- (1.) AMITAVA Lala, J. By the earlier order passed by Division Bench of this Court, all the aforesaid writ petitions were connected, and have been heard analogously for the purpose of disposal by a common judgement and order having binding effect upon all of them. The Writ Petition No. 54845 of 2005, will be considered as leading case, under which the writ petitioner wanted an appropriate order quashing the select list dated 7th/8th May, 2005, in so far as it selects Dr. P. O. Saxena, as Principal of Moti Lal Nehru Medical College, Allahabad (for short the College) alongwith other incidental prayers.
(2.) FACT remains that advertisement No. 3/2003/04 was issued for the purpose of filling up posts of Principals of State Medical Colleges. However, by a corrigendum dated 8th May, 2005 the maximum age limit of the candidates was enhanced. Originally, 6 posts were declared vacant for the purpose of filling up, out of which 3 were reserved for S. C. and ST. candidates. However, later on such total posts were reduced to 4 in number. There is no dispute with regard to the posts reserved for S. C. and ST. category. The dispute is with regard to the selection of general category candidate i. e. Dr. PC. Saxena, as Principal of the College. An incidental dispute has been raised by Dr. Manisha Dwivedi by saying that although initially it was said that there would be reservation for women but subsequently the same had been withdrawn. According to Sri Rakesh Pandey, learned Counsel appearing for Dr. Dwivedi, the reservation for women is horizontal not vertical, therefore, such reservation should be made separately within the general candidates. However, we have come to know that still there is scope of 20% reservation for women candidates. Since the number of posts was reduced, 20% reservation for women was not available. In any event, Dr. Manisha Dwivedi and Dr. U. S. Sinha, both the petitioners herein, participated in the selection and after becoming unsuccessful, raised dispute with regard to the selection of Dr. PC. Saxena by making these writ petitions. So far as the other petitioner i. e. Dr. Harish Kumar Bist is concerned, his attack is not with regard to the selection but with regard to the seniority of candidates. According to Mr. M. K. Gupta, learned Counsel appearing for Dr. Bist, by a Government Order dated 2nd April, 1998, 6 medical Colleges were taken in a society, under the Societies Registration Act, 1856 and were accordingly registered. Under the compelling circumstances, Lecturers, Associate Professors, Readers therein, were directed to join in such posts under the society. Eventually, whosoever accepted such post under the society, irrespective of the seniority, was given the rank of the Professor but in fact, they are junior to Dr. Bist. The society was ultimately declared as defunct, therefore, the seniority will be counted as it was originally and not by virtue of placement of his juniors on the higher posts under the society, vide aforesaid Government Order, at the time of formation of the society. Before entering into further controversy in respect of selection process herein, we are of the view that the cases of Dr. Bist and Dr. Dwivedi will be clarified at first. According to us, Dr. Bist could have challenged the seniority position, much before the commencement of the selection process, when the society was very well in existence i. e. in between 2nd April, 1998 and 14th September, 1998. When a Government Order has been issued on 23rd February, 2005 regarding the experience of the candidates, in the society or not in the society, only then he has come forward and invoked the writ jurisdiction of the Court for cancellation of such notification, on 8th December, 2005 long after the selection and publication of the select list on 7th/8th May, 2005. Therefore, his writ petition cannot be entertainable on account of laches, unless of course, the writ petition of Dr. Sinha succeeds in quashing the select list. Hence, we do not find any merit in this writ petition at this stage.
(3.) SO far as the case of Dr. Manisha Dwivedi is concerned, her writ petition also cannot be entertained for the same reason that she participated in the process of selection as a general candidate and only after becoming unsuccessful, she filed the writ petition challenging the select list by saying that instead of filling up all the 6 posts as originally advertised, the number of posts has been reduced to 4, so as to deprive her of the benefit of the women's, horizontal quota. According to us, same principle is applicable in the case of Dr. Dwivedi also, unless of course, the writ petition of Dr. Sinha succeeds in quashing the select list. In any event, whether 6 posts will be ultimately filled up or only 4, falls exclusively within the domain of the employer, which cannot be subject matter of challenge by an unsuccessful candidate after participation in the selection process. Now, let us come back for considering the case of Dr. U. S. Sinha. Mr. R. N. Singh, learned senior Counsel appearing for Dr. Sinha has contended before this Court that although the petitioner has participated in the process of selection, yet he can challenge the decision making process of the authority, therefore, he has every right to file the writ petition challenging the same. He emphasised that the selected candidate Dr. PC. Saxena had acted as Professor of a college under the society and till the date of his appointment under the order impugned, he continued as Professor irrespective of existence or non-existence of the society. Since the original order of formation of society was ultimately withdrawn by Virtue of order passed by the Division Bench of this High Court and ultimately by the Supreme Court, hence, he will have to go with lock, stock and barrel. Whosoever were working as Professor therein during the existence of the society and thereafter, cannot be said to be duly qualified persons for the purpose of selection. Mr. Singh has placed the record of Civil Misc. Writ Petition No. 39615 of 1999 (Dr. Arvind Kumar Rathi v. State of U. P. and others), to establish that the Division Bench of this Court already held that the grant of designation and pay scale of Professor would, of course, be subject to the result of Special Leave Petition pending in the Apex Court against the judgments of this Court quashing the Government Order dated 2nd April, 1998 entrusting the State Allopathic Medical Colleges to an autonomous society. According to Mr. Singh, the special leave petition was dismissed, therefore, such order stood confirmed and as a result thereof working of Dr. Saxena as Professor in a college under the society cannot be said to be duly qualified for the purpose of getting an appointment in the post of Principal, which is under challenge. The order which was passed by the Division Bench of this Court earlier, quashing the order of Government regarding formation of the society on 2nd April, 1998, is reported in 1999 (3) A. W. C. 2459, U. P. Medical College Medical Education Teachers Association, Gorakhpur and another v. Union of India and others. Before placing the Rules and Regulations, Mr. Singh invited our attention to paragraph 16 of a Supreme Court judgment reported in (1986) 1 SCC 675, Union of India and others v. Arun Kumar Roy, to the extent that a notification has no statutory force. It cannot override rules statutorily made governing the conditions of service of the employees.;