C.Jameela Banu v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/22/2023 Dr. C.Jameela Banu Vs.

The Union of India and others Mr. Rajinder Singh ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent nos.3 to 6 September 18, 2023 [SR] Item No.3 Without venturing to enter into the arena of facts which was a center of consideration before the Tribunal, this writ petition involves the question of law pertaining to entitlement and the legally enforceable right of the petitioner.

Indubitably, the petitioner was initially appointed to the post of Medical Officer on adhoc basis at CHC, Diglipur and upon availing the earned leave came at the Port Blair and thereafter reported her duty in the said office on 15th March, 1996. Subsequently, the Medical Officer borne in Andaman and Nicobar Islands (Health Services) Cadre imbibed within itself, the appointees on adhoc basis treating the date of appointment in regular service that of an adhoc appointment.

It is also not in dispute that the petitioner was initially appointed on a regular basis on 27th February, 1996 and was included in the cadre of the Health Department and was subsequently promoted to the post of

Senior Medical Officer (SMO) with effect from 15th March, 2000. Subsequently, the petitioner was further promoted to the post of Chief Medical Officer with effect from 15th March, 2006 and was served with copy of the Order No.660 dated 8/9th March, 2021 disclosing the promotion to the post of Chief Medical Officer (NFSG) with effect from 15th March, 2010.

Immediately the Tribunal was approached assailing not only the said order No.660, but also several representations having made and kept in suspended animation raising the issue on the date of appointment. The Tribunal dismissed the said application and held that since the promotion to the post of Chief Medical Officer which took effect from 15th March, 2006 was never challenged by the petitioner, it is too late in a day to reopen such issue. It was all along a specific stand of the petitioner that prior to the birth of the order No.660 dated 8/9th March, 2021, the petitioner was not aware of the fact that such promotion was given after an expiration of six years from the date of the initial appointment to the post of Senior Medical Officer as it would be evident therefrom that the other officers above in Serial number being senior to her were shown to have been promoted from the post of the Senior Medical Officer to the Chief Medical Officer on the expiration of five years in terms of the Rules applicable in this regard.

The Tribunal does not appear to have noticed the aforesaid fact nor there was any document forthcoming before it indicating that the petitioner was aware of such discriminatory act having projected against her much prior in time and having kept silent for a considerable period acquiesced her right to assail the said order. Our attention is drawn to the provisions contained under the Andaman and Nicobar Islands (Health Services) Rules, 2013 promulgated in exercise of power conferred under Article 309 and in supersession of the Andaman and Nicobar Islands (Health Services), Rules, 1997 duly notified in the official gazette on 27th February, 2013. Rule 6 thereof which takes a front seat in relation to a dispute between the parties provides for all the existing officers holding duty posts on regular basis and found

suitable for appointment in the Andaman and Nicobar Islands (Health Services) on regular basis on or before the commencement of these rules shall be deemed to have been appointed in these rules in an appropriate grade from the date of their regular appointment to such grades as member of the services.

It further provides that the computation of the services rendered before the coming into force of the said rules, to be counted for the purpose of promotion, qualifying service for promotion, confirmation and pension. It is thus manifest from the aforesaid provision that even if the earlier rules of 1997 was repealed by the said rules of 2013, but all the past services rendered by the respective officers would be counted for the purpose of promotion or qualifying service for promotions and pension and there is no ambiguity in this regard that the said Rule was expressly made to operate retrospectively in the note appended at the foot of the said Rules. The schedule II appended to the said Rules of 2013 indicates the persons holding such post in the field of selection and a minimum qualifying service for the purpose of promotion.

An argument is advanced on behalf of the petitioner that the moment the rule 6 has been expressly made to operate retrospectively, it automatically undone all such things which appears to be contrary to the said rules and, therefore, the authorities have to revisit their decision relating to the date of promotion as well as the date of initial appointment.

It is further submitted that the moment Rule 6 is made to operate retrospectively the schedule appended thereto touching upon the aspect indicated in the said rule 6 becomes applicable retrospectively and in the event the period for promotion has been provided the same has to be applied rigidly as the authority cannot adopt pick and choose policy as the Court always viewed the same an act of discrimination and the violation of the fundamental rights enshrined in Part III of the Constitution of India. On the other hand, it is argued by the respondents that though rule 6 is expressly made to operate

retrospectively but it does not undone the act done by the authority within the realms of the law and therefore, the contention of the petitioner in this regard is not tenable in the eye of law. It is further submitted that the petitioner did not approach the Tribunal promptly and there has been considerable delay which, in fact, has been found by the Tribunal.

So far as the applicability of 2013 Rule is concerned, Rule 6 expressly takes care of the situation relating to an existing officers holding the post on a regular basis and the period of rendering services shall also be counted for the purpose of qualifying for promotion or pension as the case may be. The moment the rule has been expressly made to operate retrospectively, it admits no ambiguity to say that anything done in contradiction with the subsequent Rules would be affected by the operation of the subsequent Rules and the authority cannot take a shelter that what has been done cannot be undone. In a judicial parlance, on promulgation of the Act or the statutory Rules, it is normally regarded to operate prospectively unless the legislature expressly intended to operate retrospectively or by necessary implication, it is to operate retrospectively. In other words, there is no fetter on the part of the legislature to make any law to operate retrospectively nor there is any fetter in the court to ascertain the applicability thereof with retrospective effect by necessary implication.

In the instant case, the legislature expressly indicated that the Rule 6 would operate retrospectively and therefore there is no ambiguity that all the incidences of services which are not in consonance with the provision of Rule of 2013 has to be eschewed by the authorities and the records are to be set in tune with the provisions contained under 2013 Rules.

The Tribunal also did not take into consideration that the act of discrimination was never made known to the petitioner nor put forward any document that the petitioner was consciously aware of the same and having sat over the rights cannot reopen the issue at a later point of time.

There is no hesitation, in our mind, that a dead letter cannot be resurrected, if the parties sat over the rights for a considerable period of time, more particularly, when period limitation is provided for such reliefs. But the court while dealing such point has to consider the stand of the parties and it is found that the act of discrimination is made known at a later point of time, there is no fetter on the part of the petitioner in assailing the said order of the authority.

So far as the date of appointment into a cadre is concerned, we find that the petitioner was aware when she was given promotion with effect from 15th March, 2000 and having not raised such point at that relevant point of time, cannot resuscitate such issue in the year 2022 after a gap of 22 years.

We do not find any substance in the stand of the petitioner that the authority should treat the date of appointment to be 27th February, 1996 instead of 15th March, 1996. So far as promotion to the post of CMO is concerned, the statement of the petitioner cannot be disbelieved that she was not aware that the others in the gradation list were promoted at a gap of five years whereas the petitioner was promoted after a gap of six years. The amended Rule provides the promotion on the eve of expiration of five years and, therefore, the promotion on the expiration of six years is not only contrary to the aforesaid statutory Rules but by giving promotion to the other employees in the gradation list on the eve of expiry of five years is an act of discrimination and the court shall always view the same seriously and jealously.

The order No.660 dated 8/9th March, 2021 would indicate that the candidates upto the Sl.No.35 were given promotion at a gap of expiration of 5 years whereas the candidates between the serial no.36 to 43 therein have been promoted after a gap of six years and the candidates after serial no.44 till end, have been promoted after expiration of five years.

The petitioner falls within the bracket of serial no.36 to 43 and have raised the grievance in this regard that there is apparent act of discrimination perpetrated by the authorities in giving effect to the promotion at the post of CMO. The act of discrimination is always viewed seriously as in public employment all the candidates have to be treated equally and to be given equal opportunity. The moment there is a infraction or violation of the fundamental rights, it is not open to the government or semi-government of the statutory authorities to take shelter under the plea of limitation.

We find that the authorities must revisit the order No.660 so far as the petitioner is concerned in the light of the observations made hereinabove and pass a revised order indicating the date of promotion to the post of CMO as 15.03.2005 and further promotion to the post of CMO(NFSG) from 15.03.2009. Such revised order shall be passed within a period of two months from the date of communication of this order.

In view of the above, the WP.CT/22/2023 is disposed of. No order as to costs.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )