S.B.MAJMUDAR - (1.) LEAVE granted.
(2.) BY consent of learned Counsel for the parties, we have heard this appeal finally and the same is being disposed of by this judgment. The short question involved in this appeal is as to how the quota and rota rule for recruiting Professors in the Department of Ophthalmology in the Medical College belonging to the appellant-State of Punjab is to be operated. The relevant factual matrix for deciding this controversy may be noted at the outset. Background facts : The respondent, at the relevant time when this controversy arose, was working as an Assistant Professor in the Department of Ophthalmology in the Government Medical College, Patiala. He was a promotee with effect from 20/06/1984. Earlier he was working as Senior Lecturer from 6-8-1981. The question arose as to how the vacancy in the post of Professor of Ophthalmology was to be filled in on the retirement of one Dr. Shiv Inder Singh Rudra, Professor of Ophthalmology, with effect from 31-10-1996. The relevant rule governing such posts is Rule 9(i)(d) of the Punjab Medical College Education Service (Class-I) Rules, 1978 (hereinafter referred to as the 'Rules'). The said rule reads as under : "(9) Method of Appointment : (d) In the case of Professors : (i) 75 per cent posts by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the service of the Government of India, or the State Government; (ii) 25 per cent posts by direct recruitment." According to the appellant-State, as there were five posts in the cadre of Professors of Ophthalmology in the said College, on the basis of the aforesaid quota rule governing the recruitment in question, every three vacancies of Professors in the said cadre had to be filled in by departmental promotees while the fourth vacancy would be filled in by direct recruitment and thereafter succeeding vacancies to be filled in by promotees and direct recruits in the successive cycles of 3 : 1. The case of the appellant-State is that in the cadre of Professors of Ophthalmology in the said College, right from the beginning when the erstwhile executive instructions on the same lines operated till the date of the falling of the vacancy in question, there were in all 15 Professors including Dr. S. S. Rudra, who retired, as aforesaid and, therefore, on his retirement the 16th vacancy arose. As per the appellant-State, on the operation of the quota rule and the roster cycles of 3 : 1, the 16th vacancy would be available to a direct recruit as under : 1st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to direct recruit, 9th, 10th and 11th to promotees, 12th to direct recruit, 13th, 14th and 15th to promotees and the 16th to direct recruit. Consequently, the said vacancy was advertised for being filled up by direct recruitment. That brought the respondent to the High Court by way of writ petition. His contention in the writ petition was that in the light of the Constitution Bench judgment of this Court in R. K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : (1995 AIR SCW 1371), as there were total five posts in the cadre of Professors of Ophthalmology 75 Per Cent thereof, namely, 3.75 posts had to be reserved for promotees and 1.25 Per Cent of the remaining posts had to be reserved for direct recruits. Rounding up these figures by taking digits up to .50 as nil and beyond .50 as 1, four posts in the said cadre had to be filled in at a given point of time by promotees and one post had to be filled in by direct recruitment and as at the time when the vacancy arose by retirement of Dr. S. S. Rudra, there was already one direct recruit holding the post of Professor, the vacancy in question had to go to the departmental promotee as he was the senior-most Assistant Professor in the Department of Ophthalmology. His claim to be promoted to the said post should have been processed in accordance with law and the said post should not have been advertised for direct recruitment. This contention of the respondent was accepted by the Division Bench of the High Court by its impugned judgment dated 20/08/1997. The High Court noted that as Dr. S. S. Shergill is already working as a Professor in the Department of Ophthalmology as a direct recruit the vacancy in the post in question must go to a promotee as there were only three promotee Professors occupying the posts of Professor in the department at the relevant time. Thus, there was a clear vacancy of 1 post for promotee in the said cadre of 5 posts of Professor. The fifth post, therefore, had necessarily to be filled in by promotion. The writ petition filed by the respondent was, therefore, allowed and the advertisement dated 10/05/1997 issued by the appellant-State for filling up the post of Professor in the Department of Ophthalmology by direct recruitment was quashed and set aside. The appellant-State and its authorities were directed to fill up the post by considering the eligible persons by way of promotion.
(3.) IT is now time for us to note the main contentions canvassed by learned Counsel for the appellant-State of Punjab Shri H. K. Puri and also by learned Senior Counsel Shri P. P. Rao for the intervenor who is a prospective direct recruit candidate for the said post on the one hand and the rival contentions canvassed by learned Counsel for the respondent original writ petitioner on the other. Rival Contentions : Learned Counsel Shri H. K. Puri for the appellant and learned Senior Counsel Shri P. P. Rao, for the intervenor, submitted that the High Court had misinterpreted the ratio of the Constitution Bench judgment in the case of R. K. Sabharwal (1995) AIR SCW 1371) (supra). That the said decision pertained to a scheme of reservation for Scheduled Caste and Scheduled Tribe persons under Article 16(4) of the Constitution and had nothing to do with the present scheme of the rule regulating the recruitment from two sources under Article 16(1) of the Constitution. It was next contended that under latter scheme, the State authorities consistently followed the regulation of recruitment by ratio 3 : 1 i.e. three promotees and one direct recruit in case of all future vacancies in the cadre of Professors. That earlier by executive instructions and later by the statutory rule this was consistently followed. Non-following the said practice would result in anomalies, which were tried to be demonstrated by them. Reliance was placed also on a Division Bench judgment of this Court in the case of Paramjit Singh v. Ram Rakha, (1979) 3 SCC 478 : (AIR 1979 SC 1073), as further clarified in the very same case in (1982) 3 SCC 191 : (AIR 1983 SC 314) for supporting their contention.;