M P AGARWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution has been filed by the petitioner Dr. M.P. Agrawal, for the issue of a writ of mandamus to quash the order of the State Government dated 19th January, 1973, appointing Dr. S.S. Shrivastava, respondent No. 2, to the post of Junior Specialist (Medicine) and also for the quashing of the order dated 31st October, 1974, whereby the petition for was reverted from the post of Junior Specialist (Medicine) to the post of Civil Assistant Surgeon, In the writ petition aforesaid, the petitioner has also prayed for the issue of an appropriate writ, cirecting the State Government to appoint the petitioner as Junior Specialist (Medicine) against the vacancies of the year 19?1 and or 1972.

(2.) THE petitioner juined Government service as CAS (Civil Assistant Surgeon) on 3rd January, 1958. While working as CAS the petitioner obtained the degree of M.D. in general medicine in the year 1965. By order dated 17th July, 1970, the petitioner was pre rioted to the post of Junior Specialist (Medicine) on an afflicting basis. Dr. S.S. Srivastava, respondent No. 2. entered Government service as CAS in the year 1955. He obtained the M.D. Degree in Medicine in June, 1972. The pest of Junior Specialist (Medicine) forms part Rajasthan Medical and Helath Service and recruitment to the said post is governed by the Rajasthan Medical and Health Service, Rules, 1963 ('hereinafter referred to as the Rules'). Under the Rules, till the year 1967 recruitment for the post of Junior Specialist was made 100% by promotion from amongst (CAS. After 1967 the said recruitment was to be made in the ratio of 50% by promotion and 50% by direct recruitment. The qualifications prescribed for promotion to the said post was 3 years service after post graduation in the specialty or 8 years as CAS with post graudate qualification. Thus post graduate qualification was necessary for eligibility for promotion to the pest of Junior Specialist. During the years 1969 to 1971, 14 vacancies had occurred in the cadre of junior Specialist in general medicine out of which 7 vacancies had to be filled by promotion from amongst persons holding the post of Assistant Surgeon. It appears that the Departmental Promotion Committee did not meet during the said years and was convened only in the 5 ear 1973, and 7 persons, including respondent No. 2 were selected for promotion to the post of Junior Specialist (Medicine) and by order dated 19th January 1973, respondent No 2 was appointed as Junior Specialist (Medicine. In the order dated 19th January, 1973. as it was originally passed, it was stated that the appointment of respondent No. 2 was being made against the promotion quota of the year 1972. By a subsequent order dated January 10, 1974; the figure '1972' in the order dated 19th January, 1973 was deleted In so far as the petitioner is concerned his name was placed by the Departmental Promotion Committee in the list prepared under Rule 24(3) of the Rules, containing names of persons who had been selected to fill officiating vacancies already existing or likely to accrue till the next meeting of the Committee. The petitioner was appointed as Junior Specialist by order dated 22nd March, 1973 Subsequently, the order dated 31st October, 1974 was passed whereby the petitioner was reverted from the post of Junior Specialist to the substantive post of CAS. Aggrieved by the aforesaid order dated 19th January, 1973, appointing respondent No. 2 as a Junior Specialist and the order dated 31st October, 1974, reverting the petitioner from the post of junior Specialist to the post of CAS, the petitioner has filed this writ petition.

(3.) THE main contention urged by Shri Mridul, the learned Counsel for the petitioner, is that under Rule 9(1) of the Rules it was incumbent upon the State Government to determine, at the commencement of each year, the number of vacancies anticipated during the calendar year and the number of persons likely to be recruited by each method i.e. by direct recruitment and by promotion. It is submitted by the learned Counsel that if the aforesaid Rule had been followed and the vacancies occurring in the years 1969, 1970 and 1971 had been filled in those years in accordance with the procedure laid -down in the Rules, the petitioner would have been promoted as Junior Specialist in the vacancies which had occurred during the years 1969 to 1971 and respondent No. 2 would not have been appointed as Junior Specialist prior to the petitioner in as much as he became eligible for promotion to the post of Junior Specialist (Medicine) only after he obtained the degree of M.D. in June, 1972. The submission of the learned Counsel for the petitioner is that appointments in respect of vacancies which had occurred prior to June, 1972 could only be made air amongst persons who were eligible for appointment on those vacancies at the time when those vacancies had occurred and that the appointment of respondent No. 2 as Junior Specialist (Medicine) on a vacancy which had occurred prior to June, 1972 could not be upheld and that if the appointment of respondent No. 2 on the post of Junior Specialist (Medicine) is set aside, the order reverting the petitioner would also have to be set aside in as much as in that event the petitioner would have been entitled to be appointed is Junior Specialist on the vacancy. The writ petition is contested by the State only. Respondent No. 2 has chosen not to appear.