- (1.) S a petition challenging the action of the RajaSthan Public Service CommiSSion reSpondent 3 in declining to approve the recommendation of the Departmental Promotion. Committee and the action of the State reSpondent Mo. 1 in not appointing him by promotion aS a Reader under the RajaSthan Medical Service (Collegiate Branch) RuleS, 1962 (hereinafter to be- called "the 1962 RuleS" ).
(2.) "service;' is defined in 1952 Rules by rule 3 (1) to mean the Rajasthan Medical Service (Collegiate Branch ). Recruitment as per rule 7 to the service is to be by one of the methods : (a) direct recruitment (in accordance with Part IV of thess Rules), and (b) by promotion of substantive members of service in accordance with Part V of these Rules. Rule 12 deals with Academic and technical qualifications to be possessed by a candidate in case of direct recruitment and lays down that the candidate for direct recruitment to the poats spscified in Part A, B and G of the Schedule shall possess such academic and technical qualifications and experience as is laid dawn, from time to time by the Rajasthan University for the teaching staff in Medical Colleges. Rule 23 in Part V dealing with procedure for pronation provides the criteria for selection and 3ays that the persons enumerated in Column 4 of the Schedule shall be eligible on the basis of seniority-cum-merit, for promotion to posts specified in column 2 subject to their possessing minimum qualifications, and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges. In the Schedule attached to the Rules Part 'c' a junior post of Lecturer has to be filled up 100% by direct recruitment and Part 'b' (senior post) of a Reader is to be filled up 50% by promotion and 50% by direct recruitment and the promotion is to be made from the post of leturer. The qualifications are laid down in the handbook of the University of Rajasthan ( (1971 Edition) Part II Vol. 1 (at page 173) and provides that for the post of a Reader in Pediatries the academic qualification shall he a M. D. (Paediatrics) of cretain Universities or equivalent qualification and the teaching experience should be three years in the subject of which atleast two years as a Lecturer in a Medical College after post graduation. Rule 24 of 1962 Rules provides the procedure for selection of candidates by promotion. Rule 24 (1) provides that the secretary to Government in the Medical and Health Department shall prepare a correct and complete list containing names not exceeding five times the number of vacancies out of the senior most members of the Service who are qualified for promotion to such posts under the Rules. Under sub-rule 2 (a) a committee consisting of the Chairman of the Commission or when the Chairman is unable to attend, any other Member thereof nominated by him, the Secretary to Government in the Medical & Health Department, Special Secretary to Government in the Appointments Department or his representative not below the rank of Deputy Secretary, one of the Principals of State Medical Colleges and the Director are members of a Committee who will interview the candidates and prepare a list containing names of suitable candidates up to twice the number of such posts as are indicated in sub- rule (1 ). Sub-rule (5) p;ovides that the names of the candidates selected as suitable shall be arranged in the order of seniority. Sub rule (6) says that the lists prepared by the Committee shall be sent to Government together with the Confidential Rolls etc. and sub-rule (7) states that the Government may approve the list finally with fuch modifications as may in their opinion be just and proper. Rule 30 (1) of the 1952 Rules provides for filling temporary or officiating appointments in Senior Post and sub-rule (2) provides temporary vacancy in the junior post may be filled by Government by appointing thereto temporarily a person eligible for appointment by promotion or by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provision of these rules. It may be noted that Reader is a Senior post while the Lecturer is a Junior post. The petitioner took his M. B. B. S. in the year 1960 and after having obtaining the Diploma in the Child Health in 1962 was awarded a decree in Paediatrics in April, 1964. Thereafter he was selected by the Rajasthan Public Service Commission for the post of a Civil Assistant Surgeon (C. A. S) in the Medical and Public Health Department of the State and joined the said post with effect from 1. 6. 64. Some temporary posts of Tutors and Lecturers were filled up by the state in 1965 and the petitioner on the recommendation of the Selection Board was appointed and was given a temporary appointment as a Tutor by the order of 22-6 65. In 1967 the State Government was desirous of making temporary appointments to the posts of Lecturers under rule 30 of the 1962 Rules. For that purpose it constituted a Central Selection Committee including the princinals of all the Medical Colleges of Rajasthan, the Director of Medical and Health Services, Rajasthan, Secretary to the Government Medical and Health Services, Rajasthan and a specialist in the subject for adjudging suitability. An advertisement dated 5. 4. 67 was also issued inviting applications for these temporary appointments. The petitioner applied for the post and was in course of time selected for the post of a Lecturer and was given the appointment by the order dated 21. 7. 67 and joined the post on 25. 7. 67. The fact that the petitioner was selected for appointment as a temporary Lecturer under rule 30 of 1962 Rules is not disputed by the respondents. On 23 2-68 the Governor of Rajasthan framed under proviso to Art. 309 of the Constitution the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968 (hereinafter to be called '"the. 1968 Rules ). Rule 2 (b) defines Principal rules to mean 1962 Rules. Rules 3 of 1968 Rules provides that notwithstanding anything contained in the Principal rules the State Government may make recruitment to the Clinical Wing of the Service by special selection from among persons belonging to the Rajasthan Medical and Health Service. A special recruitment Board was constituted to make the recruitment. Schedule I also laid down the manner in which clinical experience of a candidate was equated to teaching experience for the purpose of 1968 Rules. In pursuances of 1968 Rules selection for substantive appointments as Lecturers was made and the petitioner and respondent 5 and respondents No. 6 and gome others were selected as Lecturers and were appointed in a substantive capacity with effect from 1-1-69 I may mention that prior to being appointed as substantive Lecturers both the petitioner and respondent 5 were members of the Rajasthan Medical and Health Services. In the order of appointment dated 21. 2. 69 appointing the petitioner and respondent 5 as Lecturer respondent 5 was shown at No. 2 while the petitioner was shown at No. 4. No grievance is made by the petitioner that the seniority was not fixed correctly at that relevant time. On 31. 3. 70 the petitioner was promoted as a Reader in Paediatrics in an officiating capacity. Respondent 5 continued to work however as a Lecturer at that time. A number of posts of Readers in various Faculties like E. N. T. Psychiatry, Paediatrics, Forensic Medicine having fallen vacant the Department initiated the procedure laid down under rule 24 for selection by promotion as these posts were to be filed up by promotion quota. It may be noted that only one post of Reader (Paediatrics) was to be filled by promotion from amongst Lecturers for which post the petitioner was a candidate. In due course the petitioner and others were interviewed by the Departmental Promotion Committee. It is alleged and it is not disputed that the petitioner was found suitable for appointment as a Reader (Paediatrics) by the Departmental Promotion Committee at its meeting held on 27. 10. 70. The Committee had also found some other persons suitable for appointment as Reader in other Faculties. The Rajasthan Public Service Commission respondent No. 3 however seemed to have had a doubt as to whether the experience to be counted for promotion for higher post should be acquired after due and regular selection on the lower post or whether adhoc experience on the lower post could be counted and it therefore sought the opinion from the Special Secretary to the Appointments Department by its letter of 30. 12. 70. The Medical and Health Department by its letter No. 3. 3. 71 informed the respondent 3 Commission that according to the rules and the requirement of the University Ordinance the teaching experience that has to be considered can be either in a substantive capacity or ad hoc capacity and it also pointed out that the Commission had itself been considering the teaching experience done in temporary capacity for selection of candidates on ail teaching posts uptill now and the teaching experience in temporary capacity has been accepted as an experience by the Commission in all previous selections. Thereafter the respondent No. 3 Commission recommended to the Govt. the names of persons for appointments as Readers in the Faculty of E. N. T. Psychiatry and Forensic medicine in April, 1971. In recommending these appointments the Commission, it is not disputed, it accepted the teaching experience done in a temporary capacity for eligibility of those candidates. It surprisingly however did not approve the name of the petitioner though he had been recommended for the post by the Committee under rule 24 (6) of the 1962 Rules. It is alleged in the petition that the reason for this apparent peculiar behaviour of the Commission was motivated by the fact that one of the members of the commission Mr. B. D. Mathur, respondent No. 4, was the brother-in-law of respondent 5 and as the latter did not fulfil the qualifications for being considered for being appointed as a Reader (Paediatrics) (he not having the requisite teaching experience of three years, having been appointed as a Lecturer only on 1 1-69) at the time when the case was considered by the Committee, on 27. 10. 70, the Commission in order to favour respondent No. 5 was interested in delaying to approve the name of the petitioner. The petitioner took up the matter with the authorities but met with no success. In the meanwhile it appears that the Appointments Department of the State Government seems to have taken a contrary view from the one which was sent by the Medical Department by its letter dated 3. 3. 71 and the Deputy Secretary to the Appointments Department by its letter dated 21. 8. 71 wrote to the secretary respondent No. 3 giving the view that the ad hoe experience of teaching could not count under the 1962 Rules and in support of that referred to a judgment of this Court reported in Dr. Swayambar Prasad Sudrania vs. State of Rajasthan (1 ). This view found immediate acceptance and respondent 3 sent a communication dated 25. 9. 71 to the Medical Department of the State stating that as none of the doctors recommended by the Departmental Promotion Committee for the post of Readers in Paediatrics, Tuberculosis and Anaesthesia had the requisite two years' teaching experience after regular selection on the next lower post at the time of their selection the Commission had declined to approve the recommendations of the Departmental Promotion Committee for the said post. The petitioner having come to know about this made a grievance with the department but not having received any response he filed this writ petition in this Court on 19. 11. 71 making a grievance against the action of respondent 3 in not approving his name and of the Government in not appointing him as a Reader in Paediatrics.
(3.) TO complete the statement of facts I may mention that one Dr. (Mrs.) Nirmal Miglani who was a Reader in Paediatrics went on leave in May 1972 and respondent No. 5 who was then working as a Lecturer was promoted as an officiating Reader purely on temporary and ad hoc basis for a period of six months or till Dr. (Mrs.) Nirmel Miglani returned from abroad whichever is earlier It appears that when Dr. (Mrs) Nirmal Miglani came back an order was passed on 20 12-72 by the Department transferring respondent 5 as a Reader at Jodhpur while reverting the petitioner as a Lecturer. Though there is not much relevancy of this for the points that a?e to be determined in the writ petition, this fact has been highlighted to suggest that respondent 5 was being favoured by pointing out that though the petitioner had been promoted as a Reader since 31. 1. 70 and was working as such since then he was reverted by the order of 20. 12. 72 while respondent 5 who was given a leave vacancy in place of Dr. (Mrs.) Nirmal Miglani in May, 1972 was allowed to continue as such a Reader. As this point is not relevant for decision in the present writ petition I need not say anything further on this. During the pendency of this petition in court respondent No. 5 has been appointed a Reader in 1973 and respondent No 6 in 1974. The petitioner was also selected and appointed in 1974. But this appointment in 1974, according to the petitioner, does not do justice to him because this shows his appointment from 1974 whereas according to the petitioner he had a right to be appointed in 1970 when he fulfilled all the qualifications and had also been approved by the Departmental Promotion Committee. That is why the writ petition was continued inspite of the petitioner having been appointed as a Reader in 1974. Another reason for not being satisfied is said to be that this appointment of the petitioner is under rule 24 (3) in officiating capacity and not under rule 24 (7) which would be in substantive capacity. I may also mention that rule 23 of 1962 Rules was amended by the Rajasthan Medical Set vices (Collegiate Branch) (Amendment) Rules, 1973 (hereinafter to be called "the Amendment Rules, 1973") by the Governor in exercise of the powers under proviso to Art. 309 of the Constitution. By the amendment the following two provisos were added to sub rule (1) of Rule 23 : - "provided that experience gained prior to appointment in accordance with one of the methods of recruitment prescribed in the Rules, shall not count towards the requisite experience. Provided further that the clinical experience treated' as 'teaching experience' under the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968, shall continue to be considered as such for the purposes of this rule as well. " These amendments have been directed to come into force with effect from 1. 3 69. ;