DR. AVINASH KUMAR GOEL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) In this petition filed under Articles 226/227 of the Constitution of India, the petitioner, Dr. Avinash Kumar Goel, takes serious objection to the order dated Oct. 9, 1991 (Annexure P-7), vide which his promotion to the post of Professor (Urology) ordered on 14, 1991, has been converted on ad hoc basis for a period of six months or till such time Dr. R.K. Jindal, respondent No. 2, attains the prescribed period of teaching experience whichever is earlier. The petitioner also complains about the cloistered manner in which Dr. R.K. Jindal is proposed to be brought on the post of Professor (Urology) by replacing him. Before, however, the grounds on which order (Annexure P-7) has been challenged are noticed, it shall be useful to trace the relevant facts culminating into the present petition.

(2.) After doing M.B.B.S., the petitioner joined as Medical Officer on ad hoc basis w.e.f. 21.3.1975 and was subsequently selected and appointed on regular basis on the recommendation made by the Punjab Public Service Commission w.e.f. 31.10.1975. The petitioner did his M.S. (Surgery) while he was posted at Patiala as Registrar in the Medical College. He was promoted as Senior Lecturer in Punjab Medical Education Service, Class-II, w.e.f. 11.9.1982. The petitioner advanced in his academic career by yet another step when he acquired post-Graduate qualification of Megister Chirugise (M. Ch.) in Urology from the Post-Graduate Institute of Medical Education and Research, Chandigarh, from 11.1.1983 to 11.1.1985. He was thereafter promoted as Assistant Professor (Urology) on temporary basis vide order dated 20.5.1985. During the tenure of his temporary promotion to the post of Assistant Professor, he was selected by the Punjab Public Service Commission for the aforesaid post for appointment on regular basis and consequent upon such selection, he joined on regular basis on 20.7.1990. The Petitioner claims meritorious service career. He was sent through the Government of India to United Kingdom for availing common wealth fellowship for a period of one year and he also stakes claim of being an author of number of international scientific publications besides attending six international conferences. Besides the eligibility of the petitioner on the front of educational qualifications, it is the impressive service career that he had to his credit that was also considered as a relevant fact for giving him promotion to the post of Professor, claims the petitioner. Respondent No. 2, on the other hand, for whom the petitioner has been asked to vacate the post of Professor, started working as a Senior Lecturer and was promoted to the post of Assistant Professor w.e.f. 21.9.1981 against a short-term vacancy by way of stop-gap arrangement. Thereafter, his promotion to the post of Assistant Professor was converted into ad hoc basis w.e.f. 13.8.1985 and till date he has been working in the same capacity. The case of the petitioner is that respondent No. 2 was never regularised as Assistant Professor by the State Government in consultation with the Punjab Public Service Commission nor the Commission ever selected him for regular appointment. The service condition of the petitioner as well as respondent No. 2 are governed by the Rules known as the Punjab Medical Education Service (Class-I) Rules, 1978 (hereinafter to be referred at 'the 1978 Rules'). According to Rule 7(2) of the 1978 Rules, no person can be recruited to the service by direct appointment, promotion or by transfer unless he possesses the qualification and teaching experience as specified in Appendix-C. Under Rule 9 of the 1978 Rules, the method of the appointment to the aforesaid post has been detailed. In so far as the post of Professor is concerned, 75% appointment of such posts has to be made by way of promotion from amongst the Associate Professors and where Associate Professors are not available from amongst the Assistant Professors or by transfer of an official already in the service of the Government of India or of the State Government. As per Rule 9(3) all the appointments to the post in the service by promotion had to be made by selection on merits and no person is entitled to claim promotion on the basis of seniority. Inasmuch as Rules 9(1)(d) and 9(3) as also Appendix-C are relevant for adjudicating the controversy involved in the present petition, it shall be useful to reproduce the same "9. Method of Appointment :-

(3.) Before the matter is proceeded any further, it requires to be noticed that 1978 Rules were amended in 1985 and the original Appendix 'C' attached to the Rules requiring post-graduate degree in the speciality concerned, M.D., M.S., Ph.D., M.Sc., D.Sc., F.R.C.S., M.R.C.P. and teaching experience as Assistant Professor in the speciality concerned for five years in a Medical College after requisite post-graduate qualifications as pre-requisite for appointment to the post of Professor or Additional Professor was changed to say that five years experience as Assistant Professor was required after doing M.Ch.