M.L.JAIN, J. - (1.) THE petitioner was a lecturer in Psychiatry in the RNT Medical College, Udaipur, while one Dr. D.D. Bhattacharya was also a lecturer in the same discipline. According to the Rajasthan Medical Services (Collegiate Branch) Rules, 1962, two posts of Reader in the same faculty were required to be filled in 1970 one by promotion and one by direct recruitment. The petitioner contends that the Departmental Promotional Committee which met sometime in the year 1970 for selection of a promotee, put Dr. Bhattacharya at No. 1 and the petitioner at No. 2. Meanwhile, the other post had also been advertised by the Public Service Commission. Dr. Bhattacharya was selected also by the Public Service Commission and was appointed a Reader on 15 -12 -70 against the direct vacancy retrospectively w.e.f. 8 -12 -70. The Dy. Secretary to the Government of Rajasthan in the Medical Department thereafter wrote a letter on 23 -12 -70 to the Public Service Commission that both Dr. Bhattacharya and the petitioner Dr. Gehlot were approved by the Departmental Promotion Committee held in the year 1970 Dr. Bhattacharya who was placed at No. 1 has been appointed against the direct quota on probation. It was, therefore, proposed to appoint Dr. Gehlot against the promotion quota. Since under the said Rules, a promotee candidate ranks senior to a direct recruit, and undertaking was obtained from Dr. Gehlot that he will not claim seniority over Dr. Bhattacharya. After concurrence of the Commission and prolonged consideration, at various levels in the Secretariat the petitioner was appointed on 13 -4 -71 as a Reader on probation of 6 months retrospectively, w.e.f. 27 -10 -1970, or the date of joining whichever was later. The appointment was without prejudice to the seniority of Dr. Bhattacharya in the specialty. Later on, it was discovered that the Departmental Promotion Committee had in fact, not recommended the name of Dr. Gehlot. His appointment was therefore, without any prior notice, cancelled by the State Government by its order dated 16th August, 1973, but he was not reverted as a lecturer and by the same order, was appointed retrospectively as officiating Reader w.e.f. 27 -10 -70 until a candidate selected by Departmental Promotion Committee was made available. In 1973, the Departmental Promotion Committee again assembled on 29 -9 -73 to review its earlier recommendations made in 1970, but was unable to approve Dr. Gehlot for the post of the Reader and it did not recommend any change in its 1970 proposals. Dr. Bhattacharya now opted to be appointed against the promotion quota and he was so appointed on 23 -1 -74, of course retrospectively w.e.f. 8 -12 -70. Thereafter, Dr. Bhattacharya was again appointed against the direct quota and is alleged to have retired as such. The petitioner, filed this petition on 24 -9 -73 and prayed for a declaration that the order or 16 -8 -73 revoking his appointment was illegal and be quashed with a direction to give him all consequential benefits.
(2.) THE State Government in its reply has stated that the Departmental Promotion Committee recommended only one name that of Dr. Bhattacharya, that too not on the basis of merit formula but on the basis of seniority -cum -merit. It was incorrect to say that the name of the petitioner was also recommended by the said Committee. Moreover, the marking formula having been struck down by the Supreme Court, all selections made on its basis in the year 1970 were reviewed by the Departmental Promotion Committee. In 1973, the DPC which reviewed the recommendations of 1970 did again not recommend the case of the petitioner. No enquiry or notice was necessary to be served upon the petitioner for cancellation of his appointment which was made in order to rectify the mistake that had crept in and hence vitiated his initial appointment. The petitioner has rejoined that Shri Bhattachann having accepted the appointment as a direct recruit, could not then be appointed against the promotion quota. It is contended on the basis of a decision of this Court in Badrinath Khandelwal v. State of Rajasthan in D.B. Civil Writ Petition No. 384 of 1961 dated April 3, 1961, that if a particular post is open to be filled by two methods and the person choses one instead of another, then he cannot later on, turn back and say that he is entitled to be appointed by another method. The argument perhaps is that if Dr. Bhattacharya were not given the option, the petitioner could continue to be appointed against the promotion quota even though not found lit by the DPC. It was then stated chat if Dr. Bhattacharya was appointed against the promotion quota, then the post vacated by him should have been filled by direct recruitment at least in the year 1973 but by not calling upon the Rajasthan Public Service Commission to fill that post by direct recruitment, the Government of Rajasthan has violated Rule 7 of the aforesaid Rules, which enjoins that the recruitment to the post of the Reader shall be in equal proportion by both 'he methods. Later on Dr. Bhattacharya sought voluntary retirement from service and requested the Government that he might be allowed to retire from the post on which he was appointed by direct recruitment. He was permitted to do so It is only now after the retirement of Dr. Bhattacharya that a post is being advertised to be filled by direct recruitment If the petitioner is now made to face the Public Service Commission, then, he shall stand deprived of the right to seek employment guaranteed by Article 16 of the Constitution in as much he shall be seriously handicapped by competing with a large number of candidates and perhaps better that has qualified and joined the arena during the past six years or so.
(3.) THE stand of the Government appears to be that the order of the appointment of the petitioner was required in any case to he cancelled firstly, because it was made in consequence of a mistake that the DPC in 1970 had recommend d the petitioner as well and secondly, because Dr. Bhattacharya having been selected, both as a direct recruit and as a promotee chose to be appointed against the promotion quota.;