State accepted writ petition challenging transfer and cancellation of deputation of a Senior Resident Tutor. Court upheld transfer, noting deputationist has no vested right to absorption and transfer does not block future promotion consideration. Application disposed.
Writ application stands disposed without any relief to the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22352 of 2011
====================================================== 1. Dr.Jagat Narayan Nayak S/O Late Sita Ram Nayak Resident Of Shri Ram Janki Arogya Niketan-8, 8 G.M. Road, Rajkumarganj, P.S- Town And District- Darbhanga.
.... .... Petitioner/s
Versus
.... .... Respondent/s
====================================================== Appearance :
For the Petitioner/s : Mr. Shivendra Kishore For the Respondent/s : Mr. Sanjay Kr No.1 Sc12
====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER
4 04-09-2012 Heard learned counsel for the petitioner and the
State.
The petitioner, a Tutor in Micro Biology at the Darbhanga Medical College, Laheriasarai, (hereinafter referred to as the „Darbhanga College‟) was transferred on 18.8.2011 to the Government Medical College at Bettiah (hereinafter referred to as the „Bettiah College‟). Since the latter was not recognized by the Medical Council of India he was sent on deputation to the Darbhanga Medical College by the very same order. The deputation has been cancelled by order dated
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12.5.2012 issued by the Principal of the Darbhanga Medical College pursuant to the directions of the Health department dated 8.5.2012.
Learned counsel for the petitioner submits that his transfer to the Bettiah College was done on account of impending inspection by the Medical Council of India( hereinafter referred to as M.C.I) for purposes of recognition. Awaiting the same imparting of medical education at the Bettiah college is still to commence. His posting as Tutor, Micro Biology is an exercise in futility in absence of teaching facility. In absence of necessary actual teaching experience he stands to be prejudiced during consideration for the post of Assistant Professor and onwards. Reliance is placed on an Advertisement dated 28.12.2011 issued by the Government of India in the Ministry of Health and Family Welfare that for a Senior Resident (Tutor) with basic qualification, 3 years of teaching/research experience made him eligible to be considered for Assistant Professor. But, 6 years of teaching/research experience as a Senior Resident (Tutor) shall make him eligible to apply directly for the higher post of Associate Professor. The petitioner stands prejudiced in acquiring eligibility to be considered directly for the higher post if he is to be stationed at the Bettiah College.
The next submission is that the order dated 12.5.2012 is issued by the Principal of the Darbhanga Medical
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College is completely without jurisdiction, at the dictates of the Secretary of the Health Department.
Counsel for the State submits that the posting of the petitioner at the Bettiah College was necessitated on account of the impending inspection by the M.C.I as adequately mentioned in the letter of the Health Department dated 8.5.2012 referred in the order of the Principal dated 12.5.2012. The M.C.I after inspection has not granted recognition. Removal of deficiencies including the availability of adequate teaching faculty at Bettiah College is a sine qua non at the time of reconsideration for recognition by the M. C.I. The petitioner has acquired three years of teaching experience as a Senior Resident (Tutor) and therefore shall not be prejudiced in any manner to be considered for promotion to the post of Assistant Professor.
No other question of facts or law have been urged on behalf of the parties.
The Medical College at Bettiah provides medical services along with teaching facilities. For the latter, to maintain standards, recognition by M.C.I is mandatory. It is nobody‟s case that medical aid and facilities cannot be provided to the needy at the Medical College at Bettiah in absence of recognition by M.C.I. The petitioner is acknowledged to be a Senior Resident whose duty is also to impart medical aid and medical assistance to the needy
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patients.
The counter affidavit on behalf of the respondents specifically avers that the petitioner has acquired the minimum of three years of teaching experience to be considered for promotion to the post of Assistant Professor. It is acknowledged on behalf of the petitioner that he was appointed as a Senior Resident (Tutor) on 4.10.2006 and on the date for issuance of the impugned order dated 12.5.2012 he already possesses 5 ½ years of teaching experience. The fact that he may have the opportunity to apply directly for the next higher post of Associate Professor if he completes six years of teaching experience as Senior Resident (Tutor) is but in the realm of speculation at the moment. Merely because he may possess six years of teaching experience does not vest a right in him to be appointed as Associate Professor. Merely because he may have a right to be considered does not in the facts of the case amount to deprivation of opportunity under Articles 14 or 16 of the Constitution. It is a claim which is inchoate and which may mature or may not mature. The question of any prejudice being caused on such an inchoate claim, which may itself not materialize, cannot be held to be causing any prejudice to the petitioner. If he has completed 3 years of teaching experience as a Senior Resident (Tutor), he fulfills the eligibility to be considered for the next higher post of Assistant Professor. If he completes 3 years as an Assistant
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Professor he has a right to be considered for the post of Associate Professor. It is not a case where chances to be considered for promotional opportunity shall be completely blocked for all times if he is asked to discharge duties as a Senior Resident at the Medical College at Bettiah.
The petitioner was on deputation to the Darbhanga College while substantively posted at the Bettiah College. He did not challenge the transfer order on merits. A deputationist has no right to a post. Nothing new has happened the day the deputation has been cancelled as it existed on the day deputation was ordered. Considering the rights of the deputationist it was held in (2000) 5 SCC 362 (Kunal Nanda v. Union of India) : -
“6. On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.”
Transfer and postings are essentially for the
respondent authorities to decide. They are the best judge to
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decide on the need for availability of Senior Resident in a Government Hospital for providing medical aid to the patients. Undoubtedly, the career prospects of the petitioner also have to be kept in mind and cannot be completely ignored. It has already been noticed that the career prospects of the petitioner are not being jeopardized to the extent that he stands completely excluded from the zone of consideration for higher posts. No cause of action can be founded on a ground which itself is not firm as no person has a vested right to promotion on a higher post but only a right to be considered.
The fact that the ground on which deputation to Darbhanga was ordered, that the Government Medical College at Bettiah was unrecognized still subsists, is not considered very relevant if the nature of duties to be discharged by the petitioner as a senior resident. The order dated 12.5.2012 has not been issued by the Principal but is on directions of the Health department. It cannot be stated to be without jurisdiction. There is no challenge to the direction of the Health department dated 8.5.2012 on which it is based. Merely because in the fresh inspection the Medical Council of India may have not granted recognition that shall not obviate the need for availability of appropriate faculty of Bettiah in context of future inspection by the Medical Council of India.
Before parting with the case, the Court must take note of the alternate submission made on behalf of the
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petitioner. It was submitted that he may be permitted to continue on his deputed post at Darbhanga and no sooner that recognition is granted to the Government Medical College at Bettiah he volunteers to join the same with demur.
In the nature of the present discussion, the alternate submission on behalf of the petitioner has to be left to the subjective satisfaction of the respondents. It is expected that any such consideration shall be done by the respondents objectively without being prejudiced by the present order.
The writ application stands disposed.
P. Kumar/-
(Navin Sinha, J)
3 issues framed by the court
Whether the cancellation of deputation to the petitioner's substantive post at Bettiah Medical College caused a violation of Articles 14 or 16 of the Constitution.
Whether the petitioner has a vested right to continue on deputation or absorption in the parent college.
Whether the state authorities acted within their jurisdiction in directing the petitioner's posting based on Health Department directions.
Colour shows how this judgement treated each authority
Kunal Nanda v. Union of IndiaReferred¶33
(2000) 5 SCC 362 · Who else cites this
Dr. Jagat Narayan Nayak
The State of Bihar
Navin Sinha
As recorded by the court registry
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