NARENDRA KUMAR SEN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner passed the M. B. B. S. examination in the year 1964 and obtained the degree of M D. in pa-hology and Bacteriology in the year 1969 On March 16, 1965, he was appointed as a Junior Demons-trator in Pathology in the S. P. Medical College, Bikaner in a temporary capacity. THEreafter he was selected for the post of Senior Demonstrator in Pathology by the Central Selection Committee and was appointed on the said post on the basis of the recommendations of the aforesaid Committee, on an ad-hoc basis, by the order of the State Government dated January 31, 1966 THE petitioner continued to hold the said post till he was appointed in a substantive capacity on that post by the order of the State Government August 12, 1970 after he was selected for the same by the Rajasthan Public Service Commission. THE last mentioned appointment of the petitioner on the post of Senior Demonstrator was on probation for a period of one year. In the mean-time, the petitioner was selected by the Central Selection Committee for the post of Lecturer in Pathology and Bacteriology and was appointed on that post in a temporary capacity with effect from February 28, 1970.

(2.) THE petitioner's case is that on August 9, 1971, three posts of Lecturers in Pathology were tilled in by direct recruitment on the recommendation of the Rajasthan Public Service Commission and 9 more posts were left to be filled in by promotion in a substantive capacity, but as the Departmental Promotion Committee did not meet either in the year 1970 or 1971 or even in the year 1972, no appointment to the posts of Lecturers in Pathology by promotion could take place during these years. THE Departmental Promotion Committee met only in January 1973 and 9 persons, namely respondents No. 4 to 12 were selected for the posts of Lecturers in Pathology and on the basis of its recommendations, respondents Nos. 4 to 12 were appointed as Lecturers in Pathology by the order of the State Government dated January 19, 1973. THE petitioner though eligible was not selected at the aforesaid selection. THE case of the petitioner further is that two out of the nine persons selected by the Departmental Promotion Committee in January 1973 for the posts of Lecturers in Pathology, namely respendent No. 7 M. M. Sharma and respondent No 10 Dr. V. B. Kalara were not eligible for promotion to the said posts of Lecturers either in the year 1970 or in the year 1971 as they obtained the degree of M D in Pathology in the year 1971 and thus became eligible for promotion to the said posts only in the year 1972. THE petitioner's grievance is that in case the Departmental Promotion Committee would have met in the year 1970 or 1971, the aforesaid respondents Nos, 7 and 10 could not have been considered for promotion to the posts of Lecturers and the petitioner would have fair chance of being promoted. According to the petitioner, he was not promoted in January 1973 to the post off Lecturer in Pathology in a substantive capacity on the ground that the respondent Nos. 4 to 12 were senior to him in the cadre of Senior Demonstrators and not on account of any defect or infirmity or lack of merit in the petitioner.

(3.) HOWEVER, the promulgation of the 1972 Rules made a difference in this position inasmuch as those rules were made particularly in order to meet the hardship which had resulted to persons on account of the fact that although vacancies in respect of direct recruitment quota were filled in any particular year or during any particular period, yet the corresponding vacancies pertaining to the promotion quota were not filled in then. In most of the service rules regulating recruitment, to public services in the State, the appointments are to be made both by direct recruitment as well as by promotion in certain proportion as specified in the service rules. In some cases, appointments by the procedure of direct recruitment through the agency of the Rajasthan Public Service Commission were made from year to year or during a particular period of recruitment, but the promotion quota vacancies could not be filled in, because for some reason the Departmental Promotion Committees did not meet regularly and thereby hardship was caused to persons who were eligible for being considered against the vacancies of the promotion quota, as they were deprived of promotion as well as of proper seniority, with respect to the time when the promotion quota vacancies became available. The 1972 Rules were promulgated in order to meet such contingencies and to remove the hardship created by the non-filling of the promotion quota vacancies on account of the fact that such vacancies were filled in much later than they became available. The State Government intended that by making appointments by way of promotions with effect from earlier dates, in respect of the promotion quota vacancies or by antedating the appointments by promotion, where such appointments had already been made, by giving the promotees that particular year or period when their appointments by way of promotion should have taken place, corresponding to the appointments by the method of direct recruitment, the grievance of such employees would be redressed or atleast mitigated Rules 2 of the 1972 Rules provides for determination of the number of vacancies which were required to be filled up by promotion, specifying the year corresponding to the year in which vacancies against direct recruitment quota were filled. After such determination, rule 3 of the 1972 Rules envisages the constitution of a Departmental Promotion Committee for the purpose of making recommendations for such promotions, which is also requited to specify the year in which appointments by promotion against the promotion quota vacancies should be made. The appointing authority would then consider the recommendations of the Departmental Promotion Committee and make promotions to the promotion quota vacancies, relevant to the year corresponding to the year in which the vacancies against direct recruitment quota were actually filled in. If the direct recruitment quota vacancies would not have been filled in, in respect of the posts of Lecturers in Pathology, upto the year 1973 then the petitioner could have no grievance, in as much as the Rules do not make provision for determination of vacancies from year to year or from time to time and the vacancies occurring in the cadre could be carried forward to the subsequent year or years. But it is undisputable that in August, 1971 three persons were appointed by the method of direct recruitment on the posts of Lecturers in Pathology and thereby three direct recruitment quota vacancies were filled in. It is also not in dispute that there were 8 vacancies on the posts of Lecturers in Pathology, which were to be filled in by the method of promotion in the year 1971, when three appointments were made on such posts by the procedure of direct recruitment. HOWEVER, the promotion quota vacancies were admittedly not filled in during the year 1971. After the coming into force of the 1972 Rules, in my view, the, promotion quota vacancies should have been filled in after following the procedure contained in rules 2 and 3 of the 1972 Rules.