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Dr. Om Prakash Garg Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 200 of 1971
Judge
Reported in1976WLN688
AppellantDr. Om Prakash Garg
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases Referred & K. v. Triloki Natr
Excerpt:
rajasthan medical service (collegiate branch) rules, 1962 - rule 24--experience--teaching experience as a temporary lecturer earlier to 1-3-69 can be validly counted to make him eligible for requisite experience.;the period from 85-7-63 to 28-2-59 being earlier to 1-3-88 can be validly counted by him to make himself eligible for the requisite experience, and as from 1-1-69 the petitioner had been appointed substantively as a lecturer he could count the subsequent period therein in terms of the proviso to rule as amended. thus calculated, the petitioner would have a three years teaching experience by july, 1970, much earlier to the consideration of his case by the departmental promotion committee in october, 1970. - - a number of posts of readers in various faculties like e. 3 however.....rajindar sachar, j.1. this is a petition challenging the action of the rajas thin public service commision respondent 3 in declining to approve the recommendation of the departmental promotion committee and the action of the state respondent no. 1 in not appointing him by promotion as a reader under the rajasthan medical service (collegiate branch) rules, 1952 (hereinafter to be called 'the 1962 rules').2. 'service' is defined in the 1982 rules by rule 3(sic) to mean the rajasthan medical service (collegiate branch), recruitment as per rule 7 to the service is to be by one of the methods : (a) direct recruitment in accordance with part iv of these part iv of these rules, (b) by promotion of (substantive member of service in accordance with part v. of these rules.3. rule 12 deals with.....
Judgment:

Rajindar Sachar, J.

1. This is a petition challenging the action of the Rajas thin Public Service Commision respondent 3 in declining to approve the recommendation of the Departmental Promotion Committee and the action of the State respondent No. 1 in not appointing him by promotion as a Reader under the Rajasthan Medical Service (Collegiate Branch) Rules, 1952 (hereinafter to be called 'the 1962 Rules').

2. 'Service' is defined in the 1982 Rules by Rule 3(sic) to mean the Rajasthan Medical Service (Collegiate Branch), Recruitment as per Rule 7 to the Service is to be by one of the methods : (a) direct recruitment in accordance with Part IV of these Part IV of these Rules, (b) by promotion of (substantive member of service in accordance with Part V. of these Rules.

3. Rule 12 deals with academic and technical qualifications to be possessed by a candidate in case of direct recruitment and lays down that the candidate for direct recruitment to the posts specified in Part A, B, and C of the Schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time by the Rajasthan University fox the teaching staff in Medical Colleges.

4. Rule 23 in part dealing with procedure for promotion provides the criteria for selection and says that the persons enumerated in Column 4 of the Schedule shall be eligible on the basis of seniority-cum-merit, for promotion to post specified in colum 2 subject to their possessing minimum qualifications, and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges. In the Schedule attached to the Rules Part 'C' a junior post of lecturer has to be filled up 100% by direct recruitment and Part 'B' (senior post) of a Reader is to be filled up 50% by direct recruitment and the promotion is to be made from the post of lecturer. The qualifications ere laid down in the band-book of the University of Rajasthan (1971 Edition) Part 11 Vol. 1 at page 173 and provides that for the post of a Reader in Paediatrics the academic qualification shall be a M.D. (Paediatrics) of certain Universities of equivalent qualification and the teaching experience should be three years in the subject of which at least two years as a Lecturer in a Medical College after post graduation.

5. Rule 24 of 1962 Rules provides the procedure for selection of candidates by promotion. Rule 24(1) provides that the Secretary to Government the Medical and Health Department shall prepare a correct and complete list containing names not exceeding five tines the number of vacancies out cut of the senior most members of the Service who are qualified for promotion to such posts under the Rules. Under Sub-rule 2(a) a committee consisting of the Chairman of the Commission or when the Chairman is unable to attend, any other Member thereof nominated by him, the Secretary to Government to the Medical and Health Department, Special Secretary to Government in the Appointments Department or his representative not below the rank of Deputy Secretary, one of the Principals of State Medical Colleges and the Director are members of a committee who will interview the candidates and prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in Sub-rule (1) Sub-rule (5) provides that the names of the candidates selected as suitable shall be arranged in the order of seniority. Sub-rule (6) says that the lists prepared by the Committee shall be sent to Government together with the Confidential Rolls etc., and Sub-rule (7) states that the Government may approve the list finally with such modifications as may in their opinion be just and proper. Rule 30(1) of the 1962 Rules provides for filing temporary or officiating appointments in Senior Post and Sub-rule (2) provides that the temporary vacancy in the junior post may be filed by the Govt. by appointment by promotion or by appointing there to temporarily a person eligible for appointment by promotion or by appointing by direct recruitment to the service under the provision of these rules. It may be noted that Reader is a Senior post while the Lecturer is a Jun or post.

6. The petitioner took his M.B.B.S. in the year 1960 and after having obtained the Diploma in the Child Health in 1962 was awarded a decree in Paediatrics in April, 1964. Thereafter be was selected by the Rajasthan Public Service Commission for the post of a Civil Assistant Surgeon (C.A.S.) in the Medical and Public Health Department of the State end joined the said post with effect from 1-6-64. Some temporary pests of Tutors and Lecturers were filled up by the State in 1965 and the petitioner en the recommendation of the Selection Board was appointed at d was given a temporary appointment sea Tutor by the order of 22-6-65.

7. In 1967 the State Government was desirous it making temporary appointments to the posts of Lecturers under Rule 30 of the 1962 Rules. For that purpose it constituted a Central Selection Committee including the Principals of all the Medical Colleges of Rajasthan, the Director of Medical and Health Services, Rajasthan and a Specialist in the subject for adjudging suitability. An advertisement dated 5-4-67 was also issued inviting applications for these temporary appointments the petitioner applied for the pest and was in course of time selected f-r the post of a Lecturer and was given the appointment by the order dated 21-7-67 and joined the post on July 25, 1967. The fact that the petitioner was selected for appointment as a temporary Lecturer under Rule 30 of the 1962 Rules is not disputed by the respondents.

8. On 24-2-68 the Governor of Rajasthan framed under proviso to Article 309 of the Constitution the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968 (hereinafter to be called 'the 1968 Rules'). Rule 2(b) defines principal rules to mean the 1962 Rules. Rule 3 of the 1968 Rules provides that notwithstanding anything contained in the principal rules the State Government may make recruitment to the Clinical Wing of the Service by special selection from among persons belonging to the Rajasthan Medical and Health Service. A special recruitment Board was constituted to make the recruitment. Schedule I also laid down the manner in which Clinical experience of a candidate was equated to teaching experience for the purpose of the 1968 Rules In pursuance of the 1963 Rules selection for substantive appointments as Lecturers was made and the petitioner and respondent 5 and and some others were selected as Lecturers and were appointed in a substantive capacity with effect from 1-1-1969. I may mention that prior to being appointed as substantive Lecturers both the petitioner and respondents were members of the Rajasthan Medical and Health Services. In the order of appointment dated 21-2-69 appointing the petitioner and respondent 5 as Lecturer respondent 5 was shown at No. 2 while the petitioner was shown at No. 4. No grievance is made by the petitioner that the seniority was not fixed correctly at that relevant time. On 31-3-70 the petitioner was promoted as a Reader in Paediatrics in to officiating capacity Respondent 5 continued to work however as a Lecturer at that time. A number of posts of Readers in various Faculties like E.N.T. (Psychiatry, Paediatrics Forensic Medicine having fallen vacant the Department initiated the procedure laid down under Rule 24 for selection by promotion as these posts were to be filled up by promotion quota. It may be noted that only one post of Reader (Paediatrics) was to be filled by promotion from amongst Lecturers for which post the petitioner was a candidate. In due course the petitioner and others were inter viewed by the Departmental Promotion Committee. It is alleged and it is not disputed that the petitioner was found suitable for appointment as a Reader (Peediatrics) by the Departmental Promotion Committee at its meeting held on 27-10-70. The Committee had also found some other persons suitable for appointment as Reader in other Faculties. The Rajasthan Public Service Commission respondent No. 3 however seemed to have bad a doubt as to whether the experience to be counted for promotion for higher post should be acquired after due and regular selection on the lower post or whether ad hoc experience on the lower post could be counted End it therefore sought the opinion from the Special Secretary to the Appointments Department by its letter of 31-12-70. the Medical and Health Department by its letter of 3-3-71 informed the respondent 3 the Commission that according to the rules & the requirement of the University Ordinance the teaching experience that has to be considered can be either in a substantive capacity or ad hoc capacity and it also pointed out that the Commission had itself been considering the teaching exprience done in temporary capacity for selection of candidates on all teaching posts until now and the teaching experience in temporary capacity has been accepted as an experience by the Commission in ail previous selections. Thereafter the respondent No. 3 the Commission recommended to the Government the names of persons for appointments as Readers in the Faculty of ENT, Psychiatry and Forensic Medicine in April, 1971. In recommending there appointments the Commission, it is not disputed, accepted the teaching experience done in a temporary capacity for eligibility of those candidates. It surprisingly however did not approve the name of the petitioner though he had been recommended for the post by the Committee under Rule 24(6) of the 1982 Rules. It is alleged in the petition that the reason for this apparent peculiar behaviour of the Commission was motivated by the fact that one of the members of the Commission Mr. B.D. Mathur, respondent No. 4, was the brother-in law of respondent 5 and as the latter did not fulfill the qualifications for being considered for being appointed as a Reader (Peadriatrics) (he not having the requisite teaching experience of three years, hiving been appointed as a Lecturer only on 1-1 69) at the time when the case was considered by the Committee, on 27-10-70, the Commission in order to favour respondent No. 5 was interested in delaying to approve the name of the petitioner. the petitioner took up the matter with the authorities but met with no success. In the meanwhile it appears that the Appointments Department of State Government seems to have taken a contrary view from the one which was sent by the Medical Department by its letter dated 3-3-71 and the Deputy Secretary to Appointments Department by its letter dated 21-8-71 wrote to the Secretary respondent No. 3 giving the view that the ad hoc experience of teaching could not count under the 1962 Rules and in support of that referred to a judgment of this Court reported in 1971 RLW 397 Dr. Swyambar Prasad Sudrania v. State of Rajasthan S.B. Civil Writ petition No. 312 of 1970 decided on 9-4-71. This view found immediate acceptance and respondent 3 sent a communication dated 25-9-71 to the Medical Department of the State stating that as none of the doctors recommended by the Departmental Promotion Committee for the post of Readers in Paediatrics, Tuberculosis and Anaesthesia had the requisite two years teaching experience after regular selection on the next lower post at the time of their selection the Commission bad declined to approve the recommendations of the Departmental Promotion Committee for the said post. The petitioner having come to know about thief made a grievance with the department but not having received any response be filed ibis writ petition in this Court on 19-11-71 making a grievance against the action of respondent 3 in not approving his name and of the Government in not appointing him as a Reader in Paediatrics.

9. To complete the statement of facts I may mention that one Dr. (Mrs.) Nirmal Miglani who was a Reader in Paediatrics went on leave in May 1972 and respondent No. 5 who was then working as a Lecturer was promoted as an officiating Reader purely on temporary and ad hoc basis for a period of six months or till Dr. (Mrs.) Nirmal Miglani returned from abroad which ever is earlier. It appears that when Dr. (Mrs.) Nirmal Miglani came back an order was passed on 20-12-72 by the Department transferring respondent 5 as a Reader at Jodhpur while reverting the petitioner as a Lecturer. Though there is not much relevancy of this for the points that are to be determined in the writ petition, this fact has been highlighted to suggest that respondent 5 was being favoured by pointing out that though the petitioner had been promoted as a Reader since 31-1-70 and was working as such since then be was reverted by the order of 20-12-72 while respondent 6 was given a leave vacancy in place of Dr. (Mrs.) Nirmal Miglani in May 1972 was allowed to continue as such a Reader. As this point is not relevant for decision in the present writ petition I need not say anything further on this.

10. During the pendency of this petition in Court respondent No. 5 has been appointed a Reader in 1073 and respondent No. 6 in 1974. The petitioner was also selected and appointed in 1974 But as this appointment to 1974, according to the petitioner, does not do justice to him because this shows his appointment from 1974 whereas according to the petitioner he had a right to be appointed in 1970 then he fulfilled all the qualifications and bad also been approved by the Departmental Promotion Committee. That is why the writ petition was continued inspite of the petitioner having been appointed as a Reader in 1974 Another reason for not being satisfied is said to be that this appointment of the petitioner is under Rule 24(3) in officiating capacity and not under Rule 24(7) which would be in substantive capacity.

11. I may also mention that Rule 23 of the 1962 Rules was amended by the Rajasthan Medical Services (Collegiate Branch) (Amendment) Rules, 1973 (hereinafter to be called 'the Amendment Rules, 1973') by the Governor in exercise of the powers under proviso to Article 309 of the Constitution, By the amendment the following two provisos were added to Sub-rule (i) of Rule 23:

Provided that-experience gained prior to appointment in accordance with one of the methods of recruitment prescribed in the Rules, shall not count towards the requisite experience.

Provided further that the clinical experience treated as 'teaching experience' under the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968, shall continue to be considered as such for the purposes of this Rule as well.

12. These amendments have been directed to come into force with effect effect 1-3-69.

13. The first contention of Mr. Bhargava learned Counsel for the petitioner is that when the petitioner bad been selected by the Departmental Promotion Committee & his name had been sent for approval to the respondent No. 3 the Commission in 1970 he fulfilled all the qualifications and therefore be was entitled to be approved by the Commission. It is relevant to note that the Commission has not declined to approve the petitioner on the ground that it does not find him fit. The only ground on which the petitioner has not been approved by the Commission is that be does not have the necessary teaching experience provided by the Rules. The only controversy between the parties whether the teaching experience that can be accepted must be in a substantive capacity or it can also be in a temporary capacity. A bare reading of the Rules does not show that the requirement of teaching experience is limited to the teaching experience in a regular capacity. The practice of the Commission itself in the past was that it bad accepted the teaching experience even. If it was in a temporary capacity. This could not be seriously contested by the respondents. They however sought to place reliance on the letter from the Appointments Department dated 21-8-71 in which apparently the view suggested was that for the purposes of promotion experience gained in the lower post on an ad hoc appointment could no be counted within the 1962 Rules I may mention that the reference in the letter of 21-8-1971 is on Dr. Swyambar Prasad Sudrania v. State of Rajasthan 1971 R.L.W. 397 wherein the view taken was that as there is no provision for ad bcc appointment under the 1902 Rules appointment made on ad hoc basis was quashed. Reliance on this authority seems to be misconceived. the reason is that the appointment of the petitioner as a Lecturer was not an ad hoc one On the contrary it was Under Rule 30 of the 1962 Rules which clearly provides it for making of temporary appointments and this was recognised in that very authority Respondent 3 therefore can not legitimately invoke that authority as a justification for pleading that the teaching experience gained by the petitioner on the port of a Lecturer to which he had been appointed temporarily under Rule 30 could not be counted. It is thus clear that the non approval of the name of the petitioner by the respondent No. 3 based as it was on the misapprehension of position in law was not warranted and was against the 1962 Rules an unamended.

14. But this finding by itself will not help the petitioner because the respondents through Mr. Mridul rely & seek the aid of the Amendment rules 1973 brought into force with effect from on March 1, 1969 the argument is that as the first proviso to Rule 23 is to be deemed to be in force from March 1, 1969 and as the appoinments were to be made in 1970 no teaching experience gained by the petitioner prior to the appointment in regular vacancy of a Lecturer (from 11-69) can be counted towards the requisite experience. It Is not disputed by the petitioner that if experience only in a regular capacity as a Lecturer is to be counted he bad not the requisite experience in October 1970. It is however seriously urged that there is no justification even on the reading of the amended Rule (though the validity of the amendment Rules has been seriously challenged with which I shall deal later) to exclude the experience gained by the petitioner on the post of a Lecturer in a temporary capacity. I am in agreement with the contention of the petitioner. A reference to the amendment Rules 1973 will show that the whole of Rule 23 has not been substituted, only two provisos have been added to existing Rule 23 I could not be disputed and it is apparent that if the amend men t Rules 1973 bad come into force with effect from 14 3 73 the petitioner would have been duly qualified as he could have counted his teaching experience in a temporary capacity from 25-7-67 onwards, and he would have completed 3 years experience by October 1970 The respondents however maintain that because the Amendment Rules had come into force from 1-3-69 it would mean that any appointment made thereafter (as undoubtedly the petitioner's appointment could only be made after October, 1970) would have to be governed by (he first proviso with the result that the teaching experience gained prior to the appointment in regular capacity will not count towards the requisite experience. I cannot agree. It is true that the first Proviso to Rule 23 is to be considered in force from 1-3-69. But even then the only result of the addition of first proviso would be that any teaching experience by a candidate subsequent to March 1969 will only count if it is gained on an appointment in a regular capacity; that is to pay that if a person was working in temporary capacity subsequent to March, 1969 be could not because of the amendment Rules 1973 urge that that experience should also be counted to determine his eligibility. But I cannot understand the logic of the argument of the respondents that the experience which the petitioner bad obtained earlier to 1-3-69 and which was a valid experience under the 1962 Rules then in force should be taken to have become non existent on the coming into the force of the Amendment Rules, 1973 I is apparent that the requirement is of three years teaching experience. The petitioner in older to prove his eligibility has to show that be has worked as a teacher for the said period. This period he fulfills. Had the intention of the rule making authority been that all experience in a temporary pot was not to count for the purpose of consideration subsequent to the coming into force of the amendment rules, 1973 as urged by Mr. Mridtul, intention would have been made clear by saying that the first proviso shall be deemed to have been a part of the Rules right from the beginning. There is no indication at all in amendment Rules 1973 that the experience in a temporary capacity which, had already been validly acquired under the Rules by the candidate like the petitioner was to be ignored, and would suggest that experience in a temporary capacity prior to 13 69 would continue to be recognised The counsel for tie respondent had sought to urge that it would be very peculiar that the experience should be added up in a temporary capacity and in a regular capacity. Frankly I do not share this apprehension. This result follows because the Rules have come into force from a particular date, i.e. 1-3-69 and the earlier experience is saved in this view it is clear that the petitioner in October, 1970 bad the requite three years teaching experience. This is because admittedly he took over on 26-7-67 as a Lecturer in a temporary capacity. The period from 25-7-67 to 28-2-69 being earlier to 1-3-69 can be validly counted by him to make himself eligible for the requisite experience, and as from 1-1-69 the petitioner bad been appointed substantively as a Lecturer be could count the subsequent period therein in terms of the proviso to Rule 23 as endended. Thus calculated, the petitioner would have a three years teaching experience by July, 1970, much earlier to the consideration of his case by the Departmental (sic) Promotion Committee in October, 1970. As the respondent No. 3 the Commission has on complete misapprehension of law chosen not to approve the petitioner's name be is entitled to a writ of mandamus directing it to do its duty.

15. I may note that at the time when the decision dated 25-9-1971 was taken by the Commission the amendment Rules, 1973 bad not come into force. (Of course, by a fiction they are supposed to have come into force from March 1, 1969). But obviously the Commission was not aware nor indeed it could be. It seems to me that its decision was arbitrary and was not warranted. The Commission's action seems also a little un-understandable considering that it had accepted the experience obtained by the Lecturers in the Faculty E.N.T. Forensic medicine and Psychiatry in temporary capacity while similar experience like the petitioner was not accepted. The petitioner has also alleged that certain substantive Readers like Dr. H.K. Bedi, Dr. R.K. Bhargava and Dr. S.N. Mishra who were appointed as substantive Readers with effect from 6-1--68 were promoted as Professor in Medicine with effect from 1-1-69, by the Government order dated March 26, 69, by accepting their experience as temporary or officiating Readers into consideration. It has been stated that for the post of a Professor 5 years teaching experience for which two yens as a Reader according to Ordinance, 1965 read with Rule 23(1) is necessary It is apparent that if the period of two years' teaching experience in a regular capacity i.e. from November, 1969 was to be counted, they could not have the requisite experience of five years for being promoted as a professor, when they were appointed as substantive Professors with effect from March 26, 1969. The only just fixation for passing an order in those cases and cot in the case of the petitioner stated to be is that there were superssion in those cases unlike the case of the petitioner. Supersession of which mention has been made bag been explained by Mr. Mridul. It is pointed out that both the petitioner and respondent 5 were members of the Rajasthan Medical and Health Service prior to their being appointed as substantive Lecturer with effect from 1-1-69 and the respondent No. 5 was senior to the petitioner to that service. I can hardly find any justification for this differential treatment by reference to the position in a different service I may note that the allegation has been made tin all this non consideration of the petitioner was in reality because of the malice and bias of respondent No. 6 who was brother-in-law of the respondent No. 4. It has also been alleged. In the petition that this unfavourable decision to the petitioner was taken be the Commission of which respondent No. 4 was member and as he was a party to the decision communicated on 25-9-71, it stood vitiated because of the bias. In the return it has been denied that respondent 4 took any interest in the matter, allegation of malice & bias are denied. It has been stated that the decision was that of the Commission. Respondent 4 bets also filed an affidavit denying that he has taken any interest in favour of respondent No. 5 or that he was bused. It has however not been denied that the decision taken by the Commission not to approve the name of the petitioner was taken at a meeting of the Commission which was attended by respondent 4 whether the presence of respondent No. 4 has vitiated the decision as urged by the petitioner or that it cannot, as Urged by the respondent be contended that nothing has been shown that respondent 4 took any unfair interest or persuaded the other members to take a decision need not be gone into because of my finding in favour of the petitioner on the applicability of the Rules. It is not necessary therefore for me to enquire whether the said decision was vitiated by the malafide or bias of respondent No. 4.

16. Counsel for the petitioner has also challenged the vires of Amendment Rules 1973. The main ground is that there is no justification for excluding teaching experience gained by a person unless he has worked after being regularly appointed. Mr. Bhargava urges that to classify the teaching experience on be temporary post as against a regular post has no rationality or logic about it. According to the counsel what is to be seen is whether a person has the necessary teaching experience and the fact that teaching experience has been obtained when he was be ding a temporary post is no ground for not treating it as teaching experience.

17. As against this it has been explained in the return and reiterated by Mr. Mridul, counsel for respondent No. 5 that the reason why the amendment Rule 1973 was brought was to remove a serious injustice which has arisen by the work kg of the unamended 1962 Rules. As an instance, the case of the petitioner and respondent No. 5 is pointed out by Mr. Mridul by urging that both of them were recruited under the 1958 Rules which was a special recruitment and they could have only been recruited by treating their clinical experience as a teaching experience by fiction and by virtue of the rules. It is stated that if the unamended 1962 Rules continued the respondent No. 5 who was senior to the petitioner would be considered for promotion to the next higher post of a Reader a Her the petitioner simply because the petitioner had applied and been appointed as a temporary Lecturer in 1967 while respondent No. 5 bad not chosen to apply for the same Mr. Bhargava of course counters that the post of a Lecturer was publicly advertised in 1967 and it was open to respondent 5 to so apply and if he did not do so, he cannot make a grievance that the petitioner who applied and was selected is given a credit for the teaching experience as permitted by the 1962 Rules. My attention has been drawn by Mr. Mridul to State of Gujarat v. C.G Desai 1974 (1) SLR 420 where a period of temporary service was allowed to be counted in the case of promotees while the tame was not counted in the case of direct recruits and this distinction was upheld by the Supreme Court. But in that case one of the circumstances on which the same was upheld was that the classification bad a historical background and for promotion from the lower ranks there was only one chance of getting into Class II service as against three available to the direct recruits & for a number of years recruitment by promotion remained frozen. It was in this context that it was considered proper to give that benefit of counting the temporary service also for eligibility to the promotees only, and the classification was upheld Mr. Mridul has also referred to State of J & K. v. Triloki Natr 1974 (1) SLR 536 where it is stated that judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the objection in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification. He also urges that it on a consideration of the over all view the 1962 Rules have been amended to provide that teaching experience only in regular capacity will count, it cannot be said that it is so unreasonable or so lacking in classification as to warrant it being struck down under Article 16 of the Constitution.

18. In the present case apart from mentioning that if the teaching experience in temporary capacity was also to be counted it may result in the petitioner getting promotion as a Reader earlier to respondent No. 5 who was senior to him, in the Rajasthan Medical and Health Service Rules no other it no other serious argument or reason has been given, as a justification I am doubtful whether the validity of a Rule which prima facie makes an unintellgible classification can be upheld by such argument of special pleading in favour of an incividual. It has also been pointed out by Mr. Bhargava that though amendment has been made in Rule 23 which deals with the selection by promotion, no such amendment has been made in Rule 12 which provides the same academic and technical qualification in the case of direct recruitment. The result according to the counsel for the petitioner, is that for the purposes of dir ct recruitment teaching experience of a candidate in temporary appointment will still continue to be counted and be valid even after the Amendment Rules, 1973. It is asked what intelligible differentia justifies counting teaching experience in a temporary capacity in case of direct recruitment but not in the case of appointment by promotion. None, answers Mr. Bhargava and says this incongruity shows the unreasonableness and the arbitrariness of the amendment Rules 1973. Though I feel that there is good deal of force in the submission of Mr. Bbargava and if the vires of Amendment Rules, 1973 had necessarily to be decided I may have had very serious reservations as to validity, but as I have already found that the petitioner is entitled to relief even en the assumption of the amendment rules 1973 being valid, I do not deem it necessary to give a final decision on this point. This is because the vires of Rule obviously should only be decided if it is absolutely necessary for the determination of the case before the court. It can barely serve any purpose for me to pronounce on its validity when relief to the petitioner can be given without giving any decision en it. Of course, if for giving a decision, validity of a Rule bas to be decided the Court will have no option but to pronounce on it but that situation has not arisen here. It is well settled that courts pronounce on the vires of a Rule because of the proof of grievance and not as an academic exercise. As such I refuse to give any decision on the validity of the Amendment Rules, 1973.

19. The result is that the petition is allowed and a writ is issued to the respondent No. 3, the Commission, to do its duty of approving the name of No. 1; the State to do its duty of approving the name sent by the Commission as provided by Rule 24(7) with regard to the recommendations sent by the Departmental Promotion Committee which met on 27-10-70 and also to give any other consequential reliefs & benefits following from the above decision.

20. The matter has been delayed for a number of years and it is therefore to be hoped that the Government will take final decision within a period of four months.

21. The petitioner will have his costs against the State Government respondent No. 1 only.


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