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PETITIONER: DR.(MRS.) SANDHYA JAIN

       Vs.

RESPONDENT: DR.  SUBHASH GARG & ANR.

DATE OF JUDGMENT:       15/10/1999

BENCH: G.B.Pattanaik, N.Santosh Hedge

JUDGMENT:

PATTANAIK, J.

     These  appeals are directed against the Judgment dated 5.9.95 of the Madhya Pradesh Administrative Tribunal, Indore Bench  in O.A.  No.  213 of 1995.  The appellant in each  of these  appeals  was respondent in the  original  application before the Tribunal.  By the impugned order the Tribunal has directed  to consider the case of the applicant Dr.  Subhash Garg  (Respondent No.  1 in these appeals) for promotion  to the  post of Reader by the Departmental Promotion  Committee and if found eligible, to give him his due seniority.

     Dr.   Subhash  Garg  is a lecturer in the  College  of Dentistry at Indore.  He joined as a lecturer in Periodontia on  21.6.82.   On 16.9.88, three of the Readers having  been promoted  as  Professors  on regular basis, three  posts  of Reader fell vacant.  According to Dr.  Garg, he was eligible for   being   considered   but   he   was   not   considered notwithstanding  the fact that under the Recruitment  Rules, the  authorities  were  bound  to consider  his  case.   The Principal  of the college recommended the case of Dr.   Garg for  being  considered  on  6.10.89  but  unfortunately,  no Departmental Promotion Committee meeting was held.  The said Principal  made  a  fresh request on 24.10.91 and  again  on 3.5.92  and finally the Departmental Promotion Committee sat on  25.9.92 but even in that meeting, case of Dr.  Garg  was not  considered and by order dated 2.12.92, Dr.  Saxena  and Dr.   Dhodapkar  were promoted as Readers in Oral  Pathology and  Periodontia  respectively.  On 2.12.92, one Dr.   Patni was  promoted as Professor of Prosthetics.  Being  aggrieved by  non-consideration of his case, Dr.  Garg approached  the Administrative  Tribunal, which was registered as O.A.   No. 18  of  1993.   That  application was  disposed  of  by  the Tribunal by order dated 28.2.94 with the directions that Dr. Garg  should  be  considered for promotion to  the  post  of Reader along with others who are eligible and the Government shall  have  the discretion to determine the guidelines  for selection  of  the candidates, keeping in view the  specific teaching  requirement  in  the College of  Dentistry.   This order  of  the Tribunal was assailed by Dr.  Garg by  filing Special  Leave  Petition No.  15892 of 1994 in  this  Court, which  however  was dismissed on 26.9.94.  The  Departmental Promotion  Committee  again sat in May, 1994 and  considered and  selected  Dr.  Desh Raj Jain, appellant in one  of  the

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appeals  as Reader in Prosthetics and the case of Dr.   Garg was  not  considered.  On 29.11.94, Dr.  Garg  was  informed that   the  matter  of   holding  a  Departmental  Promotion Committee  to  consider his case is being considered by  the Government.   Dr.   Garg filed a representation on  16.1.95. As  the  said  representation  was   not  disposed  of,   he approached   the  Administrative  Tribunal   by  filing   an application  under Section 9 of the Administrative  Tribunal Act,  1985, which was registered as O.A.  No.  213 of  1995. The said application having been disposed of by the impugned order  with  the directions as already stated,  the  present appeals have been preferred.  The State as well as two other private respondents before the Tribunal have preferred these appeals.

     The  case  of  the   respondent  Dr.Garg,  before  the Tribunal  was  that the recruitment and other conditions  of service  of  the  doctors in the College  of  Dentistry  are governed  by  Madhya   Pradesh  Medical  Education(Gazetted) Service  Recruitment Rules, 1987 (hereinafter referred to as the  Recruitment Rules).  Under the Rules as per  Schedule I,  the  college  has one post of Principal, four  posts  of Professor,  five posts of Reader and six posts of  Lecturer. Though,  there  are  five posts of Readers and Column  2  of Schedule  IV  indicates how promotion would be given to  the post  of  Reader  in four different subjects,  there  is  no indication  how the fifth post has to be manned.   According to  Dr.  Garg, the said fifth post was usually being  filled up  by  the senior-most lecturer available  and,  therefore, though  he was eligible for being considered on the basis of his  seniority  as  lecturer, he was not considered  by  the Departmental  Promotion Committee.  The further stand of Dr. Garg  was  that under the Rules, the Departmental  Promotion Committee  was required to meet at intervals ordinarily  not exceeding  one  year but in the present case, there  was  no meeting  of  the Departmental Promotion Committee from  1988 till  1992 notwithstanding the availability of a vacancy  in the post of Reader and this was purposely done only with the object of accommodating Dr.(Mrs.) Sandhya Jain and Dr.  Desh Raj  Jain who had not been eligible for being considered for the  post  of  Reader  till 1992 and  in  the  process,  the Constitutional  Right of Dr.  Garg for being considered  was infringed.  Dr.  Garg, further asserted that notwithstanding the  directions  of  the Tribunal in O.A.  No.   18/93,  the Departmental  Promotion Committee did not consider his  case and, therefore, appropriate directions should be given.

     Before  the  Tribunal, the State Government  took  the stand that the promotion to the post of Reader could be made only  on the same discipline in which a person is continuing as  lecturer and, therefore, since Dr.  Garg was a  lecturer in  Periodontia, his case was not considered for  promotion. The  Government  also  took the stand that in  view  of  the Regulations  of  the  Dental Council of India,  it  was  not possible   to  have  two  Readers   in  the  discipline   of Periodontia  and  as such the claim of Dr.  Garg  could  not have been entertained by the Competent Authority.  Dr.(Mrs.) Sandhya  Jain  as well as Dr.  Desh Raj Jain  also  appeared before the Tribunal and took almost the same stand as of the State  Government.  The Tribunal however on consideration of the  rival  stand of the parties and on an analysis  of  the provisions  of the Recruitment Rules came to the  conclusion that  the  fifth  post  of Reader can  be  occupied  by  any lecturer  of any discipline and there is no bar either under the  Dental  Council  Regulations or under  the  Recruitment

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Rules  to have two Readers in a particular discipline and as such  non-  consideration  of  the case  of  Dr.   Garg  for promotion  to  the  post of Reader, even though a  post  was available,  infringes  his  right under Article  16  of  the Constitution  of India.  The Tribunal also relying upon  the decision  of  this  Court  in the case of  Murli  Babu  Rao, further  came to hold that the recommendations of the Dental Council  are  not  binding.   With  these  conclusions,  the application  filed  by  Dr.   Garg   was  allowed  with  the directions as already stated.

     Mr.   Harish  N.   Salve,   learned  Senior   Counsel, appearing  for both Dr.(Mrs.) Sandhya Jain and Dr.  Desh Raj Jain  &  Mr.   Anoop   Choudhary,  learned  Senior  Counsel, appearing  for  the  State of Madhya Pradesh,  assailed  the decision  of the Tribunal inter alia on the ground that  the ratio  in  Murli Babu Raos case is no longer a good law  in view of the Constitution Bench decision of this Court in the case  of  Dr.Preeti Srivastava and Anr.  vs.  The  State  of Madhya  Pradesh  & Ors., 1999(4) SCALE 579.  It was  further contended  that even under the Recruitment Rules, it is  not permissible  to have two Readers in a particular  discipline and,  therefore,  question  of considering the case  of  Dr. Garg  for  the  vacant post of Reader did not arise  as  Dr. Dhodapkar,  senior  to  Dr.   Garg   in  the  discipline  of Periodontia  had been promoted as Reader and that  promotion had  not  been  assailed  by Dr.  Garg.   Relying  upon  the requirements  as  indicated  in the  Regulations  of  Dental Council,  Mr.   Salve, further urged that the  fifth  vacant post  of Reader can be occupied by other block and not by  a lecturer  in  Periodontia  as another lecturer in  the  said discipline  had  already  been   promoted  as  Reader.   The conclusion of the Tribunal that the fifth post of Reader can be  occupied by a lecturer of any discipline on the basis of seniority  was assailed both by Mr.  Choudhary, the  learned Senior  Counsel,  appearing for the State of M.P.   and  Mr. Salve,  appearing  for the two other appellants and  it  was contended  that it had never happened in the past.  In  this view  of  the  matter, it was contended  that  the  impugned direction cannot be sustained in law.

     Mr.   Dholakia, the learned Senior Counsel,  appearing for  Dr.  Garg, on the other hand submitted that even during the  pendency of this appeal when the Departmental Promotion Committee  met  on  14.2.97, a Government  decision  to  the effect  that  the  fifth post of Reader could  be  given  by promotion  to lecturer of any discipline was conveyed and in view of the aforesaid decision it is futile for the State of Madhya  Pradesh  to contend that the position is  otherwise. According  to Mr.  Dholakia, a scrutiny of the provisions of the  Recruitment Rules unequivocally indicate that there  is nothing in the Recruitment Rules as to how the fifth post of Reader  could  be  filled  up and by  promotion  from  which particular discipline.  In the absence of any such provision in  the Rules, the Government decision would supplement and, therefore,  the Tribunal was fully justified in issuing  the impugned directions.

     In  view of the rival stand taken by the parties,  the only question that arises for consideration is whether under the  Rules in force governing the conditions of service, the fifth post of Reader could be filled up by a lecturer of any discipline  and  if  answer  is  in  the  affirmative,  then undoubtedly, Dr.  Garg had a right to be considered when the vacancy  was available and such non-consideration  infringes

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his  Constitutional  Right under Article 16.  The answer  to the aforesaid question however would depend upon an analysis of  the different provisions of the Recruitment Rules.  Rule 5  of  the  Rules  provides for the  classification  of  the service, the number of posts included in the service and the scale  of  pay  attached thereto and the same should  be  in accordance  with  the  provisions contained in  Schedule  I. Schedule I provides that for the College of Dentistry, there should  be  one post of Principal, four posts of  Professor, five  posts  of Reader and six posts of lecturer  in  Madhya Pradesh  Medical  Service (Class I).  We are  not  concerned with other posts indicated in the Schedule.  Rule 6 provides for  methods  of  Recruitment   and  Rule  6(1)(b)  provides recruitment by promotion of the member of the service.  Rule 6  read  with  Schedule II indicates that all the  posts  of lecturers  would be filled up by direct recruitment  whereas all  other posts of Reader, Professor and Principal could be filled up by promotion under Rule 6(1)(b).  Rule 13 provides appointment   by  promotion  and   the  procedure  for  such appointment  has  been indicated therein.  In terms  of  the said Rules, the Departmental Promotion Committee is required to  meet  at intervals ordinarily not exceeding one year  to consider  the case of promotion in respect of the  available vacancies.  The conditions of eligibility for promotion have been provided for in Rule 14 and as per sub-rule (1) of Rule 14,  a  person on the first day of January of the year  must have  completed such number of years of service as specified in Column II of Schedule IV and he must come within the zone of consideration in accordance with sub-rule (2) of Rule 14. Under  Schedule  IV,  it has been indicated that  for  being promoted  as a Reader, the person concerned should have  the experience  as  a  lecturer as per the norms of  the  Dental Council  of  India.  Rule 15 provides for preparation  of  a list of suitable officers and the selection for inclusion in such list is required to be made on merit and suitability in all  respect  with due regard to seniority.  Under  sub-rule (3)  of  Rule 15, the names of the officers included in  the list  has  to  be  arranged in order  of  seniority  in  the specified  posts as in Column II of Schedule IV at the  time of  preparation  of such select list.  The  proviso  however empowers  the Committee to assign a junior officer, a higher place  in  the list if he is found to be of  an  exceptional merit  and  suitability.   The select list approved  by  the Government  under  Rule 17 is the list for promotion of  the members  of the service from the posts shown in Column 2  of Schedule  IV to the posts shown in Column 3 of Schedule  IV. Necessarily,  therefore,  looking  at  Schedule  IV,  it  is crystal  clear that the promotion to the post of Reader  has to  be  made  from  the post of lecturer.  A  bare  look  at Schedule  IV indicates that a lecturer in Prosthetics can be promoted   as   Reader  in   Prosthetics;   a  lecturer   in Periodontia  can  be promoted as Reader in  Periodontia;   a lecturer in Oral Diagnosis can be promoted as Reader in Oral Diagnosis;   a  lecturer  in Pedodontia can be  promoted  as Reader  in  Pedodontia.  Thus though under Schedule  I,  the college has the sanctioned strength of six posts of lecturer and  five  posts of Reader but under Schedule IV, only  four posts  of  Reader could be filled up by the holders  of  the corresponding  posts of lecturer.  It has not been indicated in  Schedule IV as to how the fifth post of Reader which  is provided  for  in  Schedule I would be filled  up.   In  the absence  of  any provision in the Recruitment  Rules  framed under  the  proviso  to  Article 309  of  the  Constitution, indicating  as  to  how the fifth post of  Reader  would  be filled  up,  the decision of the Government in  this  regard

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assumes  significance  inasmuch as the Government can  issue executive  instructions  for  the   purpose,  which  is  not contrary  to the Statutory Rules.  It is in this context the assertion  of Dr.  Garg that in the past the Government  has been  following  the practice of filling up the  fifth  post from  amongst the lecturers of any discipline, assumes  much significance.  It may be noticed that even in the minutes of the  D.P.C.   held  in  the office  of  the  Public  Service Commission  on  14.2.97,  a  reference has been  made  to  a Government decision indicating that the Government has taken the  decision to promote lecturer of any subject on the post under  question  and this was placed before us in course  of hearing  on  13.3.98.   We had accordingly called  upon  the counsel  appearing  for  the State to produce  the  relevant decision  of the State Government but unfortunately the same has  not been produced and even though in course of  hearing it  was contended by Mr.  Choudhary, appearing for the State that an affidavit has been filed but no such affidavit could be traced out on record.  In this view of the matter, we are inclined  to  hold that the fifth post of Reader  was  being filled  up by lecturer belonging to any discipline, on being selected  following the criteria of merit with due regard to seniority.  Necessarily, therefore, non-consideration of the case  of  Dr.  Garg solely on the ground that there  was  no available   vacancy  in  the   discipline   of   Periodontia tantamounts  to infringement of the constitutional right  of consideration  under  Article 16.  The Tribunal,  therefore, was  justified  in  issuing the  impugned  directions  while disposing of the original application filed by Dr.  Garg.

     The  next question which comes up for consideration is whether  the  Regulations  framed  by  the  Dental   Council contains any prohibition for appointing two Readers from one discipline  which would stand on the way of the Tribunal  to issue  the  directions for consideration of the case of  Dr. Garg.   According  to Mr.  Salve as well as Mr.   Choudhary, the  Tribunal relied upon the decision of this Court in  the case of Dr.  Murli Babu, AIR 1988 SC 1048.  In the aforesaid case  this Court had observed that the recommendations  made by the Medical Council of India or the Regulations framed by it are only recommendatory and not mandatory and right to be considered  for  promotion is a condition of service and  it can  only be regulated by a rule framed under the proviso to Article  309 and the recommendation of Medical Council could not  over-ride  a  rule framed under Article  309.   In  the Constitution  Bench decision on which the counsels appearing for  the  appellants  strongly   relied,  the  question  for consideration  was  whether  it is possible  for  the  State Government to prescribe different admission criteria, in the sense  of prescribing different minimum qualifying marks for special  category  candidates, seeking admission  under  the reserved  category.   It  is in that context the  Court  had observed that by permitting the State Government to lay down the  minimum qualifying marks for the post-graduate  classes would   entail  sacrificing  the   merit   altogether   and, therefore,  the  same  is  not   permissible.   We  fail  to understand  how  the  aforesaid  decision  will  be  of  any assistance  in deciding the question whether a direction can be  issued  to consider the case of Dr.  Garg in respect  of the  fifth vacancy which could be filled up by a lecturer of any  discipline.   That apart, no provisions of  the  Dental Councils  Regulation was placed before us to indicate  that there is an embargo for appointing two Readers from the same discipline  in a particular Dental College.  If there is  no provision  in  the Dental Council  Regulations,  prohibiting

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appointment  of two Readers in a particular discipline in  a Dental  College  and  the  Recruitment  Rules  framed  under Article  309 of the Constitution being also silent  inasmuch as  it does not indicate as to how the fifth post of  Reader will  be  filled  up,  then the same can  be  filled  up  by administrative  decision  of  the   Government  and  such  a decision cannot be held to be repugnant to the provisions of the  Dental Council Regulations.  As we have stated earlier, there  is  no repugnancy and that being the position and  in view  of our conclusion that the fifth post of Reader  could be filled up by a lecturer of any discipline and in fact was being  filled  up  by  the   State  Government,  we  see  no illegality  in  the  impugned  direction  of  the  Tribunal, calling  upon  the State to consider the case of  Dr.   Garg when  a vacancy was available and he had become eligible for being  considered.   It has been brought to our notice  that said  Dr.  Garg has in the meantime been promoted as  Reader but  still his right to be considered at an earlier point of time  when he was not considered erroneously, cannot be said to  have been wiped of by the subsequent promotion.  In  the aforesaid  premises,  we are of the considered opinion  that the Tribunal rightly issued the impugned directions.  We see no  error  in the same, so as to be interfered with by  this Court.

     All  these appeals accordingly fail and are  dismissed but in the circumstances there will be no order as to costs.