MONJULA DAS vs THE STATE OF ASSAM and ORS

Heard Mr. DK Mishra, learned Senior counsel assisted by Mr. PK Sarma, counsel for the petitioner. Also heard Mr. D Saikia, learned Senior

Additional Advocate General, Assam assisted by Mr. DP Bora, counsel for the respondent Nos. 1, 2 and 3 and Mr. SC Keyal, Assistant S.G.I.

The petitioner is aggrieved by the impugned Notification dated 05.01.2018, by which she has been attached to the Dental College at Silchar on

full time basis with immediate effect until further order.

The petitioner is presently discharging her duties in the capacity of Head of Department, Department of Prosthodontics at Regional Dental

College, Guwahati.

The grievance of the petitioner against the impugned Notification dated 05.01.2018 is that she has been posted to Dental College at Silchar,

which is a non-existent Dental College, and against a non-existent post.

The petitioner''s counsel submits that the petitioner can only be transferred against an equivalent post having the same nature of duty. However,

in the present case, the petitioner has not been transferred to any equivalent post and the nature of duty that is being done by her in the present

Regional Dental College, Guwahati is not in existence in the non-existent college as on date. He submits that the respondents herein admitted that

there was a shortage of teaching staffs in the Regional Dental college, Guwahati, the attachment of the petitioner to the proposed new Dental

College at Silchar for purposes other than teaching is not in public interest. He also submits that the primary role of the petitioner being to teach

Post Graduate students of the Regional Dental College at Guwahati, the attachment of the petitioner to the proposed new Dental College where

there is no graduate students also is arbitrary.

The petitioner''s counsel submits that the affidavit-in-opposition submitted by the State respondents clearly goes to show that the Dental College

at Silchar is non-existent as on date. He also submits that the Central Government till date have not granted permission to the State Government to

establish a Dental College at Silchar as required under the Dental Council of India (Establishment of New Dental Colleges, Opening of New or

Higher Course of Study or Training and Increase of Admission Capacity in Dental College) Regulations, 2006, hereafter referred to as the ""2006

Regulations"", as the Dental Council of India have not completed their report or submitted the same to the Central Government, as required under

Regulations 8 and 9 of the above ""2006 Regulations"".

Thus, the petitioner''s counsel submits that the impugned Notification dated 5.1.2008 should be set aside as the petitioner cannot be attached to

non-existent post in non-existent dental college.

Mr. D Saikia, learned Senior Additional Advocate General, Assam, submits that the petitioner, who has been serving in the Regional Dental

College, Guwahati for the last 26 years has never been transferred as there was no other Dental college in Assam earlier. However, with the

initiative taken by the State Govt. to open up two new Dental colleges in Dibrugarh and Silchar, the petitioner and other employees of the Regional

Dental College, Guwahati can be transferred and attached to the new proposed Dental College in the interest of public service. He submits that

though the Government of India has not granted permission till date to establish a dental college, the process for granting permission is about to be

completed as required under 2006 Regulations. The senior Additional Advocate General, Assam submits that measures have been taken to meet

the requirement of starting a new dental college and in this regard, the petitioner being a senior Prosthodontics and a member of the Dental Council

of India (hereinafter referred to as ''DCI'' for short), the State feels that the petitioner is best suited for rendering her service and expertise in setting

up the new dental college, which includes installation of equipments in the proposed dental college. He further submits that the Court should not

interfere with a purely administrative matter except where it is absolutely necessary on account of violation of any fundamental or other legal rights

of the citizens. He also submits that there is no allegation of malafide made by the petitioner in the present case and transfer being an incident of

service, the petitioner is to abide by the attachment order issued by the authorities. He also submits that if permission for setting up the Dental

College in Silchar is not granted, the impugned attachment order would be withdrawn/cancelled.

I have heard the learned counsels for the parties.

The issue in question is whether the petitioner could be attached to the Dental College at Silchar on full time basis when the college itself is non-

existent.

The 2006 Regulations gives the procedure to be followed for opening a new dental college. Regulation 5 of the 2006 Regulations states that

any person eligible under Regulation 6 may establish a dental college after obtaining the prior permission of the Central Govt. by submitting a

scheme in Form-I annexed to the regulation. Regulation 6 is the eligibility and qualifying criteria required for setting up of a dental college and as

per the same, the State Govt. can set up a dental college within a period of four years from the date of grant of permission by the Central Govt.

Regulations 8 and 9 deals with evaluation of the scheme by the DCI to establish a new dental college. The DCI thereafter, shall send the report of

the evaluation to the Central Govt. Regulation 10 deals with grant of permission to establish a dental college by the Central Govt. after considering

the application submitted and the recommendations of the DCI. As per the Regulation 10, the Central Govt. is to issue letter of intent to grant

permission to establish a dental college subject to such conditions or modifications given by the Central Govt.

In the present case, the application of the State Govt. for establishing a dental college in Silchar is still at the stage of Regulation 9, i.e.

evaluation by the DCI. The DCI had earlier recommended disapproval for establishing a dental college in Silchar on the basis of the evaluation

done by the DCI on 21.12.2017 and 22.12.2017, vide letter dated 29.12.2017. However, after the State Govt. was given an opportunity of being

heard by the Central Govt., the Central Govt. has requested the DCI to review its earlier disapproval. Thus, as on date, there is no approval given

by the DCI for setting up of dental college in Silchar and neither is there any permission given by the Central Govt. for setting up of a Dental

College in Silchar.

A perusal of the letter dated 29.12.2017 issued by the DCI and addressed to the Secretary to the Govt. of India, Ministry of Health and

Family Welfare shows that the DCI had considered the report of the DCI''s Inspector, with regard to his visit to the proposed Dental College in

Silchar on 21st and 22nd December, 2017. The Executive Committee of the DCI, after examining the DCI inspections report, had disapproved

the application/scheme of the applicant State Govt. by giving instances of 21 deficiencies which are listed in the said letter. The deficiencies listed

out shows that there are deficiencies in the teaching staff/non-teaching staff and ministerial staff. The proposed dental college is also short in

equipment and furniture. The deficiency Nos.2 and 15 are reproduced below:

There are deficiencies of two Readers in each department i.e. Prosthodontics and Crown & Bridge-1 and conservative Dentistry and

Endodontics-1.

All faculties were joined on the day of inspection and they are attached with this institute from various medical/dental colleges of Assam State.

In response to the DCI letter dated 29.12.2017, the State Govt. made a report dated 17.1.2018 with regard to the steps taken and time line

fixed for rectifying the 21 deficiencies enumerated in the DCI letter dated 29.12.2017. Interestingly, the steps to be taken for rectification of

deficiency at Sl No.2 states that the time line for taking steps would be January 2018. However, it is an admitted fact that till date, no other Reader

except the petitioner has been attached to the proposed new Dental College at Silchar within the month of January, 2018. In respect of Sl No.15

deficiency, the rectification proposed by the State Govt. in their report dated 17.1.2018 is to the effect that the deficiency would be rectified

before the admission of the first batch of students.

Sl. No.15 of the deficiencies listed out by the DCI in its letter dated 29.12.2017 clearly shows that all the faculties had joined on the day of

inspection and they were attached with the institute from various medical/dental colleges of Assam State. This implies the attachment of the faculty

members is a deficiency. If attachment is a deficiency, the impugned attachment order of the petitioner does not in any manner help the respondents

cause in trying to establish a new Dental College at Silchar.

The deficiency No.13 pointed out by the DCI in its letter dated 29.12.2017 is to the effect that ""building is not planned for Dental college but

competent authority furnished a letter to open dental college in this building. The report made by the State Govt. for the rectification of deficiency

No.13 mentioned above, is as follows:

All these will be fulfilled before admission of first batch of students.

All the above facts juxtaposed with the DCI letter dated 29.12.2017 and the State Government''s report dated 17.1.2018 with regard to the

steps to be taken by them for rectification of deficiencies goes to show that the proposed new dental college is at present still a proposal only.

Though steps have been taken by the State Govt. with regard to the man power, furniture and equipments to be put in the proposed new Dental

College, as stated above is still a proposal.

The impugned attachment order of the petitioner, in the facts of this case, is similar to a transfer order.

In the case of Pramath Ch. Sarma Vs. State of Assam and others , reported in 2007 (1) GLT 212, the Division Bench of this Court has held

that transfer can be interfered by the Court if not issued in public interest or administrative exigencies.

In the case of State of UP and others Vs. Gobardhan Lal, reported in (2004) 11 SCC 402, the Apex Court has held as follows:

Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the

absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an

outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so,

an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even

administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned

to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a

particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not

affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often

reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any

legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

The impugned attachment Notification dated 5.1.2018 of the petitioner is reproduced below:

No.HLB. 699/2017/2: Whereas an inspection of new Government Dental college, Silchar had been carried out by the Dental Council of India,

and certain activities have been identified for making the college functional at the earliest. For smoothly carrying out the preparatory activities of the

new Dental College, Silchar, the presence of a dental college faculty member at new Dental College, Silchar, who is familiar with the rules and

regulations of the Dental Council of India is essential.

Whereas, Dr. Manjula Das, Reader, Department of Prosthodontics, Regional Dental College, Guwahati is a senior and experienced faculty

member of dental college as well as being conversant with the Dental Council of India norms.

Now, therefore, Dr. Manjula Das, Reader, Department of Prosthodontics, Regional Dental College, Guwahati is attached to the Dental College,

Silchar on full time basis with immediate effect and until further orders.

Dr. Manjula Das is hereby relieved of all official duties in Regional Dental College, Guwahati and she will immediately report to the Principal-cum-

Chief Superintendent, Silchar Medical College & Hospital, Silchar.

In the present case, there may not be a similar or equivalent nature of duty to be performed by the petitioner in the new proposed dental

college. However, the proposal of the scheme made by the State Govt. for setting up new dental college at Silchar is admittedly in the interest of

general public. The impugned attachment order of the petitioner is not malafide as admitted by the parties. The petitioner still retains the post of

Reader though the petitioner might not perform any teaching duty till the college is officially opened. The status of the petitioner is not affected by

the impugned attachment order. Further, in view of the undertaking given by the senior Additional Advocate General that in the event of no

permission being given by the Central Govt. for opening the new Dental college at Silchar, the impugned attachment order will be cancelled, this

Court is of the view that this Court should not interfere in the facts and circumstances of the present case.

In the case of Vice Chancellor, L.N. Mithila Vs. Dayanand Jha, reported in (1986) 3 SCC 7, the Apex Court has held that the Vice

Chancellor under Section 10(14) of the Bihar State Universities Act, 1976, the pre-requisite power of the Vice Chancellor to transfer any teacher

occupying a post in any department or college maintained by the University to any equivalent post in another department or college maintained by it

is that they must broadly, bear the same characteristics. The mere circumstances that the two posts carried on the same scale of pay is not enough.

The real criterion adopted should be that they should be regarded to the equal status and responsibilities. Thus, two criterions for equivalent is the

status and nature and responsibilities of the duties attached to the two posts.

In the present case, it is not disputed by the State respondents that the petitioner''s main work is to teach the Post Graduate students which

cannot be done in the new proposed Dental college at Silchar as on date it is not in existence. As such, there are no students to teach, leave alone

post graduate students. The fact, however, remains that the petitioner has got some other expertise which the State Govt. want to utilise, which is in

the large of public interest.

As the impugned attachment notification of the petitioner shows that she has been attached due to her being a senior and experienced factually

member, whose experience would help in setting up the new Dental College at Silchar and keeping in mind that the said attachment is not due to

any malafides, but for the interest of the general public, this Court is of the view that the impugned attachment should not be interfered with at this

stage. However, if the permission from the Central Govt. for setting up the new dental College at Silchar is not forthcoming before the start of the

academic session, the impugned attachment order should be cancelled by the State respondents.

Accordingly, this Court is not inclined to exercise its discretionary power at this stage. Writ petition is accordingly dismissed.