BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal has arisen in the following circumstances:- The appellant was appointed as Assistant Professor in Pediatrics vide order dated 21. 08. 1980. the appointment was to the Medical and Health Service (Collegiate Branch) of the State of Rajasthan, governed by Rajasthan Medical and Health Service (Collegiate Branch) Rules, 1962 (in short the Rules of 1992 hereinafter ). The post of Associate Professor under the Rules of 1962 is filled 100% by promotion. The criteria for promotion to the existing post is 50% on the basis of `seniority-cum-merit' and 50% `on merit'. Under Rule 24-A (5), the requirement for promotion form the lower post to next higher post or category in the State Service is that candidate must have at least 5 years of service unless a different period is prescribed elsewhere in the Rules. However, this criteria for five years services can be relaxed by the Committee in case of non-availability of the persons with the requisite service of five years if they fulfil the qualification and other conditions for promotion prescribed in the Rules and are found otherwise suitable for promotion on the basis of `seniority-cum-merit. ' Sub-Rule 5 (a) of Rule 24-A of the Rules provides for selection for promotion form the posts of Lecturer to the post of reader shall be made on the basis of `seniority cum merit' and on `merit' in proportion to fifty-fifty. In the case of non- availability of suitable persons for selection by promotion, strictly on the basis of `merit' in a particular year, selection by promotion on the basis of `seniority cum merit' may be made to fill in the vacancies available. The explanation to Sub-rule (11) of Rule 24-A, which prescribe the procedure to be followed by the Committee for considering the promotions on merit under the Rules as it existed at the relevant time, reads as under:- ``explanation:- For the purpose of selection for promotion on the basis of does not have ``outstanding'' or ``very good'' record in at least five out of the 7 years preceding the year for which D. P. C. , is held. '' The respondent No. 2 Dr. Alok Purohit was also appointed in the year 1980. However, he was not appointed simultaneously alongwith the petitioner-appellant, but his appointment came later because one Dr. Ajay Kumar, who had been appointed alongwith the petitioner vide order dated 20. 08. 1981 had left the job and against the vacancy so caused in December, 1980, Dr. Alok Purohit was appointed thereafter. Thus, on the basis of initial appointment, the respondent No. 2 Dr. Alok Purohit was junior to petitioner as Lecturer in Peadiatrics. In the year 1992-93, the promotion exercise was taken by the Departmental Promotion Committee. As a result of which, two persons were promoted as Readers/associate Professors in Peadiatric, namely Dr. Deep Shivpuria and Dr. Alok Purohit, for which Dr. Shivpuria has been appointed on `seniority cum merit' basis and Dr. Alok Purohit, who was junior to the petitioner had been appointed on `merit' basis. This led to filing of the writ petition by the present appellant challenging the promotion of Dr. Alok Purohit.
(3.) THE principal contention was that promotion of Dr. Alok Purohit on merit quota over-looking the claim of the petitioner, who was senior to the respondent No. 2 was in violation of Article 14 and 16 of the Constitution. The grounds, which have been raised in the writ petition are: firstly that the post of Reader in Peadiatric on which Dr. Alok Purohit has been promoted was not vacant at the time of consideration by the D. P. C. , against which appointment by promotion on `merit' could be considered. secondly, the post, on which Dr. Alok Purohit has been promoted as per the cyclic order should have gone to the `seniority cum merit' quota but this has wrongly been assigned by the D. P. C. to `merit' quota. thirdly, that the petitioner was more meritorious than the respondent No. 2 Dr. Alok Purohit. fourthly it was alleged that about six months before the selection in question, the said Dr. Alok Purohit was not found fit for the post of Assistant professor, and therefore, he could not have been promoted on the merit quota only after a lapse of six months. Lastly, that the petitioner was on deputation under a foreign Government with the approval of the the Government of India at Libya from the year 1985 to 1990. As per his Performance Report for the year 1985 to 1990 from his foreign employer, which has been sent to the Secretary, Medical and Health Department, Government of Rajasthan, Jaipur through Indian Ambassador at Libya read that during his tenure, petitioner's work was of outstanding quality. The said document has been placed on record as Annexure 4 alongwith the writ petition. On this premise, a ground was raised in the petition that as per the A. P. A. R. instructions, when a person has been in foreign assignment, his confidential rolls of the years previous to the one when he has been sent on deputation only are to to be considered in the case of promotion. The instructions issued by the Government shows that the assessment for the purpose of urgent/temporary appointments and the D. P. C. of the performance of State Services Officers for the period they are deputed for service under a foreign Government, for the purpose of urgent/temporary appointments, the performance of the officer concerned during the relevant years could be treated as satisfactory. As for the Departmental Promotion Committee, the gradation of performance of the officer concerned should be treated as equivalent to the gradation of his performance in the previous seven years just before his deputation to a foreign Government. That is, if an officer was sent on deputation in 1974 and he remained abroad upto 1977, the reports on him from 1967-68 to 1973-74 would be looked into and if he is granted as `very good' for those years, the gradation for 1974-75, 1975-76 and 1976-77, when he remained abroad, would also be determined to be `very good'. ;