V K SETH Vs. STATE OF M P

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution, the petitioner Dr. V.K. Seth, prays that the High Court be pleased to:

(2.) THE material facts are that the petitioner is M. S. in Ophthalmology and is employed as Assistant Surgeon. There were four vacancies of Specialists in Ophthalmology. The Public Service Commission was requested by the Government to advertise these four posts and to make selection for them. Consequently, on 5th March 1976 the Commission issued an advertisement inviting applications for these posts. The interviews were held on 16th January 1978. As a result of the interview, the Commission selected five candidates and sent their names arranged in the order of merit to the Government. The petitioner's name was at serial No. 5 in the list. As only four vacancies were advertised, the petitioner's name formed part of the Reserve List. Two candidates out of the first four were appointed as Specialists on 13th July 1978. The remaining two were appointed as Specialists on 27th February 1979. On the same date, Dr. Gupta, respondent No. 2, who is a confirmed District Health Officer and was working at Jagdalpur as a Specialist in Ophthalmology, was transferred in the same capacity to Guna. It may here be mentioned that one more vacancy of Specialists in Ophthalmology occurred in October 1977 as a result of resignation of one Dr. Ayachit. The vacancy arising consequent upon the resignation of Dr. Ayachit was not advertised. It may also be mentioned that the respondent Dr. Gupta had appeared before the Public Service Commission for the post of Specialist in Ophthalmology in pursuance of an earlier advertisement and was not selected. The petitioner as Assistant Surgeon is in the pay -scale of Rs. 425 -900. The pay scales of Specialist, Civil Surgeon and District Health Officer are the same i. e. 680 -1150. The petitioner contends that the transfer of Dr. Gupta as a Specialist to Guna on 27th February 1979 was an act of favouratism and that the petitioner ought to be appointed because of his selection by the Public Service Commission in the fifth vacancy that occurred as a result of the resignation of Dr. Ayachit.

(3.) AT the time of hearing of the petition, the learned Government Advocate conceded that the Government was not entitled to continue Dr. Gupta as a Specialist on ad hoc basis. We were later informed that the appointment of Dr. Gupta as a Specialist on ad hoc basis or as a temporary arrangement at Guna had been cancelled and that he is now working only as District Health Officer. In view of the stand taken by the Government, the petitioner's challenge to the appointment of Dr. Gupta as a Specialist has become infructuous and we have only to consider whether the petitioner has a right to be appointed as a Specialist.