G.M. Lodha, J.
1. Dr. R.N. Singh Professor of Paediatrics (Umed Hospital) in S.N Medical College Jodhpur has filed this special appeal Under Section 18 of the Rajasthan High Court Ordinance 1949 against the judgment of Hon'ble single Judge of this Court dated 23rd April, 1981 in S.B. Civil Writ Petition No. 366 of 1980 whereby the judgment of Rajasthan Civil Appellate Tribunal was set aside and the following writ was issued:
As the Tribunal committed an error apparent on the face of the record in holding in its impugned judgment marked Annexure 9 that by appointing the petitioner as Superintendent, the State Government has enhanced her status and thereby adversely affected the right of the con-petitioner No. 3's seniority and varied his service conditions to his detriment in violation of the provisions of Article 14 and Article 16, the writ petition filed by Dr. Chandra Kiran is accepted and the impugned decision of the Tribunal marked Annexure 9 is set aside and the non-petitioner No. 3 is restrained from working as Superintendent, Umaid Hospital. Jodhpur. In the circumstances of the case, the parties are left to bear their own costs.
2. The of erative portion of the judgment of the Service Tribunal which was quashed by Hon'ble single Judge reads as under:
We however, feel that in professional posts like these, at the highest level of service much of the controversy could have been saved if a discreet action was taken by administrative action, either by arranging posting or by re-designating one of the junior persons as Additional Superintendent and redistributing powers in the Heads of the departments. It is, however, for the Government to see whether any such administrative arrangement can help the situation So far as this case is concerned, we are definitely of the view that by supporting a Professor as Superintendent it has enhanced the status and the incumbent acquired a superior status and if this is granted to the junior officer the appellant's right of seniority is affected and it varies his service condition adversely being discriminatory and it is violative of Articles 14 and 16 of the Constitution of India. Since the impugned order suffers from the above infirmities, we accept the appeal and quash the order dated 29th November, 1980 and direct that the Government shall either appoint the senior Professor as Superintendent or lay down a rational and uniform Principle for selecting and appointing Superintendent in various hospitals in the State. If necessary, they can also lay down criteria for determining seniority.
3. It is not necessary to mention in details the facts giving rise to the dispute but a brief mention of the same may help in appreciating the controversy between the parties. At Jodhpur there happens to be Hospital known as Umed Hospital. This hospital is popularly known as Janana Hospital. It was primarily meant for the treatment of the females Since 1975 or so in addition to various units of Gynocology end Obstetrics, Department of Paediatrics was also opened. This Hospital caters the need of females both in connection with the deliveries of children and various female diseases. After the opening of the Department of Paediatrics additional facilities for children by Specialists had been provided. At present as per the undisputed facts there are three units of Gynocology and Obstetrics and one unit of Paediatrics in addition to other units The evolution of this hospital originated from historical necessity of providing separate hospital for females as per the old traditions and tendencies of the females separation from males in the erstwhile Princely State of Jodhpur. Of course with the advancement of Education during the last three decades, the old tradition of conservation of segregation of females from males have dis-appeared and now it is only a matter of history We have mentioned it in order to appreciate why this Hospital is known as Janana Hospital or a female hospital.
4. After the establishment of the Medical College at Jodhpur which is now know as S.N. Medical College, this hospital is now looked-after by the teaching staff of the College. This is how Dr. R.N. Singh who is Professor of Paediatrics, is also Head of the Department of Paediatrics and the unit in this Hospital. The major Department of Gynocology and Obstetrics, are under Dr. Chandra Kiran, who is Professor of Gynocology and Obstetrics in this College.
5. The present controversy had its origin on the event of retirement of Dr. Sheela Sharma who was the Superintendent of this Hospital. Soon after Dr. Sheela Sharma retired both Professor Singh and Professor Kiran stated their claim for Superintendentship of this Hospital. On 19th of May, 1980 an order was issued by the Government directing that Dr. R.N. Singh would take charge from Dr. Sharma on the latter's retirement. At that time Dr. Kiran was posted at Udaipur. After she came back, to Jodhpur she made representation. On 29th of November 1980 Dr. Mrs. Chandra Kiran was appointed as Superintendent. Dr. Singh earlier to it filed a civil suit.
6. Later after suit was dismissed, he filed appeal before the Service Appellate Tribunal, on 3-12-80 which was accepted on 6-2-81. Dr. Kiran felt aggrieved from the order of the Civil Services Appellate Tribunal and filed the present writ petition, the judgment of which has given rise to this special appeal.
7. The principal ground both in Civil suit as well as in the appeal before the Tribunal taken by Dr. Singh was that he is senior to Dr. Kiran and therefore be is entitled to be appointed as Superintendent of the Umed Hospital Jodhpur. Various issues were raised before the Tribunal and there was difference of opinion but by majority judgment the appeal was accepted and directions extended above were given. The minority judgment of the Judicial Member opined that the appeal deserves to be dismissed. The learned single Judge of this Court has accepted the writ petition and quashed the judgment of the Tribunal. The Government order appointing Dr. Kiran as Superintendent thus stands confirmed by this Court.
8. Mr. Bhoot appearing for the appellant Dr. Singh has argued that the post of Superintendent is Office under the State and therefore in matters of appointments and promotions and all stages incidental thereto, Articles 14 and 16 of the Constitution are applicable. According to him the learned single Judge has not considered the implications of the various decisions of the Hon'ble Supreme Court cited before him, in this respect and, therefore, the judgment deserves to be reversed. He specially invited attention to the judgment of the Supreme Court in Sinha Ramanuja v. Rangra Ramanuja : 2SCR509 and judgment of the Rajasthan High Court in Bishandas v. Durga Prasad 1971 R.L.W. 470.
9. Our attention was invited to the provisions of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 and particularly Rules 6 and 7(a) and Schedule I part II whereunder the Head of Medical and Public Health Department at item No. 9, the holder of the post of Superintendent of Hospital has been declared as a member of State services. It was pointed out that under Schedule B of the said Rules the Superintendent of the Hospital is a Head of Office entitled to exercise the powers referred to in para 3 and Rule 15(1)(2) of the aforesaid Rules in respect of Ministerial Service and Class IV Services. Reference was also made to Annexure 15 wherein the Government order created the post of Superintendent of various Hospitals.
10 Mr. Bhoot also submitted that one of the principal ground of learned single Judge accepting the writ petition is that the claim of Dr. Singh that he is senior to Dr. Kiran cannot be accepted because they are Professors in different Departments and to inter-se seniority is provided either in the Rules nor it has been determined, nor it can be determined, that this is erroneous because it is not on account of fault of Mr. Singh. Mr. Bhoot submitted that for the failure of the State Government in determining inter-se seniority his client Dr. Singb cannot be made to suffer.
11. Mr. Bhoot also submitted that as per the reply of the State before the Tribunal Dr. Singh was held to be disqualified and ineligible to hold the post of Superintendent aud therefore his case was not considered at all and this has resulted in Contravention of Article 16 of the constitution.
12. Lastly it was argued by Mr. Bhoot that the judgment of the Tribunal is not only legally sound but just and fair and the learned single Judge should not have interfered Under Article 226 of the Constitution because the jurisdiction of this Court Under Article 226 is limited in case of errors of jurisdiction or errors apparent on the face of the record.
13. Mr. J.P. Joshi learned Counsel for Dr. Kiran has very vehemently opposed the admission of the Special Appeal. According to him the judgment of learned single Judge is well reasoned and based on a comprehensive and detailed consideration of the entire facts and relevant law. According to Mr Joshi, all the judgments referred to before the learned single Judge have been carefully considered and decision of the learned single Judge cannot be interfered in special appeal because there is no infirmity warranting such interference.
14 Mr. Joshi submitted that the learned single Judge has only followed that Division Bench judgment of this Court given in Dr. Bhardwaj's case (Dr. Satya Deo Bhardwaj v. Rajasthan State D.B. Writ Petition No. 3651/79 decided on 28-3 79) wherein the dispute was regarding the headship of the department of Biochemistry. According to Mr. Joshi the learned single Judge has placed reliance upon the following observations of Bhardwaj's case, extracted in the judgment, which clearly cover the present case--
A perusal of the Rules and the Rajasthan Service Rules, 1959, which are applicable to this case, would clearly show that the only post which the petitioner holds is that post of Professor of Biochemistry in the cadre of the service, that no post of the Head of the Department of Biochemistry at S.M.S. Medical College, Jaipur, is borne on the cadre of the service, that no such post has ever been created by the Government and that therefore there was no question of the petitioner having ever held the post of the Head of Biochemistry S.M.S. Medical College, Jaipur, A reference to Rule 6 and the Schedule appended to the Rules would reveal that the Service consists of three cadres, viz, (selection post of Professors and Additional Professors (ii) Senior post of Readers and (iii) Junior Posts of lecturers and Senior Demonstrators spread over the Clinical Wing and the non-clinieal wing. None of these cadres and none of the posts in any of the cadres includes the so-called 'office or post' of the Head of the Department of Biochemistory S.M.S. Medical College, Jaipur.
Mr. Joshi therefore argued that there is no office or holding of the post by a doctor who is required to lookafter the administrative work of the hospital as a Supreintendent. It is neither encadre post nor it is ex-cadre post.
15. It was then argued by Mr. Joshi that the case of Dr. Singh was considered by the Government and it is incorrect to say that his case was never considered. It was also pointed out that Government never decided that Dr. Singh is disqualified. All that the Government decided was that since the principal work in the Umed Hospital is of Gynocology and Obstetrics Dr. Kiran is more suitable for discharging the work of Superintendent. It was also pointed out that the majority judgment of the Tribunal suffers from serious errors which were apparent on the face of the record and the learned single Judge was justified in setting aside that judgment.
16. We have carefully considered the respective submissions of the learned Counsel for the parties and have gone through the judgment of the learned single Judge, the judgments of the Tribunal both majority and minority and the various documents produced with the writ application by both the parties.
17. We would first like to consider whether on the assumption that there is post or office of the Superintendent warranting consideration Under Article 16 of the Constitution, the case of the petitioner was considered by the Government or not. It would be pertinent to refer here some relevant portion of the reply submitted before the Tribunal by the Government. This reply is document No. 8 in the writ petition. In para 15 Clause (b) the State specially mentioned that a candidature of the appellant has been considered. In para No. 7 it was mentioned that this Hospital was opened on 31st October, 1938 and the senior Specialist in the field of Gynocology and Obstetrics used to be appointed as Superintendent. Later on when the post of senior Specialist was converted to that of Professor, thereafter only the Professor of Gynocology and Obstertrics were appointed as Superintendent. In para 15(b) the State submitted that the senior most person in the concerned Department is entrusted with the functions and as Respondent No. 2 Dr Kiran was the senior most person in the Department of Gynocology and Obstetrics she was entrusted the functions of Head of Department/Medical Officer Incharge/ Superintendent.
18. It would thus be seen that the case of Dr. Singh was considered by the State Government and he cannot make any grievance of nonconsideration. This would become more patent if the fact of Dr.Singh being permitted to take charge from Dr. Sharma in the first instance is taken note of. As the undisputed history of this case reveals, Dr. Kiran made a representation against Dr. Singh and it was then that the Government considered the cases of Dr. Singh and Dr. Kiran both. Since it is Dr. Singh's own case that he worked as Superintendent for a few months after Dr. Sheela Sharma retired and then Dr. Kiran was appointed and at that time he met the Health Minister also in this connection, it is very obvious that the case of Dr. Singh was considered not only once but at various stages by the Government and he cannot make grievance of nonconsideration. In para No. 11 of the reply of the State before the Tribunal it ha; been mentioned that the Principal of Dr. S.N. Medical College Jodhpur forwarded the representation of Dr. Kiran to the Government of Rajasthan's Medical and Health Department before it was processed in his office. In the grounds of appeal before the Tribunal Dr. Singh himself stated in para No. 11 as under:
That soonafter respondent No. 2 came to be transferred to Jodhpur, she made incorrect representations to the' Government for being appointed as Superintendent. Respondent No. 2 misrepresented the facts before the Health Minister of the State and when the appellant happened to meet the Health Minister on 5 7.80, the Health Minister told him that the respondent No. 2 had made such a representation and that he was of the opinion that she should be appointed as Superintendent of the Umed Hospital.
Again in para No. 12 of the grounds of appeal Dr. Singh made the following averments:
That a number of persons had earlier held charge of the post of Superintendent, Umed Hospital, Jodhpur, and there was no justification for having an obsession in appointment of a female member of servics as Superintendent.
19. It would thus be seen that from Dr. Singh's own submissions made in grounds of appeal not only he had full opportunity of presenting his case for the Supreintendentship, but the Health Minister after hearing him and considering his view point expressed the opinion that Dr. Kiran should be appointed Superintendent of the Umed Hospital. It is therefore, futile to argue that the case of Dr Singh was not considered and he is entitled to invoke Article 16 of the Constitution.
20. We have no hesitation in holding that irrespective of the legal position whether the petitioner can invoke Article 16 or not, present one is a case in which even on the assumption that he can invoke Article 16, he has got no case on merits because his case was considered by the Government and its functionaries including the Health Minister. The claim for consideration can never mean that whatever Dr. Singh thinks of correctness of his claim should be accepted by the Respondents. After all the rival claims of Dr. Singh and Dr. Kiran were before the Government when it was seized of the representation of Dr. Kiran against Dr. Singh and if on relevant and permissible grounds the Government has rejected the claim of Dr. Singh and accepted that of Dr. Kiran, it cannot be said that Article 16 has been contravened. All that Article 16 guarantees is fair consideration and nothing more.
21. We would now examine whether the grounds or reasons on which the claim of Dr. Kiran was accepted by the Government are relevant and permissible grounds or not. It was conceded by Mr. Bhoot in reply to a quarry from the Court that there is no hospital in Rajas than having identical features or of identical nature to that of Umed Hospital Jodhpur. Apart from its history and evolution, the basic fact which is not in dispute is that it is primarily a hospital for women & lately from 1975 Department of Paediatrics i.e. children has been introduced in it. Conventionally and historically it is also not in dispute that the following doctors have remained Superintendent of this hospital:
1. Dr. Miss. E. Phisl
2. Dr. Miss. Pashola
3. Dr. Miss. S.I. Jacob
4. Dr. Miss. P. Gehlot
5. Dr. Miss. Muodam
6. Dr. Miss. P. Gehlot
7. Dr. Miss. A.J.A. Abraham
8. Dr. Miss. D. Vati
9. Dr. Miss. B. Joseph
10. Dr. Mrs. S. Sharma
They were all Gynocologist and obstescians. These names are contained in para. No. 1 of the reply of Dr. Kiran before the Tribunal. This document was submitted with the reply to the writ petition. This hospital has got 330 beds out of which 70 beds are for Paediatrics. About 5000 delivery cases are conducted every year in the Gynocology and Obstetrics Department and about 4000 major operations are conducted in this Department The family planning centre is also looked after by the Gynocology Department and a staff is also mostly connected with it. These all facts which are contained in the reply of Dr. Kiran before the Tribunal and again reiterated in writ petition were also before the Government in a broad when the representation of Dr. Kiran was sent and considered. The Government was rightly of the opinion that by and large the Umed Hospital means Gynocology and Obstetrics Department though other department of minor nature hiving minor works may also be there If on these considerations, the Government accepted the representation of Dr. Kiran and rejected the claim of Dr Singh, it cannot be said that it has done so on the basis of irrelevant or extraneous consideration.
22. We have also considered whether Dr. Singh can claim Superintendentship merely on the ground that in his Department he was earlier made Professor. Admittedly, Dr. Kiran and Dr. Singh belong to different department. Again neither the Rules provide for any inter-se seniority nor Dr. Singh can claim that inter-se seniority should be determined. That being so, it is not possible to hold that Dr. Sjngh is senior to Dr. Kiran. We are in agreement with the well reasoned finding of the learned single Judge that both of them have got their seniority in their own department and in the absence of any provision and determination of intcr-se seniority, Dr. Singh cannot claim that he is senior to Dr. Kiran. We have got no reason to disagree with this finding of learned single Judge and once we confirm this finding the entire fabric of the case of Dr. Singh becomes untenable both in law and facts.
23. Since this is a special appeal, we arc not inclined to go into details of all the findings of the learned single Judge. Again since we are of the view that even on the assumption that Dr. Singh was entitled to have consideration Under Article 16 he has got no case because his case was considered and rejected. We feel it unnecessary to examine the second limb of of submissions of Mr Bhoot that the learned single Judge was not correct in holding that Article 16 has got no application. We also feel that it would be unnecessary to examine whether the case of Dr. Singh is covered by the judgment of Dr. Bhardwaj's case (supra).
24. We have also given a thoughtful consideration to the submission of Mr. Bhoot that according to Ex. 17 Superintendent is required to write appraisal report and the Principal would keep this appraisal report in view while writing the Confidential Report of the Unit Head or Professor concerned. On the basis of the above foundation, from Ex. 17, Mr. Bhoot pointed out that since Dr. Singh is senior to Dr. Kiran it would be against all principles of law, natural justice and professional ethics that she is allowed to write appraisal report of Dr. Singh. On a thoughtful consideration of this limb of arguments, we are inclined to agree with the learned Single Judge in repelling the same. Firstly, it is clear from the the above document Ex. 17 that the appraisal report would not form part of the record. Secondly, the appraisal report is more or less a compilation and is not in a nature of confidential report. Thirdly, we are of the opinion that since there is no inter-se seniority the hypothesis that Dr. Singh is senior to Dr. Kiran is misconceived and not based on any factual data. Lastly, whatever may be the implication of Ex. 17, it cannot be made a ground for challenging the appointment of Dr. Kiran as Superintendent. In case Dr. Singh feels aggrieved by writing of appraisal report, he can seek his remedy separately.
25. Since we are in agreement with the learned single Judge that Dr. Singh cannot claim any seniority and further once we hold that in the absence of any rule, the consideration of the case of Dr. Singh was fair by the Government, the logical and legal consequence is that the Tribunal could not have quashed the order of the Government appointing Dr. Kiran as Superintendent on the assumption that Dr. Kiran was junior and in doing so it certainlycommitted an error apparent on the face of the record. The interference by the learned single Judge Under Article 226 was therefore perfectly justified.
26. The resultant position is that there is no merit in the special appeal which is hereby rejected summarily. There would be no order as to costs.