- (1.) This writ petition has been preferred by Dr. Keerti Mathur inter alia with the prayer that the respondents be by writ of mandamus directed to allow the petitioner to function as Head of the Department (Physiology) in conformity with policy of the State Government to make senior most Professor of the concerned discipline the Head of Department as conveyed by communication dated 23rd February, 2010. Petitioner is working as Professor in the department of Physiology, SMS, Medical College, Jaipur. She originally filed the writ petition No. 278/2011 challenging order of the Principal-cum-Controller, SMS Medical College and attached Hospital, who thereby directed that charge of the Head of the Department (for short-'HOD') be handed over to Dr. Amitabh Dubey, Associate Professor and that in his absence, charge of that post be handed over to Lecturer. Petitioner relied on the letter of the Government dated 23.2.2010 and contended that the Government therein has issued general guidelines that senior most available Professor in the department should be given charge of HOD. The Government in that writ petition took the stand that clause-2 of Schedule I of the MCI Regulations, 1998 has provided that a teacher for being HOD must possess recognised basic university medical degree qualification or equivalent qualification. In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non-medical teachers may be appointed to the extent of 30% of the total strength of department. However, such relaxation can be granted only if there is paucity of teacher and if suitable medical teacher in non-clinical specialty is not available. Anon-medical teacher can in no situation be put in-charge of the HOD. This Court by interim order dated 12.1.2011 directed that no person junior to the petitioner or lower in rank than her shall be handed over the charge of HOD of the Department of Physiology.
(2.) Argument of the petitioner was that representation submitted by her to the Medical Council of India as also to the Members of its Board of Governors on 8.6.2010 has not yet been decided. The Joint Secretary of the Medical Council of India by its letter dated 18.6.2010 conveyed to the petitioner that the Board of Governors was ceased of the matter and would decide his representation as early as possible. This Court therefore while disposing of the aforementioned writ petition vide judgment dated 4.2.2011 directed the Medical Council of India to decide the said representation and communicate its decision to petitioner within thirty days and directed continuation of the interim order for that period. When the Medical Council of India (in short-'MCI') failed to decide the representation within the aforestated period, petitioner filed contempt petition (No. 356/2011). It was during the pendency thereof that the representation of the petitioner was rejected by MCI vide order dated 21.3.2011 conveying that her representation was already disposed of vide order dated 8.6.2010. This Court therefore dismissed the contempt petition however with liberty to the petitioner to file fresh writ petition challenging the order dated 21.3.2011. Hence this writ petition.
(3.) I have heard Shri Mahendra Gaur, learned counsel for the petitioner, Shri S.K. Gupta, learned Addl. Advocate General for State and Shri Angad Mirdha, learned counsel for the MCI. Shri Mahendra Gaur, learned counsel for the petitioner argued that petitioner holds the recognised basic degree qualification prescribed in First Schedule of the Indian Medical Council Act, 1956 (for short 'the Act'). She on being selected through RPSC, was appointed as Senior Demonstrator on 22.8.1983. She holds all the required qualifications of HOD as per the MCI Regulations, 1998. As per prescribed norms in the Act and the Regulations, the petitioner acquired further qualification of Ph.D. (Doctor of Philosophy), which is awarded only upon completion of MD, MS or PG Diploma or M.Sc. in Medical Subjects. Petitioner was successfully promoted at appropriate intervals to the post of Assistant Professor on 24.1.1995, Associate Professor on 1.9.2001 and Professor on 9.2.2009. Petitioner was senior most Professor in SMS Medical College, Jaipur since 1.9.2009 after superannuation of the then HOD Dr. R.C. Gupta on 31.8.2009. Action of the respondents in giving therefore charge of the HOD to an Associate Professor, junior in rank and service to the petitioner, is wholly arbitrary and illegal. It is argued that duties of the HOD consists of approving leave, making academic time table of the department, scheduling examination and writing APAR and in academic duties, taking classes, supervising examination and research work etc. from both medical and non-medical streams. Earlier, the respondents gave charge of the HOD to Dr. Amitabh Dubey, Associate Professor. And thereafter they brought Dr. Rajesh Pathak, Associate Professor in JLN Medical College, Ajmer by promoting him as Professor and posted him in SMS Medical College, Jaipur in place of Dr. Amitabh Dubey. It is contended that Dr. Rajesh Pathak has throughout been junior to the petitioner.;