Decided on November 14,1979

B.R.KULKARNI Appellant
STATE Respondents


N.H.BHATT - (1.) This is a petition by one Dr. Kulkarni challenging the appointment of the respondents nos. 3 and 4 to the post of the professor of Anatomy at the Government B.J. Medical College Ahmedabad on the ground that the selection of the respondent no. 3 is contrary to the statutory Rules and is violative of Art. 16 of the Constitution and that the selection of the respondent no. 4 in preference to him was without any application of mind on the part of the Gujarat Public Service Commission in so far as the latter body had not taken into account the past record of the respondent no. 4 vis a vis that of the petitioner.
(2.) A few facts are required to be stated in details in order to comprehend the controversy. The petitioner was appointed as a Junior Lecturer in Anatomy at the B.J. Medical College in the year 1960 and his selection was then ratified by the Gujarat Public Service Commission and so he was substantively appointed on 28-12-61 as such. Thereafter the petitioner was promoted as an Assistant Professor temporarily from 8 but on and from 22-11-66 he was appointed regularly because of the retrospective concurrence of the Service Commission accorded to it. He was given his seniority in that cadre of the Assistant Professor with effect from 8-7-74 being the original date of his promotion. According to him he was the senior most man in the cadre and despite some initial reluctance on the part of the Government it was ultimately decided by the Government by its order Annexure B dated 15-1-73 that the petitioner Was senior to the respondent no. 4. The petitioner who is holder of double post graduate degrees one of M.S. with Medicine and another of M.S. with orthopedics was temporarily promoted to the post of the Professor in Anatomy on 20-3-73 as per the Governments order Annexure A. It is specifically stated there that the petitioners promotion was purely ad hoc and temporary and the said appointment was only for a period of one year. However it seams that he was continued. Then the Gujarat Public Service Commission advertised two posts of the Professor of Anatomy vide its advertisement dated 24-3-75 which was published in the local daily Sandesh on 26-3-75 Annexure D is the copy of the said advertisement which set out the maximum age to be 40 years as of 1-7-75. the petitioner alleged that the said maximum age limit was statutorily prescribed under the 1966 Recruitment Rules Annexure E to the petition. Pursuant to the said advertisement the petitioner the respondent no. 3 the respondent no. 4 and two other persons had made applications as eligible candidates. The post of a professor in Anatomy could be filled either by promotion or by direct selections the question being left to the discretion of the Government. The Gujarat Public Service Commission interviewed the petitioner the respondent no 3 the respondent no. 4 and two others on 9-7-75 for the said two posts. At the interview one Dr. Desouza of Topiwala Medical College Bombay under whom the respondent no. 3 had been serving since 1971 was invited as an expert by the Service Commission. The petitioners grievance is that the respondent no. 4 was comparatively less suitable for the post and still he was selected by the Commission and placed at Sr. No. 1 of the select list and the respondent no. 3 lacked one of the requisite Qualifications namely of not being 40 years of age as on 1-7-75 had not only been interviewed but also had been selected and on the recommendation of the Service Commission the State of Gujarat had appointed both the respondents nos. 4 and 3 to the said two posts of Professors of Anatomy with the obvious outcome of the reversion of the petitioner from the said post. The petitioners grievance unto the respondent no. 3 rests on the alleged want of eligibility on her part in so far as she was about 44 years of age on 1-7-75 the day notifled in the advrtisement for the purpose of deciding the upper age limit. The petitioner alleged that despite selection of the respondent no. 3 by the Service Commission and placement of the respondent no. 3 at Sr. No. 2 in the select list the Government had initially showed its reluctance to accept her as a duly appointable candidate but the Government ultimately gave in with the result that the impugned order Annexure F dated 17 came to be passed by the Government. By that order the respondent no. 3 Dr. (Miss) Dangarwala came to be appointed as the Professor of Anatomy at the B. J. Medical College Ahmedabad on temporary basis and the reversion of the petitioner followed as a matter of corollary (that temporary character of her holding of the post continues till today because of the interim order passed by this Court). The petitioners further grievance against the respondent no. 3 is that on comparison of the inter se merits the petitioner far out weighed her and he therefore alleged that the selection of the respondent no. 3 at the hands of the Service Commission and consequential appointment of hers by the State Government were vitiated by mala fides and a considerable roll in her selection was attributed to one of the Members popularly known as an expert member of the interviewing committee of the Service Commission viz. Dr. DSouza. The petitioner filed this petition for the following reliefs: (a) quashing and setting aside the appointment of the respondent no. 3 to the post of Professor of Anatomy and the order of reversion of the petitioner at Annexure F to the petition; (b) directing the respondent no. 1 to appoint the petitioner to the post of Professor of Anatomy and assign seniority to the petitioner in the post of Professor of Anatomy over the respondent no 4; (d) declaring that the appointment of the respondent no. 4 to the post of Professor of Anatomy is illegal and void" It is to be noted as a matter of history that the petitioner was placed first in the waiting list and it is therefore obvious that if the selection and consequential appointment of the respondent no. 3 is annulled the petitioner would step in in the second of the two vacancies for which advertisement had been issued by the Service Commission.
(3.) Mr. Anand the learned advocate for the petitioner raised the following points for consideration before me: (a) The respondent no. 3 Dr. (Miss) Dangarwala was not at all eligible for being interviewed because she had already crossed the upper age limit; (b) No relaxation even till the respondent no. 3 resumed the office on 20-4-76 had come to be made by the State Government even if it is assumed that the Government has power to relax the upper age limit; (c) When eligible candidates are available resort to power of relaxation should not and could not be had; (d) If power to relaxation and the possibility of relaxation is not set out in the public advertisement inviting applications such a power could not be exercised even if the Government had such powers; (e) Gujarat Public Service Commission had no power to relax the upper age limit and interview the respondent no. 3 in anticipation of the expected relaxation on the part of the Government; (f) The respondent no. 3 Dr. (Miss) Dangarwalas selection was the result of bias in her favour the bias having been brought about by Dr. DSouza of Topiwala Medical College Bombay who was her superior at that college since 1971 and who was therefore interested in her appointment; (g) The selection of the respondents nos. 3 and 4 in preference to the petitioners has been vitiated because all the relevant material pertaining to the three candidates was not there before the commission in order to enable the commission to have an objective view of the situation; (h) The selection of the respondent no. 4 was vitiated in so far as his past records about his performance and particularly the adverse reports against him in administrative matters were not placed before the Commission. ;

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