Judgment · High Court · 2009

#1) 2) ollege as Resident/Registrar/Demonstrator/Tutor, and the petitioner accordingly was qualified to be so promoted, he was denied sa id privilege. His application dated 29.10.2003 to that effect also remained unr espondend. However, vide Govt. Notification No. HLB.180/2004/Pt/17 dated 12.05. 2005 he was allowed to hold the charge of the office of Assistant Professor, For ensic Medicine, GMC. Eventually, vide notification dated 21.07.2006 he was prom oted to the post of Assistant Professor, Forensic Medicine under Regulation 4(d) of the Assam Public Services Commission (Limitation of Functions) Regulations a nd was posted in the said capacity at the Assam Medical College, Dibrugarh (for short referred to as the AMC). The petitioner accordingly, joined the said post . Contending that though eligible in the year 2003 in terms of the MCI Regulatio ns, he was unjustifiably denied his promotion to the post of Assistant Professor , the petitioner before this Court seeking redress. The respondents in their affidavit affirmed by the Joint Secretary, Health and F amily Welfare (B) Department have in essence, pleaded that the petitioner in ter ms of the Finance Department’s Notification No. FPC.12/98/55 dated 18.09.99 was not eligible for promotion to the post of Assistant Professor in the year, 2003, being deficient, qua the criteria embodied in paragraph 2(1) thereof. He was as such also not entitled to the pay scale as per the AICTE norms. It was therefor e, that he was allowed to hold the additional charge of the post of Assistant Pr ofessor, Forensic Medicine and was duly promoted to the said post on the fulfill ment of the said conditions of eligibility. The answering respondents, in additi on, have maintained that as promotion cannot be claimed as a matter of right and the consideration therefor is always subject to prevailing norms governing same , the petitioner’s grievance is misplaced. Ms. Deka, learned counsel for the petitioner, while abiding by his pleaded stand , in course of the arguments has produced a copy of the letter dated 08.04.2009 issued by the Joint Secretary to the Govt. of Assam, Health & FW (B) Department to the Accountant General (A & F), Assam clarifying that in the matter of promot ion from the rank of Demonstrator/Registrar to the next higher rank, the criteri a as contained in paragraph 5(iii) of the notification dated 18.09.1999 ought to be adhered to. According to the learned counsel, the contents of the said lett er would make it amply clear that the promotion from the post of Registrar/Demon strator etc. would be governed exclusively by the norms of eligibility prescrib ed by the MCI as is clearly demonstrated by the said paragraph of the notificat ion. According to her, therefore insistence for compliance of the norms embodie d in paragraph 2(1) of the said notification which is more rigorous than the MCI criteria of eligibility, is misconceived. The learned Standing Counsel in the face of the aforementioned letter dated 08.0 4.2009 has submitted that if the decision as conveyed by the same is subsisting as on date, there is no reason why appropriate steps would not be taken in terms thereof. Admittedly the petitioner was appointed as Demonstrator, Forensic Medicine vide notification 04.04.2000 following recommendation by the Commission and he had be en serving in the said post with effect from 05.04.2000. He accordingly, had co mpleted three years in such capacity on 04.04.2003. As per the MCI norms referr ed to hereinabove, he was thus eligible to be considered for promotion to the ne xt higher post of Assistant Professor, he being a postgraduate in Forensic Medic ine since 1999, other relevant determinants permitting. Prima facie, therefore n on-consideration of his case for such promotion, in view of the stipulations con tained in paragraph 2(1) of the notification dated 18.09.99 prescribing 6(Six) y ears of service in the post of Demonstrator/Registrar/ Resident Surgeon/ Residen t Physician together with a postgraduate degree in the concerned subject was in departure therefrom. Though, the notification per se concentrates on the entitl ements for the AICTE pay scale, which manifestly is higher than that of the exis ting State pay scale for the post as enumerated therein, the prescriptions of el igibility as contained in paragraph 2(1) therefor, obviously are in conflict wit h the MCI norms. Be that, as it may, as the petitioner could not fulfill the criteria of eligibil ity embodied in paragraph 2(1) of the notification dated 18.09.99(Annexure - A), his promotion to the post of Assistant Professor was delayed till the year 2006 . The contents of the letter dated 08.04.2009, however in clear terms underline th at promotion from the post of Registrar/Demonstrator etc. to the next higher pos t of Assistant Professor ought to be governed by the MCI norms which, in fact, i s enumerated the paragraph 5(iii) of the said notification. Noticing the incompa tibility of the two paragraphs of the said notification, i.e. 2(1) and 5(iii) th e letter has cleared the deck conceding preponderance to paragraph 5(iii) acknow ledging the primacy to the MCI norms for such promotion. In the above view of the matter, considering the clear and unequivocal stand tak en by the respondent- department on the issue, as is evidenced by the letter dat ed 08.04.2009, this Court holds that the deferment of the consideration of the p etitioner for promotion to the post of Assistant Professor relying on the stipul ations contained in paragraph 2(1) of the notification dated 08.09.99 cannot be sustained. This, of course does not per se signify that the petitioner ought to be promoted to the said post with effect from 04.04.2003. In view of the above determination, the petition therefore, stands disposed with a direction to the respondents to consider the case of the petitioner for promo tion to the post of Assistant Professor treating him to be eligible therefor as per the letter dated 08.04.2009. For obvious reasons, this Court refrains from i ssuing any further direction, as actual promotion to a post is contingent on sev eral factors. It is, further added that in case the petitioner is found suitabl e to be promoted to the post of Assistant Professor in the year 2003 and is elev ated as such he would be considered for further promotion to the next higher ran k on the basis thereof if he satisfies the conditions of eligibility and is cons trued to be suitable therefor. The petition stands allowed in the above terms. No costs.