U. C Srivastava, J. - (1.) THESE five writ petitions, two having been filed by one and the same doctor, are against the order appointing four whole time Anaesthetist in the King George's Medical College, Lucknow as Lecturers who were senior to them having been appointed prior to the appointment in question by the State Government and the subsequent order passed by the State Government cancelling the said appointment. Prior to taking over of the King George's Medical College, Lucknow by the State Government in the year 19.81, there were no avenues of promotion of Anaesthetists who apart from being M. B. B. S. generally do fulfil' the requisite qualifications of being Lecturer.
(2.) THERE were nine posts of whole time Anaesthetists in King George's Medical College, Lucknow. The Secretary, Medical Health and Family Welfare Department U. P. who made inspection in the year 1986 wrote a D. O. Letter dated 27-5-1987/4-6-1987 to the then Director, Medical Education and Training, U. P. Lucknow with copy to the Principal, King George's Medical College, Lucknow proposing conversion of the posts of Anaesthetists (hereinafter referred to as WTAs) into the posts of Lecturers in Anaesthesia regarding which he had spoken at the time of his inspection in view of the fact that few WTAs have been working for more than 8 to 10 years and there was no avenue of promotion. In the letter it was also mentioned that the scale of pay of posts of WTAs and Lecturers is wholly identical and similar and that there were precedence of such conversion and reference to such conversions at Kanpur was made. The State Government granted its approval to such proposal for conversion of five posts of WTAs in order of seniority and issued Government Order in this behalf on 7-8-1987 and consequently appointment orders of five WTAs in accordance with seniority were issued. These appointments, it seems, have not been challenged and the power of the State Government for converting said posts into that of Lecturers has not been challenged in these writ petitions nor it appears it was challenged earlier. In respect to the remaining four posts of WTAs, the Secretary Medical Health and Family Welfare Department, U. P. in continuation of his earlier D. O. again moved to the Government vide D. O. dated 4-6-1988 who granted sanction for conversion of the said remaining four posts of WTAs into Lecturers. The sanction was to be operative from the date of the issue of the said Government Order or from the date charge was taken over of the converted posts, whichever be later. The said sanction was made subject to the condition that two temporary posts of Lecturers in Anaesthesia sanctioned and created by G. O. dated 27-10-1986 and two posts of Lecturers which were likely to fall vacant on account of promotion to the posts of Reader/Professor in Anaesthesia shall stand abolished, and no appointment on the post of WTAs shall be made in future in the King George's Medical College, Lucknow or its Associated Hospitals and the teaching staff would also look after the job of Anaesthesia in the operation theatre. It seems this was done on the basis of the recommendations of the Head of the Department of Anaesthesiology, King George's Medical College, Lucknow dated 18-5-1988 addressed to the Principal King George's Medical College, Lucknow in which it was stated : "The department is already short of staff and practically every one is involved in teaching, training, research and clinical work. Due to shortage both of the categories of staff shoulder all type of work load. Thus some of the teaching activities of the Department is also shared by whole time Anaesthetists which is a purely non-teaching cadre. It has already been stated that there are no promotional avenues for these whole time Anaesthetists as there is no senior grade sanctioned. The whole time Anaesthetists do not get teaching experience officially, although they are involved in teaching and training of both undergraduate and postgraduates. Thus, these whole time Anaesthetists cannot be selected in other Medical Colleges. It may also be stated that parallel post of Whole Time Anaesthetists does not exists in any other State Medical College in U. P. This leads to stagnation, frustration and reduced output of work. The conversion of 5 whole time Anaesthetists to Lecturers have definitely improved the climate of the department. THERE is more healthy and positive contribution both in academic and patient care rendered by the Department. The opening of the Promotional avenue for these whole time Anaesthetists has improved their moral working incentive." In pursuance of the sanction, the four remaining persons submitted their joining reports on 7-6-1988. The State Government vide G. O. dated 2-9-1988 cancelled the order dated 4-6-1988. It may be noticed that prior to issuance of G. O. dated 4-6-1988 the U. P. Public Service Commission issued an advertisement dated 22-2-1988 and advertised two posts of Lecturers in Anaesthesia along with other posts. Dr. Shobhna Jafa preferred writ petition No. 6901 of 1988 against the same and the writ petition is still pending. Dr. (Smt.) Rita Wahal appeared before the Public Service Commission. Dr. Shobhna Jafa, Dr. Girish Chandra, Dr. Jyotsna Agarwal and Dr. Rajni Kapoor also applied for the said posts out of whom the last three were working as ad hoc Whole Time Anaesthetists in the department while Dr. Shobhna Jafa was appointed as Whole Time Anaesthetist in the year 1-83 for a period of one year or till duly selected candidate appointed by the Public Service Commission joins, whichever may occur earlier. These doctors did not appear before the Public Service Commission and they intimated that they have already joined the department as Lecturers on 7-6-1988 in pursuance of the State Government's order referred to above. It was thereafter Dr. (Smt.) Rita Wahal challenged their appointments and filed writ petition No. 4765 of 1988. Against the notification dated 6-9-1988 cancelling the order dated 4-6-1988 Dr. Shobhna Jafa preferred writ petition No. 7252 of 1988. She also challenged the advertisement dated 22-2-1988 referred to above. Subsequently she preferred another writ petition No 8825 of 1988 praying for issue of a writ of quo warranto calling upon the opposite parties to establish the validity of the order of appointment of the opposite party no. 4, Dr. (Smt.) Rita Wahal and a writ of mandumus in this behalf was also prayed. Dr. (Smt) Rita Wahal was appointed as Lecturer in view of the selection made by the Public Service Commission. It was thereafter Dr. Jyotsna Agarwal filed writ petition No. 7484 of 1988 praying for quashing the order dated 6-9-1988 and restraining the opposite parties Nos. 1 to 3 from interfering with the petitioner's continuance on the post of Lecturer and further restraining them from giving effect to the recommendation of the selection committee, i.e. the Public Service Commission. Dr. Rajni Kapoor also filed writ petition No. 9401 of 1988 praying for some what similar reliefs. It appears that on the basis of interim orders granted by this court, the remaining four WTAs, whose posts were converted into the post of Lecturers were allowed to continue as Lecturer.
(3.) ON behalf of Dr. Rita Wahal it has been contended that after taking over of the King George's Medical College, Lucknow in the year 1981, the employees of the Medical College became Government servants. The post of Lecturers were, thus, within the purview of Public Service Commission and without the process of interview, no appointment to the post of Lecturer could be made. It is to be noticed that the earlier conversion of the posts has not been challenged by Dr. Rita Wahal but subsequent conversion alone has been challenged. It has been contended that the State Government has no power whatsoever to issue Government Order dated 14-6-1988 converting the post of Whole Time Anaesthetists into that of Lecturers and these persons did not fulfil the requisite qualification of the Lecturers and the only mode is appointment through the Public Service Commission. It is true that after taking over the King George's Medical College and after application of the Government Servant Conduct Rules the employees of the Medical College became Government Employees and normally all appointments should be made through the agency of the Public Service Commission, but the State Government, who has power to create posts has also got power to make appointments. Certain norms have been laid down and mode of appointment is prescribed and the same is to be adhered to. Ad hoc appointments and its regularisation as prescribed under the Rules is yet another way of appointment as provided under the Rules in this behalf. It can be said to be exception of the general rules. Such mode of appointments is obviously resorted to only in case regular appointment is not possible and the situation warrants immediate appointment. There is no provision of law regarding conversion of posts of one cadre into posts of another cadre by bye-passing selection process even if promotion avenues are not available in the former cadre. The State Government, in exercise of its executive powers, can resort to the little known mode of appointment, but the same can be done only in special circumstances.;