Chandigarh, June 22, 2022: The Punjab and Haryana High Court has recently affirmed that the law helps those who help themselves and does not come to the rescue of the persons who choose to sleep over their rights.
Further, the Division Bench of Justices G.S. Sandhawalia and Vikas Suri added that acquiescence, delay and laches would be well recognised exceptions to dismiss the claim sought to be raised at a belated stage.
“In service jurisprudence, applicability of the said principle would also depend on the factum whether the subject matter of the decision impugned touches upon policy matters i.e. affecting a class of persons or is a judgment in personam”, held the Court.
The instant intra-court appeal was filed by the writ petitioners against the judgment of the Single Judge Bench. The claim agitated in the writ petition was not entertained on the ground that it was within the domain of the executive to decide as to whether the officers or persons who have substantial part of the service career in Medical/Dental Colleges as Member of the Teaching Faculty should be repatriated or not and as such is the prerogative of the State for resolving any issue arising there from, as per the need and in public interest.
It was also held that the writ petitioners could not have a lien over such posts by raking up the issue of the order of 2013 in the year 2017.
The brief facts of the matter are that the appellants were appointed as Medical Officers (Dental) with the Department of Health and Family Welfare and were governed by the Punjab Dental Service erstwhile (Class-II) Rules, 1968. The writ petitioners, four in number, indicated their dates of joining to be from 1990 to 1999.
After being appointed, the writ petitioners served in Rural Dispensaries/Primary Health Centres in the State of Punjab and were transferred/ posted in Govt. Dental College and Hospital, Amritsar/ Patiala as Medical Officer against the posts of Demonstrator/Senior Lecturer for teaching BDS (Bachelor of Dental Surgery) students in Govt. Dental College and Hospital and later designated as Demonstrator.
The said appointment was done after getting ‘No Objection Certificate’ from Department of Health and Family Welfare, Punjab. The condition of service of persons appointed to the Punjab Dental Education Class-II service were regulated by the Punjab Dental Education Service (Class-II) Rules, 1977 (‘1977 Service Rules’).
The petitioners were working as Medical Officers (Dental) and posted in the Medical Colleges, Dental Colleges and Ayurvedic Colleges, who were re-designated as Tutor/Lecturer-cum-Medical Officer. The aforementioned postings were done on account of the acute shortage of Teaching staff as per DC norms.
Thereafter, the Govt. promoted/selected six Medical Officers (Dental) as Assistant Professors from the Department of Dentistry. The petitioners didn’t get selected. In the writ petition it was averred that the respondents with an objective to deprive the writ petitioners from their adjustment as Assistant Professor, initiated a move in the year 2011 to transfer them from teaching post to a non-teaching post by transferring them back on the post of Medical Officer (Dental) in the PCMS cadre, despite them having discharged their duties to the entire satisfaction of the respondents. Thus, it was highlighted that there was acute shortage of teaching staff in Govt. Dental Colleges and Hospital.
Anticipating their transfer, the petitioners filed writ wherein, vide interim April 2011 order relieving of the petitioners from the college was stayed as an interim measure. The Court directed the State Government to constitute a committee and also address the grievances of the petitioners and other similarly placed individuals.
The petitioners made their representations, the committee was constituted and affected officers working in the Govt. Dental Colleges in Patiala and Amritsar were called for personal hearing.
The petitioners averred that no orders were communicated to the petitioners much less the decision of the said committee and that the respondents fixed a meeting of the Departmental Promotion Committee in 2013 wherein against 13 posts of Assistant Professors, the names of 10 recommended persons for promotion was to be considered without deciding the fate of the writ petitioners. Vide order of July 2013, the promotion orders made earlier were cancelled/rejected.
The petitioners’ placed reliance on the Expert Committee’s report wherein it unanimously recommended to adjust the Medical Officers in Dental Colleges under the promotion quota of above 75% posts of Senior Lecturer amongst the Demonstrators, keeping in view the fact that they were working for a number of years and further there is provision of recruitment by transfer. However, the Secretary to Govt. of Punjab, Department of Medical Education and Research did not accept the report and took serious note of the factum that it had not included remarks of the representatives of the Personnel Department while considering the matter.
The case of the petitioners’ in a nutshell was that the action of the respondents in not recognizing the teaching experience gained by them while working on the post of Demonstrator/Assistant Professor and discharging the duties as Medical Officers-cum-Lecturers is wholly illegal, arbitrary, discriminatory and deserves to be quashed by issuing an appropriate writ owing to the shortage of teaching staff in Dental Colleges.
Moreover, it was contended that the rejection of the Committee’s report is also irrational and does not have sound logic. The post of Demonstrator and Senior Lecturer is governed by the 1977 Service Rules. The writ petitioners emphatically urged that they have the requisite qualification for being adjusted in Medical/Dental Colleges for imparting education to the students seeking medical degrees and rest their case.
The Single Judge while dismissing the writ petition, categorically noticed that the writ petitioners never challenged the order of February, 2013 within a reasonable time and the same was challenged by them for the first time in the year 2017.
After considering the case of both the parties, the Court opined prima facie there was acquiescence on the part of the writ petitioners to passing of the orders of February and July 2013. The noted that it was apparent from the record that the appellants had chosen not to further question the decision of the State Government and as such they became fence-sitters and that said situation continued in the following years as well, till the communications of May 2017 were issued, when the writ petitioners woke up from their slumber and sought to make an attempt to seek interim protection.
In light of the above factual matrix, the writ petition came to be instituted in the year 2017, from which the present intra-court appeal has arisen, the Court observed.
In light of the above, the Court opined that it is well settled that the law helps those who help themselves and does not come to the rescue of the persons who choose to sleep over their rights. With respect to the conduct of the present petitioners’, the Court opined that the writ petitioners cannot seek complete parity with the vigilant litigants, who had timely approached the Writ Court in the year 2013.
“Acquiescence, delay and laches would be well recognised exceptions to dismiss the claim sought to be raised at a belated stage. In service jurisprudence, applicability of the said principle would also depend on the factum whether the subject matter of the decision impugned touches upon policy matters i.e. affecting a class of persons or is a judgment in personam”, held the Division Bench.
In view of the above, the Court opined that the impugned order was a policy matter, final decision of which would affect the entire class of persons, including those who were petitioners in the earlier writ petitions instituted in the year 2011, which were disposed of by issuing the directions noticed earlier.
Further, the Court opined that there might be valid reasons not to grant interim protection to the appellants on account of their own conduct but it may not be appropriate to non-suit the writ petitioners, especially when the policy affecting their rights was under scrutiny of the writ Court being subject matter in writ petitions pending before another Single Judge.