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PETITIONER:

DR.(MRS.) SANDHYA JAIN

Vs.

RESPONDENT:

DR. SUBHASH GARG & ANR.

DATE OF JUDGMENT: 15/10/1999

BENCH:

G.B.Pattanaik, N.Santosh Hedge

JUDGMENT:

PATTANAIK, J.

These appeals are directed against the Judgment dated

5.9.95 of the Madhya Pradesh Administrative Tribunal, Indore

Bench in O.A. No. 213 of 1995. The appellant in each of

these appeals was respondent in the original application

before the Tribunal. By the impugned order the Tribunal has

directed to consider the case of the applicant Dr. Subhash

Garg (Respondent No. 1 in these appeals) for promotion to

the post of Reader by the Departmental Promotion Committee

and if found eligible, to give him his due seniority.

Dr. Subhash Garg is a lecturer in the College of

Dentistry at Indore. He joined as a lecturer in Periodontia

on 21.6.82. On 16.9.88, three of the Readers having been

promoted as Professors on regular basis, three posts of

Reader fell vacant. According to Dr. Garg, he was eligible

for being considered but he was not considered

notwithstanding the fact that under the Recruitment Rules,

the authorities were bound to consider his case. The

Principal of the college recommended the case of Dr. Garg

for being considered on 6.10.89 but unfortunately, no

Departmental Promotion Committee meeting was held. The said

Principal made a fresh request on 24.10.91 and again on

3.5.92 and finally the Departmental Promotion Committee sat

on 25.9.92 but even in that meeting, case of Dr. Garg was

not considered and by order dated 2.12.92, Dr. Saxena and

Dr. Dhodapkar were promoted as Readers in Oral Pathology

and Periodontia respectively. On 2.12.92, one Dr. Patni

was promoted as Professor of Prosthetics. Being aggrieved

by non-consideration of his case, Dr. Garg approached the

Administrative Tribunal, which was registered as O.A. No.

18 of 1993. That application was disposed of by the

Tribunal by order dated 28.2.94 with the directions that Dr.

Garg should be considered for promotion to the post of

Reader along with others who are eligible and the Government

shall have the discretion to determine the guidelines for

selection of the candidates, keeping in view the specific

teaching requirement in the College of Dentistry. This

order of the Tribunal was assailed by Dr. Garg by filing

Special Leave Petition No. 15892 of 1994 in this Court,

which however was dismissed on 26.9.94. The Departmental

Promotion Committee again sat in May, 1994 and considered

and selected Dr. Desh Raj Jain, appellant in one of the

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appeals as Reader in Prosthetics and the case of Dr. Garg

was not considered. On 29.11.94, Dr. Garg was informed

that the matter of holding a Departmental Promotion

Committee to consider his case is being considered by the

Government. Dr. Garg filed a representation on 16.1.95.

As the said representation was not disposed of, he

approached the Administrative Tribunal by filing an

application under Section 9 of the Administrative Tribunal

Act, 1985, which was registered as O.A. No. 213 of 1995.

The said application having been disposed of by the impugned

order with the directions as already stated, the present

appeals have been preferred. The State as well as two other

private respondents before the Tribunal have preferred these

appeals.

The case of the respondent Dr.Garg, before the

Tribunal was that the recruitment and other conditions of

service of the doctors in the College of Dentistry are

governed by Madhya Pradesh Medical Education(Gazetted)

Service Recruitment Rules, 1987 (hereinafter referred to as

the Recruitment Rules). Under the Rules as per Schedule

I, the college has one post of Principal, four posts of

Professor, five posts of Reader and six posts of Lecturer.

Though, there are five posts of Readers and Column 2 of

Schedule IV indicates how promotion would be given to the

post of Reader in four different subjects, there is no

indication how the fifth post has to be manned. According

to Dr. Garg, the said fifth post was usually being filled

up by the senior-most lecturer available and, therefore,

though he was eligible for being considered on the basis of

his seniority as lecturer, he was not considered by the

Departmental Promotion Committee. The further stand of Dr.

Garg was that under the Rules, the Departmental Promotion

Committee was required to meet at intervals ordinarily not

exceeding one year but in the present case, there was no

meeting of the Departmental Promotion Committee from 1988

till 1992 notwithstanding the availability of a vacancy in

the post of Reader and this was purposely done only with the

object of accommodating Dr.(Mrs.) Sandhya Jain and Dr. Desh

Raj Jain who had not been eligible for being considered for

the post of Reader till 1992 and in the process, the

Constitutional Right of Dr. Garg for being considered was

infringed. Dr. Garg, further asserted that notwithstanding

the directions of the Tribunal in O.A. No. 18/93, the

Departmental Promotion Committee did not consider his case

and, therefore, appropriate directions should be given.

Before the Tribunal, the State Government took the

stand that the promotion to the post of Reader could be made

only on the same discipline in which a person is continuing

as lecturer and, therefore, since Dr. Garg was a lecturer

in Periodontia, his case was not considered for promotion.

The Government also took the stand that in view of the

Regulations of the Dental Council of India, it was not

possible to have two Readers in the discipline of

Periodontia and as such the claim of Dr. Garg could not

have been entertained by the Competent Authority. Dr.(Mrs.)

Sandhya Jain as well as Dr. Desh Raj Jain also appeared

before the Tribunal and took almost the same stand as of the

State Government. The Tribunal however on consideration of

the rival stand of the parties and on an analysis of the

provisions of the Recruitment Rules came to the conclusion

that the fifth post of Reader can be occupied by any

lecturer of any discipline and there is no bar either under

the Dental Council Regulations or under the Recruitment

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Rules to have two Readers in a particular discipline and as

such non- consideration of the case of Dr. Garg for

promotion to the post of Reader, even though a post was

available, infringes his right under Article 16 of the

Constitution of India. The Tribunal also relying upon the

decision of this Court in the case of Murli Babu Rao,

further came to hold that the recommendations of the Dental

Council are not binding. With these conclusions, the

application filed by Dr. Garg was allowed with the

directions as already stated.

Mr. Harish N. Salve, learned Senior Counsel,

appearing for both Dr.(Mrs.) Sandhya Jain and Dr. Desh Raj

Jain & Mr. Anoop Choudhary, learned Senior Counsel,

appearing for the State of Madhya Pradesh, assailed the

decision of the Tribunal inter alia on the ground that the

ratio in Murli Babu Raos case is no longer a good law in

view of the Constitution Bench decision of this Court in the

case of Dr.Preeti Srivastava and Anr. vs. The State of

Madhya Pradesh & Ors., 1999(4) SCALE 579. It was further

contended that even under the Recruitment Rules, it is not

permissible to have two Readers in a particular discipline

and, therefore, question of considering the case of Dr.

Garg for the vacant post of Reader did not arise as Dr.

Dhodapkar, senior to Dr. Garg in the discipline of

Periodontia had been promoted as Reader and that promotion

had not been assailed by Dr. Garg. Relying upon the

requirements as indicated in the Regulations of Dental

Council, Mr. Salve, further urged that the fifth vacant

post of Reader can be occupied by other block and not by a

lecturer in Periodontia as another lecturer in the said

discipline had already been promoted as Reader. The

conclusion of the Tribunal that the fifth post of Reader can

be occupied by a lecturer of any discipline on the basis of

seniority was assailed both by Mr. Choudhary, the learned

Senior Counsel, appearing for the State of M.P. and Mr.

Salve, appearing for the two other appellants and it was

contended that it had never happened in the past. In this

view of the matter, it was contended that the impugned

direction cannot be sustained in law.

Mr. Dholakia, the learned Senior Counsel, appearing

for Dr. Garg, on the other hand submitted that even during

the pendency of this appeal when the Departmental Promotion

Committee met on 14.2.97, a Government decision to the

effect that the fifth post of Reader could be given by

promotion to lecturer of any discipline was conveyed and in

view of the aforesaid decision it is futile for the State of

Madhya Pradesh to contend that the position is otherwise.

According to Mr. Dholakia, a scrutiny of the provisions of

the Recruitment Rules unequivocally indicate that there is

nothing in the Recruitment Rules as to how the fifth post of

Reader could be filled up and by promotion from which

particular discipline. In the absence of any such provision

in the Rules, the Government decision would supplement and,

therefore, the Tribunal was fully justified in issuing the

impugned directions.

In view of the rival stand taken by the parties, the

only question that arises for consideration is whether under

the Rules in force governing the conditions of service, the

fifth post of Reader could be filled up by a lecturer of any

discipline and if answer is in the affirmative, then

undoubtedly, Dr. Garg had a right to be considered when the

vacancy was available and such non-consideration infringes

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his Constitutional Right under Article 16. The answer to

the aforesaid question however would depend upon an analysis

of the different provisions of the Recruitment Rules. Rule

5 of the Rules provides for the classification of the

service, the number of posts included in the service and the

scale of pay attached thereto and the same should be in

accordance with the provisions contained in Schedule I.

Schedule I provides that for the College of Dentistry, there

should be one post of Principal, four posts of Professor,

five posts of Reader and six posts of lecturer in Madhya

Pradesh Medical Service (Class I). We are not concerned

with other posts indicated in the Schedule. Rule 6 provides

for methods of Recruitment and Rule 6(1)(b) provides

recruitment by promotion of the member of the service. Rule

6 read with Schedule II indicates that all the posts of

lecturers would be filled up by direct recruitment whereas

all other posts of Reader, Professor and Principal could be

filled up by promotion under Rule 6(1)(b). Rule 13 provides

appointment by promotion and the procedure for such

appointment has been indicated therein. In terms of the

said Rules, the Departmental Promotion Committee is required

to meet at intervals ordinarily not exceeding one year to

consider the case of promotion in respect of the available

vacancies. The conditions of eligibility for promotion have

been provided for in Rule 14 and as per sub-rule (1) of Rule

14, a person on the first day of January of the year must

have completed such number of years of service as specified

in Column II of Schedule IV and he must come within the zone

of consideration in accordance with sub-rule (2) of Rule 14.

Under Schedule IV, it has been indicated that for being

promoted as a Reader, the person concerned should have the

experience as a lecturer as per the norms of the Dental

Council of India. Rule 15 provides for preparation of a

list of suitable officers and the selection for inclusion in

such list is required to be made on merit and suitability in

all respect with due regard to seniority. Under sub-rule

(3) of Rule 15, the names of the officers included in the

list has to be arranged in order of seniority in the

specified posts as in Column II of Schedule IV at the time

of preparation of such select list. The proviso however

empowers the Committee to assign a junior officer, a higher

place in the list if he is found to be of an exceptional

merit and suitability. The select list approved by the

Government under Rule 17 is the list for promotion of the

members of the service from the posts shown in Column 2 of

Schedule IV to the posts shown in Column 3 of Schedule IV.

Necessarily, therefore, looking at Schedule IV, it is

crystal clear that the promotion to the post of Reader has

to be made from the post of lecturer. A bare look at

Schedule IV indicates that a lecturer in Prosthetics can be

promoted as Reader in Prosthetics; a lecturer in

Periodontia can be promoted as Reader in Periodontia; a

lecturer in Oral Diagnosis can be promoted as Reader in Oral

Diagnosis; a lecturer in Pedodontia can be promoted as

Reader in Pedodontia. Thus though under Schedule I, the

college has the sanctioned strength of six posts of lecturer

and five posts of Reader but under Schedule IV, only four

posts of Reader could be filled up by the holders of the

corresponding posts of lecturer. It has not been indicated

in Schedule IV as to how the fifth post of Reader which is

provided for in Schedule I would be filled up. In the

absence of any provision in the Recruitment Rules framed

under the proviso to Article 309 of the Constitution,

indicating as to how the fifth post of Reader would be

filled up, the decision of the Government in this regard

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assumes significance inasmuch as the Government can issue

executive instructions for the purpose, which is not

contrary to the Statutory Rules. It is in this context the

assertion of Dr. Garg that in the past the Government has

been following the practice of filling up the fifth post

from amongst the lecturers of any discipline, assumes much

significance. It may be noticed that even in the minutes of

the D.P.C. held in the office of the Public Service

Commission on 14.2.97, a reference has been made to a

Government decision indicating that the Government has taken

the decision to promote lecturer of any subject on the post

under question and this was placed before us in course of

hearing on 13.3.98. We had accordingly called upon the

counsel appearing for the State to produce the relevant

decision of the State Government but unfortunately the same

has not been produced and even though in course of hearing

it was contended by Mr. Choudhary, appearing for the State

that an affidavit has been filed but no such affidavit could

be traced out on record. In this view of the matter, we are

inclined to hold that the fifth post of Reader was being

filled up by lecturer belonging to any discipline, on being

selected following the criteria of merit with due regard to

seniority. Necessarily, therefore, non-consideration of the

case of Dr. Garg solely on the ground that there was no

available vacancy in the discipline of Periodontia

tantamounts to infringement of the constitutional right of

consideration under Article 16. The Tribunal, therefore,

was justified in issuing the impugned directions while

disposing of the original application filed by Dr. Garg.

The next question which comes up for consideration is

whether the Regulations framed by the Dental Council

contains any prohibition for appointing two Readers from one

discipline which would stand on the way of the Tribunal to

issue the directions for consideration of the case of Dr.

Garg. According to Mr. Salve as well as Mr. Choudhary,

the Tribunal relied upon the decision of this Court in the

case of Dr. Murli Babu, AIR 1988 SC 1048. In the aforesaid

case this Court had observed that the recommendations made

by the Medical Council of India or the Regulations framed by

it are only recommendatory and not mandatory and right to be

considered for promotion is a condition of service and it

can only be regulated by a rule framed under the proviso to

Article 309 and the recommendation of Medical Council could

not over-ride a rule framed under Article 309. In the

Constitution Bench decision on which the counsels appearing

for the appellants strongly relied, the question for

consideration was whether it is possible for the State

Government to prescribe different admission criteria, in the

sense of prescribing different minimum qualifying marks for

special category candidates, seeking admission under the

reserved category. It is in that context the Court had

observed that by permitting the State Government to lay down

the minimum qualifying marks for the post-graduate classes

would entail sacrificing the merit altogether and,

therefore, the same is not permissible. We fail to

understand how the aforesaid decision will be of any

assistance in deciding the question whether a direction can

be issued to consider the case of Dr. Garg in respect of

the fifth vacancy which could be filled up by a lecturer of

any discipline. That apart, no provisions of the Dental

Councils Regulation was placed before us to indicate that

there is an embargo for appointing two Readers from the same

discipline in a particular Dental College. If there is no

provision in the Dental Council Regulations, prohibiting

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appointment of two Readers in a particular discipline in a

Dental College and the Recruitment Rules framed under

Article 309 of the Constitution being also silent inasmuch

as it does not indicate as to how the fifth post of Reader

will be filled up, then the same can be filled up by

administrative decision of the Government and such a

decision cannot be held to be repugnant to the provisions of

the Dental Council Regulations. As we have stated earlier,

there is no repugnancy and that being the position and in

view of our conclusion that the fifth post of Reader could

be filled up by a lecturer of any discipline and in fact was

being filled up by the State Government, we see no

illegality in the impugned direction of the Tribunal,

calling upon the State to consider the case of Dr. Garg

when a vacancy was available and he had become eligible for

being considered. It has been brought to our notice that

said Dr. Garg has in the meantime been promoted as Reader

but still his right to be considered at an earlier point of

time when he was not considered erroneously, cannot be said

to have been wiped of by the subsequent promotion. In the

aforesaid premises, we are of the considered opinion that

the Tribunal rightly issued the impugned directions. We see

no error in the same, so as to be interfered with by this

Court.

All these appeals accordingly fail and are dismissed

but in the circumstances there will be no order as to costs.