A R SIRCAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Special leave granted.

(2.) The respondents 4 and 5 Dr B. N. Singh and Dr S. N. Pandeya were appointed in 1982 and 1983 respectively as Professors of Medicine on ad hoc basis in King George's Medical College, Lucknow. This College was under the management of the Lucknow University. In December 1984, the post of Professor of Medicine was advertised to fill in the vacancy of the year 1982-83 on a regular basis by the direct selection. The appellant as well as the aforesaid two respondents and one Dr S. S. Aggarwal were amongst those who applied for the said post. In the meantime the appellant Dr A. R. Sircar was also appointed as a Professor of Medicine in the said college on ad hoc basis w. e. f. 2/04/1985. Pursuant to the advertisement issued in December 1984 interviews were held on February24,1986. It will thus appear that at the date of the interview the appellant as well as respondents 4 and 5 were serving as Professors of Medicine in the college on ad hoc basis. After the interviews were completed the result disclosed that Dr S. S. Aggarwal was placed at serial No. 1 and the appellant Dr A. R. Sircar at the serial No. 2 on the select list. Respondents 4 and 5 were not selected. Before appointments could issue on the basis of the said selection, the aforesaid two respondents and others filed a Writ Petition No. 1545 of 1986 challenging the selection list prepared pursuant to the interviews and sought an interim order against the implementation thereof. An interim order staying the implementation of the select list was granted by the High court. Consequently the appointment of Dr Aggarwal or the appellant could not take place. Subsequently in October 1986 one Dr Bhatia was appointed as Professor of Medicine in the said college in the promotees' quota in the vacancy of 1982-83 which was to be filled by a direct recruit. That was because the implementation of the select list had been stayed by the High court and no other direct recruit could be appointed to the said post. It may also be mentioned that the appellant was not impleaded as a respondent in Writ Petition No. 1545 of 1986 wherein the interim stay against the implementation of the select list was granted. The appellant, therefore, made an application in September 1988 for being impleaded as a party and for vacation of the stay order. While that application was pending, by notification rules for regularisation of ad hoc promotees came to be issued. Soon thereafter Writ Petition No. 1548 of 1986 was dismissed on 24/07/1989. On 14/08/1989 the appellant moved an application in the said writ petition for a direction to the authorities to implement the select list. The High court directed that Dr S. S. Aggarwal be offered an appointment and if he refuses the same, it should be offered to the appellant Dr A. R. Sircar. As the matter was being delayed for one reason or the other, the appellant applied to the High court for appropriate directions, whereupon the High court ordered that since Dr S. S. Aggarwal had not joined within the stipulated time, an order appointing the appellant who was No. 2 on the select list should issue within a week's time. Thereupon an appointment latter dated 31/10/1989 was issued appointing the appellant as Professor of Medicine on the basis of his selection made on February 24, 1986 in the vacancy of 1982- 83 meant for direct recruits. In the meantime certain other developments had taken place. Respondents 4 and 5 filed a Writ Petition No. 8424 of 1989 for a direction to the State government for regularising their services under U. P. Regularisation of Ad Hoc Promotions (on the posts within the purview of the PSC) Rules, 1988 and for staying the implementation of the select list. In that petition the High court ordered that the question of regularisation of the said respondents herein should be considered by the State government and in the meanwhile any appointment made by virtue of the selection made on 24/02/1986shall be treated as provisional. It will thus be seen from the above facts that respondents 4 and 5, had competed for the post of Professor of Medicine advertised in December 1984. They had appeared in the interview held pursuant thereto but were not selected, whereas Dr Aggarwal and the appellant Dr Sircar were selected and placed at serial Nos. 1 and 2 in the select list. But for the stay granted by the High court in Writ Petition No. 1545 of 1986 filed by respondents 4 and 5, the appellant would have been appointed in the vacancy of 1982-83 meant to be filled by direct recruitment: Since that vacancy could be filled by appointing a direct recruit in view of the interim order of the High court Dr Bhatia came to be appointed by promotion in the said vacancy sometime in October 1986. The first attempt of respondents 4 and 5 having failed on the dismissal of their Writ Petition No. 1548 of 1986, they made a second attempt by filing a Writ Petition No. 8424 of 1989 for regularisation of their appointment under the rules framed in 1988 and for restraining the implementation of the select list. The regularisation of the promotion of respondents 4 and 5 under the 1988 Rules pursuant to the order passed by the High court in Writ Petition No. 8424 of 1989 was secured in the vacancies of 1983-84 and 1986-87, respectively, prior to the regular appointment of Dr Sircar on the strength of the letter of appointment dated 31/10/1989. Two things become abundantly clear from these undisputed facts, namely, (1 that the appointment of the appellant who was at serial No. 2 in the select list could not be made on account of the interim stay granted by the High court in Writ Petition No. 1548 of 1986 and even thereafter, for one reason or the other, the authorities took time to clear the appointment, and (2 the regularisation of the promotion of respondents 4 and 5 was effected in the meantime under the 1988 Rules. The question as to whether this regularisation, albeit prior in point of time to the appointment of Dr Sircar, would entitle the respondents 4 and 5 to claim seniority over the appellant Dr Sircar.

(3.) The King George's Medical College was under the management of the Lucknow University till 18/07/1981 when the same was taken over under the Gandhi Memorial and Associated Hospitals (Taking over) Ordinance, 1981, now Act of 1983. Section 5 of the said Act, inter alia, provided that every whole time officer (including a teacher) or other servant of the University duly employed in connection with the affairs of the institution and serving the institution immediately prior to this take over shall become an officer or servant of the State government and shall hold office by the same tenure and upon the same terms and conditions and with the same rights as to retirement etc. , as he would have held under the University. Section 6 of the Act declared the every officer or other servant whose services were transferred to the State government under Section 5 shall, notwithstanding anything contained in other provisions of the Act be liable to be transferred and posted to any other medical collegeor hospital attached to a medical college under the control and management of the State government. In Writ Petition No. 4919 of 1991 the High court held that S. 5 and 6 of the Act were ultra vires Articles 14 and 300-A of the Constitution and as such the entire structure of the Act collapsed. Against this decision the State of U. P. filed a special leave petition in the court and by an interim order dated 1/05/1991 an ex parte stay against the operation and implementation of the High court judgment was secured subject to certain conditions. The effect of this order was that the provisions of the impugned Act continued to apply.