PARIHAR, J. - (1.) THE petitioner, on recommendations of the Rajasthan Public Service Commission (RPSC), was appointed on the post of Lecturer in the speciality of Neurology vide order dated 7. 1. 1991. On recommendations of the Departmental Promotion Committee (DPC), the petitioner was further promoted to the post of Reader (Neurology) vide order dated 7. 3. 1995. Respondent No. 2 (Dr. Ashok Pangariya) on the other hand, entered the services as Lecturer in General Medicine on recommendations of the RPSC vide order dated 13. 2. 1979. THE respondent No. 2 (Dr. Ashok Pangariya) was further promoted to the post of Reader in General Medicine against the quota of 1988-89 vide order dated 5. 6. 1989 and to the post of Professor in General Medicine against the quota of 1994- 95 vide order dated 24. 1. 1995 as per recommendations of the DPC.
(2.) THOUGH certain Super Specialities in the field of Medicine had been created way back in the year 1984-85, however, as per the policy decision of the State Government, separate Departments in the Super Specialities of Cardiology, Nephrology, Neurology and Gastro-enterology were created vide order dated 22. 6. 1995. Those doctors working in the above departments were ordered to be continued as such in the newly created departments till further orders. By yet another order dated 26. 6. 1995 options were called from the Professors and Associate Professors working in the department of General Medicine and having qualifications in the concerned Super Specialities for their adjustment/absorption on the same post in the newly created departments of Super Specialities. Having received the option, the respondent No. 2 (Dr. Ashok Pangariya) was re-designated as Professor (Neurology) vide order dated 14. 8. 1995. Challenging the orders dated 26. 6. 1995 as also the order dated 14. 8. 1995 passed in favour of the respondent No. 2 (Dr. Ashok Pangariya), the present writ petition has been filed with the following prayers:- " i. The Hon'ble Court may kindly be pleased to call the entire record of the case and after examining the same be pleased to quash and set aside the order dated 26. 06. 1995 and 14. 08. 1995 and the respondents may be directed to consider the candidature of the Petitioner for the post of Professor of Neurology from the date he attained eligibility with all consequential benefits. ii. If any prejudicial order to the interest of the petitioner is passed during the pendency of the writ petition, the same may kindly be taken on record and be pleased to quash and set aside. iii. Any other appropriate writ, order or direction, which this Hon'ble Court may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. " After issuing show cause notices, respective replies have been filed on behalf of the State Government as also the respondent No. 2. Mr. Rastogi, learned counsel for the petitioner, while referring to various clauses of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (the Rules of 1962), submitted that the only mode for entering into service under the above rules is either by direct recruitment or through regular promotion. Though, there is a provision for ad hoc temporary appointment but that also has certain limitations. In absence of any specific rule in regard to absorption/re-designation, the impugned orders are palpably illegal and void ab initio. The respondent No. 2 (Dr. Ashok Pangariya), right from the beginning, or to say, in the year 1984 had been trying to get himself inserted in the speciality of Neurology, however, having failed to get the desired relief, this novel method has been adopted for getting the post of Professor (Neurology) by re-designation. It has further been submitted by Mr. Rastogi that right upto the year 1995 there has been a clear stand of the State Government that no such re-designation can be permitted until and unless necessary amendments are made in the Rules, as such, the action taken by the State Government calling option for re- designation of the respondent No. 2 as Professor (Neurology) from the post of Professor (General Medicine) was absolutely de hors the rules. Countering the objection in regard to delay in filing the writ petition, Mr. Rastogi submitted that the petitioner became eligible for promotion to the post of Professor (Neurology) only in the year 2000 and after making proper representations to the concerning authorities the present writ petition has been filed. Mr. Paras Kuhad, learned counsel for the respondent No. 2 (Dr. Ashok Pangariya) and Mr. Mahendra Singh, concluding the arguments of Mr. Kuhad, while referring to various judgments of the Supreme Court, raised a strong plea of delay in challenging the impugned orders in the present writ petition. It has also been submitted that creation of Super Specialities by the State Government in the four subjects have already been upheld by this Court. Heavy reliance was placed on the judgments of this Court in the case of Dr. L. C. Sharma vs. State of Rajasthan & Ors. (1), and Dr. Usha Rani Narayan vs. State of Rajasthan & Ors. (2), and other connected appeals. Counsel for the respondent No. 2 also tried to challenge even the initial appointment of the petitioner. It has further been submitted by learned counsel for the respondent No. 2 that been a policy decision of the State Government the same could not have been challenged in a court of law.
(3.) MR. Sagar Mal Mehta, learned Advocate General appearing on behalf of the State of Rajasthan, took similar objections as taken by the learned counsel for the respondent No. 2 in regard to delay and latches and that the policy decision of the State Government not to be challenged before a court of law. After having considered rival submissions of the learned counsel for the parties, I have carefully gone through the pleadings, relevant rules as also the judgments cited at the Bar. The services of the teachers working in the Medical Colleges in the State are governed by the Rajasthan Medical Service (Collegiate Branch) Rules, 1962. Rule 5 thereof provides for initial constitution of service. Rule 6 refers to composition and strength of the service, which is reproduced hereasunder:- " 6. Composition and Strength of the Service.- (1) "the Service shall consist of three wings viz. Clinical, Non clinical and General," The right of promotion shall be confined to each wing. (2) The nature of posts included in each wing shall be specified in column 2 of the Schedule. (3) The strength of posts in each grade shall be such, as may be determined by Government, from time to time, provided that Government may- (a) create any post, permanent or temporary, from time to time as the case may be found necessary, and (b) leave unfilled or hold in abeyance or abolish any post, permanent or temporary, from time to time without thereby entitling any person to any compensation. " ;