State Of Gujarat vs R P Chaturvedi & Ors

N.S.Sanjay Gowda, J

The Respondents Nos.1 to 4 herein were appointed in 1978 while the Respondent No 5 was appointed in 1980, as Medical Officers (Class-III) by the Gujarat Panchayat Services Selection Board.

It was their case that their only promotional post had been clearly indicated in the Gujarat Medical Service Class II Recruitment Rules 1977 at the time of their recruitment as Class-III Medical Officers and that they would be entitled to be promoted to these Class-II posts on rendering meritorious service of 10 years, which was, in fact, reduced to 5 years.

It was their case that despite their completion of 5 years as required under the Rules, their cases were not considered for promotion and on the other hand, the State, taking advantage of the fact that no ratio was prescribed between direct recruits and for promotion for these Class II posts of Medical Officers, proceeded to recruit 400 Allopathic doctors during the period from 1983 to 1993 and thereby deprived them of promotions.

The respondents approached the Gujarat Services Tribunal with the grievance that their case for promotion was required to be considered on completion of 5 years of service. However, the Tribunal rejected their appeal on the ground that it did not possess the jurisdiction. The Tribunal, however, observed that the department should look into the grievance of the respondents.

The respondents, thereafter, submitted a representation to the Government, which was to no avail.

Consequently, the respondents approached this Court by filing the writ petition seeking for a declaration that the omission of the State to promote them on completion of 5 years of service was illegal and for issuance of a direction to the State to give them a deemed date of promotion and grant all consequential benefits.

The learned Single Judge, on consideration of the matter, has granted the aforementioned prayers sought for by the original petitioners on the reasoning that though the respondents had no right for a promotion, in law, they had a right to be considered for promotion on them becoming eligible. The learned Single Judge took notice of the fact that 400 persons were recruited directly during the period from 1983 to 1993, thereby indicating that there were clear vacancies in the promotional posts of Medical Officer (Class-II) and therefore, the State Government had to consider them to the said promotional posts and ought to have promoted them on their completion of 5 years. The learned Single Judge also directed the extension of the said benefits with all consequential benefits to the respondents herein.

Being aggrieved by this order, the State is in the appeal.

Learned Assistant Government Pleader Ms. Vaishnavi Verma appearing on behalf of the Appellant-State contended that the learned Single Judge could not have granted the deemed date of promotion since it was nobody's case that any person junior to the respondents had been promoted. She contended that it was the discretion of the State Government to grant promotions and no employee could seek for promotion, as a matter of right. She submitted that the view of the learned Single Judge that promotion should be granted since there were clear vacancies cannot also be accepted in the light of the aforementioned legal principle.

She also submitted that the respondents were, in fact, promoted in 1994 and they could not therefore be aggrieved on the ground that there was no promotional avenue for them at all. She also sought to put forth an argument that it was just not a question of 5 years' experience, but there was also a requirement of the petitioners possessing a MBBS degree in order to be a Medical Officer Class II officer. It is argued that since the respondents were only Ayurvedic doctors, they did not possess the requisite medical educational qualifications for being promoted as Class II officers.

Learned AGP has filed the written submissions and also placed reliance on a judgment of the Supreme Court rendered in Civil Appeal No.6977 of 2015.

Learned counsel Mr. A.K. Clerk, appearing for the respondents contended that the order of the learned Single Judge could not be found fault with and it was absolutely justified. He submitted that given the fact that there were clear vacancies and despite the respondents possessing all the requisite qualifications, they were not even considered, the Learned Single Judge was justified in granting the respondents a deemed promotion from the date that they had completed 5 years of service as Class III officers.

He submitted that a candidate on being recruited possesses a legitimate expectation that his case for promotion would be considered in accordance with the Recruitment Rules. Merely because a candidate does not possess a statutory right of promotion, that does not mean that the State can keep the candidates endlessly waiting for a promotion. He, therefore, sought for dismissal of the appeal.

The fact that the respondents were recruited as Medical Officer (Class-III) in the year 1978 and 1980 is admitted. It is also admitted that the promotional post for a Class-III Medical Officer is only as a Class-II Medical Officer. It is also not in dispute that in order to be eligible for promotion, a Class-III Medical Officer should have rendered 5 years of service. Thus, it is clear that the eligibility of the respondents, for being considered for promotion as Class II officers, was the completion of 5 years as a Class III officer, which the respondents attained in 1983 in case of respondents Nos.1 to 4 and in 1985 in case of respondent No.5.

The right to a promotion is not guaranteed, but in the light of various pronouncements of the Supreme Court, the right to be considered for a promotion, is a legal right which can be enforced by approaching a court of law. This is on the simple principle that it is the common expectation of every employee to elevate himself to a higher grade in his career by dint of his hard work and his experience. sThis legitimate expectation is manifested in the rules which provide for promotion and thereby a right is conferred for an employee to be considered for promotion to a higher post. In fact, in the very judgment produced by the learned AGP, this principle has been elucidated by the Supreme Court.

In the instant case, the respondents, as observed earlier, became eligible to be promoted to the only promotional post of a Class-II Medical Officer on the completion of 5 years of service as a Class-III Medical Officer. It is no-doubt true that the respondents do not have a statutory right to be promoted immediately on completion of 5 years of service since promotion to a particular post is dependent on various factors, such as availability of vacancies and also the need of the employer to fill up the promotional posts.

In the present case, the fact that the State proceeded to recruit nearly 400 Allopathic doctors between the period from 1983 to 1993, by itself, is clear proof of the fact that there were not only a clear but a large number of vacancies in the promotional post of Class-II Medical Officers. If there were clear vacancies, the State was obliged to consider the case of those candidates who were eligible for being considered for promotion. The State cannot obviously disregard the right of the eligible candidates to be considered for promotion by proceeding to only recruit the candidates through the mode of direct recruitment. This approach, basically, amounts to the denial of the eligible candidates to be considered for promotion, which would be legally untenable.

The learned Single Judge has merely taken note of the fact that there were clear vacancies available in the promotional post and, the original petitioners on completion of 5 years were required to be considered and this right was impliedly denied by the State by resorting to direct recruitment, he has merely directed that they be considered as deemed to have been promoted on the date of completion of 5 years.

It is no doubt true that a deemed date of promotion is granted, normally, in cases, where juniors are promoted and that anomaly is rectified by granting a retrospective promotion to a person who was otherwise entitled to promotion. In the instant case, since the petitioners (respondents 1 to 5 herein), were indeed entitled to be considered for promotion on the completion of 5 years, and that was denied to them and an attempt was made to bypass their promotions completely, the learned Single Judge has merely directed that they should be deemed to be promoted on completion of 5 years.

It is to be stated here that the learned Single Judge, though granted the respondents a deemed date of promotion from the date on which the respondents completed 5 years of service as Class-III Medical Officers, has clarified that the deemed date of promotion would be considered only for the purpose of pay fixation, seniority, and pension and the respondents would also not be entitled to get the arrears for the said period. This would, therefore, indicate that there is no financial harm caused to the State also. In the light of the relief granted by the learned Single Judge, the argument that there was a delay in approaching the Court and because of which, the petitioner has to fail, cannot be accepted.

As far as the argument that the petitioners were not eligible for being promoted as they were not possession a MBBS degree, though this argument was not urged before the Learned Single Judge, it is to be stated here that the eligibility criteria prescribed for a Class II Medical Officer are as follows:

"2. Appointment to the post of Medical Officer in Gujarat Medical Services Class -II shall made either:

(a) By promotion of a Medical Officer's Class III who possess.

(i) the M.B.B.S. Degree of a University recognized by the Government of Gujarat or any other qualification specified the first or second schedule to the Indian Medical Council Act 1956 ог

(ii) registerable qualification under schedule III of the Indian Medical Council Act 1965 or

(iii) Qualifications as specified in part C and D of the schedule of Gujarat Medical practitioners Act 1963 and has rendered meritorious services of ten years as Medical Officer either in Gujarat Medical Services Class III or under panchayatas."

As could be seen from the above, there are three kinds of eligibility criteria prescribed and the possession of a MBBS degree is only one of the criteria. The Rule also stipulates that the possession of qualifications as prescribed under Part C or Part D of the Schedule to the Gujarat Medical Practitioners Act would also be entitled to be Class II Medical Officers.

Section 17 of the Act prescribes the persons who are qualified to be registered as medical practitioners and it stipulates that persons with the qualifications prescribed in the schedule can be registered.

Part C of the Schedule to this Act clearly state that even a person who possesses qualifications in the Ayurvedic with a course supplemented by Modern advances with an Inter service examination or with a Matriculation or SSC examination would be eligible to be Class II Medical Officers. Similarly, Part D of the Schedule states that persons who possess qualifications in the Ayurvedic System of Medicine with course supplemented by modern advance with matriculation of SSC would be eligible for registration.

Admittedly, it is because the respondents possessed these qualifications in Ayurvedic medicine, they had been registered as a Medical practitioner under the Act and they were therefore recruited as Class III Medical Officers. This would therefore indicate that the respondents did possess the requisite educational qualifications for being Class II Medical Officers. The argument of the learned AGP that the respondents did not possess the requisite educational qualification is therefore without any merit.

In the result, the appeal is DISMISSED. Interim relief, if any, stands vacated.

It is needless to state that the respondents would be entitled for the arrears from the date they approached this Court by filing the Special Civil Application as their Special Civil Applications were allowed and due to the pendency of these appeals they were not paid their entitlement as ordered by the Learned Single Judge.