Dr. Arvind Kumar vs State of Jharkhand

Pramath Patnaik, J.

In the aforesaid writ application, the petitioners have sought for direction upon the respondents to promote them to the post of Assistant Professor

from their respective date of entitlement of such promotion.

The brief facts of the case are that all the petitioners joined the post of Tutors in the Department of Pathology at Rajendra Institute of Medical

Science (hereinafter referred to in short as ‘RIMS’) in different dates in the year 2005-06. It has been averred that similarly situated tutors in

the RIMS have been given promotion in view of the MCI Rules to the post of Assistant Professor after completion of three years as tutors. Although,

some of the tutors before completion of three years as Senior Resident/tutor have been promoted to the post of Assistant Professor as mentioned in

paragraph 11 of the writ application, in view of the 11th meeting of the Governing Body of RIMS held on 10.09.2005. It has been averred in the writ

application that though in other departments promotion has been given to the tutors, but in the Department of Pathology except Dr. Lalita Khess, no

such promotion has been given in the post of Tutor/Registrar/Senior Resident. From time to time, the respondents have invited applications for filling

up the post of Assistant Professor in the Department of Pathology. As per the decision of the Governing Body 50 % of the vacancies are to be filled

up by the promotion. Since the case of the petitioners was not considered for promotion, the petitioners submitted their representations vide Annexure-

8 series. In spite of representations submitted by the petitioners, the respondents have been taking steps to fill up the post of Assistant Professor

directly by way of fresh appointment. Therefore, being aggrieved by the indifferent and lackadaisical attitude on the part of the respondents coupled

with inaction, the petitioners have been compelled to agitate their grievance under Section 226 of the Constitution of India.

Learned counsel for the petitioners has vehemently argued that the petitioners after completion of three years on the post of tutors are entitled to be

considered for promotion to the post of Assistant Professor as per the MCI rules. Learned counsel for the petitioners further submits that though

similarly situated tutors have been given promotion to the post of Assistant Professor, non-consideration of the case of the petitioners for granting

promotion to the said post, amounts to hostile discrimination being violative of Article 14 and 16 of the Constitution of India. Learned counsel further

submits that as per the decision of the Governing Body 50% of the post of Assistant Professor are to be considered for promotion from the post of

tutors to the Assistant Professor.

Supplementary affidavit dated 30.06.2017 has been filed on behalf of the petitioners, wherein in paragraph 5, the name of the petitioners, their

appointment, date of confirmation of services and eligibility for promotion on the post of Assistant Professor has been mentioned vide Annexure-1

series. The Medical Council of India Rules, 1998 has been referred to and as per the said rule, the Department of Pathology in order to be eligible as

Assistant Professor one has to have:

(i) Requisite recognized postgraduate qualification in the subject and

(ii) three years teaching experience in the subject in a recognized medical college as Tutor/Senior Resident/Demonstrator/Registrar.

The copy of the Medical Council of India, Rules 1998 vide Annexure-2 series has been annexed to the supplementary affidavit.

Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein it has been submitted that

the petitioners were appointed as Tutor (Pathology) RIMS, Ranchi. The RIMS is an autonomous institution and the respondent-State need not take

any action/decision in the matter of promotion of the petitioners.

Counter affidavit dated 25.06.2018 has been filed by the respondent no.3, wherein it has been submitted that after coming into force of the RIMS

Act, 2002, RIMS Rules 2002 and RIMS Regulations 2014, the conditions of service of any employee of RIMS are governed by these statutory

provisions only. It has further been submitted that as per the provisions contained in Rule No.11 of the RIMS Rules, 2002, appointment on all the posts

of teaching cadre in RIMS is to be made through open advertisement on the basis of recommendations of a permanent selection committee. The post

of Assistant Professor being a post of teaching cadre is obviously to be filled up through open advertisement for the purpose and not through

absorption or promotion of Tutors, Registrars and Senior Residents on this entry level post of teaching cadre in RIMS. It is further submitted that

Senior Residents/Tutors/Registrars may apply to be appointed as Assistant Professor when the vacancy to fill up the posts of Assistant Professor is

advertised by RIMS. It is further submitted that the post of Assistant Professor is not a promotional post for Tutor/Registrar or Senior Resident in

RIMS. It is the entry level post of teaching cadre in RIMS. It is to be filled up by direct appointment only and not by promotion/absorption of senior

residents or holders of any other tenure posts. Certain senior residents and tutors of RIMS were promoted as Assistant Professor in the past by the

State Government which has no authority to do so after coming into force of RIMS Act, 2002.

But, such an erroneous decision/order of the State Government having been taken without jurisdiction cannot provide legitimacy to the claim of the

petitioners and in this regard there is no concept of negative equality in law. Further, it has been submitted that in view of the provisions contained in

Rule No.11 of the RIMS Rules, 2002, appointment on all posts of teaching cadre can be made by the Governing Council of RIMS only and not by any

other authority including the State Government. It has further been submitted that posts of tutors and senior residents are tenure posts for three years

only and the stipulation applies to the petitioners because the post of tutors/registrars and senior residents have always been a tenure post for three

years only. It has further been submitted that the issue, as to whether senior residents can be promoted or absorbed as an Assistant Professor in

RIMS, is no longer res-integra in view of the decision rendered in W.P. (S) No.3368 of 2012 (Randhir Kumar vs. The State of Jharkhand and Ors.) as

per Annexure-A to the counter affidavit. It has further been submitted that the holders of the tenure post like tutor/registrar/senior residents may be

considered for appointment as Assistant Professor, if they apply for such an appointment. But they are not entitled to be promoted to the post of

Assistant Professor simply by virtue of holding these tenure posts.

Learned counsel for the respondent-RIMS has strenuously urged that Rule 11 of the RIMS rules deals with appointment in different posts under the

RIMS and no provisions has been made for promotion as per the rules enshrined in the RIMS Act and Rules. So far as the power of the State

Government is concerned that has been envisaged under Section 29 of the RIMS Act 2002. With regard to contention of the petitioners that promotion

to the post of Assistant Professor, learned counsel for the respondent-RIMS submits that the decision rendered in W.P.(S) No.3368 of 2012 as stated

supra has attained its finality and the decision rendered therein shall govern the case of the petitioners.

A rejoinder to the counter affidavit on behalf of respondent no.3-RIMS has been filed, wherein it has been submitted that Rule 11 of the RIMS

Rule, 2002 only enables the Rajendra Institute of Medical Sciences, Ranchi to fill up the vacant posts in the teaching cadre by way of direct

appointment, but the said Rule do not bar promotion. The teaching cadre of Medical Institutes and the eligibility for promotion have been prescribed in

the Bihar Medical Education (Appointment in Service Cared and Equivalent Post) Rules, 1972. It has further been submitted that RIMS is an Institute

owned by the State and all the members of its Governing Council are the official of the State as described under Section 7 of the RIMS Act, 2002. It

has further been submitted that the appointment of the petitioners were not against any tenure post, rather petitioners have been appointed against

permanent post as evident from Annexures-10 and 11 to the rejoinder affidavit, therefore, the case of the petitioners is different from the decision

rendered in case of Randhir Kumar vs. The State of Jharkhand & Ors. (W.P.(S) No.3368 of 2012).

After bestowing my anxious consideration to the rivalized submissions and on perusal of the record, the question which falls for determination is as

to whether petitioners have been permanently absorbed as tutors in the RIMS, are entitled to be considered for promotion to the post of Assistant

Professor after rendering three years of service on the said post as has been done in the case of similarly situated employees.

Indisputably, the conditions of service of the RIMS employees are governed by RIMS Act, 2002, RIMS Rules 2002 and RIMS Regulations 2014.

All the petitioners are permanent employees of the RIMS and have been permanently absorbed on the post of tutors. In the meantime, they have been

continuing on the post of tutors for more than one decade. There is also no denying of the fact that some of the similarly placed tutors have been

promoted to the post of Assistant Professor after coming into force of the RIMS Act and Rules.

On perusal of the Annexure-1 to the writ application more particularly Agenda-8, the meeting of the Governing Body of the RIMS in the year

2005, the Governing Body decided for filling up the post of 50% from outsider and 50% by internal qualified candidates. Since all the petitioners have

got the qualifications are eligible for consideration as per the MCI Rules, 1998, the case of the petitioners deserves to be considered for promotion to

the post of Assistant professor.

Accordingly, the writ petition is disposed of with direction to the respondents to consider the case of the petitioners for promotion to the post of

Assistant Professor, if they come within the zone of consideration, strictly in accordance with law and as per RIMS Act and Rules and other extant

rules and guidelines within a period of 12 weeks from the date of receipt/communication of the order.

With the aforesaid direction, the writ petition stands disposed of.

Accordingly, I.A. No.622 of 2010 also stands disposed of.