Seniority among employees at RIMS should be based on order of merit at the time of appointment to relevant grade: HC

The Division Bench of Justices Sujit Narayan Prasad and Navneet Kumar explained that in this system, individuals selected earlier would be considered senior to those selected later in a given block, and the preparation of the seniority list would involve specific steps.

The case revolved around the determination of seniority between Dr Kumari Sandhya and Dr Dharmendra Kumar, who were appointed to various positions within the State of Bihar, and later their services were allocated to Jharkhand, resulting in a dispute over their respective seniority positions.

Background of the case:

The case involves an appeal against a judgment passed by a Single Judge of the Court in a writ petition where the petitioner, Dr Kumari Sandhya, sought seniority over respondent no.4, Dr Dharmendra Kumar, which was denied, leading to the dismissal of the writ petition.

Dr Sandhya was appointed as a Medical Officer in Bihar on September 22, 1990, and she assumed her duties on November 1, 1990. She subsequently held various positions, including Tutor in the Anatomy Department at the Rajendra Institute of Medical Sciences (RIMS) where she joined on October 6, 2005. She was promoted to the position of Assistant Professor on July 31, 2008, and further promoted to the role of Associate Professor on October 29, 2012.

Dr Dharmendra also joined the State Government's Health Department in 1990, following Dr Sandhya's appointment. He was posted as a Tutor in the Anatomy department at RIMS on October 7, 2005. He was promoted to Assistant Professor on July 31, 2008, and then to Associate Professor on October 29, 2012.

A seniority list was published by the State of Bihar on June 17, 2005, before the final allocation of cadre to employees whose services were transferred to Jharkhand after the state's bifurcation. In this list, Dr Sandhya was ranked at serial no. 997 with a seniority position of 603, while Dr Dharmendra was listed at serial no. 1126 with a seniority position of 1399.

Following the bifurcation of Bihar, their services were allocated to the State of Jharkhand. The State of Jharkhand, based on this allocation and a requisition from the Director of RIMS, transferred the services of both Dr Sandhya and Dr Dharmendra to RIMS Ranchi through a notification dated October 5, 2005.

Both Dr Sandhya and Dr Dharmendra worked as Tutors in the Anatomy department at RIMS while maintaining a 'lien' with the State Government.

A provisional seniority list was published by the State of Jharkhand in which Dr Sandhya's seniority was listed at serial no. 829, and Dr Dharmendra's was at serial no. 953.

Dr Sandhya was promoted to the position of Associate Professor, and she assumed her duties on October 29, 2012. A disagreement arose when Dr Dharmendra raised an objection concerning their seniority based on fresh recruitment to the position of Associate Professor.

To address this issue, a committee was constituted through a memo dated April 15, 2014, to decide on the seniority between the two doctors.

The committee recommended that Dr Dharmendra should be considered senior to Dr Sandhya, and this recommendation was accepted by the competent authority, leading to an order dated July 2, 2014, which declared Dr Dharmendra as senior to Dr Sandhya.

Dr Sandhya, aggrieved by this decision, filed a writ petition in which she questioned RIMS's jurisdiction to decide their seniority, arguing that their 'lien' with the State Government meant that the State Government should be the competent authority to determine seniority.

The Single Judge, after considering the arguments of both parties, dismissed the writ petition. However, Dr Sandhya appealed this decision, and filed an intra-court appeal.

Argument on behalf of the appellant-writ petitioner:

Rajiv Sinha, the counsel, made several significant points. The appellant, formerly a Medical Officer in the State Government, was deputed to RIMS as a Tutor with her 'lien' connected to the State Government, signifying its authority. Notably, the appellant held seniority over respondent no.4, who was also a Medical Officer under the State Government and deputed to RIMS in the Anatomy Department. With the 'lien' still linked to the State Government, the appellant's seniority relative to respondent no.4 should have been maintained.

Consequently, the counsel argued that RIMS had no valid reason to create a new seniority list positioning the appellant below respondent no.4. Moreover, it was contended that RIMS lacked the power to alter seniority positions or make decisions that would harm the appellant as long as the 'lien' was under the State Government's jurisdiction, thereby questioning RIMS' authority in this matter. The persistence of the 'lien' with the State Government meant that RIMS had no authority to modify seniority positions or service conditions, as supported by specific provisions in the Service Code—Rules 68, 69, and 71—none of which applied here.

Additionally, it was argued that the appellant's appointment, despite originating from an advertisement, should be seen as a promotion rather than a new appointment. Consequently, any change in the appellant's seniority, placing her below respondent no.4, was decried as an arbitrary exercise of power. To reinforce these arguments, the counsel cited relevant Supreme Court judgments.

To summarize, the crux of the appellant's argument revolved around maintaining her seniority status and the continuing attachment of her 'lien' to the State Government, supported by pertinent legal provisions and Supreme Court precedents.

Argument on behalf of RIMS:

Dr Ashok Kumar Singh, representing RIMS, defended the learned Single Judge's order by arguing that the appellant's claim of still being considered employees of the State Government due to their 'lien' connection while working as a Tutor at RIMS was no longer valid. This was because the appellant participated in a new selection process following a fresh advertisement, resulting in their appointment as an Associate Professor, which effectively terminated their 'lien' with the State Government. Dr Singh stressed the principle that an employee cannot retain the 'lien' of two positions, and since both the appellant and respondent no.4 were appointed as Associate Professors through direct recruitment, their previous 'lien' as Medical Officers with the State Government ceased to exist.

The advertisement issued by RIMS aimed to fill teaching positions through direct recruitment, in compliance with Section 11 of the RIMS Act, 2002, which mandated that all teaching posts, from basic to higher cadre, must be filled through direct recruitment. There were no promotional positions for Associate Professors or Professors. Both the appellant and respondent no.4 adhered to the advertisement's terms and conditions, including obtaining No Objection Certificates from their previous employer.

After being declared successful, both the appellant and respondent no.4 were appointed as Associate Professors in RIMS's Anatomy Department. Their seniority was determined based on their positions in the merit list, with respondent no.4 scoring higher and being considered senior to the appellant.

Dr Singh emphasized that the appointments made in response to the advertisement were clear instances of direct recruitment as mandated by Section 11 of the RIMS Act, 2002. As for the 'lien,' he reiterated that once the appellant and respondent no.4 joined as Assistant Professors through direct recruitment, their 'lien' as Medical Officers with the State Government automatically terminated, as retaining the 'lien' of two positions was not allowed. Dr Singh concluded that the learned Single Judge's order, considering these facts, was free from errors.

Argument on behalf of respondent no.4, Dr Kumar:

Ajit Kumar, the learned senior counsel representing respondent no.4, presented additional arguments. He referred to the advertisement which clearly indicated that it was intended for filling positions of Assistant Professor, Associate Professor, and Professor through direct recruitment. The eligibility criteria specified in the advertisement included a requirement of 4 years' experience as an Assistant Professor to qualify for the position of Associate Professor.

It was further argued that both the appellant and respondent no.4 were initially deputed to RIMS by the State Government as Tutors and were subsequently absorbed as Assistant Professors. Therefore, their candidature was accepted, and they were ultimately appointed as Associate Professors through direct recruitment.

In response to the appellant's claim that they were direct recruits and, therefore, their 'lien' still attached them to the State Government, Mr. Kumar contended that the moment both the appellant and respondent no.4 joined as Associate Professors at RIMS, their previous 'lien' with the post of Medical Officer under the State Government automatically terminated.

To support this argument, Kumar referred to Rule 68 of the Jharkhand Service Code.

The Court's Conclusion:

Examining the case, the Court addressed several key issues that included whether the 'lien' attached to the appellant's deputation as a Tutor in RIMS remained with her prior position as a Medical Officer under the State Government. Secondly, the Court needed to decide if this 'lien' automatically terminated when both the appellant and respondent no.4 assumed the roles of Associate Professors. Lastly, it had to establish whether the appointments of the appellant and respondent no.4 should be classified as promotions or direct recruitments.

The Court acknowledged that the institution formerly known as Rajendra Medical College and Hospital, now RIMS, was initially under the jurisdiction of the State Government. However, in its pursuit of granting autonomy to this institution, the State enacted the Rajendra Institute of Medical Sciences Act, 2002 (Act 10 of 2002).

Furthermore, the Court observed that this Act conferred autonomous status upon RIMS, significantly diminishing the State's involvement in its day-to-day operations, with specific oversight roles outlined in Section 29 of the Act, 2002. The Court conducted a comprehensive review of this Act and elucidated that RIMS no longer functioned under direct State Government control.

Instead, it was to be governed by the statutory provisions laid out in the Act, 2002, and the Regulation, 2014. The State's authority was restricted to ensuring RIMS' compliance with policy decisions designed for the welfare of the people of Jharkhand, as determined by the State government.

The Court stressed that the State was explicitly prohibited from interfering in the routine affairs of RIMS, including matters related to appointments and promotions. According to the Court, this encapsulated the essence and purpose of the Act, 2002.

The court also referenced Rules 68, 69, and 70, which address the concept of "lien." Rule 68 specifies that "lien" on a post ceases upon substantive appointment to a permanent post. Rules 69 and 70 deal with various scenarios involving different posts.

The Court further deliberated on the appellant's argument regarding her probationary appointment, which was initially temporary. However, the Court noted that since her appointment on 29.10.2012, the appellant had diligently performed her duties, making her ineligible to claim her services were still on probation.

A crucial question was raised by the Court: if the appellant's assertion of her service's temporary nature were accepted, it would cast doubt on the promotions of both the appellant and respondent no.4 to the position of Professor. The Court highlighted the established legal principle that promotions to higher positions are typically granted to individuals holding substantive posts. In this case, the promotion of the appellant and respondent no.4 was coupled with the continuation of their service, signifying that their services fell under the regular establishment of the Rajendra Institute of Medical Sciences (RIMS).

The Court referred to Rule 68 of the Service Code, which clearly states that the 'lien' on the previous post ceases to exist the moment a government servant assumes a permanent, substantive role. Consequently, the Court concluded that the services of both the appellant and respondent no.4 were indeed under the regular establishment of RIMS, rendering the argument concerning the temporary nature of their appointments invalid. The Court observed;

"We have considered the stipulation made therein, more particularly 5(i) wherein it has been provided, at the risk of repetition the same is being 27 L.P.A. No.125 of 2022 repeated herein, that "The seniority of the employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the Grade in question, those selected on an earlier occasion being ranked senior as a block to those selected later.; the preparation of seniority list of persons selected in the same selection committee would involve the steps"."

"Various steps have been given but we are concerned with the parameter fixed for seniority which is based upon the merit position of the appellant and the respondent no.4 and instructions as has been provided in the regulation, the seniority is to be determined by the order of merit in which they were selected for appointment."

The Court emphasized that seniority was to be determined based on the merit position in which individuals were selected for appointment, as specified in Schedule IV(5) of the Regulation 2014. The Court clarified that the Regulation was not retroactive and was aimed at establishing a seniority system irrespective of the appointment date. It observed;

"The Single Judge, by taking into consideration the principle for deciding the seniority as available under Schedule IV(5) wherein the seniority is to be decided by the order of merit position in which they were selected for appointment, came to the conclusion that the seniority was fixed of the appellant keeping her below the respondent no.4, the same has not been faulted with."

The Court also considered that the Single Judge had taken into account the marks obtained by both parties, resulting in the preparation of a merit list where respondent no.4 was ranked first, and the appellant, who was also the writ petitioner, was placed second. It noted;

"This Court, after having discussed the factual aspect with the legal position has gone across the order passed by the learned Single Judge wherein the consideration has been given regarding the rule of seniority as available under Regulation, 2014, i.e., Schedule IV(5) and on its consideration, the learned Single Judge has refused to interfere with the decision of fixation of seniority since the appellant in the process of selection has obtained 59.74 marks while the respondent no.4 has obtained 67.4 marks."

The Court upheld the Single Judge's decision, which had adhered to the principles outlined in Schedule IV(5) of the Regulation 2014. The appellant's lower seniority ranking compared to respondent no.4, based on the merit of their selection, was deemed lawful.

Subsequently, the appeal was dismissed.

To view the original order, click on the link below: