Research › Search › Judgment

Jharkhand High Court · body

2026 DAILYLAW 21361 (JHR)

Smita Kumari Gupta v. State Of Jharkhand

2026-01-08

Deepak Roshan

body2026
JUDGMENT : DEEPAK ROSHAN, J. Heard learned counsel for the parties. 2. The instant writ application has been preferred by the Petitioners praying for a direction upon the Respondent authorities to immediately grant the 1st and 2nd upgradation of scale to the Petitioner nos.1 to 6 with effect from 2011 & 2017 respectively under the Dynamic Assured Career Progression Scheme and further prayed for a direction upon the Respondents to pay the benefits of upgradation of scale under the Dynamic Assured Career Progression Scheme to the Petitioner nos.7 and 8 with effect from 2018. 3. During pendency of the writ petition when the Respondents solely on the advice of their Retainer Counsel, chose to withdraw the earlier resolution of the Governing Body dated 11.10.2021; whereby the Respondents had in principle agreed to extend the benefits of the Dynamic Assured Career Progression Scheme to the Petitioner nos.1 to 6 was withdrawn vide a fresh resolution dated 05.03.2024, the same was challenged by filing an Interlocutory Application seeking amendment of the reliefs which was allowed vide order dated 05.03.2024. 4. Brief Facts:- (i) Petitioner Nos.1 to 6 were appointed pursuant to an advertisement, selection process and against the permanent post of Tutor in the respondents-Institution vide appointment letters, details of which are as under:- Sn. Name of the petitioner Appointment Letter No. Date of Issue Date of Joining 1. Dr. Smita Kumari Gupta 5123 23.08.2005 10.09.2005 2. Dr. Arvind Kumar 5116 23.08.2005 29.08.2005 3. Dr. Saurav Banerjeee 5113 23.08.2005 01.10.2005 4. Dr. Satyabrat a Patra 93 10.01.2006 16.01.2006 5. Dr. Kavita Topno 3672 23.06.2005 09.07.2005 6. Dr. Manisha Kujur 3673 23.06.2005 04.07.2005 (ii) So far as Petitioner nos.7 and 8 are concerned, they were initially appointed in the post of Tutor for a fixed tenure, but subsequently when the permanent vacancies of permanent Medical Officer were advertised, they applied against the said posts and on being selected, were offered appointment to the post of Medical Officers where they gave their joining on 29.10.2012. (iii) The Finance Department, Government of Jharkhand, vide resolution as contained in letter No.12/S- DSEP(HES)-27/2015-1795/F dated 25.06.2015 introduced the Dynamic Assured Career Progression Scheme under which an employee of a Medical College including Tutors/Residents/Senior Residents are entitled to 1st upgradation of scale after 06 years of service and 2nd upgradation of scale on 06 years of further service from the date of 1st upgradation of scale i.e. on completion of 12 years of continuous service (Annexure 2). (iv) The Respondents-Institution adopted the said scheme and under the Scheme, the Petitioner nos.1 to 6 became eligible for grant of 1st upgradation of scale on completion of 06 years of service in the year 2011 and 2nd upgradation of scale on completion of further 06 years i.e. with effect from 2017. So far as petitioner nos.7 and 8 are concerned, they were appointed in the year 2012 and, therefore, they became eligible for the 1st upgradation of scale under Dynamic Assured Career Progression Scheme with effect from October 2018. (v) The representation of the petitioners was duly placed before the Governing Body of RIMS, Ranchi in their 43rd Meeting held on 14.12.2017 wherein at Agenda No.43.06(12), the Governing Body of RIMS in principle approved the grant of upgradation of scale under Dynamic Assured Career Progression Scheme and further also resolved that the Petitioner nos.1 to 6 would be placed in regular higher post in consonance with their educational qualification and experience. Despite such decision, when the benefits were not being extended, the petitioners made a representation before the respondents-authorities (Annexure 4) and ultimately having no alternative, moved before this Court. 5. The writ application was initially heard by this Court on 09.01.2020 and the Respondents were directed to file counter affidavit. Surprisingly, for the purpose of filing the counter affidavit, the Retainer Counsel of the Respondents advised the Respondents to withdraw the relevant part of the resolution of the Governing Body of RIMS in its 43rd Meeting (Annexure 3) wherein the Respondents had in principle agreed to extend the benefits of upgradation of scale under DACP scheme to the Petitioners and the Respondents blindly by mentioning the same, withdrew the resolution as contained in Agenda No.43.06(12) in their 43rd General Body Meeting in their 52nd General Body Meeting held on 11.10.2021. The copy of the said Minutes of the Meeting has been brought on record by the Petitioners by filing a supplementary affidavit on 13.12.2021 as Annexure-5 and challenged by filing an amendment application. 6. It is also relevant to mention here that as the Respondents since the very inception were trying to defeat the legitimate claim of the Petitioner nos.1 to 6 by alleging that the Petitioners are holding tenure posts and not permanent posts and as such are not otherwise eligible for promotion; these Petitioners earlier moved this Court in W.P. (S) No. 4435 of 2009 claiming promotion to the post of Assistant Professor with effect from dates of entitlement. In the said writ application also, a specific plea was taken by the Respondents that the posts of Tutors are not permanent posts and are tenure posts. They have also taken a plea that the Petitioners are not permanent employees of RIMS. This Court after hearing the parties framed a specific issue as to whether the Petitioners have been permanently absorbed as Tutors in the RIMS and are to be considered for promotion to the posts of Assistant Professors after rendering 03 years of service on the said posts as has been done in the case of similarly situated employees and replied the same in the following manners in paragraphs 9 and 10 of the judgment. For brevity, the same is extracted herein below: - “9. After bestowing my anxious consideration to the rival submissions and on perusal of the record, the question which falls for determination is as to whether petitioners have been permanently absorbed as tutors in the RIMS, are entitled to be considered for promotion to the post of Assistant Professor after rendering three years of service on the said post as has been done in the case of similarly situated employees. 10. Indisputably, the conditions of service of the RIMS employees are governed by RIMS Act, 2002, RIMS Rules 2002 and RIMS Regulations 2014. All the petitioners are permanent employees of the RIMS and have been permanently absorbed on the post of tutors. In the meantime, they have been continuing on the post of tutors for more than one decade. There is also no denying of the fact that some of the similarly placed tutors have been promoted to the post of Assistant Professor after coming into force of the RIMS Act and Rules.” 7. In the meantime, they have been continuing on the post of tutors for more than one decade. There is also no denying of the fact that some of the similarly placed tutors have been promoted to the post of Assistant Professor after coming into force of the RIMS Act and Rules.” 7. The Petitioners by filing an Interlocutory Application, as has been mentioned hereinabove, challenged the portion of the resolution dated 11.10.2021 passed by the Governing Body in their 52nd meeting; whereby the Agenda No.43.06(12) regarding grant of 1st and 2nd upgradation of scale under the Dynamic Assured Career Progression Scheme to the Petitioner nos.1 to 6 has been withdrawn. Said amendment, as has been stated hereinabove, was allowed vide order dated 05.03.2024. It is only after the resolution passed in favour of Petitioner nos.1 to 6 regarding extension of benefit of Dynamic Assured Career Progression Scheme was withdrawn on the advice of Retainer Counsel for the respondents in the 52nd General Body Meeting held on 11.10.2021, the Respondents filed a counter affidavit wherein the respondents mainly took the following objections: - (i) Decision of Governing Body of the RIMS in their 43rd meeting dated 14.02.2017 with respect to grant of Dynamic Assured Career Progression Scheme was a mistake. (ii) Tutors/Senior Residents/Residents/Registrars are tenure posts for three years only and holders of those posts are not entitled to promotion. 8. In support of the contention, the Respondents have relied upon the common judgment passed in L.P.A. No. 313 of 2021 with L.P.A. No. 615 of 2017 dated 11.09.2023. The Respondents thereafter filed a supplementary counter affidavit bringing on record residency scheme and certain documents showing framing of Senior Residency Scheme. 9. The contentions of the Respondents are wholly misconceived and misleading for the following reasons: - (i) The plea as to whether the petitioners had been permanently employed or were appointed against a fixed tenure or not was duly considered by this Court in W.P. (S) No. 4435 of 2009 (Annexure 6), wherein this Court had specifically held that all the Petitioners are permanent employees of RIMS and have been permanently absorbed on the posts of Tutors. As the Petitioners were continuing in the posts of Tutors for more than one decade, they were directed to be considered for promotion to the post of Assistant Professors as was done in case of other Tutors. As the Petitioners were continuing in the posts of Tutors for more than one decade, they were directed to be considered for promotion to the post of Assistant Professors as was done in case of other Tutors. The issue therefore as to whether the Petitioners were permanently appointed and absorbed in service against the posts of Tutors or not no longer remain res integra. (ii) So far as the reliance of the Respondents on the judgment of this Court passed in L.P.A. No. 615 of 2017 and with L.P.A. No. 313 of 2021 is concerned; this Court is of the considered view that the same is not applicable, inasmuch as, the said cases related to such appointees who were appointed for a fixed tenure. The advertisement pursuant to which those writ petitioners were appointed, specifically mentioned that their appointment would be for a fixed period of three years. This apart, even the appointment letters issued to those employees specifically mentioned that such appointment is for a fixed tenure and it is on that context this Court held that appointment was for a fixed tenure and they cannot be permanently absorbed. Thus, the said judgment has absolutely no application in the instant case. Paragraph 49 of the said judgment records that offer of appointment in those cases were for three years only and the posts against which such appointments were made against those posts were tenure posts, unlike that of the present petitioners who were appointed against permanent posts and the petitioners on completion of their probation period were permanently absorbed in their services, which fact shall become further apparent from the rejoinder filed by the petitioners to the counter affidavit wherein firstly the petitioners highlighted the pick & choose method adopted by the respondents-authorities wherein the respondents-authorities on one hand extended benefits of Dynamic Assured Career Progression Scheme to other Tutors appointed in their Institution, but discriminated the petitioners. As for instance, in Annexure-7 series at Serial No. 27, one Dr. Roseline Toppo was granted upgradation of scale under the Dynamic Assured Career Progression Scheme, though she was a Tutor in the FMT Department. (iii) The petitioners also brought on record the Office Orders; whereby the services of the petitioners were confirmed on completion of probation period vide Memo No.1017 dated 25.07.2011 (Annexure 8); whereby names of petitioner nos.1 to 6 are appearing at Serial Nos. (iii) The petitioners also brought on record the Office Orders; whereby the services of the petitioners were confirmed on completion of probation period vide Memo No.1017 dated 25.07.2011 (Annexure 8); whereby names of petitioner nos.1 to 6 are appearing at Serial Nos. 5, 4, 6, 7, 11 and 15 respectively and their services have been confirmed with effect from 10.09.2007, 29.08.2007, 01.10.2007, 16.01.2008, 09.07.2007 and 04.07.2007 respectively. Similarly, vide Memo No.3401 dated 29.05.2015, the services of petitioner no.7 have been confirmed on completion of probation period with effect from 29.10.2014 and vide Memo No. 3923 dated 12.10.2020, the services of petitioner no.8 were confirmed against post of Medical Officer with effect from 28.10.2014. (iv) Under such circumstances, the pleas of the respondents are not only unsustainable in the eyes of law, but such plea appears to have been taken only with an intent to somehow deprive the petitioners of their legitimate claims. 10. In view of the facts stated hereinabove, following facts get established: - (i) Petitioner nos.1 to 6 were appointed against permanent vacancies and on completion of probation period, their services have been permanently observed which facts find mentioned in the judgment of this Court dated 28.09.2018 passed in W.P. (S) No. 4435 of 2009. (ii) The General Body after considering all aspects of the matter decided in principle to give the benefit of upgradation of scale to the Petitioner nos.1 to 6 in their 43rd meeting held on 14.02.2017. (iii) Withdrawal of the said resolution in the subsequent meeting (52nd Meeting of the General Body) on the advice of their retainer lawyer as finds mentioned in the resolution itself shows the mala fide and mischief in the mind of the respondents- authorities. (iv) Such withdrawal of the previous resolution being wholly for the purpose of contesting the instant writ application is wholly illegal and cannot be sustained in the eyes of law. (v) When similarly situated other Tutors have been granted benefits of upgradation of scale under the Dynamic Assured Career Progression Scheme, denial of the same to the present petitioners would be discriminatory and in violation of Article 14 of the Constitution of India. (v) When similarly situated other Tutors have been granted benefits of upgradation of scale under the Dynamic Assured Career Progression Scheme, denial of the same to the present petitioners would be discriminatory and in violation of Article 14 of the Constitution of India. (vi) So far as petitioner nos.7 and 8 are concerned; though they were initially appointed as Tutors for fixed tenures, but realizing the uncertainty in their services, they applied for permanent posts of Medical Officers as and when advertised and on being selected were appointed permanently against the posts of Medical Officers and on completion of period of probation, their services were duly confirmed with effect from 29.10.2014 and 28.10.2014 respectively. 11. Having regard to aforesaid discussions, this Court holds that the Petitioner nos.1 to 6 are entitled to the grant of 1st and 2nd upgradation of scale on completion of 06 and 12 years of service i.e. Petitioner nos.1 to 6 are entitled to grant of 1st upgradation of scale under the Dynamic Assured Career Progression Scheme with effect from 2011 and 2nd upgradation of scale under the said scheme with effect from 2017. Similarly, Petitioner nos.7 and 8 are entitled to their 1st upgradation of scale under the Dynamic Assured Career Progression Scheme on completion of 06 years from the date of their permanent appointment in the post of Medical Officer with effect from October 2018. 12. The Respondents are hereby directed to grant the benefit of the upgradation of scales with effect from the date, the same fell due to the Petitioners and pay the Petitioners all monetary benefits accruing therefrom. The entire exercise shall be completed within a period of 12 weeks from the date of receipt/production of copy of this order. 13. As a result, the instant writ application stands allowed. Pending I.A.s, if any, also stands closed.