Rajeev Gaur vs Hindustan Copper Ltd.

Ajay Rastogi, J.—Instant petition has been filed by petitioner, who is working as member of Class III and holding the post of Refractionist in the hospital of respondent.

His main grievance in filing instant petition is that post of Assistant Officer [Hospital Services] later on designated as Assistant Professor [OPD & Hospital Services] has not been filled by mode of recruitment [direct recruitment] that has deprived him of his participation in the process of selection. His further grievance is that since there is no avenues of promotion available in the existing set of rules despite holding this post for last 20 years.

Petitioner is a graduate and did his diploma in Optometry and joined service as Refractionist in the hospital of respondent on 28th October, 1988 which is in the cadre of Class III.

Counsel for petitioner submits that post of Assistant Officer [Hospital Services] is in the category of Class II and in the existing rules it is to be filled by direct recruitment which the respondents have failed to hold regular selections under the rules and the post is manned by an officer working in the department itself under working arrangement, which action of respondent is violative of Articles 14 & 16 of the Constitution of India. Counsel further submits that the post held by petitioner is an isolated post and there are no avenues of promotion despite holding the post for last 20 years. Counsel further submits that in view of judgment of this Court in AIR 1988 1033 (SC) atleast the respondent must consider to provide promotion avenues for the persons like such who are facing stagnation.

Counsel for respondent Mr. Bhandari assisted by Mr. Kinshuk Jain, submits that petitioner is not eligible for the post of Assistant Officer [Hospital Services]. Thus, question of his consideration and for participation in the process for the post in question in the absence of his eligibility does not arise. Counsel further submits that petitioner joined service with open eyes that the post on which he has been recruited is isolated post and no avenues of promotion are available and he is throughout getting the benefits of revision of pay scales and seeking direction providing avenues according to him tantamounts to amendment in the existing rules unless existing rules are hit by Articles 14 & 16 of the Constitution of India.

I have heard counsel for parties and with their assistance examined the material on record.

So far as qualification in regard to post in question is concerned, which is reproduced thereunder:

Graduate Preferably Diploma in Hospital Administration with 3 years experience in supervising para-medical staff of the O.P.D. in any hospital of repute or Matric with Diploma in any branch of medical services with 7 years experience must be conversant with working of different sections of the OPD.

Undisputedly, the petitioner is not holding qualification and experience as provided in the existing scheme of rules so far as post of Assistant Officer [Hospital Services] is concerned. In the absence where of, his consideration and participation in the process of selection, which is filled by direct recruitment in the facts and circumstances of the case, does not arise and he cannot in any manner be said to be affected having no locus standi to question. From reply filed by respondent and particularly from additional pleas, the post of Senior Pharmist at one time was upgraded to the post of Assistant Officer [OPD and Hospital Services] later on the same stands abolished and a Senior Officer of the rank of Deputy Manager is now taking care of hospital administration as per document Ann. R/4 dated 4th February, 2008.

So far as submission made with respect to facing stagnation in service and holding post for almost 20 years is concerned, suffice it to say that apart from the post held by petitioner there are other post also existing in the rules which are isolated having no avenues of promotion. In Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and Ors. [supra], the apex court observed that reasonable promotion opportunities should be available in every wing of public employment that certainly affects their efficiency and to grow for achieving excellence in service. But, since direction at this stage may tantamount to amendment in the existing rules, which this Court refrains from doing so. However, if petitioner makes representation before the concerned competent authority which may consider to provide better avenues of promotion that will certainly give better efficiency in service to persons who are facing stagnation.

Consequently, this Court finds no force in the writ petition, the same stands dismissed.