TANUJA BHAT Vs. STATE OF GOA

JUDGEMENT

(1.) BY this petition, the petitioner prays for striking down the amendment dated 16-7-1998 to Item No. 5 under Schedule III of the 1979 Rules altering the mode of recruitment and essential qualifications and making it retrospective on the ground that it is a malafide exercise of the power and bad in law. The petitioner also prayed for quashing and setting aside the appointment of respondent No. 3 to the post of lecturer and the further appointment of respondent No. 3 to the post of Asst. Professor in the Department of Biochemistry as well as the promotion and appointment of respondent no. 3 to the post of Asst. Professor. The petitioner has also prayed for issuance of a writ of mandamus directing respondent No. 1 to consider the case of the petitioner for appointment to the post of Lecturer in the department of Biochemistry under the unamended 1979 Rules from the date on which respondent No. 3 was appointed.

(2.) THE facts, in brief, as are necessary for the decision of this petition, are stated, thus : the petitioner was initially appointed as a Demonstrator by an order dated 2/3/1994 in the Department of Biochemistry. The petitioner joined the duty on 17/3/1994. Subsequently, the post of Demonstrator was re-designated to the Assistant Lecturer by an order dated 16-2-1995 and communicated by order dated 13-3-1995. The services of the petitioner came to be confirmed on 3-6-1998. Respondent No. 3 joined the post of Asst. Lecturer in the department of Biochemistry on 16-12-1996. She had a Post-graduate Degree in biochemistry when she was appointed. It appears that respondent No. 3 had filed a Writ petition No. 256/1994, challenging the appointment of the petitioner to the post of demonstrator, which came to be dismissed by an Order dated 31-8-1994.

(3.) SOMEWHERE, on 12-6-1997, the post of a Lecturer in Biochemistry fell vacant. The filling up of the post was governed by the 1979 Rules, then prevailing. The said Rules for the appointment of the Lecturer in biochemistry provided as essential qualifications. .- (i) recognized Medical qualification included in the First of the Second schedule of Part II of the third schedule (other than licentiate qualifications) to the Indian medical Council Act, 1956. Holders of qualifications included in pan II of the Third schedule should also fulfill the conditions stipulated in Section 13 (3) of the Indian medical Council Act, 1956, (ii) Post-graduate degree qualification in the specialty concerned or equivalent, (iii) at least three years' teaching experience in concerned specialty as Senior resident/registrar/tutor/demonstrator in a medical College/teaching Institution. Since the post of a Lecturer fell vacant, it was proposed by respondent No. 1 to fill up the vacancy by direct recruitment and respondent no. 2 issued an advertisement for filing up of the post of Lecturer in Biochemistry, which was published in English daily Gomantak Times dated 11-7-1997. However, it appears that there was no response to the said advertisement. It also appears that neither the petitioner nor respondent No. 3 were qualified as per the qualification prescribed in the said advertisement. Though the petitioner had three years teaching experience, she did not possess the Post-graduate Degree qualification. Though respondent No. 3 possessed Post-graduate qualification, she did not have three year's teaching experience. The petitioner meanwhile had registered for Post-graduation in biochemistry and completed her Post-graduation in Biochemistry somewhere in january, 1998. On 13-11-1998, respondent no. 2 issued an advertisement in Marathi daily "tarun Bharat" for filling up the vacancy in post of Lecturer in Biochemistry. The qualifications which were prescribed were as earlier. The petitioner applied for the post. However, the petitioner did not receive any call letter for interview from respondent No. 2 and she learnt subsequently, according to the petitioner, that the process of direct recruitment had been aborted and no interviews had been held. Meanwhile, on 16-7-1998, respondent no. 1 amended Schedule HI of the 1979 Rules in respect of the qualifications for the post of lecturer and the post of Lecturer in biochemistry in the said Schedule was divided into two posts, namely (5 (a) A-Lecturer (Clinical) 5 (b) B-Lecturer (Para-Clinical))were to be filled up by direct recruits for which the qualifications prescribed were the same as before, but the post of Lecturer (Pre and Para-Clinical) was to be filled in by promotion, failing which by direct recruitment. The qualifications prescribed for promotions were an Assistant Lecturer having Post-graduation degree in the specialty concerned or equivalent with three years teaching experience after having Post-graduate degree. These Rules were to come into effect from 12-6-19971 retrospectively and were published in the government Gazette dated 20-8-1998. Since the third respondent fulfilled the necessary qualifications, by an Order dated 13-7-2000, respondent No. 3 was promoted to the post of Lecturer in Biochemistry. The promotion was made against the vacant post which was revived by the Government Order dated 13-7-2000. After Rule was issued, respondent No. 1 by order dated 22/1/2002, created a new post of lecturer and on 7-8-2002, appointed the petitioner to the said post by promotion. On 19-6-2003, respondent No. 3 came to be promoted to the post of Asst. Professor. The petitioner also by an order dated 2-4-2004, came to be promoted to the post of Asst. Professor, on ad hoc basis, with immediate effect. Respondent No. 3 also by an order dated 3-4-2004 came to be promoted to the post of asst. Professor.