RANDOLF HOWARD PARIAT Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The Petitioner is principally aggrieved by the order dated 2.6.2008 issued by the State-Respondents promoting him to the post of Medical Officer Grade-I which, according to him, has the effect of depriving him of the promotion to the same post already granted to him by the order dated 22.9.2005 and of the consequential benefits, financial or otherwise, already accrued to him therefor.

(2.) To appreciate the controversy, the facts prompting the Petitioner to file this writ petition may be briefly noticed. After serving as Casualty Officer of the Civil Hospital, Shillong, which is a Grade-III post in the Meghalaya Health Service, for sometime, on regular basis, the Petitioner was promoted to Grade-II of the Meghalaya Health Service on 21.9.1992. In the year 2005, on the recommendation of the Departmental Promotion Committee, the State-Respondents issued the notification dated 22.9.2005 promoting him to Grade-I with effect from 9.5.1998 and was posted as Deputy Director (Health Education Board). Thus, according to the Petitioner, his seniority shall have to be reckoned with effect from 9.5.1998. It is Stated by the Petitioner that he assumed charge of the post of Deputy Director (HEB) at Shillong on 23.9.2005 as evidence from the copy of the transfer of certificate and the pay slip issued by the Accountant General, Meghalaya vide Annexures-3 and 4 to the writ petition. While holding the post of Deputy Director (HEB) at Shillong, the State-Respondents issued the order bearing No. Health. 230/2007/Pt.1/2, dated 2.6.2008 transferring him to the post of District Medical and Health Officer, East Khasi Hills and again issued the order dated 28.7.2008 transferring him as Superintendent, Mairang Civil Hospital, West Khasi Hills District, which he was at the time of filing the writ petition was yet to join. It is contended by him that as he has put in almost ten years of regular service in Grade-I post of the Meghalaya Health Services, he had the right to be considered for promotion to the next higher grade of Joint Director, Health Service or any other analogous posts in the Senior Grade of the Meghalaya Health Services. He was then duly considered for promotion by the DPC, and was accordingly promoted by the order dated 22.9.2005. However, much to his surprise, the State-Respondents, in supersession of the said order dated 22.9.2005, issued the order bearing No. Health 286/2007/1, dated 2.6.2008 (the impugned order) temporarily promoting the private Respondent from Grade-II post to Grade-I post with effect from 9.5.1998 (notional date and with financial benefits from the date of issue of the order). Another notification was issued by the State-Respondents on the same day bearing No. Health 286/2007/2 temporarily promoting the Petitioner, among others, to Grade-I in the scale of pay of Rs. 8750-13100/- with effect from 9.5.1998 (notional benefit) and with financial benefits from the date of issue of the order. This, according to the Petitioner, has the effect of abrogating his promotion and of the consequential service and financial benefits accrued to him in terms of the order dated 22.9.2005 as he had by then already assumed the charge of Grade-I post and drawn the pay of Grade-I post w.e.f. 23.9.2005. As he joined the post of Grade-I with effect from 22.5.2005, the Petitioner contends that he cannot be equated with other Medical Officers like the private Respondent, who failed to join their promotional posts on or after 22.9.2005 and that as he had already been rendering continuous service with effect from 23.9.2005 in the post of Grade-I of the Meghalaya Health Services, he is already within the zone of consideration for the promotion to the next higher post in terms of Rule 9(8) of the Meghalaya Health Services Rules, 1990.

(3.) Both the State-Respondents and the private Respondent contested the writ petition and have filed their respective counter-affidavits. The contention of the State-Respondents is that the promotion order dated 22.9.2005 relied upon by the Petitioner was issued on the recommendation of the Departmental Promotion Committee and in pursuance of the judgment and order dated 28.1.2004 but without any financial benefits. However, this order was challenged by the Meghalaya Medical Service Association in W.P.(C) No. 315(SH) of 2005 before this Court, which by the interim order dated 20.10.2005 had stayed the said notification. This Court again by the order dated 22.3.2006 modified the interim order dated 20.10.2005 by allowing the Medical Officers recommended by the DPC to officiate as Medical Officers Grade-I. Subsequently. "the aforesaid Writ Petition filed by the MMSA was disposed off vide Order dated 21.9.2007 by this Court as withdrawn thereby the Respondents were allowed to fill up all vacancies by way of promotion". As all the postings made by the Government prior to the said order dated 21.9.2007 passed by this Court were made officiating postings, the Medical Officers including the Petitioner, were, in public interest, transferred to different places by issuing the transfer order dated 2.6.2008. As such transfer order was passed by the State-Respondents in exercise of their discretionary powers, the question of violation of the legal right of the Petitioner does not and cannot arise. There is absolutely no infirmity in the impugned order temporarily promoting Medical Officers Grade-II to Grade-I with effect from 9.5.1998 (notional date) and with financial benefits from the date of issue of the order. It is asserted by the answering Respondents that the order dated 22.9.2005 never granted any financial benefits to the Petitioner and, as such, his contention that he lost financial benefits has no basis: 'he was never in active service in Grade-I post'. It is thus contended that the writ petition has no merit, and is liable to be dismissed with costs.