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Judgment
[1] Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. B. Dutta, learned counsel appearing for the respondents No. 1 and 2 and Mr. T. Debbarma, learned counsel appearing for the respondent No. 3, the Tripura Public Service Commission.
[2] By means of this writ petition, the petitioner has urged this Court for directing the respondents to appoint the petitioner on promotion Grade-III of (Tripura Health Services (THS in short) from the date when his juniors were appointed in the Grade-II of THS by the notification under No. F.3 (168) HFW/2012 dated 30.04.2014.
[3] Facts are mostly admitted. The petitioner was appointed initially in the Grade-V of the THS which grade has later on been re- designated as Grade-IV of the THS w.e.f. 16.03.2004. In the course of service, the petitioner was promoted to the Grade-III of THS on 01.06.2010 as per the final seniority list published by the memorandum dated 13.08.2015 (Annexure-P/4 to the writ petition).
[4] In the seniority list, the petitioner's name figured at Sl. No. 31 with details of his service particulars as relevant for the purpose of seniority. It is also not denied that the petitioner has acquired Post Graduate Diploma in Virology and that qualification has been recorded in the final seniority list. But the petitioner has not been treated as the specialist by the competent authority for the reason that in the Annexure to the 3rd Schedule which provides the list of Post Graduate qualification acknowledged as the specialist degree, the said degree acquired by the petitioner does not figured. As a result, the petitioner was being treated in the general service, not in the specialist service of the THS.
[5] When by the notification dated 30.04.2014, Annexure-2 to the writ petition, the Medical Officers borne in the Grade-III was promoted to the Grade-II of the THS in the Pay Band-4 (Rs. 13,575- 37,000/-) with Grade pay Rs. 5600/-, the petitioner was not considered when those medical officers who even entered in the service later than the petitioner but were born in the specialist service were considered for the promotion. This is the cause based on which the petitioner has filed this writ petition.
[6] Mr. Bhattacharjee, learned counsel appearing for the petitioner has submitted that while making the said promotion to the Grade-II of the THS, the State relaxed the qualifying service for purpose of ensuring promotion to the Grade-II. According to the Rule 5(b) of THS Rules 1974, 80% of the post will be filled up by promotion from the officers in the Grade-III with not less than 5 years service in the specialist service and 7 years in the General service in the Grade-III according to the merit with due regard to seniority .
[7] Subsequently, by virtue of the amendment it has been provieded that the promotional quota would be 50%, instead of 80%. The remaining vacancies would be filled up by direct recruitment through the Tripura Public Service Commission (TPSC, in short). By way of relaxation, 5 years qualifying service in the specialist post has been reduced to 3 years and 7 years qualifying service for the general post has been reduced to 5 years.
[8] The petitioner since was not in the specialist post, even by the relaxed qualifying service, the petitioner's case could not be considered as Mr. Dutta, learned counsel appearing for the respondents has having regard to the reply filed by the respondents No. 2 and 3 categorically stated that the petitioner at the time of consideration of promotion to Grade-II of the THS had less than 5 years of service in general post. As the petitioner's qualification i.e. Diploma in Virology is not till today considered as the specialist degree, that qualification is not available in the Annexure to the 3rd Schedule, where the recognized Post Graduate qualifications are cataloged.
[9] Mr. T. Debbarma, learned counsel appearing for the Tripura Public Service Commission, the respondent No. 3, has referred a communication dated 18.04.2017 addressed to the Secretary, TPSC. In that communication, the Director of Health Services has observed as under:
"In the seniority list published as on 31.01.2014 vide memorandum dated 03.03.2014, Dr. Bishnu Ch. De was shown at Sl. No. 31, who was P.G. in Virology but Dr. De was not considered under the zone for promotion to the post of Gr-II of THS from Gr-III of TSH, as he has not completed 5(five) years service in Gr-III of THS at the time of promotion and 7 (seven) years of service in Gr-III of THS at the relevant period. It may be noted here that the P.G. degree in Virology is not included in the 3rd Schedule of THS Ruled and hence his service in the specialist post was not considered. It may be mentioned here that though the Medical Council of India (MCI) has recognized the said degree, but due to non- inclusion in the 3rd Schedule of THS Ruled, 1974, his service rendered in Gr-III of THS was not considered as specialist post for promotion to Gr-II of THS. In this regards, a committed has been constituted for amending the THS Rules. The said committee will consider inclusion of the degree of Virology in the 3rd Schedule of THS Rules 1974."
[10] This communication was made during pendency of this writ petition. Mr. Debbarma, learned counsel appearing for the respondent No. 3 has further added that no promotion could be made by the Public Service Commission as the required specialist qualification was not with the petitioner inasmuch as the said PG degree in Virology has been incorporated in the annexure, appended in the 3rd Schedule.
[11] Mr. Bhattacharjee, learned counsel appearing for the petitioner has fairly submitted that unless the petitioner is treated in the specialist post, he had not the required qualifying service, even after granting the relaxation. Therefore, the substantive bone of contention rests on whether the petitioner could be treated in the specialist post or not. From the communication dated 17.04.2007, as referred above, it is clear that as of now the said qualification is not included in the Annexure appended to the 3rd Schedule of the THS Rules, 1974.
[12] From the said communication it can be gathered that committee has been constituted to consider incorporation of the said qualification in the Annexure to the 3rd Schedule of the THS Rules. Hence, the petitioner did not have any extant right to be considered for the promotion.
[13] In view of this, the respondents No. 1 and 2 are directed to take a considered decision whether the PG degree of Virology would be included/incorporated in the Annexure to the 3rd Schedule of the THS Rules, 1974. While making such consideration, the respondents No. 1 and 2 shall take into account that the said Post Graduate Diploma has been recognized by Medical Council of India (MCI in short). Therefore, there is no disability regarding the recognition of the degree by the competent authority i.e. MCI.
[14] However, the rule making power lies with the State under Proviso to Article 309 of the Constitution of India. The Court cannot direct to make any rule or to incorporate any provision. It is within the exclusive domain of the executive to frame such rule.
[15] If the Rule is amended by way of incorporating the said qualification in the Annexure to the 3rd Schedule of THS Rules, the matter may be referred to the TPSC for convening the DPC so that the petitioner can be considered for promotion to Grade-II. It cannot be denied that the petitioner has served but he was not served in the specialist service. The respondents may accommodate the petitioner along with his juniors who have been promoted by the notification dated 30.04.2014.
With this observations and directions, this writ petition stands disposed of. There shall be no order as to costs.