Smt. Nasreen Khatoon vs Santosh Thakur & others

In the instant intra-court appeal preferred under Section

2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth

Ko Appeal) Adhiniyam, 2005 challenge has been made to the order

dated 17-7-2017 passed by the learned Single Judge in W.P.

No.7222/2017 whereby the petition filed by the

petitioners/respondents No.1,2 and 3 herein, has been allowed and

the impugned order, dated 9-5-2017 (Annexure-P/8) appointing the

respondent No.7, Dr. (Mrs.) Rooplekha Chouhan, in the writ petition

as Professor (Gynaecology) on contract basis after her retirement in

the Netaji Subhash Chadndra Bosde Medical College, Jabalpur has

been set aside and further, her appointment giving charge as Head of

Department (HOD) & Dean of the said College has also been

quashed.

On 20-7-2017 while mentioning the matter for urgent

hearing it was stated that a similar petition forming the subject-

matter of W.P. No.9113/2017 involving the same issue has been

filed by the Medical Teachers'' Association, N.S.C.B. Medical

College, Jabalpur assailing the contractual appointment of the said

respondent No.7 after attaining the age of superannuation as on 31-

3-2017. Thus, a request was made to hear both the matters

analogously.

Since the issue involved in both the cases is similar in

nature and similar orders are subject-matter of assail therein, both

the matters are disposed of by a common order. For the sake of

clarity and convenience, the facts adumbrated in W.P.

No.7222/2017 filed by Dr. (Mrs.) Kavita N. Singh and others, which

has been allowed by the learned Single Judge, are taken up for

adjudication of both the cases.

The writ petitioners invoked the jurisdiction under

Article 226 of the Constitution of India challenging the impugned

order dated 9-5-2017 appointing the respondent No.7 as Professor

(Gynaecology) on contract basis after her retirement on 31-3-2017

and further appointing her as HOD (Gynaecology) giving charge to

the post of Dean of the Medical College. The bone contention of the

petitioners is that they are working on the post of Associate

Professors in the Medical College for the last several years and they

have accomplished the qualifying service for promotion on the post

of Professor (Gynaecology). The said post is vacant in the Medical

College since 31-03-2014, but their cases for promotion were not

considered. It is contended that the appointment of the respondent

No.7 is in violation of the provisions of Madhya Pradesh Medical

Education (Gazetted) Service Recruitment Rules, 1987 [for brevity

`the Rules 1987''] and also the M.P. Treasury Code.

One of the petitioners has also filed W.P. No.4127/2017

seeking promotion to the post of Professor, which is pending for

consideration. It is submitted that instead of considering the cases

of eligible persons for promotion, the respondents have again

appointed the respondent No.7 as Professor and HOD of the

Gynaecology Department on contract basis by the impugned order

dated 9-5-2017. Further, she has also been given the charge of HOD

and Dean of the Medical College which runs contrary to the

Recruitment Rules. It is canvassed that the post of Professor is a

promotional post and it can be filled up 100% by promotion. It is

assiduously urged that the contract appointments as per Policy can

be made only in exceptional circumstances looking to the larger

public interest, and where the work which is being performed by the

said person cannot be performed by any other person in the

Department. But, in the present case, eligible persons who fulfil the

eligibility criteria for the said promotion, are already available,

therefore, there was no exceptional circumstance to make the

contract appointment of the respondent No.7, who had already

attained the age of superannuation as on 31-3-2017.

In the connected W.P. No.9113/2017 filed by the

Medical Teachers'' Association, NSCB Medical College Jabalpur, It

is asseverated that the Netaju Subhash Chandra Bose Medical

College, Jabalpur is an autonomous college and it is governed by the

Swashasi Chikitsa Mahavidyalaya ke Samvardhan Evam Samvilyan

Sambandhi Niyam [Chikitsa, Dant, Nursing Vidyalaya tatha Mansik

Arogyashala ke liye) Rules, 1998 [hereinafter referred to as `the

Rules 1998'']. Rule 20 of the Rules 1998 deals with appointment of

Dean, Professor, Associate Professor, Assistant Professor,

Paramedical Officer and Administrative Officer. It is envisaged in

the said Rules that the appointment shall be made under the

prevalent rules of the Rules 1987 in the Department of Medical

Education.

The main grievance of the Association is regarding the

appointment of the respondent No.7 as HOD (Gynaecology) and

giving her additional charge of the Dean of the Medical College. It

is submitted by the petitioners that that appointment on the post of

Dean is governed by the provisions of 1998 Rules and as per the

provisions of Rule 20, appointment on the post of Dean has to be

made by promotion from the seniority list of the Professors in the

State. It is further contended that there are many senior persons who

have attained the eligibility for promotion to the post, are available

and they have quoted certain names. It is contended that a

appointment of respondent No.7 as Dean after retirement on contract

basis is contrary to the provisions of the M.P.Treasury Code which

is the guiding principle on the issue of finance in the State of M.P.

It is further submitted that contractual appointment cannot be given

for drawing or disbursing power or finance powers. A reference has

been made to the Code 125 of the M.P. Treasury Code which has

been produced in para 5.12 of the petitioner. It is also contended

that provision of Code 125 clearly stipulates that an officer who is

authorised signatory, at least has to be a gazetted officer. A

contractual employee cannot be a gazetted officer and, therefore, the

appointment of the respondent No.7 on the post of Professor

(Gynaecology) on contract basis, cannot be assigned additional

charge of HOD (Gynaecology) & Dean of the Medical College,

Jabalpur.

Thus, in sums and substance the contention of the

petitioner-Association is that the appointment of the respondent

No.7 on the post of HOD (Gynocology) & Dean of the Medical

College is illegal and as per Rules 1998 the same can be filled up by

promotion strictly as per order in the seniority list in the cadre of the

Professors in the State of M.P. However, ignoring the claim of the

eligible officers and in contravention of the provisions of the M.P.

Treasury Code, appointment of the respondent No.7 as Dean of the

Medical College has been made.

The respondents-appellants-State in W.A.No.615/2017

strenuously stated that the respondent No.7 was holding the regular

post of Professor (Gynaecology) and she was also In-charge Dean of

the NSCB Medical College, Jabalpur. She has attained the age of

superannuation on 31-3-2017 and the said post is vacant, as the said

post is to be filled-up by promotion only and the promotion can be

held because of the interim order passed by the apex Court. It is

further contended that in bunch of writ petitions, this Court has held

the provisions for reservation in the M.P. Public Service

(Promotion) Rules, 2002 [for brevity `the Rules 2002''] is ultra

vires and against the judgment passed by this Court, an S.L.P. (C)

No.13954/2016 has been filed before the Supreme Court whereby

the apex Court has directed to maintain `status-quo''. Therefore, the

State Government at present cannot convene a regular DPC in the

Department. The State had no option but to make some

arrangement either by In-charge arrangement or by making

appointment on contract basis in accordance with Circular/Policy of

the State Government, dated 13-9-2011. It is contended that as per

Policy a proposal was initiated from the Office of the Divisional

Commissioner, Jabalpur for extension of service of the respondent

No.5 and recommendations were sent to the Principal Secretary of

the Department concerned, vide proposal dated 27-02-2016. The

proposal was forwarded to the Commissioner, Medical Education,

Govt. of M.P., Bhopal vide letter dated 6-03-2017. It is strenuously

urged by the respondents that the case of the respondent No.7

[arraigned as respondent No.5 in the writ appeal] for extension of

her service was considered by the State Government in the light of

the Policy dated 03-9-2011 for contractual appointment on the post

of the Professor (Gynaecology) and the same was referred to the

Committee duly constituted pursuant to the Policy consisted of (i)

The Principal Secretary, Govt. of M.P., General Administration

Department (GAD); (ii) The Principal Secretary, Govt. of M.P.,

Department of Medical Education; and (iii) The Principal Secretary,

Govt. of M.P., Department of Finance.

During course of arguments, the proceedings of the

aforesaid Committee were also produced before us for perusal. It is

contended that the requisite information as prescribed in the format

in the Policy was placed before the said Committee and all the 19

points prescribed in the format regarding performance of the

respondent included - (a) information pertaining to availability of

eligible candidates for being promoted on the post in question; (b)

justification/reason on behalf of the Department in not convening a

DPC for promotion of regular candidates; (c) opinion of the

Administrative Department; (d) ACRs of the respondent No.7 for

the past 10 years and her non-involvement in any criminal case

during her tenure; (e) efficiency of the respondent No.7 for grant of

contractual appointment; and (f) approval of the Minister In-charge.

Thus, case of the respondent No.7 has been considered

by the Committee duly constituted in that behalf for her contractual

appointment on the post of Professor & HOD/Dean (Gynaecology)

of the Medical College, Jabalpur after her retirement. It is

vehemently urged that in view of the order of `status-quo'' passed by

the apex Court in respect of promotion, the State has taken resort to

the appointment of respondent No.7 on contract basis as Professor

of Gynaecology after her retirement for a period of one year or till

the post of Professor is filled up, whichever is earlier.

Counsel appearing for the respondent - Medical Council

of India, had stated before the learned Single Judge that the Council

has nothing to say in the matter of contract appointment and it is

with the State Government and the petitioners. Counsel for the

respondent No.7 submitted that the petitioners do not have any locus

to challenge the contract employment of the respondent No.7 and

virtually the same was made in terms of the Policy, dated 3-9-2011,

which is also a mode, as specified in Rule 6(4) of the Rules 1987

and, therefore, the learned Single Judge has erred in law while

allowing the writ petition.

Regard being had to the arguments advanced on behalf

of the parties and upon perusal of the record, we find that the

legality and validity of the Promotions Rules 2002, wherein this

Court has declared the reservation in promotion as unconstitutional,

is pending for adjudication before the apex Court vide S.L.P. (C)

No.13954/2016. In the S.L.P. the apex Court, on 12-5-2016 has

passed the interim order in the following terms:

"Leave granted. Until further orders, status quo, obtaining as on today, shall be maintained. List the matter for hearing in the third week of September, 2016."

It is not in dispute that the matter is still pending for

adjudication before the Supreme Court and, therefore, the State

Government had two options in such circumstances where an

employee has retired from services on attaining the age of

superannuation and the said post is to be filled up in 100% by

promotion, either to make an ad hoc or interim arrangement from

the eligible persons already working on the feeder post, which has

fallen vacant; and (ii) to make contract appointment in accordance

with Government Circular/Policy dated 3-9-2011, subject to

fulfilment of the conditions as enumerated in the said

Circular/Policy. The procedure for appointment on contract basis

after retirement is not a mode of recruitment under the Service

Rules, as it is not an appointment to the service under Rule 7 of the

Rules 1987. It is a contract appointment which is governed by the

procedure prescribed in the Policy, dated 3-9-2011 which provides

that a contract appointment can be made in exceptional

circumstances looking to the public interest. If continuation of the

said officer or employee is in the immediate interest of the

Government. Further, the work which is being performed by the

said person cannot be performed by any other person in the

Department. Besides, there is a cavil, in case the post is required to

be filled up by promotion and the persons possesses the eligibility of

such promotion are not available.

From a bare perusal of the record and minutes of the

Committee, it is luminescent that the committee had taken into

consideration all the conditions enumerated in the Policy. It is found

that all the points prescribed in the format regarding performance of

the respondent No.7 were taken into consideration like :

(a) Information pertaining to availability of eligible candidates for being promoted on the post in question. (b) Reason on behalf of the Department in not convening DPC for promotion of regular candidates. (c ) Opinion of the administrative department. (d) ACRs of the respondent No.7 for the last 10 years and her non- involvement in any criminal case during her tenure. (e) Efficiency of the respondent No.7 for grant of contractual appointment.

We do not find any error or illegality in the proceedings

of the Committee. Even otherwise the scope of judicial interference

over a decision of Screening/Promotion Committee is limited. In

catena of cases, the Apex Court has held that it is not the function

of the Court to hear an appeal over decision of Selection

Committee. Reference may be made to the judgment of the apex

Court rendered in the case of Dalpat Abasaheb Solunke etc. Vs.

Dr. B.S. Mahajan etc. AIR 1990 SC 434 followed in the

subsequent judgments in Kuldip Chand Vs. State of H.P. and

others, AIR 1997 SC 2606 and Anil Katiyar (Mrs.) Vs. Union of

India and others, (1997)1 SCC 280 .

The learned Single Judge had examined the decision of

the Committee regarding the recommendation of respondent No.7

and for not considering the cases of the other eligible candidates. It

is relevant to mention here that a peculiar situation has arisen in the

present case, as there is an order of status quo passed by the apex

Court, in respect of promotions in the State of Madhya Pradesh and

therefore, the State Government had taken a decision to make

contractual appointment on the post of Professor in accordance with

the Policy of the State Government. We do not find any fault in the

decision making process either of the State Government or of the

Selection Committee, for making recommendation of respondent

No.7 for her appointment on the post of Professor on contract

basis. We do not perceive any illegality or error in the decision of

the State Government or the Selection Committee to make

recommendation of respondent No.7 for appointment on the post of

Professor (Gynaecology) on contract basis.

The learned Single Judge has emphasized that the

eligible candidates like the petitioners have been deprived of their

rights for promotion by the same is in breach of the conditions of

the Policy. It is relevant to mention here that an employee has no

fundamental right or statutory right for promotion. An employee has

got a right of consideration for promotion to the next cadre subject

to fulfilment of the conditions. In this regard, we may refer to the

judgments passed by the apex Court rendered in the cases of Union

of India and others Vs. Sangram Keshari Nayak, 2007(6) SCC

704; C.O.Arumugam and others Vs. State of Tamil Nadu and

other, 1991 Suppl (2) SCC 199; and Union of India & anr. Vs.

Hemraj Singh Chauhan & Ors., AIR 2010 SC 1682.

On a studied scrutiny of the Minutes of the Committee,

we find that the Committee had recommended appointment of the

respondent No.7 on the post of Professor (Gynaecology) on contract

basis for a period of one year or till the post is filled-up by

promotion, whichever is earlier. Besides, there was no

recommendation for appointment of the respondent No.7 giving her

additional charge of HOD (Gynaecology) & Dean of the Medical

College, Jabalpur.

Since the post of HOD & Dean are of administrative

nature, as contended by petitioner-Association in the writ petition

and a contract employee cannot be conferred with the power of

drawing and disbursing, especially, when senior eligible and suitable

officers are available in the cadre of Professor in the State. We find

that the appointment of the respondent No.7 as HOD (Gynaecology)

and further In-charge Dean of the Medical College, is not in

accordance with law. As we have accorded that we do not find any

recommendation by the Committee for appointment of the

respondent No.7 on the said post, we set aside the appointment of

the respondent No.7 on the post of HOD (Gynaecology) & Dean of

the Medical College, Jabalpur.

As we have considered that the duty of the HOD and

the Dean of a College is of administrative nature, which can be

performed by any senior-most person, available in the feeder cadre,

we direct the respondents to reconsider for appointment on the post

of HOD (Gynaecology) from working eligible and qualified

Associate Professors and for the post of In-charge Dean of

Medical College amongst senior Professors working in the State of

Madhya Pradesh, as expeditiously as possible, preferably within a

period of three weeks from the date of receipt of the certified copy

of the order passed today.

Accordingly, the W.P. No.7222/2017 as well as the writ

appeal are partly allowed and the order passed by the learned

Single Judge, so far as it relates to quashing of the order of

appointment of the respondent No.7 on the post of Professor

(Gynaecology) is concerned, stands quashed and the order of the

learned writ Court pertaining to appointment of of the respondent

No.7 on the post of HOD (Gynaecology) and Dean of the Medical

College, Jabalpur is upheld. As an irresistible conclusion, the

connected writ petition is also allowed in part and stands

disposed of in the above terms. However, in the facts and

circumstances of the case, there shall be no order as to costs.