High Court
Case Details
WP(C) 471/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. F.U. Borbhuya, learned Counsel for the petitioner and Ms. A.Verma, learned Standing Counsel, Health Department. Mr. C. Baruah, learned Counsel appears for respondent No.4, Accountant General (A & E), Assam.
Legal Reasoning
2. By way of this writ petition, petitioner seeks a direction to th e respondents to give retrospective effect to his promotion to the posts of Assi stant Professor, Associate Professor and Professor in the Pathology Department i n the Medical Colleges of the State following quashing of order of penalty passe d by the disciplinary authority and order passed by this Court in the previous r ound of litigation. 3. noted. Facts of the case as projected by the petitioner may be briefly 4. While the petitioner was serving as Demonstrator in the Patholog y Department, Gauhati Medical College and Hospital, Guwahati, a show-cause notic e dated 04-07-1997 was issued to him by the disciplinary authority alleging misc onduct in the performance of duties. Petitioner was also transferred to Silchar Medical College. The reason for the above was the alleged failure of the petitio ner to attend to VVIP duty assigned to him. Petitioner was also placed under sus pension but was subsequently re-instated. Following a departmental proceeding, p enalty of withholding of promotion for a period of three years was imposed on th e petitioner vide order dated 30-03-2004. Petitioner filed appeal before the Assam Administrative Tribunal 5. , which was registered and numbered as Case No.4 ATA/ 2007. The Tribunal by the judgment and order dated 26-09-2007 set aside and quashed the order of penalty d ated 30-03-2004 and held that petitioner would be entitled to all consequential benefits. 6. In the meanwhile, by order dated 17-04-2005, petitioner was prom oted from the post of Demonstrator to the post of Assistant Professor of Patholo gy. By a subsequent order dated 23-10-2008, petitioner was further promoted from the post of Assistant Professor to the post of Associate Professor of Pathology .
Decision
7. At that stage, petitioner filed WP(C) No.1177/2009 before this C ourt seeking a direction to the respondents to promote him to the post of Profes sor in the Department of Pathology with consequential benefits with retrospectiv e effect. This Court by order dated 25-05-2010 disposed of the said writ petitio n by directing that petitioner’s case for promotion to the post of Professor be placed before the Departmental Selection Committee for consideration w.e.f. such date as may be found legally sustainable. 8. On the recommendation of the Departmental Selection Committee, G overnment of Assam in the Health and Family Welfare (B) Department issued notifi cation dated 09-02-2011 promoting the petitioner alongwith others to the post of Professor. It appears that following the order of the Tribunal dated 26-09- 9. 2007, a review Departmental Selection Committee meeting was held and based on it s recommendation, Government of Assam in the Health and Family Welfare (B) Depar tment modified the promotion of the petitioner. By notification dated 25-07-2011 , effect of promotion of the petitioner from the post of Demonstrator to the pos t of Assistant Professor was given retrospective effect from 22-12-2000. A super numerary post of Assistant Professor of Pathology in the Gauhati Medical College and Hospital was created for the period from 22-12-2000 to 23-12-2004, against which the petitioner was so promoted. Likewise, petitioner’s promotion from Assi stant Professor to Associate Professor was given retrospective effect from 04-09 -2006 to 23-10-2008 against a vacant post of Associate Professor in the Gauhati Medical College and Hospital. 10. Respondents had prepared a gradation list of teachers of Patholo gy Department of the Medical Colleges of the State as on 31-07-2006 wh erein petitioner was placed at Serial No.18. One Dr. (Mrs.) Tirtha Chaliha, who had joined as Demonstrator much after the petitioner, was placed above the petit ioner at Serial No.13. She was given promotion to the post of Associate Professo r as well as Professor much earlier than the petitioner. 11. Petitioner retired from service on attaining the age of superann uation on 29-02-2012. Petitioner claims further retrospective promotion to the p ost of Assistant Professor w.e.f. 27-04-1998, to the post of Associate Professor w.e.f. May, 2003 and to the post of Professor w.e.f the date his junior Dr. (Mr s.) Tirtha Chaliha was promoted. He had submitted a representation on 14-03-2012 before the Secretary to the Government of Assam, Health and Family Welfare (B) Department seeking retrospective promotion as indicated above. As there was no r esponce, petitioner has preferred the present writ petition seeking the reliefs as indicated above. 12. Respondents 1 to 3 have not filed any affidavit. However, respon dent No.4 has filed affidavit stating that the grievance expressed by the petiti oner pertains to the administrative department and that it has no role to play i n the matter. 13. Though State respondents have not filed affidavit, learned Stand ing Counsel on instructions submitted that following quashing of penalty order b y the Tribunal, petitioner was given promotion to the post of Associate Professo r in October, 2008 and as Professor in February, 2011. However, following the or der of this Court dated 25-05-2010, the matter was processed for creation of supernumerary post of Assistant Professor with retrospective effect from 20-12- 2000 to 23-12-2004. Accordingly, supernumerary post was created and the petition er was promoted as Assistant Professor on 20-12-2000 against the supernumerary p ost. Petitioner was also given retrospective promotion to the post of Associate Professor w.e.f. 04-09-2006 to 23-10-2008 against existing vacant post. Thus , petitioner was promoted as Assistant Professor w.e.f. 22-12-2000, as Associate Professor w.e.f. 04-09-2006 and as Professor w.e.f. February, 2011. Petitioner was promoted as Assistant Professor with retrospective effect from 22-12-2000 as because the following faculty members who were junior to the petitioner in the rank of Demonstrator were promoted as Assistant Professor w.e.f. 22-12-2000 :- Dr. D.R. Patowary, Dr. D. Dutta, Dr. R.N. Choubey In respect of Dr. Tirtha Chaliha, it is submitted that though she was junior to the petitioner in the initial post of Demonstrator, she was selected for promoti on to the next higher rank considering that she had MD degree at that time. Cons equently, she became senior to the petitioner in the gradation list of teachers of Pathology Department of the Medical Colleges of the State. 14. From the materials on record, it does not appear that petitioner had instituted any challenge to the above assignment of seniority position of D r. Tirtha Chaliha above him. Thus, on the basis of the above gradation list, Dr. Tirtha Chaliha was senior to the petitioner. Therefore, petitioner cannot have any grievance regarding her promotion before him. Moreover, promotion orders of Dr. Tirtha Chaliha to the posts of Associate Professor and Professor have also n ot been placed on record by the petitioner. 15. As per the Minimum Qualification for Teachers in Medical Institu tions Regulations, 1998 framed by the Medical Council of India in exercise of th e powers conferred by Section 33 of the Indian Medical Council Act, 1956 with th e previous sanction of the Central Government, the minimum qualification for hol ding the posts of Assistant Professor, Associate Professor and Professor have be en prescribed. To be eligible for holding the post of Assistant Professor, one m ust have MD (Pathology) and three years teaching experience in the subject as De monstrator in a recognized Medical College. For the post of Associate Professor, the qualification is MD (Pathology) and five years of experience as Assistant P rofessor in Pathology in a recognized Medical College. Desirable qualification o ver and above the prescribed minimum qualification is having minimum of four res earch publications in national journals. Finally, for the post of Professor, one must have MD (Pathology) and four years of experience as Associate Professor in a recognized Medical College. In addition to above, it would be desirable if th e candidate has four research publications at national level and one research pu blication in International journal. 16. This Court in the order dated 25-05-2010 passed in WP(C) No.1177 /2009 had directed that case of the petitioner for promotion to the post of Prof essor be considered w.e.f. such date as may be found legally sustainable. While petitioner was promoted to the post of Professor vide order dated 09-02-2011, hi s earlier promotions to the posts of Assistant Professor and Associate Professor were given retrospective effect as noticed above. Just because petitioner attained eligibility for promotion to th 17. e next higher rank on a particular date, it does not mean such promotion should be given effect to from the said date itself. It would depend on various factors like availability of vacancy, suitability etc. Court is of the view that petiti oner has been given the consequential benefit following quashing of the order of penalty. In view of the discussions made above, this Court finds no merit in th e claim of the petitioner to give further retrospective effect to his promotion to the post of Assistant Professor from 27-04-1998, as Associate Professor from May, 2003 and as Professor when Dr. (Mrs.) Tirtha Chaliha was promoted. Moreover , as noticed above, Dr. Tirtha Chaliha’s seniority over the petitioner was never questioned by the petitioner. 18. to the petitioner. Accordingly, in the facts of the case, no relief can be granted 19. Writ petition is dismissed. No cost.