The High Court
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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 437of 2012 ---- The State of Jharkhand through the Principal Secretary, Health, Medical Education & Family Welfare Department, Nepal House, P.O. & P.S. Doranda, District Ranchi. ... .…Appellant/Respondent No.2 Versus 1. Debabrata Dasgupta, son of Sri Chitranjan Dasgupta, at present Associate Professor, Department of Bio-Chemistry, MGM Medical College, Jamshedpur, P.O. & P.S. Mango, District East Singhbhum. … … …Respondent/Petitioner The Principal, MGM Medical College, Jamshedpur, P.O. 2. & P.S. Mango, District East Singhbhum. … … … Performa Respondent No.3/Respondent No.3 3. The Medical Council of India having its office at Pocket 14, Sector -8, Dwarka, Phase-1, New Delhi 110077. The Govt. of Bihar, through the Secretary, Health 4. Medical Education and Family Welfare Deptt. Having its office at New Secretariat Building, Bailey Road, P.O. & P.S. Secretariat (Sachiwalaya), District Patna, Bihar. -------- CORAM :HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND For the Appellant For the Resp. No. 1 :Mr. Amit Kumar Das, Advocate. -------- :Mr. Ashok Kumar Yadav, Sr. S.C.-I. For the Resp. MCI Mr. KanishkaDeo, Advocate :Mr.Ajit Kumar, Sr. Advocate. Mr.Kushal Kumar, Advocate -------- Order No.35:dated 12th January, 2023 Per Sujit Narayan Prasad, J. The instant appeal, under clause 10 of the Letters Patent, is directed against the judgment/order dated 04.07.2011 passed by the learned Single Judge of this Court in W.P.(S) No. 3534 of 2009 whereby and whereunder the order dated 20.06.2009 passed by the Secretary, State of Jharkhand, has been quashed by which the writ petitioner 2 was reverted for want of new eligibility qualification to the post of Assistant Professor. 2. The brief facts of the case, as per the pleading made in the writ petition, which are required to be enumerated, reads hereunder as :- It is the case of the writ petitioner that he was appointed as Tutor on 03.09.1977 and was promoted to the post of Assistant Professor on 05.07.1983. Thereafter, when the promotion to the post of Associate Professor was not granted to the writ petitioner, the writ petitioner has approached to this Court by filing writ petition being C.W.J.C. No.2014 of 1997 (R) and by taking the ground that at the time when the writ petitioner was promoted as Associate Professor, i.e., on 05.07.1988, at that time Ph.D was not required to be possessed as eligibility qualification for holding the said post, since Ph.D has been made a mandatory condition to hold the post of Associate Professor by bringing the Teachers‘ Eligibility Qualification 1998. Therefore, the ground has been taken that whatever eligibility criteria has been laid down in the year 1998, the same cannot be given retrospective application on the day when the writ petitioner was promoted as Associate Professor, i.e., on 05.07.1988. The Coordinate learned Single Judge on 16.04.2004, has passed an order by giving specific finding therein that the regulation or statute coming later in the day cannot take away accrued/vested rights. Since the required qualification 3 to have Ph.D to hold the post of Associate Professor has come
Decision
only in the year 1998 and the writ petitioner became eligible in the year 1988, therefore, the said eligibility criteria will have no bearing for the purpose of consideration of promotion to the post of Associate Professor. The Coordinate learned Single Judge has passed the order remanding the matter to the Committee since it was informed that a Committee was constituted for the purpose of looking into such matters as on 08.04.2004. But, according to the writ petitioner, promotion to the post of Associate Professor was not granted, therefore, he again approached to this Court by filing writ petition being W.P.(S) No.1124 of 2006. Another Coordinate learned Single Judge, without taking into consideration the position of law, as was observed by this Court in the order passed in C.W.J.C. No.2014 of 1997, has dismissed the writ petition. The writ petitioner, being aggrieved with the said order passed in W.P.(S) No.1124 of 2006 dated 17.12.2008, had preferred Letters Patent Appeal being L.P.A. No.34 of 2009 but, in course of its pendency, the writ petitioner was granted promotion. However, only after 19 days from the date of such promotion, the said promotion was withdrawn by passing order on 20.06.2009 reverting the writ petitioner from the post of Associate Professor to that of the Assistant Professor and, as such, since a fresh cause of action had arisen, the 4 aforesaid Letters Patent Appeal was withdrawn, as would appear from order dated 09.07.2009 passed in L.P.A. No.34 of 2009 appended as Annexure-8 to the paper book. The said order has been challenged before this Court by filing writ petition being W.P.(S) No.3534 of 2009 whereby and whereunder the order dated 20.06.2009 has been quashed and set aside holding the writ petitioner entitled to continue on the promoted post on the basis of the order passed by the Chancellor of the University, being the competent authority, as also holding him entitled for all consequential benefits to be calculated by the respondents, which is the subject matter of the instant appeal. 3. Mr. Ashok Kumar Yadav, learned Sr. S.C.-I, appearing for the State appellant, has submitted by questioning the finding recorded by the learned Single Judge in the impugned order by raising the issue that the decision which has been taken by the administrative authority as has been impugned before the writ court dated 20.06.2009 suffers from no infirmity since such decision was taken on the basis of the opinion of the Medical Council of India, as contained in Letter No.22173 dated 07.02.2006 by which the writ petitioner was found not fit to hold the post of Associate Professor. He has drawn the attention of this Court towards the aforesaid decision of the Medical Council of India as appended at page 41 of the paper book. 5 It has been submitted that the writ petitioner since was holding the post of Associate Professor and was not having the Ph.D and, as such, he cannot be held to be eligible to hold the post of Associate Professor but, without taking into consideration the aforesaid fact, the learned Single Judge has interfered with the decision of the administrative authority and as such, the same requires interference by this Court. 4. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the respondent-writ petitioner, has submitted that there is no infirmity in the impugned order passed by the learned Single Judge since the cardinal principle is that the eligibility criteria cannot be made operative with retrospective effect. It has been submitted that if the appointment by way of promotion made in favour of the writ petitioner to the post of Associate Professor would have been after coming into effect of the Teachers‘ Eligibility Qualification, 1998, then the matter would have been different but herein the case of the State is that the promotion to the post of Associate Professor was granted in the year 1988, i.e., on 05.07.1988 and admittedly, on that date there was no eligibility criteria making it mandatory for a candidate to possess the same. It has been contended by rebutting the ground taken by the learned counsel for the State that such decision was taken by the administrative authority on the basis of the decision of the Medical Council of India but the aforesaid 6 decision cannot come in the way of grant of promotion in favour of the writ petitioner to the post of Associate Professor, since, it would be evident from the affidavit filed on behalf of Medical Council of India, as under paragraph13 of Annexure- R-1-A wherein the writ petitioner has been held to be not eligible to hold the post of Associate Professor since he is not having the Ph.D as required under the provision of Teachers‘ Eligibility Qualification, 1998. Therefore, according to the learned counsel for the respondent-writ petitioner, the Medical Council of India has also taken the ground disqualifying the writ petitioner to hold the post of Associate Professor on the ground that he is having no eligibility criteria on the basis of the Teachers‘ Eligibility Qualification, 1998 which has come subsequent to the promotion granted in favour of the writ petitioner. Learned counsel, in the backdrop of the aforesaid submission, has submitted that the learned Single Judge, after taking into consideration the legal position that the eligibility criteria cannot be made operative with retrospective effect and once the right to hold the post has been accrued in favour of one or the other employees the same cannot be snatched away on the basis of retrospective application of the eligibility criteria. 5. This Court has heard the learned Counsel for the parties, perused the document available on record as also the 7 finding recorded by the learned Single Judge in the impugned order. 6. The fact of the given case herein is that the writ petitioner was promoted as Assistant Professor on 05.07.1983 and when the promotion to the post of Associate Professor has been denied, he approached this Court by filing writ petition being C.W.J.C. No.2014 of 1997 by taking the ground that the promotion to such post cannot be denied because in the meanwhile the eligibility criteria to hold Ph.D degree has been added to be a criteria to hold the said post. The Co-ordinate learned Single Judge, while disposing of the aforesaid writ petition vide order dated 16.04.2004 has given specific finding as under paragraph – 10 to the effect that the Ph.D qualification since was not the criteria at the time when the writ petitioner became eligible and, as such, the said criteria cannot be considered to hold the post by the writ petitioner, for ready reference the observation so made at paragraph 10 is being referred hereunder as :- ―10. It is now well settled that a Regulation or a Statute coming later in the day cannot take away accrued/vested rights. The qualification of 1998 being specific to the effect that it will come into force on and from 1998 cannot be allowed to be given retrospective operation and to that extent now in the year 2004 or any day after 1983, the Respondents cannot be allowed to say that the Petitioner is not eligible because he does not have Ph.D qualification. This Ph.D qualification was not the criteria at the time when the Petitioner became eligible. For the foregoing reasons, this Court is 8 satisfied that a prima facie case for promotion of the Petitioner to the post of Associate Professor (Senior Grade) with effect from 04.09.1983 has been made out.‖ However, on the basis of the submission made on behalf of the learned counsel appearing for the respondent State that a committee has been constituted for the purpose of looking into such matters, the matter was relegated before the said committee for consideration of the case of the writ petitioner. However, the case was considered and the writ petitioner was granted promotion to the post of Associate Professor vide Notification dated 16.06.2004, as would appear from Annexure-2 appended to the paper book. But the aforesaid order of promotion was cancelled vide Notification dated 26.09.2006 on the ground that the writ petitioner was having no Ph.D degree as per Teachers‘ Eligibility Qualification, 1998. 7. Admittedly herein, the due date of promotion is 05.07.1988 and the Rule basis upon which the claim of the writ petitioner is being denied by the State appellant has come into being in the year 1998. But, prior to coming into effect of the Rule, 1998, the writ petitioner had approached this Court by filing writ petition being C.W.J.C. No.2014 of 1997(R) seeking therein promotion to the post of Associate Professor which was being denied on the ground that the writ petitioner was not having Ph.D. on the due date of eligibility, i.e., 05.07.1988, and, as such, the Co-ordinate learned Single 9 Judge of this Court, while disposing of the writ petition being C.W.J.C. No.2014 of 1997(R) vide order dated 16.04.2004 has given specific finding that any Rule which has come subsequent to the date of eligibility, will have no adverse effect upon the claim of the writ petitioner, as would be evident from paragraph-10 of the order dated 16.04.2004 passed in C.W.J.C. No.2014 of 1997(R) as referred hereinabove. 8. It is required to refer herein that while cancelling the promotion having been granted vide Notification dated 16.06.2004, the finding which was on the basis of the finding recorded by the Co-ordinate learned Single Judge of this Court in the order passed in C.W.J.C. No.2014 of 1997(R) disposed of on 16.04.2004 wherein at paragraph 10 the finding to the effect has been recorded that the Ph.D qualification cannot be said to be criteria at the time when the petitioner became eligible. But, admittedly, the finding so recorded by the Co-ordinate learned Single Judge has never been challenged before the higher forum, as such, the question arises that once the entitlement of the writ petitioner has been accepted by the Co-ordinate learned Single Judge of this Court by holding therein that the Ph.D qualification cannot be considered to be criteria when the writ petitioner became eligible, it is not open for the respondent authorities to sit over upon the said finding 10 without getting it reversed by questioning it before the higher forum of the court of law. 9. The settled position of law in this context is that the respondent authority, if aggrieved with the order passed by the court of law or any finding thereof in favour of the litigant concerned, it is always open for the State authorities to challenge before the higher forum but without questioning the same and without its reversal, it is not open for the State authority to sit over the finding so recorded by the court of law, as has been held by Hon‘ble Apex Court in the case of Union of India v. K.M. Shankarappa reported in (2001) 1 SCC 582 wherein at paragraph it has been observed which reads hereunder as:- “7. We are unable to accept the submission of the learned counsel. The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. To permit the executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi- judicial body to the scrutiny of the executive. Under our Constitution the position is reverse. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of 11 the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi- judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal.‖ 10. The question now requires to be considered as to whether the State without assailing the finding so recorded by learned Single Judge of this Court in the order dated 16.04.2004 passed in C.W.J.C. No.2014 of 1997(R) can deprive the writ petitioner from promotion to the post of Associate Professor on the ground of want of Ph.D degree on the basis of subsequent Rule which has come subsequent to the date of eligibility of the writ petitioner. 11. This Court, before answering the issue, requires to refer herein that the matter would have been different if the writ petitioner would not have approached the writ court claiming promotion from the due date of eligibility before coming into effect of the Rule, 1998, rather, would have approached the court of law after coming into effect of the Rule, 1998 then as per the position of law, the writ petitioner ought to have 12 possessed the Ph.D degree on the ground that even though he was eligible prior to coming into effect of the Rule, 1998, but he has kept silent and only woke up after the new eligibility criteria has come into being. But, that is not the case herein, since, the writ petitioner is claiming his promotion to the post or Associate Professor prior to coming into effect of the new Rule, 1998 which is having Ph.D degree for the post of Associate Professor (Biochemistry) and when his grievance has not been redressed, he has rushed to the court by filing the aforesaid writ petition, being C.W.J.C. No.2014 of 1997(R), wherein this Court specifically recorded the finding holding therein that the subsequent eligibility criteria cannot be taken into consideration treating the writ petitioner not eligible to hold the post. However, learned Single Judge has directed the respondent concerned to take decision in accordance with law on the basis of the observation so made. But, when the petitioner was not granted promotion again approached to this court by filing writ petition being W.P.(S) No. 1124 of 2006 which was disposed of vide order dated 17.12.2008 by dismissing the writ petition without taking into consideration the position of law as observed by this court passed in C.W.J.C. No. 2014 of 1997. The writ petitioner, being aggrieved with the same, has preferred Letters Patent Appeal being L.P.A. No.34 of 2009 but, in course of its pendency, the writ petitioner was granted 13 promotion to the post of Associate Professor (Biochemistry). However, only after 19 days from the date of such promotion, the said promotion was withdrawn by passing order on 20.06.2009 reverting the writ petitioner from the post of Associate Professor to that of the Assistant Professor and, as such, since a fresh cause of action had arisen, the aforesaid Letters Patent Appeal was withdrawn, as would appear from Annexure-8 appended to the paper book. 12. The reversal order of the writ petitioner vide impugned order dated 20.06.2009 has been passed on the ground that the writ petitioner was not having Ph.D in Biochemistry when he was granted promotion to the post of Associate Professor. 13. The writ petitioner, thereafter, has filed writ petition being W.P.(S) No. 3534 of 2009 wherein the order has been passed directing the respondent concerned to grant promotion to the post of Associate Professor which is the subject matter of the instant intra-court appeal. The learned Single Judge has passed the order which is impugned in the instant intra-court appeal taking into consideration the position of law that any rule will not be implemented with retrospective effect once the right has been accrued and, therefore, interfered with the order of cancellation of promotion. The settled position of law is that once the right has been accrued, the subsequent rule framed carving out the eligibility criteria will not be considered to be a reason to 14 recall the benefit already granted due to the reason that a vested right has been created. Here, it is relevant to refer the definition of vested right as has been held by Hon’ble Apex Court in MGB Gramin Bank v. Chakrawarti Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13, which read hereunder as:- “11.The word ―vested‖ is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as: on settled; founded accrued; inproperty ―Vested.—fixed; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are ‗vested‘ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent anticipated interest continuance of existing laws, does not constitute ‗vested rights‘.‖ 12.In Webster’s Comprehensive Dictionary (International Edition) at p. 1397, ―vested‖ is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. 13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed. 14. Further, so far as the question of taking away the vested right is concerned, the Hon’ble Apex Court has laid down the proposition in the case of Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others reported in (1997) 6 SCC 623 at paragraph 24 which reads hereunder as :- ―24. In many of these decisions the expressions ―vested rights‖ or ―accrued rights‖ have been used while striking down the impugned provisions which 15 had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these