1104/2013."
2. 2022 LiveLaw (SC) 891 [Union of India & Ors. Vs. Munshi Ram] para No. 7 & 8.
'7. It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. As W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 35 rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/bearers working in the Northern Railway are entitled to the same benefits which are held to be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/bearers working in different Zones/Divisions, but working under the same employer
8. The Railways/UOI/Railway Board cannot be permitted to repeat the same arguments which were raised before different Tribunals, High Courts and also before this Court. Under the circumstances, the respondents-Commission Vendors/bearers working in the Northern Railway shall also be entitled to the same benefits which the other Commission Vendors/bearers working in different Zones/Divisions are held to be entitled to. There cannot be discrimination among the similarly situated Commission Vendors/bearers. To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India.'
3. (1983) 3 SCC 284 [S.V. Rangaiah & Ors vs. Sreenivasa Raon & Ors.] para No. 9 '9. Having heard the counsel for the parties, we find no force in either of the two contentions under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade -II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 36 which fell vacant prior to the amended rules would be governed by the old rules and not be the now rules.' [22] Learned counsel for the respondent relied upon the following judgment in support of his cases;
1. (2015) 14 SCC 335 [Ramesh Kumar vs. Union of India & Ors] para No. 14 & 15.
2. (2013) 2 Gau LT 814 [Oinam Brajachand Singh (Dr) Vs. Union of India & Ors.] [23] Heard the learned counsels at length and also perused the pleadings made in their respective petitions and the counter affidavit with the citations made by each counsel in support of their cases.
This Court while deciding these writ petitions relied upon the facts and circumstances along with the submissions made by each learned counsel as narrated above, in doing so, it is evident that the respondents do not deny the fact that the petitioners were given promotion by the respondents vide order dated 26.05.2022 issued by Deputy Director (Admn.) Regional Institute of Medical Sciences (RIMS) in pursuance of Ministry's letter No. U.12025/16/2021-NE dated 24.03.2022 for the year 2019 and petitioners' pay was fixed notionally at the higher pay level 7th CPC at Pay Level - 13 and Pay Level - 11 with effect from 01.02.2019 as notional date of promotion without any financial benefits. However, the financial benefits arising from the above notional pay fixation was given after 24.03.2022. There is no denial on the part of the respondents that in earlier occasions they had W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 37 given the financial benefits to all the promoted faculty members w.e.f. the effective date of promotion as done earlier to that the only negative response on the part of the respondents is that if financial benefit with retrospective effect was granted by mistake to faculty or otherwise the said mistake or error cannot be cited for the purpose of extending financial benefits in violation of the provision of the time scale promotion scheme/rules, further right to equality is the positive concept and cannot be enforced in negative manner, if an illegally or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of courts and tribunal to require the state or its instrumentality to commit the same irregularity/illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily or irregularly extended to others. This stand made by the respondents cannot see in the eyes of law as nowhere in the pleadings of the respondents could find that the earlier orders which are given financial benefit to all the promoted faculty members with effect from the effective date of promotion were granted by mistake and the said orders were illegally/irregularly passed by the authority as such, the stand made above by the respondents is not acceptable in the eyes of law.
W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 38 [24] The question before this Court right now is whether the RIMS authority commits willful discrimination, bias amongst each faculty members if so, the same amounts to violation of equality enshrined in the Article 14 of the Constitution of India. For deciding this question, this Court is relying upon the following Hon'ble Apex Court's judgments ;
1. WP(C) No. 1104/2013, 2874/2013 and 2884/2013 [Umesh Kumar Moza vs. Govt. of J & K & Anr.] para No. 28, 29 & 30 "28. As for the merits of the case, a perusal of the order dated 9.7.2010 passed in favour of Dr. Vinod Kumar Bhat granting him the Second and the Third Time Bound Promotions w.e.f. 1.4.1994 and 1.4.1999 respectively, reveals that without any justification, a different yardstick has been applied by the respondent to the petitioner for the very same relief while issuing the impugned order dated 18.7.2011, whereunder he was granted the notional pay-scale of 4100-5300/- (pre-revised) w.e.f. 1.4.2003, but was not given the monetary benefits thereunder and w.e.f. 1.4.2011, when the said pay-scale was granted to him "monetarily". In other words, only the amount payable w.e.f. 1.4.2011 was ordered to be released in favour of the petitioner while depriving him of the monetary benefit of the upgraded pay scale for a period of eight years reckoned from 01.04.2003. No rationale has been offered for dividing the Third Time Bound Promotion granted to the petitioner in two parts at the time of issuing the impugned order; nor is there any justification for doing so when a similarly placed Assistant Surgeon employed with the respondent, namely, Dr. Vinod Kumar Bhat was granted real time benefits of the Time Bound Promotions.
29. The plea of the learned counsel for the respondents that Rule 2.43 of the J&K Financial Code Volume-1 prohibits re-opening of old cases and the present case ought to be treated as an old case is taken note of only to be rejected. The present matter cannot be treated as a "re- opening of an old case for the simple reason that the respondents did not issue the impugned order by re- opening the petitioner's case. In fact, the impugned order W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 39 came to be passed for the first time and it was not on the basis of any representations made by the petitioner for enhancement of his pay scale by grant of any upgradation. Having unilaterally taken a decision to pass an order dated 18.7.2011, the respondents cannot be permitted to discriminate against the petitioner by declining to grant him the monetary benefits payable w.e.f. 1.4.2003, the date from which he was granted the Third Time Bound Promotion. The petitioner, who is an Assistant Surgeon (Migrant), is similarly placed as Dr. Vinod Kumar Bhat, Assistant Surgeon (Migrant) and he ought to have been treated on the same footing for grant of similar relief as was granted to his colleague.
30. In view of the aforesaid findings, this Court is of the opinion that the impugned order dated 18.7.2011 granting the Third Time Bound Promotion to the petitioner ought to be modified by deleting the words, "notionally" and "monetarily" therefrom. Accordingly, the present petition is allowed and the respondents are directed to amend the order dated 18.7.2011, by granting the Third Time Bound Promotion in the pay-scale of 4100-5300/-(pre-revised) in favour of the petitioner w.e.f. 1.4.2003. It is further directed that the entire monetary benefits payable to the petitioner under the Third Time Bound Promotion shall be payable from the date of his entitlement and the arrears shall be released in favour of the petitioner within three months from today, failing which the said amount shall carry simple interest payable by the respondents @9% per annum, till realization. The petitioners in the two connected petitions shall also be entitled to similar relief as granted to the petitioner in W.P.(C) 1104/2013.'
2. 2022 LiveLaw (SC) 891 [Union of India & Ors. Vs. Munshi Ram] para No. 7 & 8.
'7. It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. As rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/bearers working in the Northern Railway are entitled to the same benefits which are held to W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 40 be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/bearers working in different Zones/Divisions, but working under the same employer
8. The Railways/UOI/Railway Board cannot be permitted to repeat the same arguments which were raised before different Tribunals, High Courts and also before this Court. Under the circumstances, the respondents-Commission Vendors/bearers working in the Northern Railway shall also be entitled to the same benefits which the other Commission Vendors/bearers working in different Zones/Divisions are held to be entitled to. There cannot be discrimination among the similarly situated Commission Vendors/bearers. To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India.'
3. (1983) 3 SCC 284 [S.V. Rangaiah & Ors vs. Sreenivasa Raon & Ors.] para No. 9 '9. Having heard the counsel for the parties, we find no force in either of the two contentions under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade -II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not be the now rules."
4. (1991) 4 SCC 139 - [State of U.P. vs. Synthetics and Chemicals Ltd.] '41. ........... 'A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 41 perceived by the Court or present to its mind.' (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. V. Bremith Ltd. The Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority.' It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The Bench held that, 'precedents sub-silentio and without argument are of no moment.' The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not expressed and its not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Sharma Rao v. Trite to say that a decision is binding not because of principles, laid down therein.' Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......'
5. (2002) 3 SCC 496 - [Haryana Financial Corporation vs. Jagdamba Oil Mills] '21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Hydayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT).
'19. ........ Each case depends on its own facts and a close similarly between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as laid by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case fails, the broad resemblance to another case is not at all decisive.' 'Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickest and branches. My plea is to keep the path to justice clear of obstructions which could impede it.' W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 42
6. (2005) 3 SCC 409 -[Karnataka State Road Transport Corporation vs. S.G., Kotturappa] '24. ............ The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality..................'
7. (2007) 13 SCC 352 - [Andhra Pradesh Social Welfare Residential Educational Institutions Vs. Pindiga Sridhar] '7. ........... By now, it is well-settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for non-observance of the principles of natural justice ........... In such admitted facts, there was no necessity of issuing show-cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show-cause notice was issued to him.
8. (2016) 14 SCC 267 - [High Court of Punjab & Haryana Vs. Jagdev Singh] '11. The principle enunciated in Proposition (ii) above cannot apply a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.'
9. 2018 SCC Online SC 3860 [Ravi Verma & Ors. Vs. Union of India & Ors.] '13. In view of the aforesaid decision, the circulars and regularization of the similarly situated employees at other places and various recommendation that were made the services of the appellants ought to have been regularized in the year 2006; discriminatory treatment have been meted out to them. As per the decision of Uma Devi (supra), they were W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 43 entitled to regularization of services; they did not serve under the cover of court's order. Illegality has been committed by not directing regularization of services.
14. We direct that the service of the appellants be regularized w.e.f. 1st July 2006 they are entitled to consequential benefit also let the respondents comply with the order in a period of three months from today.'
10.(2024) SCC Online SC 227 - [Ushaben Joshi Vs. Union of India & Ors.] '17. ......... Keeping in view of the fact that an employee similarly placed but inducted in service after nearly six years from the date of employment of the appellant with the respondent Department has been conferred the benefits of confirmation in service by way of appointment to the post of MTS, the appellant is entitled to claim the same benefits.' [25] With due consideration to the facts and circumstances set out by the parties and admitted position of law as relied upon and reproduced herein above, and applying the ratio of the Apex Court, this Court is of the view that the case of the petitioners are squarely covered by the Apex Court as the respondents did not deny to the fact that the respondents have given the financial benefits with retrospective effect in the past i.e. from the date of promotion. [26] The plea taken by the respondents that on the date of DPC held on 03.04.2021 and as on 2019 the effective date of promotion sought by the petitioners, the promoted faculty members were not eligible but, were made eligible after the approval of competent authority for amendment of Time Scale Promotion Rules, 1991. But, as the authority after due consideration on the matter given promotion to the petitioners w.e.f. 01.02.2019, the respondents could not go back W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 44 and take a stand that the financial benefits should be given with effect from 24.03.2023.
[27] As the respondents admit that the RIMS authority in earlier occasion had given the financial benefits to all the promoted faculty members with effect from the date of promotion, it cannot be denied that the employees which were promoted and given financial benefits w.e.f. the effective date of promotion and present applicants are under the same employer i.e. the respondents. Therefore, the employees working under the same employer i.e. the respondents working in different divisions are required to be treated similarly and equally are entitled to similar benefits and are entitled to the same treatment as rightly submitted and pointed out by the learned counsel for the petitioners there cannot be any discrimination inter se. Under the circumstances on the ground of parity, the petitioners are entitled to the same benefit which are held to be entitled to all the similarly situated persons. There cannot be different criteria/parameters with respect to similarly situated employees working under the same employer.
[28] For the reasons mentioned above, the present writ petitions are allowed and quashed the portion i.e. 'as notional date of promotion without any financial benefits. Financial benefits be given after 24th March, 2022 in all the promoted faculty members' occurred in the promotion Order No. B/3343/2020-RIMS(TPS)/1020 dated W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 45 26.05.2022 issued by the Regional Institute of Medical Sciences (RIMS for short) and directed the Regional Institute of Medical Sciences (RIMS) for modification/rectification in the said promotion order and grant the entitled financial benefits from the date of effective promotion w.e.f. 01.02.2019 in respect of the petitioners and the same exercise is to be done within a period of 3 (three) months from the date on which the respondents receive copy of this order.
[29] With the above finding and direction, the present writ petitions are disposed of.
JUDGE FR/NFR Lucy/Bipin W.P.(C) No. 707 of 2022, W.P.(C) No. 605 of 2022, W.P.(C) No. 606 of 2022, W.P.(C) No. 621 of 2022 Page 46