JUDGMENT
Bhaskar Bhattacharya, A.C.J.
1. These two applications under Article 226/ 227 of the Constitution of India were heard together as the point involved herein is practically the same.
2. Both these applications are directed against the common order dated 4th September, 2006 passed by the West Bengal Administrative Tribunal, Calcutta thereby dismissing two separate applications under Section 19 of the Administrative Tribunals Act filed by the writ petitioner which were heard analogously.
3. The petitioner before us filed O.A. No. 2239 of 2005 under Section 19 of the Act before the Tribunal thereby praying for a direction upon the respondent authority to cancel, rescind, withdraw and/or forbear from giving effect and further effect to the appointment of the respondent No. 3 to the post of Principal, Burdwan Medical College and to prepare a panel on the basis of seniority-cum-merit and experience in the feeder post and to give appointment to the post of Principal of the Medical College by following due procedure of law after taking into consideration the principle of reasonable expectation.
4. The writ petitioner, subsequently, filed another application being O.A. No. 1121 of 2006 before the Tribunal thereby praying for a similar direction upon the respondent authority to cancel, rescind, revoke, withdraw and/or forbear from giving effect and further effect to the two separate orders, both dated 7th February, 2006, thereby appointing the respondent Nos. 3 and 4 to the post of the Principal of the N.R.S. Medical College and Bankura Sammilani Medical College respectively, without preparing and publishing any panel on the basis of interview held on January 30, 2006. The writ petitioner also prayed for a direction upon the respondents to give promotion to the post of the Principal from the feeder post and to prepare and publish a panel in accordance with law maintaining seniority-cum-merit and giving promotion according to seniority.
5. As indicated above, as a common question of law is involved, those two matters were heard and disposed of analogously by the Tribunal through the order impugned.
6. The grievance of the writ petitioner was that as he was the senior most in the cadre of Professor which is the feeder post for the promotion to the post of Principal and had also an excellent service record, he was entitled to the promotion for the post of Principal to the Medical College Education Service for the State of West Bengal simply on the basis of seniority and experience. According to the writ petitioner, pursuant to the notification dated September 6, 2005 for filling up the post of Principal in the cadre of West Bengal Medical Education Service in the Medical Teaching Institutions, the writ petitioner applied for promotion to the said post along with all the requisite documents in terms of the advertisements. Although such post was required to be filed up by way of departmental promotion from the feeder post of Professor having ten years’ experience in the service and four years as a Professor in a Department, the writ petitioner complained that the respondent authority, with the sole motive to deprive the applicant, before holding any interview on merit, gave appointment to the respondent No. 3 to the post of Principal of the Burdwan Medical College by issuing order dated 7th November, 2005 and as such, the said order was illegal. Similarly in other matter, the writ petitioner had the same grievance that the respondents deliberately deprived the writ petitioner and after taking interview on 30th November, 2006, they did not even publish the select list according to seniority or merit and without publishing any panel, the respondents had given appointment to the respondent Nos. 3 and 4 to the posts of Principal of the N.R.S. Medical College, Calcutta and Bankura Sammilani Medical College, Bankura, respectively.
7. The State respondent contested these applications by filing reply and according to the respondents, for the selection to the post of Principal, a Selection Committee was constituted which on 15th March, 2004 took interview wherein fourteen candidates appeared. Those persons were thoroughly questioned on different aspects covering academic and administrative matters. According to the respondents, their bio-data were also considered during the selection and considering all those aspects, the panel of three candidates had been recommended by the Selection Committee unanimously and ultimately, Dr. Udayan Ganguly, who was already in the panel was given appointment to the post of Principal, Burdwan Medical College.
8. The State respondent further pointed out that writ petitioner did not apply during previous interview held for the selection of the Principal. But on production of a call-letter, it came to the notice of the Tribunal that he was also in the aforesaid selection process.
9. Similarly, in respect of selection process for filling up the post of the Principal, N.R.S. Medical College, Calcutta and Bankura Sammilani Medical College, Bankura, there was a duly constituted committee which examined the bio-data and other materials and after recording detailed reasons, they prepared a panel in order of merit and another panel in order of seniority. In the aforesaid process of selection, the case of the petitioner was considered by the selection Committee but his name was not recomended. According to the respondents, subsequently in terms of the recommendation of the duly constituted Selection Committee, Dr. Ashok Mandal and Dr. Pradip Kumar Mitra were appointed as the Principal of N.R.S. Medical College, Calcutta and Bankura Sammilani Medical College, Bankura respectively from the panel recommended by the duly constituted committee. The State-respondent contended that the seniority cannot be regarded as the only criterion for the selection to the post of the Principal and it was the Selection Committee, which selects the most suitable candidate after verifying all the documents as per rules and in this case judging the seniority-cum-merit and performance of the eligible candidates, the Selection Committee made such recommendation where the name of the petitioner did not figure in the panel either of 2004 or of 2006.
10. Ultimately, the Tribunal came to the conclusion that there was no irregularity in the selection of the private respondents in the post of the Principal of the aforesaid three colleges.
11. Being dissatisfied, the writ petitioner has come up with the present two applications.
12. Mr. Bandyopadhyay, the learned Senior Advocate appearing on behalf of the writ petitioner in these two applications has taken a pure question of law in support of these applications. Mr. Bandyopadhyay contends that according to the rules for the selection to the post of Principal of the Medical College by way of promotion, there is no process of selection and all that is prescribed in the rules is that the post of the Principal should be filed up by way of promotion and in such a situation, all that is necessary is that the senior-most candidate having the requisite qualification should be selected if no departmental proceeding is pending against him.
13. According to Mr. Bandyopadhyay, there being no provision for “selection” whatsoever, the formation of the Selection Committee for judging the so-called merit was uncalled for. Mr. Bandyopadhyay contends that in the Rules, there being no provision of selection, the seniority should be the only guideline amongst the candidates having all the requisite qualifications.
14. Mr. Paul, the learned Advocate appearing on behalf of the State-respondent has, however, opposed the aforesaid contention advanced by Mr. Bandyopadhyay and has contended that in the post of the Principal the seniority cannot be the sole guideline. He contends that along with the seniority other relevant factors, viz., administrative capability, experience etc. are also required to be taken into consideration and in the present case, a committee of selectors having selected the private respondents as the most suitable candidate, the Tribunal rightly refused to interfere with such selection Mr. Paul, therefore, prays for dismissal of these writ applications. In support of his contention, Mr. Paul relies upon a decision of the Supreme Court in the case of B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors. , at paragraphs 14 and 17.
15. In spite of service, the private respondents, however, did not enter appearance.
16. Therefore, the only question that arises for determination in these applications is whether in view of the existing rules followed by the respondents, the seniority alone should be the criterion for promotion to the post of Principal of the Medical Colleges.
17. In order to appreciate the question involved in these two writ applications, it will be necessary to refer to the notification dated 3rd February, 1997 issued by the Government of West Bengal, Directorate of Health & Family Welfare, Medical Education Branch in exercise of power conferred under Sub-section (1) of Section 21 read with Sub-section (4) of Section 14 of the West Bengal State Health Service Act, 1990. The aforesaid rules are quoted below:
Government of West Bengal
Directorate of Health & Family Welfare
Medical Education Branch.
Health/PA/(MES)/229/1M/159/95 Dated, Calcutta, the 3rd February, 1997.
Notification
In exercise of the power conferred by Sub-section (1) of Section 21, and with Sub-section(4) of Section 14, of the West Bengal State Health Service Act, 1990 (West Bengal Act 7 of 1990), the Governor is pleased hereby to make the following rules regulating the manner of recruitment to the teaching administrative posts in the West Bengal Medical Education Service:
Rules
(1) These rules may be called the West Bengal Medical Education Service (Recruitment to Teaching Administrative Posts) Rules, 1997.
(2) They shall apply to the following teaching administrative posts in the West Bengal Medical Education Service (hereinafter referred to as the ‘WBMES’)
(a) Principals of the following Medical Colleges:
(i) R.G. Kar Medical College,
(ii) Calcutta National Medical College,
(iii) Nilratan Sircar Medical College, and
(iv) Medical College – all of Calcutta,
(v) Burdwan Medical College, Burdwan,
(vi) Bankura Sammilani Medical College, Bankura, and
(vii) North Bengal Medical College, Sushrutanagar, Darjeeling.
(b) (i) Institute of post-graduate Medical Education and Research, Calcutta, and
(ii) School of Tropical Medicine, Calcutta.
Subject to provisions of the West Bengal State Health Act, 1990 (West Bengal Act 7 of 1990), equivalent to all teaching administrative posts, mentioned in Sub-rule (2) of Rule 1 shall be made in the following manner:
Principals mentioned in Clause (at of Sub-rule (2) of Rule 1;
(a) Method of recruitment;
By promotion from the feeder posts of Professors of different disciplines of different undergraduate and post-graduate teaching institution;
(b) Qualifications;
(i) MBBS Degree plus post-graduate degree in any branch of medical science acquired from the Universities of West Bengal or from any other university/institution, equivalent qualification included in the First Schedule, or the Second Schedule, or the Third Schedule in the Indian Medical Council Act, 1956 (107 of 1956);
(ii) 10 years experience as Professor/Associate Professor/Reader of any medical college, out of which at least 4 years should be as Professor in a Department;
(c) Age: No age limit.
Directors mentioned in Clause (b) of Sub-rule (2) of Rule 1:
(a) Method of recruitment:
By selection (direct recruitment through the Public Service Commission, West Bengal);
(b) Qualifications:
Essential:
(i) General requirement as in Sub-clause (b)(i) of Clause (illegible)
(ii) 25 years’ standing in the profession of which 10 years’ experience as Principal/Professor/Associate Professor/Reader in a medical teaching institution (including at least 4 years’ as Professor in a discipline);
(iii) In the case of the post of the Director of School of M. Tropical Medicine, Calcutta, research activities in the fields of prevention, control and management of tropical diseases;
Desirable:
Extensive practical and administrative experience in the fields of medical education, medical research or public health organisation and adequate experience of running an important scientific educational institution either as its Head or as the Head of a Department;
(c) Age:
Not more than 55 years on the 1st January of the year of advertisement, relaxable for Government servants.
By order of the Governor
Sd/- L.R.K. Prasad
Principal Secretary to the Government of West Bengal.
18. After hearing the learned Counsel for the parties and after going through the aforesaid rules we find that for the purpose of appointment of the Principals of the Medical Colleges concerned there is only the one mode of recruitment i.e. by promotion from the feeder posts of Professors of different disciplines of different undergraduate and post-graduate teaching institutions. In case of appointment of the Director of the Institute mentioned in concerned rule, the mode of appointment is through selection by direct recruit.
19. In the case before us, however, there is no scope of selection but the post should be filled up by way of promotion from the feeder posts of Professors of different disciplines of different undergraduate and post-graduate teaching institutions.
20. According to the rules, the qualification of a candidate should be that he should hold MBBS degree plus post-graduate degree in any branch of medical science acquired from the universities of West Bengal or from any other university or institution or equivalent qualification included in the First Schedule or Second Schedule or Third Schedule of the Indian Medical Council Act, 1956 and ten years of experience as Professor or Associate Professor or Reader of any Medical Colleges out of which four years should be as a Professor in a Department. There is also no age limit for such appointment.
21. There is no dispute that the writ petitioner before us had the aforesaid requisite qualifications and of all the candidates, he was the seniormost.
22. Therefore, the question is whether the employer can in spite of existence of specific rules providing the method of recruitment can deviate from such rules and invent a process of selection, which is in conflict with the rules.
23. In our view, for implementation of the method of recruitment of the Principal by way of promotion from the feeder posts, there being no process of selection indicated, the seniormost person among the candidates having the requisite qualifications should be selected as a matter of course. In the case before us, the respondents have tried to ascertain the merit of the candidates, which is not provided in the rules, and the rules do not provide for any process of selection, so far the promotion from the feeder post of Professor is concerned.
24. We, therefore, find that in the case before us, the writ petitioner being undisputedly the seniormost Professor having all the requisite qualifications mentioned in the rules, ought to have been selected unless there was any disciplinary proceeding pending alleging any misconduct. In the absence of any such misconduct or disqualification, there was no scope of selecting the respondent No. 3 in the first case to the post of the Principal, Burdwan Medical College and the respondent Nos. 3 and 4, in the second case in the N.R.S. Medical College and Bankura Sammilani Medical College, respectively by superseding the writ petitioner.
25. In the case of B.V. Sivaiah and Ors. (supra), relied upon by the learned Advocate appearing on behalf of the State-respondent, the relevant rules prescribed the selection to the post concerned by way of seniority-cum-merit and in such a case, the Supreme Court pointed out that a fixed standard on merit can be fixed and once the candidates crossed that fixed standard, seniority inter se among them should be maintained. We are of the view that the principle laid down in that case, cannot have any application to our case where there is no provision for “selection” but the post should be filled up by promotion from the candidates holding feeder post and attaining some eligibility prescribed.
26. In this connection, reference may be made to the decision of the Supreme Court in the case of R.B. Desai
v. S.K. Khanolkar reported in AIR 1999 SC 3306, where the Apex Court observed that in a case of promotion when eligibility is a factor, at the time of consideration for promotion, once it is found that a person has attained the eligibility, the date when such a person acquired eligibility was immaterial and the seniority should be the sole consideration even if it is found that a person senior in service attained the eligibility at a later point of time than somebody junior to him in the service. The following observations of the Apex Court are quoted below:
On facts, there is no dispute that the appellants entered the RFOs cadre on a date anterior to that of the first respondent, therefore, in the cadre of RFOs, the appellants are seniors to the first respondent. However, to be considered for promotion, the rule required the RFOs to acquire the eligibility as provided therein. Therefore, the question for consideration is can the acquisition of an earlier eligibility give an advantage to the first respondent as against the appellants when an avenue for promotion opens in the cadre of ACFs even though at that point of time the appellants had also acquired the required eligibility. We are of the opinion that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the Rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same.
27. We, therefore, hold that the selection of the respondent No. 3 in the first case and the respondent Nos. 3 and 4 in the other one, at that point of time, by superseding the writ petitioner was illegal.
28. Since the writ petitioner by this time has already retired from service there is no scope of giving the relief of appointment to the post of Principal and as such, we dispose of these applications by directing the State-respondent to recalculate the pensionary benefit of the writ petitioner by treating him as the holder of post of Principal from the date the appointment given to the respondent No. 3 as the Principal, Burdwan Medical College by superseding him viz. November 7, 2005. In other words, he should get the notional benefit as if he acted as Principal from that day till his retirement for the purpose of calculation of his pension. Such arrears of pensions on recalculation should be paid to the writ petitioner within three months from today with interest at the rate of 8% per annum from the date it became payable till the actual payment.
29. With the aforesaid observations, these two writ applications are disposed of. Order p assed by the Tribunal in these matters is set aside to the extent indicated above. We, however, do not disturb the appointment of the private respondents in the post of the Principal of those three Medical Colleges.
Kishore Kumar Prasad, J.
30. I agree.