B R SHAH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner, who holds a degree of Doctor of Medicine, was initially appointed as a Civil Assistant Surgeon Glass II in the service of the Government of Rajasthan on July 2, 1954. Ha was subsequently promoted as a Civil Assistant Surgeon Class I and was confirmed on that post with effect from February 19, 1960. THE petitioner was appointed as a tutor in Medicine in the RNT. Medical College, Udaipur on July 1, 1963. He was thereafter promoted as an officiating Lecturer in Medicine on September 16, 1965. Some time later he was promoted as a Reader in Medicine by the order of the State Government dated February 21, 1969.

(2.) IN the year 1968, the State Government considered it proper to recruit to the clinical wing of the Rajasthan Medical (Collegiate Branch) Service (hereinafter called "the Service"), persons belonging to the Rajasthan Medical and Health Service by means of special selection. With that aim in view, the Government of Rajasthan promulgated the Rajasthan Medical Service (Collegiate Branch) (Special Selection), Rules, 1958 (hereinafter referred to as "the 1988 Rules") which provided the method of recruitment of persons employed in the Rajasthan Medical and Health Service of the State into the clinical wing of the Service and also prescribed the conditions and eligibility for recruitment by special selection to the various posts included in the service. These rules prescribed the criteria to be adopted by the Special Recruitment Board for assessing the suitability of the candidates as also the principles to be adopted for determining the inter se seniority of persons recruited by special selection vis-a-vis the persons who were already working on the posts included in the Service. Respondent No. 2, Dr. V. M. Bhandari was selected by the Special Selection Board for appointment as a Reader in Medicine in accordance with the 1968 Rules and he was appointed on the aforesaid post by the order of the State Government dated February 21, 1969, It is also not in dispute that in the inter se seniority list prepared in pursuance of Rule 11 of the 1s68 Rules, respondent No. 2 was placed at No 2 in the category of Readers in Medicine while the petitioner was placed at No. 6 in the aforesaid seniority list and thus the petitioner was junior to the respondent No 2 in the cadre of Readers in Medicine. Subsequently, when the post of a Professor of Medicine fell vacant, the Departmental Promotion Committee selected the respondent No. 2 for the said post and the State Government by its order dated January 17, 1973 appointed respondent No. 2 as a Professor of Medicine on probation for a period of six months. Respondent No. 2 was subsequently also confirmed on the post of Professor of Medicine.

(3.) THERE was some confusion as to whether both the aforesaid provises were subsequently deleted or not and it was thereafter found that by the notification dated October 9, 1975, both the aforesaid provisos to Rule 23 (1) of the Rules were deleted. However, learned counsel appearing for the State filed an affidavit dated November 2, 1977 of one K. K. Gupta in which it was stated that only the first proviso to Rules 23 (1) was actually sought to be deleted by the notification dated October 9, 1975 and that there was a printing mistake in the aforesaid notification, as published in the Rajasthan Rajpatra dated October 22, 1975 as both the existing provisos were mentioned therein to have been deleted. So a corrigendum was latter issued on August 11, 1977 rectifying the mistake in the earlier notification dated October 9, 1975 and it was stated therein that only the first proviso to sub-rule (l) of Rule 23 was actually deleted and not the second proviso to the aforesaid sub-rule. Affidavit of Shri K. K. Gupta dated November 2, 1977 also suffered from a serious infirmity as the earlier notification was mentioned in para (1) thereof as dated October 9, 1977 while as a matter of fact it was dated October 9, 1975. On the last date of hearing, learned counsel appearing for the State, stated that he was prepared to place the relevant records before this Court to convince the Court that there was a printing mistake in the earlier notification dated Oct 9, 1975 and instead of the words "existing first proviso", the words "existing provisos" was mentioned and the said notification dated October 9, 1975 as published in the Rajasthan Rajpatra dated October 22, 1975 containing the aforesaid paras. As the learned counsel for the State expressed his readiness to place the relevant record before this Court, he was directed to do so on the next date of hearing However, when the case came up for hearing yesterday, learned counsel appearing for the State was not in a position to place the relevant record before the Court which he had undertaken to do and no reasonable explanation for not producing the same was forthcoming. I must observe that the State as a party in a writ petition is expected to appear in court with clean hands like any other litigant and it roust place all the relevant records before the Court, unless on proper grounds it seeks to claim privilege for the non-production of such record. The non production of the record by the State in the present case deserves to be highly deprecated. However, as the arguments in the present case have proceeded on the basis that the first proviso to Rule 23 (i) only was deleted by the notification dated October 9, 1975 and the second proviso thereof has been kept intact and as such I need not say any thing more in respect of the non production of the relevant record by the counsel appearing for the State.