- (1.) This writ petition has been filed by the Moti Lal Nehru Medical College Teachers Association through its Secretary and by Dr. Dileep Chaurasiya, who is working as Professor in the same Moti Lal Nehru Medical College and is alleged to be Secretary of the Association. The petitioners before this Court seeks quashing of the orders dated 29.10.2009, 15.06.2009, 31.01.2009 and dated 29.10.2009.
(2.) Facts, in short, leading to the present writ petition are as follows:- (a). Moti Lal Nehru Medical College, Allahabad (hereinafter referred to as "Medical College") was originally the Faculty of Medicines of the University of Allahabad (when it was a State University), but subsequently it was converted into a Government Medical College. The University of Allahabad continued to be the examining body only. (b). In the State of Uttar Pradesh, Medical Officers to be appointed for various District Hospitals and other Government dispensaries are selected by the U.P. Public Service Commission in accordance with U.P. Medical and Health Service Rules, 1945, as amended and substituted by Medical and Health (Group B) Services Rules, 1995 and now known as U.P. Medical and Health Services Rules, 2004 (hereinafter referred to as "Rules, 2004"), which have been enforced w.e.f. 11.08.2004. The Doctors appointed under the said Rules are commonly known as Members of Provincial Medical Health Services (hereinafter referred to as "P.M.S. Cadre"). (c). So far as the teaching Faculty to be appointed in Government Medical Colleges are concerned, their appointment and service conditions are regulated by U.P. State Medical Colleges Teachers Service Rules, 1990 (hereinafter referred to as "Rules, 1990"). (d). It is not in dispute that the minimum qualifications prescribed for the post covered under the P.M.S. Cadre Rules and those applicable to the Teachers of Medical Colleges are different. The petitioner no.1 before us is the Association of Cadre Members covered by the Rules, 1990. (e). The respondent nos.5 to 8 and 10 are persons who were selected by the U.P. Public Service Commission for the P.M.S. Cadre and these persons were sent on deputation to Moti Lal Nehru Medical College at Allahabad on various dates prior to the year 2005. (f). The records reflect that the sending of these respondent nos.5 to 8 and 10 was for a fixed term, which was extended from time to time. (g). On 19.07.2005, the University of Allahabad was declared to be a Central University by an Act of Parliament being Act No. 26 of 2005. (h). The respondent nos.5 to 8 and 10 are stated to have submitted their option for being absorbed as the Teachers of the Central University and because of the pendency of their applications in the matter of such absorption the State Government permitted them to continue at the Moti Lal Nehru Medical College, Allahabad. (i). We may record that this exercise of option by respondent nos.5 to 8 and 10 was in pursuance of an interim order dated 23.03.2007 passed in Public Interest Litigation No.32844 of 1997. The petition is stated to have been decided under the judgment and order dated 16.12.2011. The relevant part of the interim order dated 23.3.2007, which deals with the exercise of option, is being reproduced herein below:- "The MD Eye Hospital matter has attracted the attention of the Court to many such deputationist of the State Government, who are still working in the Medical College and its Associated Hospitals. They have no lien on the post and that their deputation should not have exceeded beyond the date, when the MLN Medical College and its associated hospitals became a part of the University. Their options for absorption have to be considered by the University in consultation with the State Government. In the circumstances, all those doctors and employees of the State Government on deputation to MLN Medical College and its Associated Hospitals, will be allowed to continue and will draw their salaries for the University only if they have given their option to accept the terms and service conditions of the University and are relieved by the State Government to be absorbed in the service of the University by the University in accordance with the ordinances to be made by the University in this regard. Any teacher, officer or employee, who do not opt to do so may be relieved by the University to join back in the State Government." (j). No finding was returned by the High Court in the said P.I.L. with regards to the right of respondent nos.5 to 8 and 10 to be absorbed as the Teachers of the Central University or otherwise nor any issue in that respect was examined in the final judgment. We may also record that the interim order, which referred to the exercise of option by persons like the respondents for being absorbed as Teachers of the Central University, itself records that the absorption was to be considered as per the Ordinances to be made by the University and in consultation with the State Government. (k). With reference to Act No. 26 of 2005, it may be noticed that Moti Lal Nehru Medical College, Allahabad was included as a University College under Statute 30 sub-clause 4 of the First Statute of Allahabad University, which were framed by the Central Government, and were made part of the Act itself as Schedule 1. Relevant Statute 30 sub-clause 4 is being quoted herein below:- "30(4) The following shall be the University Colleges, namely:- The Motilal Nehru Medical College and Swarup Rani Nehru Hospital, Allahabad." (l). The State Government was not satisfied with the said institution being declared to be a University College of the Central University. The matter in that regard was taken to the Apex Court in Civil Appeal No. 1812 of 2007, wherein it was directed that the issue as to whether the college and the associated Hospital should continue as a State Government College or should be a University College belonging to the University must be settled between the University, the State and the Union at the earliest having regard to the statutory provisions, and till then status quo was directed to be maintained. The oder of the Apex Court relevant for our purposes is being quoted herein below:- "The issue as to whether the College and the associated Hospital should continue merely as a constituent State Government College affiliated to the University, or should be a University College belonging to the University, as also questions relating to its administrative control, financing and other related issues shall be settled by the University, the State and the Union of India at the earliest having regard to the relevant statutory provisions. Till then, status quo, as on today, shall continue. The Appeal is disposed of accordingly." (m). The matter was examined between the University, the State Government and the Central Government, and ultimately Notification dated 16.07.2008 was issued whereby Statute 14.1(iv), Statute 14(6) and Statute 30(4) of the First Statutes of Allahbad University were repealed. For ready reference, the Notification dated 16.07.2008 is reproduced herein below:- "The Government of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi, has communicated, vide letter No.3214/2007-Desk(U) dated: the 9th July, 2008 (which has been received on 15th July, 2008), that H.E. The President, in her capacity as the Visitor of University of Allahabad, in exercise of the powers vested in her under Section 28(5) of the University of Allahabad Act, 2005, has been pleased to repeal the following Statues of the University: (i) Statute 14(1)(iv) relating to the Faculty of Medicine. (ii) Statute 14(6) relating to the Departments under the Faculty of Medicine. (iii)Statute 30(4) relating to the Motilal Nehru Medical College and Swarup Rani Nehru Hospital. Allahabad being a University College of the University. Accordingly the "Motilal Nehru Medical College and Swarup Rani Nehru Hospital Allahabad" ceases to be a University College of the University, with immediate effect." (n). It is not in dispute that subsequent to 16.07.2008 the Moti Lal Nehru Medical College and Swarup Rani Nehru Medical Hospital are under the administrative and supervisory control of the State Government. The University of Allahabad has even ceased to be the examining body. The college is now affiliated to Shahuji Maharaj Medical University, Lucknow. It is also not in dispute that all Teachers and Staff of Moti Lal Nehru Medical College and Swarup Rani Nehru Medical Hospital including respondent nos.5 to 10 are being paid salary by the State Exchequer. (o). It is admitted to the respondents nos.5 to 10 that they are drawing salary from the State Exchequer subsequent to the Notification dated 16.07.2008. (p). The petitioners in view of the aforesaid facts contend that since the respondent nos.5 to 8 and 10 are Members of the P.M.S. Cadre and were working on deputation at the Medical College at Allahabad and further since the maximum period of deputation has expired with reference to the order of State Government itself, they must be repatriated to their parent department, and they can no longer be permitted to continue at Medical College at Allahabad. They seek quashing of the orders referred to above, wherein directions were issued for the continuance of respondent nos.5 to 8 and 10 at Medical College at Allahabad till the issue of absorption was finally determined upon and ultimately under the impugned order dated 29.01.2009 the State Government has directed that respondent nos.5 to 8 and 10 stand absorbed in the service of the Medical College, their lien in P.M.S. Cadre ceases, and they would be treated as Teachers of Medical College.
(3.) Sri G.K. Singh, learned Senior Advocate assisted by Sri G.K. Malviya, Advocate on behalf of the petitioner, has submitted before us that the only mode and manner of appointment for Teachers in Medical College, as has been provided for, is by direct recruitment on the recommendations of the U.P. Public Service Commission under the U.P. State Medical Colleges Teachers Service Rules, 1990. There is no provision for appointment by way of deputation under the Rules, therefore, the respondent nos.5 to 8 and 10 must be repatriated to their parent department. Submission is that the order of the State Government dated 29.01.2009 cannot be legally sustained. In support of his contention Sri G.K. Singh has relied upon the judgment of the Apex Court in the case of Arun Kumar and Others Vs. Union of India and Others, 2007 5 SCC 580 particularly paragraph 11 thereof.;