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Dr. N.C. Mehta Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 420 of 1971
Judge
Reported in1972WLN661
AppellantDr. N.C. Mehta
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredUdey Singh Todar Singh v. State of Haryana and Ors.
Excerpt:
constitution of india - article 226--direction by high court to reconvene selection board--petitioner appearing before selection board but found unsuitable--petitioner challenging direction of high court as nullity--held, petitioner disentitled to relief by certiorari.;such a conduct leaves no room for doubt that if the petitioner had been selected for appointment as a reader in pursuance of the direction contained in the aforesaid judgment, he would have felt satisfied even though his selection would have been under a direction which on his own showing, was a nullity and which he knew was a nullity. he would thus have reaped the benefits of a direction in the judgment which he now seeks to avoid at a mere nullity. but as this did not happen to be so and as the board found had unsuitable.....p.n. shinghal, j.1. the petitioner passed the m.s. (general surgery) examination in april 1960 and entered the service of the rajasthan state as civil assistant surgeon in may 1960. he held that post on a substantive basis when he was appointed civil assistant surgeon-cum-tutor in surgery for the periods mentioned by him, and then as lecturer in surgery from september 16, 1965 to july 30, 1967. at that time the rajasthan medical service (collegiate branch) rules, 1962 were in force. he was appointed as officiating reader in surgery in the medical college at bikaner, for a period of one year, by an order dated july 20, 1967. similar appointments were given to some of the respondents. the petitioner took over charge as officiating reader on august 1, 1967, but the government amended that.....
Judgment:

P.N. Shinghal, J.

1. The petitioner passed the M.S. (General Surgery) examination in April 1960 and entered the service of the Rajasthan State as Civil Assistant Surgeon in May 1960. He held that post on a substantive basis when he was appointed Civil Assistant Surgeon-cum-Tutor in surgery for the periods mentioned by him, and then as Lecturer in surgery from September 16, 1965 to July 30, 1967. At that time the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 were in force. He was appointed as officiating Reader in surgery in the Medical College at Bikaner, for a period of one year, by an order dated July 20, 1967. Similar appointments were given to some of the respondents. The petitioner took over charge as officiating Reader on August 1, 1967, but the Government amended that order on August 16, 1967 and made the petitioner an officiating Lecturer. He challenged that order by writ petition No. 150 of 1968 which was allowed by a learned single Judge on July 22, 1968. The petitioner therefore continued to work as a Reader.

2. The State Government promulgated the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968, hereinafter referred to as 'the Rules of 1968', on February 23, 1968, and it was specifically provided in Rule 1(3) that they shall if main in force for a period of one year. It is not in dispute that the period of operation of the Rules of 1968 was extended up to January 31, 1970 by a subsequent amendment.

3. The State Government determined the vacancies in the Clinical Wing of the Rajasthan Medical Service (Collegiate Branch) and notified them. The petitioner and respondents Nos. 3 to 15 applied for appointment as Readers in surgery They appeared before the Special Recruitment Board (hereinafter referred to as 'the Board' which was constituted under the Rules' of 1968 for interviewing and recommending the names of suitable candidates for appointment to the service The petitioner was selected for appointment as a Reader in surgery, while Dr. S.S. Rawat, respondent No. 6, and D.L. Kanwar, respondent No. 10. were selected as Lecturers. A writ petition (No. 217 of 1970; was filed by Dr. S.N. Gupta to challenge the selections. It was allowed by Mr. Justice Kan Singh vide his judgment dated July 7, 1970, in S.N. Gupta v. State of Rajasthan 1970 RLW 539, with the following direction.

The result is that order Ex-3 (sic) is not valid in so far as the, appointment of Readers in surgery under Rule 10 of the 1967 (sic) Rules is concerned. Accordingly, it is declared that respondents Nos. 8 to 18 have not been validly appointed as Readers in terms Ex-13 The appointments of these respondents are to be treated only as in officiating capacity till the Government make valid appointments. The Government are further directed to reconvene the Selection Board' who shall interview all the candidates for the posts of Readers who had' applied under the 1967 (sic) Rules. The Board shall draw up a fresh list of Readers in the light of the criterion laid down in the Rules. The Government shall make appointments of Readers from the list prepared by the Board and then arrange persons appointed in the order of seniority. This shall be done within a period of six months from today. The writ petition is dismissed against respondents Nos. 3 to 7. The parties are left to bear their own costs.

The learned Counsels are in agreement that Kan Singh J., did not direct the making of the fresh selections otherwise then under the Rules of 1968.

4. The State Government accordingly reconvened the Board on December 2 and 3, 1970. On receipt of its recommendations, the Government issued order Ex-2 dated January 7, 1971 appointing respondents Nos. 3 to 13 as Readers in surgery and the petitioner and Dr. G.S Ghalot, respondent No. 14, as Lecturer in Surgery. The same day, a corrigendum (Ex-2) was issued by which the portion relating to the appointment of the petitioner and Dr. G.S. Ghalot as Lecturer was deleted altogether. The petitioner was relieved of the post of Reader on January 25, 1971 and was asked to await orders. He represented his case to the Government and was posted as officiating Reader in Surgery by order Ex-5 dated March 16, 1971, with effect from March 1, 1971, along with respondents Dr. G.S. Ghalot. It was stated that the appointments were temporary, for a period of six months, or until candidates selected by the Departmental Promotion Committee/Rajasthan Public Service Commission were available, whichever was earlier.

5. The petitioner however feels dissatisfied, and has challenged the State Government's order Ex-2 dated January 7, 1971, which will hereinafter be referred to as 'the impugned order', on a number of grounds. The main challenge is that the Rules of 1968 were not in force on December 2 and 3, 1970, when the candidates were interviewed by the Board, and on January 7, 1971 when the impugned order was passed, as they had ceased to be in force on and from January 31, 1970. It has therefore been pleaded that no action could be taken under the 'dead' Rules. Then the petitioner has urged that some 'new members' participated in the interviews which were held on December 2 and 3, 1970 although they were not members of the previous Board and a new Board was thus constituted under the Rules of 1968, The reconstitution of the Board has therefore been challenged as illegal. It has further been urged that the Board which interviewed the candidates on December 2 and 3, 1970, as aforesaid, did not co-opt any expert and that its deliberations were illegal because the expert who had been co-opted earlier was allowed to participate in the selections. The petitioner has, for these and the other reasons mentioned in the petition, prayed for the issue of a writ, direction or order to quash the recommendations of the Board which held the interviews on December 2 and 3, 1970, and the impugned order. Some other prayers have been made, but it is not necessary to refer to them.

6. A joint reply has been filed on behalf of the first two respondents. while separate replies have been filed by Dr. N.N Sharma, Respondent No. 3, and Dr. S.S. Rawat, respondent No. 6. A rejoinder has been filed by the petitioner to the reply of the first two respondents, and there is an affidavit by way of rejoinder to the reply of Dr. S.S. Rawat. The Government have also filed an affidavit dated July 10, 1971, while Dr. S.S. Rawat has filed a reply to some of the facts stated in the affidavit of the petitioner. The respondents have traversed the claim of the petitioner altogether,

7. A preliminary objection has been raised by learned Deputy Government Advocate that the petitioner should not be allowed to urge that as the Rules of 1968 ceased to be operative with effect from January 31, 1970, it was not permissible for the respondent State to reconvene the Board in compliance with the judgment of Kan Singh J. for the petitioner is bound by that judgment on the general principles of res judicata, as he was a party to it. For this objection the learned Counsel has placed reliance on the decisions of their Lordships of the Supreme Court in Amalgamated Coalfields Ltd. and Anr. v. Janapada Sabha Chhindawara and Ors. : AIR1964SC1013 and Gulabchand Chhotelal Parikh v. State of Gujarat : [1965]2SCR547 .

8. The learned Deputy Government Advocate has argued further that the petitioner's conduct after the delivery of the aforesaid judgment has been such that he should not be allowed to contend that as the Rules of 1968 ceased to be operative with effect from January 31, 1970, it was not permissible for the respondent State to reconvene the Board in compliance with the judgment of Kan Singh J. in Dr. S.N. Gupta's case (1).

9. An objection has also been raised that the petitioner cannot seek any correction or modification in the aforesaid judgment of Kan Singh J. by means of a petition under Article 226, and for this submission the learned Counsel has placed reliance on Naresh Shridhar Mirajkar v. State of Maharashtra and Anr. : (1956)IILLJ444SC Arati Paul v. Registrar, High Court : AIR1965Cal3 , and Udey Singh Todar Singh v. State of Haryana and Ors. AIR 1971 P & H 284.

10. On the other hand, it has been argued by the learned Counsel for the petitioner that as the Rules of 1968 ceased to be operative on January 31, 1970, it was not permissible for Kan Singh J., to give any direction for the reconvening of the Board, or for the preparation of a fresh list of Readers on the basis of the criteria laid down in the 'dead' Rules, and that the judgment was therefore void, and a nullity, so that it could not operate as res judicata and the petitioner was entitled to ignore it altogether. Reliance in this connection has been placed on the decisions in S. Krishnan and Ors. v. State of Madras and Anr. : [1951]2SCR621 , Smt. Kaushalya Devi and Ors. v. K.L. Bansal AIR 1970 SC 633, Gopi Chand v. Delhi Administration : 1959CriLJ782 , and Kiran Singh and Ors. v. Chaman Paswan and Ors. : [1955]1SCR117 The learned Counsel has argued further that no question of acquiescence or waiver could arise because the petitioner was only seeking to avoid the impugned order on the ground that it had been made in compliance with a judgment which was a nullity. For this, he has made a reference to the decisions in United Commercial Bank Ltd. Their workman : [1951]2SCR548 , Extern Norton v. Shelly County AIR 118 US 178, Ch, Neinuddin v. Deputy Director, Military Lands and (sic), Western Command, and Ors. AIR 1936 All 684, and Badridaas Kanhaiyalal and Anr. v. The Appellate Tribunal of the State Transport Authority, (Rajasthan) and Ors. ILR (1959) 9 Raj. 889. The learned Counsel has also argued that the petitioner is not seeking any correction or modification in the aforesaid judgment of Kan Singh J., and that as he has asked for the other reliefs mentioned in the petition, he is entitled to approach this Court in the exercise of its extraordinary jurisdiction under Article 226' of the Constitution.

11. It is beyond controversy, and is in fact admitted by all the learned Counsel, that the Rules of 1968 expired by lapse of time on January 31, 1970, and that they were not in force when writ petition No. 217 of 1969 was heard and decided by Kan Singh J. on July 7, 1970 So even if it is assumed that the direction in the decision in regard to the reconvening of the Board and the drawing up of a fresh list of Readers in the light of the criterion laid down in these Rules was void and was, in principle, a nullity, it cannot be said that patty complaining against it must get relief by way of certiorari simply for that reason. The position of the law on the point has been lucidly dealt with and stated as follows in 'Judicial Review of Administrative Act' S.I D. Smith, Second edition, at pages 433 4;

It does not always follow, however, that a party adversely affected by a void decision will be able to have it set aside. As we have seen, certiorari and prohibition are, in general, discretionary remedies, and the conduct of the applicant may have been such as to disentitle him to a remedy

While dealing with a void decision in the case of a true jurisdictional defect, the learned author has stated that:.it is obviously correct to say that the want of jurisdiction cannot be cured by waiver, but this does not involve the further proposition that the court is obliged to grant an application for prohibition or certiorari made by a party who has approbated the detective proceedings. Whether the tribunal lacked jurisdiction is one question; whether the court, having regard to the applicant's conduct, ought in its discretion to set aside the proceedings is another. The confused state of the present law is due largely to a failure to recognise that these are two separate questions.

12. This proposition of the law will equally hold good in a case where a decision is void for some other reason. The conduct of the petitioner is therefore of considerable importance and it is necessary to examine whether there is justification for the argument that it disentitles him to a remedy in the exercise of this Court's extraordinary jurisdiction in this case, The facts which stand out in this connection are these.

13. The Rules of 1968 expired on January 31, 1970 and this fact was within the knowledge of the petitioner at the time of the hearing of Dr. S.M. Gupta's writ petition No. 317 of 1969 (1) He was a respondent in that case and it was urged on his behalf that the Rules of 1968 (which were described as the Rules of 1967 in the judgment of Kan Singh J.) had ceased to be operative and that the selections which had been made earlier could not be struck down as no corrective action could be taken by the Government under those Rules. The petitioner thus knew that the Rules of 1968 could not be invoked by the Court for the purpose of granting any relief by way of a fresh selection, by a Board which had been constituted under those Rules. He however did no more than raise an argument on that basis before Kan Singh J, His argument did not find favour with the learned Judge who set aside the petitioner's selection and appointment as a Reader in Surgery. The petitioner felt aggrieved against that decision and made up his mind to file an appeal. Two courses of action were open to him at that time: (1) he could challenge the offending direction in the judgment as a nullity, or (ii) he could sit on the fence and take chance of selection under the direction contained in the judgment even though he had every reason to believe that it was a nullity is so far (sic) it related to the reconvening of the Board under the Rules of 1968 and the drawing up a fresh list of Readers under the criterion laid down in those Rules as the rules had ceased to be in force. As is obvious, the first of these alternatives was not palatable to the petitioner because under the Rajasthan Medical Service (Collegiate Branch) Rules, 1968, which would have otherwise governed the matter on the expiry of the Rules of 1963, the petitioner would not have been eligible for appointment as Reader by promotion as Rule 7(2) of those Rules restricted the promotion to the 'substantive members of service' and the petitioner did not possess that qualification because he did not hold any post in the Rajasthan Medical Service (Collegiate Branch) on a substantive basis Moreover, the criterion prescribed in Schedule II of the Rules of 1968 for assessing the suitability of candidates was beneficial to the petitioner inasmuch as it provided for the awarding of marks on the basis of length of service under the Government of Rajasthan on a post of Civil Assistant Surgeon or a higher post and also on the basis of clinical teaching or equivalent specialised experience etc., and such a criterion would not have been available under the Rajasthan Medical Service (Collegiate Branch) Rules of 1962. Moreover as the petitioner was not eligible for promotion under Rules, it would have been necessary for him to take his change as a direct recruit and that also would have operated to his disadvantage as the sphere of selection and competition would have been greatly enlarged for it would not have been limited to the extent provided in the Rules of 1968. There is therefore every justification for the argument of the learned Counsel for the respondents that it was for these reasons that the petitioner decided to appeal against the judgment of Kan Singh J., on grounds other than the ground that the impugned direction in it was a nullity. As it happened, the Revision Bench did not find any force in the grounds which were urged in the appeal, and it was dismissed.

14. The petitioner therefore appeared before the Board which was reconvened under the direction contained in the judgment of Kan Singh, J. I have already extracted that direction in full. In doing so, the petitioner approbated the very direction which he now challenges as a nullity. He thus took over possible chance of being selected for appointment as a Reader on the basis of the recommendation of that Board under a set of Rules which he knew had ceased to exist Such a conduct leaves no room for doubt that if the petitioner had been selected for appointment as a Reader in pursuance of the direction contained in the aforesaid judgment, he would have felt quite satisfied even though his selection which, on his own showing, was a nullity and which he knew was a nullify. He would thus have reaped the benefit of a direction in the judgment which he now seeks to avoid as a mere nullity. But as this did not happen to be so, and as the Board found him unsuitable for appointment as a Reader he now vowed eloquent on the nullity of the direction by which the Board was reconvened and he was given a chance of selection under the Rules of 1968 To my mind, such a conduct must disentitle the petitioner to any relief by way of certiorari. I am fortified in this view by the decision of their Lordships of the Supreme Court in Messrs Mannalal Binjraj and Ors. v. Union of India and Ors. : [1957]1SCR233 .

15. I have gone through the cases cited by the learned Counsel for the petitioner. In United Commercial Bank Ltd. v. Their Workmen : [1951]2SCR548 the controversy was regarding the jurisdiction of the Industrial Tribunal and it was held that no appearance or consent could give jurisdiction to a court of limited jurisdiction which it did not possess. That was therefore a different case altogether. In citing Extoin Norton v. Shelly County AIR 118 US 178 the learned Counsel has invited attention to the observation that an unconstitutional Act is not a Jaw; it confers no right it imposes no duties it affords no protection it creates no office it is, in legal contemplation, as inoperative as though it had never been passed. There can be no doubt about the correctness of these observations, but they cannot be utilised for the purpose of raising the argument that conduct of a petitioner for a discretionary remedy will be irrelevant in a case like the present. The same is the position in regard to Ch. Moinuddin v. Dy, Director, Military Lands and Cantonments, Eastern Command, and Ors. AIR 1936 All 684. Badridass Kanhaiyalal and Anr. v. The Appellate Tribunal of the State Transport Authority and Ors. ILR (1959) 9 Raj. 889 has also been cited by Mr. Lodha on behalf of the petitioner, but it is authority for the proposition that waiver or consent of a party cannot confer jurisdiction upon a tribunal in a case where the objection goes to the root of its jurisdiction rendering its decision a nullity. The judgment does not deal with the question of conduct of the petitioner in facts & circumstances of a case like the present. Moreover in that case the question of nullity was raised in the High Court in the very first instance, and was not withheld until such time as it suited the petitioner to bring it out at his convenience. It has been specifically observed in that case that it it open'to the High Court to quash a decision which is a nullity notwithstanding that the petitioner failed to question the jurisdiction of the 'lower court', and there can be no doubt that this can be done in a case where the conduct of the petitioner does not disentitle him from such a relief. The petitioner cannot therefore take advantage of the decision in Badridass Kanhaiyalal's ILR (1959) 9 Raj. 889 case, also

16. As has been pointed out there is, in this case, over justification for the preliminary objection of the learned Deputy Government Advocate that the conduct of the petitioner disentitles him to the discretionary relief of certiorari.

17. Then it has been urged by the learned Deputy Government Advocate that the petitioner is not entitled to urge that the impugned direction contained in the judicial decision of he learned single Judge of this Court should be amenable to correction by a petition under Article 226 of the Constitution. As the learned Counsel has pointed out, it has been held by their lordships of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra : (1956)IILLJ444SC , that where a direction is given by a superior court, in the exercise of its extraordinary jurisdiction, a challenge to its validity or propriety cannot be raised in writ proceedings taken out by the petitioner. Reference in this connection may also be made to Udey Singh Todar Singh v. State of Haryana and Ors. AIR 1971 P & H 284 The argument is quite correct and must be allowed to prevail The learned Counsel for the petitioner has no doubt urged that the petitioner has not asked for any relief for setting aside any direction of Kan Singh, J. in the aforesaid judgment, but the argument is (sic) because, in fact and substance, the relief sought by the petitioner cannot be granted without undoing the effect of that direction, after scrutinising its validity, which, as has been stated, will not be permissible.

18. For the foregoing reasons I have no doubt that the petitioner is not entitled to urge in this Court that as the Rules of 1968 expired on January 31, 1970, no action could have been taken to reconvene the Board or to hold the interviews of those who had applied for the posts of Readers already and to draw up a fresh list of the selected candidates in the light of the criterion laid down in the Rules. To this extent the preliminary objection is justified and is upheld.

19. The petitioner has, however, urged two more grounds to challenge the impugned order and I shall proceed to examine them one by one.

20. It has been urged that the State Government did not reconvene the Board in compliance with the direction of Kan singh, J. but appointed three new members, namely, Mr. B Hooja, Mr. P.C. Gupta and Mr. S.D. Arya, in an unauthorised and illegal manner. The State of Rajasthan has denied the contention & has (sic) that the Board was reconvened in accordance with the direction of the Court and that a new Board was not constituted at all.

21. Now Rule 4 of the Rules of 1968, which dealt with constitution of the Board provided as follows:

4. Constitution of Special Recruitment Board:

(1) For the purpose of these rules, the State Government may, constitute a Special Recruitment Board consisting of the following members, namely:

(a) the Chairman of the Commission, or a member of the Commission nominated by the Chairman, who shall be the Chairman of the Board;

(b) the Secretary to the Government in the Medical and Public Health Department;

(c) the Special Secretary to the Government in the Appointment Department or his nominee not below the rank of Deputy Secretary;

(d) the Director of Medical & Health Service;

(e) A Principal of a State Medical College;

(2) The Deputy Secretary, Medical & Public Health Department, shall act as non-member Secretary of the Board.

(3) The Board may, if it deems proper, co-opt not more than two persons of the rank of Professors in the Clinical subject concerned, other than the persons serving under the Government, to assist it in assessing suitability of candidates.

It is not in dispute that the same Chairman of the Rajasthan Public Service Commission who participated in the earlier selections, was present when interviews were held on December 2 and 3, 1970 The Secretary to the Government in the Medical and Public Health Department had, however, been transferred and the new incumbent. Mr. B. Hooja, had therefore to participate when the Board was reconvened. As is obvious, it would not have been Permissible for the earlier Secretary, Mr. Jagannath Singh Mehta, to sit as a member of the Board because the membership was ex-officio and he had ceased to hold the office which entitled him to be a member. It is not in controversy that Mr. N.N. Verma was Deputy Secretary of the Appointments department and participated as a member of the Board when the first interviews were held. He was, however, succeeded in his office by Mr. P.C. Gupta, who was therefore rightly called upon to sit as a member of the reconvened Board Dr. S.D. Arya had been appointed Director of Medical and Health Service in the meantime and held that post when the reconvened Board met under the directions of Kan Singh J, As the membership was ex-officio, his participation was also quite unexceptionable. It, would thus appear that the State Government really reconvened the Board subject to these changes which had become unavoidable for reasons already stated; and it is futile to contend that there was any violation or breach of the direction of the court in that regard

22. An ancillary argument has been advanced by Mr. Lodha that while Dr. Srivastava was co-opted as an expert when the first interviews were held under the Rules of 1968, an illegality was committed in allowing him to participate in the deliberations of the Board, when it was reconvened, without giving its members the chance to co-opt a suitable member if they so desired. The learned Counsel argued that the earlier decision to co-opt Dr. Srivastava could not have been carried over for the reconvened Board. It has thus been contended that there was violation of the provisions of sub Rule (2) of Rule 4 of the Rules of 1968.

23. The argument is based on the assumption that a person who had been co-opted under Sub-rule (3) of Rule 4 of the Rules of 1968 did not thereby become a member of the Board But the assumption is quite untenable. The whole of the Rule 5 dealt with the constitution of the Board and Sub-rule (3) was its integral part. It was therefore a part of the rule relating to the constitution of the Board and it cannot be said that the Board consisted of only those members who were enumerated in Sub-rule (1). In fact the expression 'Board' was defined in Rule 2(1)(a) and the definition did not restrict the membership to persons mentioned in Sub-rule (1) of Rule 4, but expressly covered the whole of Rule 4; so that there is justification for the argument of the learned Counsel for the respondents that a person who had been co-opted under sub Rule (3) of Rule 4 thereby became a member of the Board.

24. I have looked into the meaning of the expression 'co-opt' and it has been stated as follows in Earl Jewitt's Dictionary of English Law. page 488:

Co-opt, to choose or select persons to be members of a deliberative body by those who have been selected or appointed as members of that body with power to add to their number.

In the Oxford English Dictionary, the expression has been defined as follows:.to choose as a colleague, friend, or member of one's tribe or family'; sometimes also 'to select into a body otherwise than by its members. Of the earlier uses of CO-OPTATE, Co-operation. trans. To elect into a body by the votes of its existing members.

There is therefore no reason why, in the absence of a provision to the contrary, a person co-opted by the members of the Board should not, after co-option, become its members. It is not in dispute that Dr. Srivastava was co-opted when the first Board was constituted, and as Kan Singh J, had given the direction for reconverting that Board, the State Government cannot be blamed if, in the absence of any direction for a fresh co-option, it reconvened the Board with the same members, including the member who had been co-opted earlier. There is in fact nothing in the direction of the learned judge to justify the argument that he wanted the members mentioned in Sub-rule (1) of Rule 4 of the Rules of 1968 to meet first and co-opt another member or members for the purpose of holding the interviews and drawing up the recommendation of the Board.

25. There is thus no force in this argument of the petitioner's learned Counsel as well.

26. It has lastly been argued by the petitioner's learned Counsel that as the petitioner had expressed his willingness to be considered for the lower post of Lecturer while applying for the post of Reader under the Rules of 1968, a serious error was committed in not considering his case for appointment as a Lecturer when the Board did not find him suitable for appointment as a Reader.

27. A form of application was prescribed under Rule 7 of the Rules of 1968 and was notified in an extraordinary issue of the State Gazette dated August 1, 1968. Item 5 of that form was to the following effect,-

5. (a) Post for which application is made

(b) Whether willing to accept post of lower category, if not selected in the post mentioned in column 5(a).

It has been stated by Mr. Lodha that the petitioner had expressed his willingness under item 5(b) of the form to accept the lower post of Lecturer if he was not selected for appointment as a Reader. The State has, however, denied that contention in its reply by stating that the petitioner did not apply for the post of Lecturer. The learned Deputy Government Advocate has placed the original application of the petitioner before me. I have shown it to his learned Counsel in open court, and he has accepted the fact that it bears the petitioner's signature as well as the original endorsement of its receipt by the P. 4 to the Deputy Secretary on August 28. The application shows that the petitioner did not fill the entry against serial number 5(b) of the form and left it blank. He did not therefore express his willingness to accept the post of Lecturer, and it is futile to contend that an error was committed in leaving out the consideration of his case for appointment as a Lecturer. It may be (sic) in this connection that there is a letter of the Principal of Udaipur Medical College dated September 28, 1968 with which another application of the petitioner was forwarded to the State Government. That application has also been placed by the learned Deputy Government Advocate before the Court and has been shown to all the learned Counsel. In that form against serial 5(b). the petitioner had made the entry 'Yes and an attempt was made by his learned Counsel to argue that, that was quite sufficient to show that the petitioner wanted to be considered for the post of Lecturer also. I cannot, however, accept that argument for a very simple reason. A perusal of the Principal's aforesaid letter dated September 28, 1968 shows that the petitioner got the second application forwarded by him on the ground that his earlier application form 'had not been received by the Government till then'. The Principal had therefore no alternative but to forward the second application, but in doing so he took care to state that the earlier application form had been delivered by his stenographer personally vide his letter No. NC/Astt/43 (24) 65 dated August 27, 1968 to the Personal Assistant to the Deputy Secretary in the Medical and Public Health Department, Jaipur, and that a receipt had been taken from him. As has been stated, the endorsement of the receipt of the Personal Assistant is to be found on the first application of the petitioner, and it is dated August 28, so that there can be no doubt that the information on the basis of which the petitioner got the second application forwarded by the Principal was not correct. In these clear facts and circumstances, it is not possible for me to take into consideration the second application of the petitioner, which was admittedly forwarded on September 28, 1968, after the expiry of the period for the filing of applications, on a pretext which was quite incorrect. It may be that, as has been argued by the learned Counsel for the respondents, the petitioner had second thoughts on the question whether he should express his willingness for appointment to the lower post of Lecturer and therefore filled in the entry against serial No. 5(b) of the second application form and managed to get it forwarded to the State Government on the false pretext that his earlier application had not been received by the State Government even though this was not so and the first application was already there. There is therefore nothing wrong if the petitioner's case was not considered for appointment as Lecturer in Surgery. It may be mentioned that Kan Singh j,. had set aside and reopened the appointments to the post of Readers, and the question of reopening the appointments of Lecturers could not really be said to arise.

28. No other point has been argued and as I find no force in this writ petition, it is dismissed with costs to the contesting respondent.


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