P. D. KUDAL, J. - (1.) THIS writ petition initially directed against the appointment of respondent No. 2 Dr. S. N. Mishra as Principal of the Medical College and Controller of Associated Group of Hospitals Later on, the petitioner also moved an application for amendment and pleaded that Dr. B. D. Maitray, Dr. K. P. Singh and Dr. J. P. Sethi be also arrayed as respondents and their appointment as Principal of Medical College and Controller of Associated Group of Hospitals be also quashed.
(2.) THE brief facts of the case which are relevant for the disposal of this writ petition are that the petitioner entered into the service of the Government of Rajasthan in the year 1956 as Demonstrator in Anatomy. He was confirmed as Demonstrator in 1959 and as Lecturer on 26. 4. 1964. He was promoted as Reader on 29. 1. 1965 and was substantively promoted on 19. 8. 1968 as Reader and was confirmed on the same post with effect from 26. 3. 1965. He was then appointed as officiating Professor of Anatomy with effect from 12 2. 1965. THE petitioner was then substantively appointed as Professor on 13 5. 1973 and was treated as confirmed Professor of Anatomy with effect from 17. 1. 1973. It has been further contended that the petitioner has worked on various posts and in various capacities in different medical colleges. THE petitioner was sent for training of a WHO Fellowship in the year 1964 for a period of one year. THEn he was sent on deputation for Common Wealth Senior Fellowship by the Government order dated 10. 9. 1979. Some posts of Principals of Medical Colleges & Controller of Associated Group of Hospitals fell vecant somewhere in the year 1979. Applications were invited from eligible candidates. The eligibility was 10 years or more of service as Professor as on 31. 5. 1979. The petitioner applied for the same on 5. 6. 1979. By an order of the Government dated 10. 9. 1979, the petitioner was sent on deputation for Common Wealth Senior Fellowship. While the petitioner was on deputation the selection to the post of Principals of Medical Colleges & Controller of Associated Group of Hospitals was held on 5. 10. 1979. As the petitioner was abroad, he was not informed and could not appear in the interview. The petitioner came back to India on 29. 11. 1979. He then learnt that selection had taken place for the posts of Principals of Medical Colleges and Controller of Association Group of Hospitals. The petitioner further learnt that his name was placed on the panel (selected list) with the remarks that his candidature will be finalised after the Committee had interviewed him The petitioner also learnt that the names of Sarva Shri B. D. Maitray, Dr. K. P. Singh and Dr. J. P. Sethi were also placed on the panel. The petitioner also met a number of officers of the State Government and impressed upon them that he may be interviewed so that his candidature may be finalised. He was not interviewed and an order dated 19. 2. 1980 was passed, by which four persons were appointed as Principals & Controllers of Associated Group of Hospitals and the names of Dr. B. D. Maitray, Dr. K. P. Singh Dr. J. P. Sethi were there; but the petitioner's name was dropped and in has place the name of respondent No. 2 Dr. S. N. Mishra was inserted. The contention of the petitioner is that the name of respondent No. 2 was not included in the panel prepared by the Selection Committee which met on 5. 10. 1979. The candidature of respondent No. 2 as considered and he had also been interviewed; but as he was not found meritorious enough his name was not included in the panel. However, to the utter surprise of the petitioner the name of respondent No 2 figured in the order issued on 19. 2. 1980. The petitioner has not been able to locate as to how respondent No 2 was included in the order when he was not meritorious enough when the interview was held on 5 10. 1979. The petitioner submitted a representation to this affect on 29. 2. 1980 to the Medical Secretary. A copy of the representation was also sent to the Advisor to the Governor on 14. 3. 1980. On 29. 2. 1980, a copy of the representation was also given to the Governor. The petitioner made demand of justice; but all these proved futile. The petitioner has contended that the selection of the respondents on the post of the basis are per se unconstitutional being in violation of Articles 14 and 16 of the Constitution of India. It has been further contended by the petitioner that he and other candidates constitute a one class. It interviewed all the candidates who were available and prepared a panel. The panel of four persons included the petitioner. The selection of the petitioner was treated as provisional and subject to interview for the reason that the petitioner could not attend the interview on account of unavoidable circumstances that he had gone abroad. The only condition for the final inclusion of the name of the petitioner was his interview. Without calling the petitioner for interview the order of appointment of the four persons including respondent No. 2 was issued, which was arbitrary and capricious in nature. The petitioner has been discriminated without any rational justification. The selection of respondent No. 2 without calling the petitioner for interview constitutes a serious violation of the rights of the petitioner guaranteed under Article 16 of the Constitution. It was also contended that Articles 14, 15, & 16 of the Constitution constitute the code of equality. This constitutional code enjoins upon the Government and the public functionaries to gives similar treatment to all persons who are similarly situated. It forbids the executive from acting in a manner which result indiscrimination. The contention of the petitioner is that this prohibitive mandate has been violated in the present case, It was further contended that the State Government had no jurisdiction to select respondent No. 2. The Selection Committee had prepared the panel and unless that panel can be declared illegal or set aside the State Government had no jurisdiction to make any alteration in the panel. It was further contended that no significant development had taken place between 5. 10. 1979, when the interview was held and opt the order dated 19. 2. 1980. The State Government had no jurisdiction to alter the select-list on its whims and fancie. The action of the Government in doing so is per se capricious and arbitrary in nature and makes of ill will. A person who was not adjudged meritorious on 5. 10. 1979, could not find berth in the select list by interpolation or otherwise. It was also contended that the Government had no jurisdiction to review the select list. Once the selection has been made, the Government does not have the jurisdiction to alter the select-list because it amounts to reviewing the recommendations of the Selection Committee and unless its review is permissible under the rules, the Government cannot do so.
(3.) IT was also contended that the post of Principal of Medical Colleges and Controller of Associated Group of Hospitals carries a special pay of Rs 350/- and the post is to be filled in by selection. Once the candidature of the petitioner and respondent No. 2 has been considered and comparative assessment of the merits has been made, it does not lie within the jurisdiction of the Selection Committee or the Government to change the merit suo-moto without any fresh development. A public functionary cannot be allowed to exercise its powers or jurisdiction for ulterior purposes or for the purposes which are not germinated to the exercise of powers or for the object to be achieved. Under these circumstances, it is contended that respondent No. 2 is a usurper of the high public office. His illegal induction on the post of Principal of Medical Colleges and Controller of Associated Group of Hospital is clearly an act of usurpation of public office. He was not found meritorious enough, but still he has been given appointment. A reply to the writ petition was filed by respondent No. 2. it was contended on his behalf that a reference to training of WHO and deputation for Common Wealth Senior Fellowship has not relevancy to the controversy involved in this case and that there has been nothing special or particular about the petitioner only because such type of fellowships have been availed of by almost the persons including the answering respondent. It has been contended by him that in 1962, he was sent to undergo training in Cardiology at All India Institute of Medical Sciences and had also been selected for Colombo Plan in the year 1976. It was also contended that the petitioner had, of course, applied for being considered for Principalship, but it appears that the petitioner could not be taken up eligible to be considered for this job as he had not acquired the requisite 10 years' experience of being Professor on 31. 5. 1979. It was contended that the petitioner was appointed as Professor on regular basis from 17 1. 1973, while the answering respondent was appointed as Professor of Anatomy at a much earlier time. It was further contended by respondent No. 2 that the interview had, of course, taken place on 6. 10. 1979 and since the petitioner was abroad he could not have appeared in the interview. Nevertheless, the fact remains that his candidature had been duly considered. It is for the Government as to whether the petitioner's name was included in the panel or not, or as to who were the three persons included in the said panel. In the alternative, it was urged that in any case the mere inclusion of any bodys' name in the panel does not confer any rights upon the persons included in the panel and the making of appointment as per such recommendations is also not binding on the Government. The selections earlier held had not been considered to have been made on a just uniform and proper basis and it was realised that if the selections are made on the basis of interviews it may not be in conformity with the object sought to be achieved and, therefore, the Government was within its rights to have made the selections on the basis of the seniority and the record. It was contended that the petitioner has made a patently false and inseminating averment that any instructions had been issued for inclusion of the name of the answering respondent in the appointment order as if the answering respondent had not been selected and yet his name was directed to be included in the order of appointment. It was further contended that there is no question of infringement of any of the fundamental rights of the petitioner. The post of Principal is not included in the cadre of Rajasthan Medical and Health Service (Collegiate Branch) Rules and it has no post created by any rules, nor there are any rules under proviso to Article 309 of the Constitution of India for recruitment and appointment to the post of Principal. The appointments are made amongst the senior-most Professors on the basis of consideration of their service record and performance and. holding of interview, as such is not a mandatory requirement and, this view of the matter, the grievance of the petitioner is wholly misconceived It was open for the Government to adopt any mode of selection and it is further submitted that the petitioner has failed to make out any case as to how the mode of selection adopted in this case was wrong, or improper or illegal. It was also contended that as a matter of fact, the petitioner has not even cared to challenge the mode of selection on the basis of which appointment order Ex. 4 was issued. Since the post of Principal is not a cadred post, there is no infringement of any rule or any other provision of law or the Constitution. The entire grievance of the petitioner is illusory in nature and the entire edifice, on which the writ petition is based, is wholly non-existent. It was also contended that the answering respondent had jointed and assumed as Principal of the Jawahar Lal Nehru Medical College, Ajmer on 29. 2. 1980 and has been working as such since then. It was contended that the answering respondent was appointed as Professor in Medicine on the basis of the recommendations made by the Departmental Promotion Committee as far as back in the year 1969, whereas the petitioner was so appointed in 1973. ;