- (1.) BY the Court.-We have heard Shri A.R. Masoodi, learned counsel for the petitioner. Shri S.P. Gupta and Shri Navin Sinha, Senior Counsels assisted by Shri A.K. Srivastava appear for the respondent No. 4. Shri Satish Chaturvedi, Addl. Advocate General appears for the State respondents.
(2.) THE recruitment of the teaching stuff of Government Medical Colleges in the State of U.P. is regulated by the U.P. State Medical Colleges Teachers Service Rules, 1990 (in short the Rules of 1990). THE Rules have been amended by the Second Amendment in the year 2005 notified on 12.5.205, and by Third Amendment in the year 2006 notified on 13.11.2006. Prior to the amendments the post of Asstt. Professor was provided to be filled up by way of direct recruitment, and the post of Associate Professor and Professor could be filled up both by direct recruitment and promotion. THE Second Amendment to the Rules notified on 12.5.2005 made a provision of personal promotion to the post of Asstt. Professor/ Associate Professor as also the Professor, of which the procedure was prescribed under Rule 15. A substantively appointed Lecturer after completing 3 years satisfactory service was entitled to personal promotion as Asstt. Professor along with his own post. Under Rule 15 (2) after completing four years a Lecturer or Asstt. Professor appointed substantively was entitled to personal promotion with his own post to the post of Associate Professor, and after completing two years, and if he possesses D.M./M.C.H. qualification. Under Rule 15 (3) an Associate Professor substantively appointed as Lecturer/ Asstt. Professor/ Associate Professor was entitled to personal promotion with his own post after completing 6 years of satisfactory service as Associate Professor or 8 years of satisfactory service as Asstt. Professor including 4 years as Associate Professor. By the Third Amendment to the Rules of 1990 notified on 13.11.2006 a specific proviso was added under Rule 15 (1), whereby regularization of service rendered as Asstt. Professor or Associate Professor under the Society System (between 2.4.1998 to 8.11.2002) by virtue of his option was also liable to be computed in the qualifying service prescribed for personal promotion. The substituted provision further added a proviso to Rule 15(1) that if Junior Teacher became eligible for personal promotion, after taking into account length of service in the Society System, a Teacher senior to him will also be eligible for personal promotion, even though he may not have worked in the Society System and did not have prescribed length of service. Rule 15 as amended upto Third Amendment Rules, 2006 is quoted as below: "Provided further that if a teacher has worked on the post of Assistant Professor or Associate Professor under the society system in U.P. Government (Allopathic) Medical Colleges, as existed on and from April 2, 1998 till November 8,2002 by virtue of his option, the services so rendered by him shall be taken into account for the purpose of computing the qualifying service for personal promotion to the post of Associate Professor or Professor, as the case may be, but such personal promotion shall in no case be given with retrospective effect: Provided also that if a junior teacher becomes eligible for personal promotion to the post of Associate Professor or Professor, as the case may be, on the basis of the aforesaid proviso, a teacher senior to him but who has not worked under the society system in U.P. Government (Allopathic) Medical Colleges shall also be eligible for personal promotion to the post of Associate Professor or Professor, as the case may be, notwithstanding the fact that he has not put in the requisite length of service prescribed for such personal promotion." The cause of action arose to the petitioner, to file this writ petition challenging the communication of Public Service Commission, U.P. Allahabad dated 8.10.2009 issued to him refusing to calling for interview for the post of Principal by way of direct recruitment as the petitioner has not annexed the certificate of essential eligibility condition. The petitioner has prayed for direction to quash the communication issued by the Public Service Commission, U.P. Allahabad to Dr. Girish Kumar Aneja (respondent No. 4) by which he has been held eligible to be interviewed for the post of Principal. He has also prayed for quashing the orders dated 8.2.2008 and 12.12.2008 by the State Government giving notional promotion to respondent No. 4 to be promoted as Professor w.e.f. 31.3.2003, or to command the State Government to sanction the same benefit to the petitioner.
(3.) THE dispute in the present case has arisen from the proceedings initiated by the U.P. Public Service Commission to fill up the posts of Principals in the State Medical Colleges in the U.P. under Rule 5 (iv), forwhich eligibility condition is provided in Table-I of Rule 8 and which provides that for the post of Principal/ Dean/ Director of medical institutions the academic qualifications are : "who possess the recognized post graduate medical qualifications and other academic qualifications from a recognized institutions with a minimum of 10 years teaching experience as Professor/ Associate Professor/ Reader in a Medical College/ institute out of which atleast 5 years should be as Professor in a department. THE preference for these appointments may be given to the Head of the Department. The post of Principal, State Medical Colleges was advertised by the Public Service Commission, U.P. under the Advertisement No. 3 of 2009-10 published in Rozgar Samachar dated 29.8.2009 to 4.9.2009 advertising 8 vacancies out of which 4 are unreserved; 2 are reserved for OBC and 2 for SC candidates. Both the petitioner and respondent No. 4 though they are not competing for any advertised post had applied. The respondent No. 4 has been treated to be eligible, whereas the petitioner has not been treated to be eligible, giving rise to this writ petition.;