CASE NO.:
Contempt Petition (civil) 211 of 1994
PETITIONER:
J. RANGASWAMY
RESPONDENT:
STATE OF ANDHRA PRADESH AND ORS.
DATE OF JUDGMENT: 28/04/1995
BENCH:
B.P. JEEVAN REDDY & S.C. SEN
JUDGMENT:
1995 (3) SCR 874
CIVIL ORIGINAL JURISDICTION : Contempt Petition No. 211 of 1994.
IN Interlocutory Application No. 1 of 1992.
IN
Writ Petition (c) No. 4619 of 1985. (Under Article 32 of the Constitution
of India.)
The following Order of the Court was delivered:
In their Order dated 20th December, 1989, a Bench of this Court comprising
S. Ranganathan and M.M. Punchhi, JJ. gave the following direction in
Interlocutory Application No. 1 of 1989 (in Writ Petition (C) No. 4619 of
1985 in Review Petition No. 177 of 1989) and Interlocutory Application No.
2 of 1989 (in Civil Appeal No. 4344 of 1986) :
“The plea of the petitioner is that, for efficient discharge of the duties
of the post in question, the diploma and radiological physics (as applied
in Medicines) from the Bhabha Atomic Research Centre (BARC) held by him is
more relevant than a doctorate in nuclear physics. It is submitted that in
all corresponding posts elsewhere, a diploma in radiological physics is
insisted upon and that, even in the State of Andhra Pradesh, all other
physicists working in the line, except the respondent, have the diploma of
the BARC. It is not for the Court to consider the relevance of
qualifications prescribed for various posts. The post in question is that
of a professor and the prescription of a doctorate as a necessary
qualification therefore is nothing unusual. Petitioner also stated before
us that, to the best of his knowledge, there is no doctorate course
anywhere in India in radiological physics. That is perhaps why a doctorate
in nuclear physics has been prescribed. There is nothing prima facie
preposterous about this requirement. It is not for us to assess the
comparative merits of such a doctorate and the BARC diploma held by the
petitioner and decide or direct what should be the qualifications to be
prescribed for the post in question. It will be open to the petitioner, if
so advised, to move the college, university, Government, Indian Medical
Council or other appropriate authorities for a review of the prescribed
qualifications and we hope that, if a doctrate in nuclear is so absolutely
irrelevant for the post in question as is sought to be made out by the
petitioner, the authorities concerned will take expeditious steps to revise
the necessary qualifications needed for the post appropriately. But, on the
qualifications as they stand to-day, the petitioner is not eligible to the
post and cannot legitimately complain against his non-selection.”
Pursuant to the said observations, the petitioner-J. Rangaswamy filed a
representation before the Government of Andhra Pradesh to amend the Rules
governing the post Professor of Radiological Physics so as to treat the
qualification held by him (a diploma awarded by Bhabha Atomic Research
Centre) as sufficient qualification for holding the said post. Complaining
that the Government of Andhra Pradesh is taking no action upon his
representation, the petitioner moved I.A. No. 1 which came up before a
Bench comprising S Ranganathan, V. Ramaswami, JJ. and one of us (B.P.
Jeevan Reddy, J.) on October 16, 1992 when the following order was passed :
“On 20.12.89 this court permitted the petitioner to apply to the
appropriate authority for a revision of the rules of recruitment to the
post of Professor of Radiologist Physics with the hope that the authorities
concerned will take expeditious steps to revise the necessary
qualifications appropriately. The petitioner’s grievance is that though he
made a representation which was examined by an Enquiry Commission appointed
by the Govt. and though the Enquiry Commission submitted its report on
12.3.92, according to the petitioner in his favour, the Govt. has not yet
taken steps to consider the report, take decision thereon and revise the
rules as they may consider appropriate. There is some substance in this
grievance for almost 3 years have passed when we passed the above order. In
the circumstances we hope that the Govt. of Andhra Pradesh will examine the
enquiry commission report and take appropriate decision at the earliest if
possible by the end of this year.
This application has been misguidedly styled as Contempt Petition. It is
only for directions. So his petition is disposed of. ”
The petitioner has approached with the present contempt petition against
complaining that in spite of the later direction, the respondents are not
taking any action in the matter. We issued notice to the respondents, who
appeal ed and filed an affidavit (affirmed and signed on 6th February,
1995) sworn-to by Sri K.R. Narayanan, Deputy Secretary to the Government,
Health, Medical and Family Welfare Department, Government of Andhra
Pradesh, which merely referred to the movement of the concerned file from
office to office but did not indicate that any definite steps were taken by
the Government towards implementing the orders of this Court. The counter-
affidavit requested for grant of three months; time for passing final
orders in the matter. It stated further : “(I)t is submitted that the
separate Departmental Rules governing the services of Department of Medical
Education are prepared and the same are under consideration and some time
is required for issuing final orders and Notification.”
Finding that the said affidavit is evasive and that the complainant’s
grievance cannot be said to be unjustified, we passed the following order
on February 20, 1995:
The counter-affidavit filed by the State Government makes a sad reading. It
is evident that the State Government has been sleeping over the matter and
has not been prompt enough, as it ought to be, in implementing the orders
of this Court. In the circumstances we direct that within six weeks from
today the State Government should take all necessary steps and extend all
benefits which are due to the petitioner in accordance with the orders of
this Court, without fail. If this is not done within the period so
prescribed, the officers concerned shall personally be liable to explain
the non-compliance.
List on 17th April, 1995″.
When matter came up on April 17, 1995, the learned counsel for the State of
Andhra Pradesh stated that the government has complied with the orders of
this Court. In support of the said plea, he placed before a copy of the
letter No. 2213/M1/94-6 dated April 13, 1995 from the Secretary to the
Government, Health, Medical and Family Welfare Department, Government of
Andhra Pradesh, Secretariat, addressed to the Advocate-On- Record. The
letter states the following facts: the representation of the petitioner was
placed before the Screening Committee which found that the none of the
lecturers have requisite qualification of Ph.D. for inclusion in the panel
for the post of Professor of Radiological Physics/Chief Physics in the
Andhra Medical College, Visakhapatnam : “I am further to inform that rules
governing the post of professor of Radiological physics have been examined
vis-a-vis the recommendations of the One Man Commission/the Director of
Medical Education and also the guidelines prescribed by the Medical Council
of India and it is felt that a Ph.D. in Physics or Nuclear Physics is
essential for a Professor”; as per the guidelines prescribed by the Medical
Council of India, it is not necessary to have a post of professor of
Radiological Physics in any Medical College, that in other medical colleges
in State no such post of professor exists; the Government has, therefore,
decided to down-grade the said post to that of the post of Lecturer to
ensure uniform pattern in all Medical Colleges.
Alongwith the aforesaid letter, a copy of G.O.Ms. No. 176 Health, Medical
and Family Welfare (MI) Department dated April 13, 1995 is enclosed. The
G.O. says that inasmuch as there is no qualified candidate to fill up the
said post of professor and also because it is not mandatory to have such a
post according to Medical Council of India guidelines, the said post, is
down-graded to the post of Lecturer with immediate effect. Another document
enclosed to the said letter is a copy of the “Observations of the Screening
Committee which met on 18.3.1995 in connection which preparation of Panel
for filling up the post of Professor of Radiological Physics/Chief
Physicist in Andhra Medical College Visakhapatnam”. This note sets out the
three orders of this Court aforementioned and says, “(T)he Screening
Committee was informed that it is not mandatory as per Medical Council of
India’s guidelines to have a post of professor of Radiological Physics for
any Medical College; that only in the Andhra Medical College,
Visakhapatnam, a post had been created sometime ago apparently to
accommodate one particular candidate, who was serving as
Lecturer at that time; …… that under the normal University pattern, a
Lecturer does not straightaway become a Professor and an intermediate level
of eight a Reader or Asst. Professor is normally available instead of a
straight jump from lecturer to Professor……”. The Screening Committee
asked the Government to decide whether the post of Professor should be
continued in the Medical College at Visakhapatnam and if it is decided to
continue, whether to revise the existing Rules inasmuch as at present none
of the available persons is fit to be promoted. At the same time, it added,
“it is not desirable to amend rules merely to suit an individual or to
enable the promotion of an individual.”
From the material placed before us, it appears that by proceedings of the
Director of Medical Education, Government of Andhra Pradesh, Hyderabad
dated December 18, 1992, the petitioner was appointed to the “Special
promotion post” with effect from February 26, 1983 and allowed to draw the
scale of pay of Rs. 1400-2000 in the pre-revised scale of pay of 1986
attached to the promotional post of Professor of Radiological Physics in
terms of G.O. Ms. No. 117-Fin. & Pig. (FW) Dept. dated May 25, 1981. The
said proceedings says further that “(A)fter fixing the pay in special
promotional post, in the above scale, Sri J. Ranagaswamy, lecturer in
Radiological Physics/Radiological Physicist, on completion of (22) years of
service in the present category on 25.2.90, is appointed to special Ad-hoc
promotion post scale-II w.e.f. 26.2.90, in the scale of pay of Rs.
2590-100-3090-110-4300 (in 1986 RPS) next above the scale of pay of the
post of professor in Radiological Physics, Rs. 2410-90-2950- 100-4080, (in
1986 RPS), in term of G.O. (P) No. 2-Fin. & Pig. (Fin.Wing) dt. 14.1.88.”
From these proceedings, it is clear that with effect from February 25, 1983
the petitioner has been placed in a special promotion post carrying the
pre-revised pay scale of the Professor of Radiological Physics and that
with effect from February 26, 1990 he has been placed in a scale above the
scale of pay of the post of Professor of Radiological Physics. Petitioners,
how-ever, says that he is entitled to be promoted to the post of Professor
with effect from February 26, 1973 (vide his representation dated May 10,
1991 – Annexure ‘C’ to the contempt petition). In view of the orders of
this Court dated December 20, 1989, however, it is not possible to accede
to the said request. At the same time, we must say that the material placed
before us does not indicate that the Government of Andhra Pradesh has ever
considered properly the petitioner’s representation – and in particular the
question, whether the diploma held by the petitioner is adequate
qualification for the post of Professor of Radiological Physics. The
“Observation of the Screening Committee” contains no reference to this
aspect nor does G.O.Ms No. 176 dated April 13, 1995. Only in the letter
dated April 13, 1995 referred to above (from the Secretary to the
Government addressed to the Advocate-on-Record for Andhra Pradesh in
Supreme Court) one sentence occurs that “the rules governing the said post
have been examined vis-a-vis the recommendation of the One Man
Commission/the Director of the Medical Education and also the guidelines
prescribed by the Medical Council of India and it is felt that a Ph.D. in
Physics or Nuclear Physics is essential for a Professor.” No material has,
however, been produced to substantiate the said statement. The facts of
this case show that the Government has been dragging its feet in the
matter. Of course, the petitioner has meanwhile been placed in a post equal
to or higher than the post of Professor of Radiological Physics. In the
circumstances, all that remains is to make suitable orders in the matter.
Accordingly, we direct that the decision to down-grade the said post of
Professor of Radiological Physics shall be kept in abeyance till the
superannuation of the petitioner. The petitioner shall be treated as having
been appointed regularly to the post of Professor of Radiological Physics
in the Andhra Medical College, Visakhapatnam, with effect from 1st May,
1995. On the date the petitioner retires, the said post shall stand down-
graded to the post of Lecturer. These orders are passed in the particular
facts and circumstances of the case and shall not be treated as a precedent
nor would it be necessary to amend or modify the rules for this purpose. It
is, however, made clear that if the petitioner is at present drawing
emoluments higher than those admissible to the post of Professor (to which
he shall be treated to have been appointed with effect from May 1, 1995),
the same shall not be withdrawn.
The Contempt Petition is disposed of accordingly. No order as to costs.
Petition disposed of.