PRABEEN KUMAR PANDAY Vs. STATE OF M.P.

JUDGEMENT

(1.) The interesting conundrum in this petition filed under Article 226 of the Constitution is whether the post of Librarian is to be filled up through direct recruitment or through departmental promotion.

(2.) In short, the admitted facts are that the petitioner is working as Assistant Librarian in Shyam Shah Medical College, Rewa (respondent No.3). The petitioner submits that the next promotional post for the post of Assistant Librarian is the post of Librarian. This post is to be filled up as per Recruitment Rules namely "Madhya Pradesh Chikitsa Shiksha, Sanchalanayal Tratiya Shreni - Alipikiya (Sah-Chikitsiya Samvarg) Bhart tatha Sewa Shartey, Niyam, 2015" (Recruitment Rules of 2015). It is submitted that as per Schedule II appended to these Rules, the post of Librarian is to be filled up 100% by promotion. The case of the petitioner is that he is holding feeder post of Assistant Librarian and respondents by way of notification Annexure P/1 intends to fill up this post by way of direct recruitment. Shri Manoj Mishra, learned counsel for the petitioner submits that the said action of respondents runs contrary to the Recruitment Rules of 2015. That statutory and fundamental right of consideration for promotion as well as right of progression in the career is taken away by the impugned order. In addition, Shri Mishra placed reliance on the communication dated 25.1.2016 Annexure P/5 whereby the Dean of the respondent No.3 college informed the Director, Medical Education that post in question is to be filled up 100% by promotion. In support of his contention, he relied on 2011 (6) SCC 725 (Deepak Agrawal and another v. State of Uttar Pradesh and others).

(3.) Per contra, Shri Pushpendra Yadav, learned Government Advocate opposed the relief. Shri Yadav submits that post of Librarian is lying vacant prior to commencement of Recruitment Rules of 2015. Putting it differently, it is submitted that the promotional post of Librarian for which notification Annexure P/1 was issued is lying vacant from a period prior to introduction of Recruitment Rules of 2015. Thus, this post is required to be filled up as per the then applicable rules namely "Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy) Class-III Ministerial Services Recruitment Rules, 1987 (hereinafter called as "Recruitment Rules of 1987"). By relying on Schedule II of these Rules, it is submitted that the post of Librarian is to be filled up 100% through direct recruitment. It is submitted that by Gazette Notification dated 4.10.2013 (Annexure P/1), the Rules namely "Madhya Pradesh Junior Services (Joint Eligibility) Examination Rules, 2013" were framed. In these Statutory Rules, the post of Librarian of said Medical College was included. As per these Rules also, the post is to be filled up through direct recruitment. In nutshell, the stand of the Government is that the post of Librarian is lying vacant from a period when Recruitment Rules of 1987 were applicable. Hence, the old vacancy is to be filled up by the then applicable Rules.