Rasesh C. Chokst vs State Of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1977 Supreme(SC) 322

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND JASWANT SINGH, JJ.
Shri Rasesh C. Choksi, Appellant
Versus
The State of Gujarat and others, Respondents.
Civil Appeal No. 1010 of 1977
Decided on- 4-11-1977.
Advocates appeared
M/s. S. K. Dholakia and R. Ramachandran, for Appellant; D. V. Patel, Sr. Advocate. (Mr. Girish Chandra Advocate with him), for Respondent No. 1, P. H. Parekh and Miss Manju Jetley, for Respondent No. 4.

Advocates:
D.V.PATEL, GIRISH CHANDRA, Manju Jetley, P.H.Parekh, R.RAMACHANDRAN, S.K.DHOLAKIA

Headnote:
Constitution OF India – Article 226 - permission of the department – Retired from service – Claim of compensation - When appellant was appointed as Registrar of Anesthesia he accepted the same in the hope that this will be a stepping stone in his further promotion as Registrar in Department of Obstetrics and Gynecology which post had not fallen vacant till that time - On joining post of Registrar of Anesthesia he gave an undertaking to serve in that capacity for a period of one year - Later on appellant received a communication that the term of his tenure was extended to another year, that is to say, that tenure of the post was extended to two years instead of one - Even though the post was extended for two years the Department did not take any undertaking from appellant to serve for the entire period – Held, undisputed facts are that the appellant obtained the highest marks in his M.B.B.S. examination in Gujarat and had passed in all subjects. It is also not disputed that the appellants name was mentioned in the merit list - Only ground on which the appellant was not considered for promotion was the opinion of the Director of Medical Education based on a wrong interpretation of Rule 23 and particularly of the word "leave - It is, therefore, clear that the appellant though fully qualified for post of Registrar of Obstetrics and Gynecology was not considered, because of an error of law committed by the Director of Medical Education - As appellant was not considered for promotion, respondent No. 4 was appointed. It is obvious that if the appellants case was duly considered he was bound to be appointed as respondent No. 4 was undoubtedly inferior in merit to the appellant - Rules placed before us lay down that the appointment to the post of Registrar of Obstetrics and Gynecology must be made on merit and merit alone. It is true that if this appeal was to succeed, respondent No. 4 would have to be dislodged causing some hardship to her, but as she secured an appointment under a mistaken impression of law by the authorities, her reversion cannot be helped - Fact, however remains that she has already done more than Registrar of Gynecology and it will not be unjust for her to make way for the appellant who is definitely a more suitable and more meritorious candidate for the post of Registrar of Gynecology - For these reasons, therefore, we are unable to agree with view taken by the High Court that R. 23 acts as a bar to the appointment of the appellant as Registrar of Gynecology – Court therefore, allow appeal of the appellant and set aside the judgment of High Court and direct respondents to consider the case of the appellant without being guided by consideration that Rule 23 in any way bars his appointment - In case appellant is appointed respondent will have to be reverted - In peculiar circumstances of this case we make no order as to costs - Appeal allowed

JUDGMENT

FAZAL ALI, J.:—This appeal by special leave is directed against the judgment of Division Bench of the Gujarat High Court dated 19th January, 1977 dismissing the Letters Patent Appeal filed by the appellant against the judgment of a single Judge of the Gujarat High Court which summarily dismissed the petition filed by the appellant under Art. 226 of the Constitution. The High Court appears to have non-suited the appellant on the interpretation of R. 23 of the Rules Governing the Appointment of Registrars, which, according to the High Court, made the appellant ineligible for being considered for the post of Registrar Paediatrics.

2. The facts of the case lie within a narrow compass and may be briefly stated thus:-

3. The appellant after a brilliant academic career passed the S. S. C. examination in 1967 standing 9th in the entire Province of Gujarat. He thereafter joined the Medical College at Surat and passed the final M.B.B.S. examination from the South Gujarat University in October, 1973 in all the subjects in the first attempt securing as high marks as 133 in Obstetrics and Gynaecology. Thereafter the appellant completed the period of Internship in 1974 and was appointed as a Houseman in Obstetrics and Gynaecology from 1st January, 1975 to 15 th January, 1976. The appellant claims that he had a special interest in Obstetrics and Gynaecology and pursued the post-graduate studies in the subjects. It was in connection with the pursuit of these studies that the appellant wanted to serve as a Registrar in the Department of Obstetrics and Gynaecology whenever such vacancy fell.

4. When the appellant was appointed as Registrar of Anaesthesia he accepted the same in the hope that this will be a stepping stone in his further promotion as Registrar in the Department of Obstetrics and Gynaecology which post had not fallen vacant till that time. On joining the post of the Registrar of Anaesthesia he gave an undertaking to serve in that capacity for a period of one year. Later on the 15th March, 1976 the appellant received a communication that the term of his tenure was extended to another year, that is to say, that the tenure of the post was extended to two years instead of one. Even though the post was extended for two years the Department did not take any undertaking from appellant to serve for the entire period.

5. In response to an advertisement for the post of Registrar of Obstetrics and Gynaecology which fell vacent with effect from 1st January, 1977 the appellant along with others applied for the aforesaid job. The applications of the appellant and others were forwarded by the Dean to the Director of Medical Education and Research. But the Director was of the opinion that none of the applicants were eligible for the post of Registrar of Obstetrics and Gynaecology, because they had not completed the full tenure of the present post of Registrar. As a result of this decision of the Director, the application of the appellant was not considered nor was he called for an interview. Subsequently, respondent No. 4 was appointed as Registrar of Obstetrics and Gynaecology. The appellant contended before the High Court that he fulfilled all the conditions required for the appointment of Registrar of Obstetrics and Gynaecology and the Director on the wrong and erroneous interpretation of R. 23 appears to have been of the view that the appellant was not eligible. The appellant having failed to get any redress from the Department filed a writ petition challenging the order of the Director of Medical Education dated 14th December, 1976 and prayed for a writ for directing the Director of Medical Education to appoint the appellant to the post of Registrar of Obstetrics and Gynaecology.

6. The High Court of Gujarat was of the opinion that in view of rule 23 since the appellant had not completed the period of two years as Registrar of Anaesthesia and had applied before the expiry of the period, he could not be considered for appointment to the p

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