ASHOK KUMAR AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) Both these writ petitions relate to the same matter, hence they were heard together and are being disposed of by this common judgment. The petitioner has prayed for a writ of certiorai quashing the impugned order dated 14.12.1994, contained in Annexure-4 to Writ Petition No. 97(SB) of 1995 and the order dated 19.12.1995 contained in Annexure-1 to Writ Petition No. 49(SB) of 1996. He has further prayed for a writ of mandamus commanding the opposite parties, i. e. the State of Uttar Pradesh and the Uttar Pradesh Public Service Commission to convene and finalise the selection to the post of Professor-Director. A writ of quo warranto has also been prayed for removal of opposite party No. 4, Dr. A. K. Gupta, and to show under what authority he is holding the post of Professor-Director of Rehabilitation and Artificial Lab Centre, Lucknow (hereinafter referred to as RALC). Two doctors are fighting each other for the post of Professor-Director of RALC. According to the petitioner the opposite party No. 4, Dr. A. K. Gupta, has been illegally appointed to the post of Professor-Director of RALC on deputation by order dated 14/12.1994 and this appointment has been made in total disregard of the statutory provisions and in arbitrary manner superseding the petitioner. RALC was established in the year 1972 under the Department of Orthopaedic Surgery of K. G. M.C. Lucknow in order to provide rehabilitation services to the disabled and to initiate teaching, research and other related programmes in the field of physical medicine and rehabilitation. The petitioner after graduating in Orthopaedic Surgery was selected as Medical Officer in RALC in January, 1976. Thereafter he was, on his application, was selected to the post of Senior Medical Officer RALC. In the year 1980 RALC was declared an autonomous society by the State of U.P. vide Government Order dated 1.10.1980, a copy of which is contained in Annexure-2 to the writ petition. By Government Order dated 7.6.1986 the autonomous society was dissolved and the RALC was merged With KGMC as Department of Physical Medicines and Rehabilitation (hereinafter referred to as DPMR) and the post of Director was converted into the post of Professor-Director. A copy of this Government Order dated 7.6.1986 is Contained in Annexure-3 to the writ petition. The post of Senior Medical Officer was also designated as Senior Medical Officer-cum-Reader. The petitioner was also re-designated as Senior Medical Officer-cum-Reader. Previously the post of Professor-Director RALC was held by Professors/retired Professors of the Department of Orthopaedic Surgery at KGMC. On 29.6.1991 the post of Director-Professor at the DPMR was advertised in the Employment News by the U. P. Public Service Commission writ essential qualifications. The essential qualifications were (i) M.S.(General Surgery)/M.S. (Orthopaedic Surgery), (ii) Two years' special training in the speciality or PMR. Teaching/Research experience as Reader in Physical Medicines and Rehabilitation in a Medical College for four years was also required. Published research work in the field of rehabilitation was the preferential qualification. The petitioner applied for this post but no selection has been made in pursuance of the advertisement till date even in spite of the representations made by the petitioner. It is further alleged that Dr. A. K. Gupta, opposite party No. 4 applied for the post of Assistant Professor at RRTC Lucknow and he was selected as Assistant Professor in RRTC and was posted as such with effect from 29.8.1987. The educational qualifications of Dr. A. K. Gupta, opposite Party No. 4 (U.K.), 1977-79. He had also clinical experience. Photostat copy of the certificates of Sri A. K. Gupta, opposite party No.4, as Annexure-10 to the writ petition. The State Government in the year 1990 promulgated the U. P. State Medical College Teachers Service Rules, 1990. Rule 5 provides the source for recruitment to the post of Professor in a Medical College whereby only two sources of recruitment have been provided:(i) by direct recruitment and(ii) by departmental promotion committee from amongst Associate Professors who have completed five years' service. After the judgment of this Court' in writ petition No. 4919 of 1981, Dr. K. C. Garg and Ors. v. State of U.P. and Ors., and other connected writ petitions the management was re-transferred to Lucknow University and the property and assets of KGMC were also transferred to the Lucknow University vide Government Order dated 10.8.1992, a copy of which is contained in Annexure-12 to the writ petition. The petitioner had been performing teaching, research, examination and other academic work for the DPMR. Photostat copies of the letters showing the petitioner's engagement in academic work for the Medical College are annexed as Annexure-13 to the writ petition. By Government Order dated 13.9.1993 the State Government clarified the status of DPMR and provided that the designation of Senior Medical Officer-cum-Reader shall be known as Associate Professor with effect from 5.8.1987. Accordingly the petitioner was redesignated as Associate Professor vide office order dated 18.10.1993 with effect from 5.8.1987, a copy of which is Annexure-15 to the writ petition. By Government Order dated 29th January, 1994, Photostat copy of which is Annexure-16, it was provided that the academic work of RALC shall be under the Department of Physical Medicine and Rehabilitation and the Professor-Director of the DPMR shall function under the Principal/Dean of the Medical Faculty of KGMC and the administrative and policy matters shall be carried out in accordance with the decision taken by the Advisory Committee which was constituted by the Government Order for this purpose. This Committee was headed by the Chief Secretary of Uttar Pradesh Government. The Medical Council of India made certain additions to the academic qualifications required for the post of Professor in DPMR. The petitioner was already working on the senior post as Associate Professor. The opposite party No. 4 joined as Assistant Professor in RRTC on 29.8.1987. The opposite party No. 4 does not fulfil the essential qualifications for the post of Director-Professor in RALC in as much as he does not possess any experience as a teacher in DPMR in a medical college in India. It is further alleged that Diploma of Medical Rehabilitation was obtained by the petitioner from U. K. in 1979. This diploma has been derecognised by the Medical Council of India with effect from 11.11.1978. The relevant recommendations on the qualifications required for the appointment of persons to the post of teachers, as prescribed by the Medical Council of India, are contained in Annexure-22 to the writ petition. The appointment of the opposite party No. 4, Dr. A. K. Gupta, is not within the source of recruitment to the post of Professor. The opposite party No.4 was working as Assistant Professor for the purpose of training only and as such he cannot be deemed to be eligible for appointment to the post of Professor without working ever as Associate Professor in a Medical College. By Government Order dated 18.4.1994 the State Government has put a ban on appointing persons on deputation. Prior to that there was also a ban on fresh appointments. The opposite party No. 4 could not have been appointed on deputation to the post of Professor which is two grades higher to the post on which the opposite party No. 4 was working and he has never worked as Associate Professor, The Government had no authority to appoint opposite party No. 4 on the post of Director-Professor in DPMR because neither the Principal/Dean of the KGMC nor the Advisory Committee had recommended the appointment of the opposite party No. 4 to the post of Director-Professor in DPMR. The post of Professor-Director in DPMR is a post of public nature which has been illegally. usurped by the opposite party No. 4. The petitioner has suffered irreparable loss and injury and his substantial legal rights relating to seniority and. eligibility will be impaired and overlooked if the opposite Party No. 4 is allowed to stand as he has not been appointed to the said post in accordance with the rules.

(2.) Opposite Parties 1 and 2, State of Uttar Pradesh and Director Genera! of Medical Education and Training, Lucknow in a joint counter affidavit have averred that RALC deal in providing rehabilitation services to the disabled in the field of Physical Medicines and Rehabilitation. It is not an academic centre till date and no teaching work has been started in the RALC and it has no concern with the Lucknow University or the KGMC. It is under the authority of the State Government and the State Government looks after the affairs of the RALC. Its management and governance are not controlled by the Lucknow University or by the KGMC. By the Government Orders dated 7.5.1986 and 29.1.1994 the State Govt. has exclusive domain over the RALC. It is further alleged that certain retired Professors of the Department of Orthopaedic Surgery of KGMO remained part-time directors of the RALC. Thereafter, it was decided that full time director should be appointed and the matter be referred to the U. P. Public Service Commission. The U. P. Public Service Commission issued an advertisement twice inviting applications for the said post but no fully qualified person was available. Thereafter steps were taken to fill up the vacancy on deputation. On 22.10.1994 a circular was issued to all the-medical colleges of the State requesting for sending the names of persons desirous to be considered for appointment as Director of the RALC on deputation. Three applications were received of the State Government, i. e. the applications of Dr. K. S. P. Choudhary, Dr. Ashok Kumar Agarwal (petitioner) and Dr. A. K. Gupta (opposite party No. 4). The contention the petitioner that the post of Director should be filled by promotion was rejected by the State Government because it was not a promotional post. No rules have been framed so far regarding the services of the RALC. All the three persons were considered. The candidature of Dr. A. K. Gupta, opposite party No. 4, was found fittest and he was appointed on the post of Director-Professor by order dated 14.12.1994 and he joined on the said post on 23.12.1994. The petitioner was not having two years' special training in speciality of Physical Medicine and Rehabilitation or two years of equivalent training approved in the subject in any approved institution in India. The opposite party No. 4 was having post graduate degree in General Medicine (M. D. in General Medicines), Diploma in Medical Rehabilitation from Royal College, London, two years of special training in speciality of Physical Medicine and Rehabilitation, and he was working as Assistant Professor in Physical Medicine and Rehabilitation, Regional Rehabilitation Training Centre, Ministry of Welfare, Government of India. Centre, Ministry of Welfare, Government of India. In view of these qualifications the opposite party No. 4 was better place in comparison to the petitioner. The age of opposite party No. 4 was below 54 years. In the year 1986 the post of Director was redesignated as Professor-Director in view of the fact that the Centre would start teaching work but the teaching work never started and the Centre could not get the character of a teaching centre. The qualifications recommended by the Medical Council of India for the post of Professor in a Medical College, therefore, had no relevance at the time of appointment of Director in RALC. It is further alleged that the U.P. Public Service Commission did not find the applicants including the petitioner fully qualified for the post of Director and returned the request for selection of Director-Professor. The date of birth of the petitioner is 25.12.1947 while the date of birth of opposite party No. 4 is September,' 1946. The petitioner did MBBS in December, 1970 while opposite party No. 4 did MBBS in 1969. No teaching, examination and academic work has ever taken place in the Centre so far. The State Government has power to relax the condition of any Government order in public interest.

(3.) Opposite Party No. 4 Dr. A. K. Gupta, who has been appointed on deputation, in his counter affidavit has averred that the Board of Management was constituted to run the Centre. It is further averred that appointment to the post of Director-Professor will be made by the Government and the same rules will be applicable in the matter which are applicable for the post of Professor. He has been legally appointed on the post of Director-Professor in RALC by the State Government on deputation for a period of one year. The Government Order dated 5.8.1987 provided that the creation of the post will be effective from the date of issuance of the order or taking over the charge whichever is later. The petitioner is not in possession of an essential qualifications as laid down by the Medical Council of India for appointment on the post of Reader because he has not obtained two years' special training in specialty of Physical Medicines and Rehabilitation. The petitioner also has not worked as Lecturer in Physical Medicines and Rehabilitation for a period of five years and he has no teaching experience. The rules quoted by the petitioner in para 20 of the petition are not applicable to RALC because it is not a medical college. RALC is meant for treatment and management of disabled persons. The authorities are making efforts to start the diploma courses at RALC. By arranging few classes on the request of KGMC or outside agencies cannot be considered to be a teaching assignment or performing the teaching by the petitioner. The post of Senior Medical .Officer-cum-Reader was not converted into the post of Associate Professor. The opposite party No. 4 possessed all the prescribed qualifications as prescribed by the Medical Council of India. He -joined the seance in PMR in the year 1985 and as such he was fully eligible and qualified as per recommendations of the Medical Council of India for the post of Director-Professor. The power for appointment to the post of Director-Professor vests with the State Government and the post is to be filled by direct recruitment. There is no rule for the advisory committee in the matter of appointment of Director-Professor of RALC.