Sandhya Jain vs Subhash Garg - 1999 Supreme(SC) 1231

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(SC) 1231

1999(8) Supreme 709
Supreme Court of India
(From Madhya Pradesh Administrative Tribunal, Indore)
G.B. Pattanaik, M. Srinivasan and N. Santosh Hegde, JJ.
Dr. (Mrs.) Sandhya Jain etc. -Appellants
versus
Dr. Subhash Garg & Anr. etc. -Respondents
Civil Appeal Nos. 12906-12907 of 1996
With
Civil Appeal No. 12908 of 1996
And
Civil Appeal Nos. 12909-12910 of 1996
Decided on 15-10-1999
Counsel for the Parties :
For the Appellants : Harish N. Salve, Sr. Advocate, Sushil Kumar Jain, A.P. Dhamija, Advocates.
For the State of M.P. : Anoop G. Choudhary, Sr. Advocate Ashok K. Singh, Satish K. Agnihotri, Advocates.
For the Respondent : S.K. Dholakia, Sr. Advocate, S.K. Gambhir, Anil K. Sharma, Awanish Sinha, Advocates.

Headnote:Service Law - Promotion-Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1987-Rules 6(1)(b) r/w Rules 14, 15 & 17-Respondent, a Lecturer in Periodontia-Claim for promotion as Reader in available vacancy-Administrative Tribunal’s directions to consider his candidature-Not considered by Departmental Promotion Committee-DPC required to meet once in a year but for four years no DPC meeting held-Respondents application to Administrative Tribunal-Direction to consider respondent for promotion and to give due seniority-Government’s stand promotion could be in same discipline a person was holding post and in view of Regulation of Dental Council it was not possible to have two Readers in discipline of Periodontia-Not tenable-Practice of Govt. filling up fifth post of Reader from among lecturers of any discipline-There is no bar under Dental Council Regulation or under Recruitment Rules to have two Readers in a particular discipline and non-consideration of Respondent for promotion eventhough post was available infringed his rights under Article 16 of Constitution-Tribunals order warrants no interference.
       Held : 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. (Para 7)
       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 assumes significance inasmuch as the Government can issue executive instructions for the purpose, which is not contrary to the Statutory Rules. In the past the Government has been following the practice of filling up the fifth post from amongst the lecturers of any discipline. 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. (Para 7)
       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 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. (Para 8)
       Though it the meantime the respondent 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. Therefore the Tribunal right issue direction to give him his due seniority. (Para 8)

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.

2. 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 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.

3. 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 no

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1999 Supreme(SC) 1231

Cases Referred (2)