1. This writ petition is filed under Art. 226 of the Constitution. The petitioner prayed for several reliefs. But, before admission, the petitioner amended the petition confining the relief for a writ of mandamus directing respondent 1 to consider the petitioner's case for promotion as Professor of Preventive and Social Medicine from the date respondent 3 was appointed as Professor.
2. The petitioner is a graduate from the Medical College, Mysore. He entered service in the Public Health Department in the year 1955 as a Medical Officer of Health. His services were regularized by the Public Service Commission in the year 1955. His services were thereafter lent to the Mysore Medical College, University of Mysore, in or about September 1956 as Lecturer, Preventive and Social Medicine in which post he continued to work until May 1958. Thereafter, he was deputed for post graduate studies at the All India Institute of Hygiene and Public Health, Calcutta. He obtained a Diploma in Public Health in the year 1959. Thereafter, he was posted temporarily as Assistant Professor of Preventive and Social Medicine in the Medicine College, Mysore. The Mysore Public Service Commission advertised the post of Assistant Professor of Preventive and Social Medicine. The petitioner applied for it and was selected on 29 June, 1961, and was placed on probation for a period of two years under Government Order No. PLM 234 MNX 61 dated 29 June, 1961. The Government reduced the probation period to one year by their order dated 17 July 1964 in No. PLM 380 MNX 63. According to the petitioner, the Cadre and Recruitment Rules provide for the post of Professor of Preventive and Social Medicine being filed up either by direct recruitment or by promotion from the Cadre of Assistant Professors in Preventive and Social Medicine. Respondent 3, who is permanently borne on the Cadre of Public Health Department as District Health Officer, was appointed on 23 November, 1962 as per Exs. J and K. The petitioner questions this appointment on the ground that the State Government having established a separate cadre of teaching staff in the Medical Colleges run by the Government and the Cadre and Recruitment Rules clearly providing for an Assistant Professor being promoted to the next promotional post of Professor, respondent 1 could not bring in respondent 3 even temporarily on O.O.D. basis from the Department of Public Health, as neither the above Cadre and Recruitment Rules nor any other rule gives power to the Government to appoint respondent 3 as Professor. Therefore, the appointment of respondent 3 is bad in law. According to the petitioner respondent 1 has arbitrarily declined to consider his case for promotion though he was the seniormost Assistant Professor to be promoted as Professor. He seeks for a mandamus directing respondent 1 to consider his case for promotion as Professor of Preventive and Social Medicine from the date when respondent 3 was appointed as Professor.
3. Respondent 1 has filed the counter. It is averred therein that the Cadre and Recruitment Rules of the Mysore Medical Department Service Rules were in the first instance framed on 1 December, 1960. They were amended and the amended rules came into force on 17 March, 1964. According to the Cadre and Recruitment Rules of 1964 respondent 1 maintains that the petitioner does not possess the qualification prescribed for the post of the Professor. Further, it stated that the petitioner also does not possess the qualification of having worked as Deputy Health Officer of a municipal corporation as a District Health Officer for a period of not less than two years as prescribed by the Medical Council of India. According to respondent 1, respondent 3 was appointed temporarily and pending selection by the Public Service Commission before 'Rules of 1964' came into force. The petitioner has filed a lengthy reply-affidavit to the counter-affidavit, filed by respondent 1.
4. The short question for decision in this writ petition is whether the petitioner possess prescribed qualification for being considered for promotion to the post of Professor in the Clinical and Non-clinical subjects in the Medical College.
5. Sri S. K. Venkataranga Ayyangar, appearing for the petitioner, raised three contentions. Firstly, he contended that as the petitioner's promotion is governed by the Mysore Medical Department (Service and Recruitment) Rules, 1960, to be hereinafter called as the 'Rules of 1960' the petitioner possesses the prescribed qualification for being promoted as Professor. Secondly, he contended that even after the Mysore Medical Services (Teaching and Technical Personnel in Medical and Dental Colleges) Recruitment Rules, 1964, to be hereinafter called as the 'Rules of 1964' came into force, both the 'Rules of 1960' and the 'Rules of 1964' are in force and therefore the petitioner is qualified for promotion. Thirdly, he contended that the petitioner, as an Assistant Professor, is entitled to be promoted to the post of Professor in the absence of the intermediate cadres, viz., Associate Professor and Reader.
6. Sri Ayyangar, in support of his first contention, advanced two arguments. His first argument is that the petitioner has sought for consideration of his case for promotion from the date of the appointment of respondent 3 as a Professor, as the petitioner is the seniormost working in the department of Preventive and Social Medicine at the Medical College. His second argument is that one Dr. C. V. Jayakeerthi, who was an Assistant Professor in Preventive and Social Medicine at the Medical College, Bangalore, has been appointed as Professor. Therefore, he urges that the case of the petitioner is governed by the 'Rules of 1960.' We are unable to agree with the arguments of Sri Ayyangar. Exhibit J is the appointment order in respect of respondent 3 and Dr. C. V. Jayakeerthi. The appointment order reads thus :
'The Mysore Gazette, 5 December 1963 - Dated 23 November, 1963.
No. PLM 713 MMC. 63 - The appointment of Dr. C. V. Jayakeerthi as Professor and Head of the Department of Preventive and Social Medicine at the Medical College, Bellary, ordered in notification No. PLM 713 MMC 63, dated 5 November, 1963, is hereby cancelled.
Dr. C. V. Jayakeerthi, Assistant Professor in Preventive and Social Medicine at the Medical College, Bangalore, is appointed temporarily and until further orders as Professor and Head of the Department of Preventive and Social Medicine at the Medical College, Bangalore, vice Dr. A. R. Sundar Rao.
Dr. S. V. Rama Rao, District Health Officer, Gulbarga, is appointed as Professor and Head of the Department of Preventive and Social Medicine at the Medical College, Bellary, for a period of one year.'
7. As can be seen from the appointment, order, the case of respondent 3 is not one of promotion but an appointment by recruitment from the post of Health Officer to the Medical College, Bellary, for a period of one year. The learned Government Pleader contended that respondent 3's appointment is not by promotion, but it is a direct appointment. No doubt, Sri Ayyangar questioned the procedure followed in making the direct appointment. As the petitioner has not sought for any relief to quash the appointment of respondent 3, it is unnecessary to go into that question. The petitioner does not claim any seniority over respondent 3. All that he states in the course of his affidavit is that he is seniormost Assistant Professor in the Department entitling him for promotion. The petitioner's claim is unsustainable in the absence of any proof to show that the appointment of respondent 3 is by promotion under the relevant rules. Respondent 3's appointment seems to be direct appointment as contended by the High Court Government Pleader. Therefore, the question of consideration of petitioner's claim for promotion as Professor from the date of the appointment of respondent 3 as Professor does not arise.
8. The second contention of Sri Ayyangar has no legal basis. There is nothing in the rules of 1964 saving the rules of 1960. Rules of 1964, as framed by the Governor, begin as follows :
'In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India and in supersession of all previous rules on the subject, the Governor of Mysore hereby makes the following rules, namely' : Thus rules of 1964 superseded all the previous rules on the subject which necessarily included rules of 1960. After the Governor promulgated the rules of 1964, all the previous rules ceased to exist and only the rules of 1964 remained in force. Therefore the second contention is not sustainable in law.
9. Before we consider the third contention raised by Sri Ayyangar, it is necessary to find out whether the petitioner possesses the prescribed qualification under the rules in force. The petitioner, as already stated above, lays claim for promotion to the post of Professor. Rules of 1964 govern the petitioner's case. Rule 2 of the rules of 1964 prescribes the method of recruitment and the minimum qualification required for promotion as well as for direct recruitment. It reads thus :
'In respect of each category of posts specified in Col. (1) of the schedule the methods of recruitment and the minimum qualification, and the period of probation if any, shall be as specified on the corresponding entries of Cols. (2) and (3) of the schedule : SCHEDULE Category of post Method of recruitment Minimum qualification and period of probation (1) (2) (3) 1. * * * * 2. Professors in 33 1/3 per cent by For direct recruitment Clinical and direct recruitment and - Age limit, 45 years. Non-clinical 66 2/3 per cent by subjects in promotion by selection Qualification. - Basic Medical on seniority-cum-merit University Medical College. basis from amongst the Degree qualifications Associate Professors and entered in the schedule Readers in the Medical to the Indian Medical Colleges with at least Council Act and recognize two years' experience provided where persons recognized post-graduate possess equal qualifications in the qualifications respective subjects those with more with teaching experience shall be experience as required preferred and by the Medical Council requisite post-graduate of India. qualifications as prescribed by the Probation. - One year. Medical Council of India. 3. * * * * *'
10. The learned Government Pleader pointed should possess the out that the petitioner qualification prescribed should not only possess the by the Medical Council of qualification prescribed in Col. (2) India as at Exs. B and C. of the schedule to rule 2 of rules of Exhibit B reads thus : 1964 but also he
'Extract of the requirements of teaching and other experience for the post of Professor (Medical Council of India).
(1) (2) (3) (4)
Professor. M. D. With Diploma Social and As Assistant/Professor/ in Social and Preventive Reader or Lecturer in Preventive Medicine. Social and Preventive Medicine or Diploma Medicine for at least in Public Health five years in a Medical or equivalent College.' qualification.
Exhibit C reads thus :
'Extract from the recommendations of the Medical Council of India for appointment of Professor of person as specified in their No. MC. 1-12-(1-1-) 64 Med. 27490/dated 28 December, 1964.
(1) (2) (3) (4)
Professor/ M.D. in Social and Social and (a) As Reader/Assistant Associate Preventive Medicine, Preventive Professor in Social and Professor. Medicine Speciality Medicine. Preventive Medicine for Board of Preventive four years in a Medical Medicine, (U.S.A.) College after requisite M.R.C.P. F.R.C.S. post-graduate (with Public Health as qualification and have special subject), M.D. had not less than two (Medicine) with Diploma years' service as Deputy in Social and Preventive Health Officer of a Medicine Diploma in Public Municipal Corporation Health or equivalent or District Health qualification. Officer. (b) As demonstrator in Social and preventive Medicine for at least two years in a Medical College and have had three years of field service as Assistant District Health Officer or Municipal Health Officer of grade I municipality.'
11. From the rules of 1964 it is clear that promotion to the cadre of Professor is made on seniority-cum-merit basis from amongst the Associate Professors and Readers in the Medical Colleges with at least two years' experience provided where persons possess equal qualifications those with more experience shall be preferred. It is clear that such a person must have requisite post-graduate qualification as prescribed by the Medical Council of India. Admittedly, the petitioner is not an Associate Professor or a Reader, but he is only an Assistant Professor. According to the rules of 1964, above the Assistant Professor, there are two more cadres. In order to claim promotion to the post of a Professor, the petitioner must be either an Associate Professor or a Reader. He cannot as per rules, straightaway lay any claim to the post of a Professor. Therefore we are of the view that the claim of the petitioner has no basis in law. He is clearly without the prescribed initial qualification for being considered for promotion to the post of a Professor.
12. A great deal of argument was addressed questioning the delegation of power to the Medical Council and its competence to prescribe post-graduate qualification, and also whether the recommendations made by the Medical Council can be taken to be qualifications prescribed, unless they are accepted by the Governor. Since we are disposing of this writ petition on the ground that the petitioner does not possess the qualification of either being an Associated Professor or a Reader, we refrain from expressing any opinion on this point. However, we may add that it is left to respondent 1 if they deem fit to make this aspect of the rule clear and unambiguous.
13. Now turning to the third contention, Sri Ayyangar urged before us that in the Cadre of teaching staff in the medical colleges run by the Government, Assistant Professors are being promoted to the next promotional post of Professor. Reliance was placed on the appointment of Dr. C. V. Jayakeerthi, who was an Assistant Professor before he was appointed as Professor. Support is also sought to be taken from the admission made by respondent 1 in Para. 6 of the counter-affidavit, to the effect that according to the 'Rules of 1964' 33 1/3 per cent of the posts are to be filed up by direct recruitment and the remaining 66 2/3 per cent of the posts are to be filed up by promotion by selection on seniority-cum-merit basis from the cadre of Assistant Professors and Readers. On this point, the learned Government Pleader submits that the above avernment in the counter-affidavit is a mistake and it cannot be relied upon as it is not in conformity with the rules of 1964. In our opinion, it is not merely a mistake, but it is a glaring mistake in view of the clear provision in rule 2 of the rules of 1964. Regarding Dr. Jayakeerthi's appointment, the learned Government Pleader's reply is that it was not a case of promotion, but it was a case of direct appointment. Exhibit J. produced by the petitioner does not show that it is a case of promotion. When the petitioner has failed to show that he is amongst the Associate Professors or Readers, he is not eligible for being considered for promotion to the post of a Professor, and hence, no writ can be issued against respondent 1. Therefore, we are unable to accept the contentions advanced by Sri Ayyangar in support of the third contention. The third contention is, therefore, untenable in law.
14. As seen above, there is no merit in any of the three contentions raised by the learned advocate for the petitioner. Hence, this petition fails and is accordingly dismissed. In the peculiar circumstances of the case, we pass no order as to costs.