Point of law: Filling of vacancy - In case the vacancy now available is again filled by promotee candidate, the discrimination already meted to direct recruits shall be perpetuated. On the other hand, the appointment on existing vacant post by direct recruit shall achieve the fulfillment of the respective quota of 50%.

ORDER :

By way of instant petition, petitioner has prayed for the following substantive reliefs :

(a) That this Hon’ble Court may be pleased to issue writ of certiorari quashing the letter dated 6.2.2021 (Annexure P-4) whereby the post of Assistant Professors in the Department of Radiology has been ordered to be filled up by way of promotion and the necessary documents had been called from the requisite heads and further Annexure P-4 letter dated 15.02.2021.

(b) That this Hon’ble Court may further be pleased to issue writ of mandamus directing the respondents not to fill up the post of Assistant Professor in the Department of Radiology by way of promotion, and be further directed to fill up the post of Assistant Professor in the Department of Radiology IGMC, Shimla by way of direct recruitment.

(c) That this Hon’ble Court may be pleased to issue writ of mandamus directing the respondent not to hold any DPC for promotion to the post of Assistant Professor in the Department of Radiology, IGMC, Shimla considering private respondent No.3 and further not to recommend private respondent No.3.

2. The case of petitioner is that she is qualified to be appointed as Assistant Professor in the Department of Radiology, Indira Gandhi Medical College (for short ‘IGMC’), Shimla, where presently a post of Assistant Professor is vacant and available. As per petitioner, she is M.D. Radio-diagnosis and has three years teaching experience as Senior Resident at RPGMC, Tanda and PGI (MER), Chandigarh.

3. The Medical Education and Research is one of the wings of the Department of Health and Family Welfare, Government of Himachal Pradesh and is headed by the Director, Medical Education and Research. The teaching faculty of various Medical Colleges in the State of Himachal Pradesh are under the administrative control of the Director, Medical Education and Research.

4. The Department of Medical Education and Research has notified Himachal Pradesh Medical Education Service Rules, 1999 (for short ‘Rules’) which have been amended from time to time. Annexure -1, appended to the Rules provides for Recruitment and Promotion Rules (for short R&P Rules) for Himachal Pradesh Medical Education Service. As per the R&P Rules for the post of Assistant Professor (Class-I Gazetted) prescribed method of recruitment is from two sources i.e., 50% by promotion failing which by direct recruitment and 50% by direct recruitment in the manner as specified in Appendix-B. Essential and desirable qualifications for the post of Assistant Professor have been detailed at serial No.3 of Appendix-B as under:

“3. Assistant Professor:

Essential qualifications: -

(i) A recognized medical qualification included in the first or second Schedule or Part-II of the third Schedule (other than Licentiato qualifications) to the Indian Medical Council Act, 1956. Holders of Educational Qualification included in Part-II of the Third Schedule should also fulfill the condition stipulated in sub-section (3) of Section 18 of Indian Medical Council Act, 1956.

(ii) A post-graduate degree in the concerned specialty mentioned in Part-A of Annexure-II or its equivalent qualifications.

(iii) Atleast 3 years teaching experience as Lecturer/Registrar/Demonstrator/Resident after doing post-graduation in the concerned specialty in any recognized Medical College.

Desirable qualifications:- (i) Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.

(ii) Publication of research papers in Index Journals.”

5. Presently, IGMC, Shimla has five sanctioned posts of Assistant Professors in the Department of Radiology. After promotion of Dr. Shikha Sood to the post of Associate Professor, one post of Assistant Professor has fallen vacant in the said Department. Remaining four sanctioned posts of Assistant Professors are manned by different incumbents.

6. It is on account of the vacancy of one post of Assistant Professor in the Department of Radio