Rajasthan High Court - Jaipur
Dr. Pradeep Jain. vs The State Of Rajasthan And Ors. on 3 January, 1991
Equivalent citations: 1991(1)WLN583
JUDGMENT N.C. Sharma, J.
1. This is a writ petition by Dr. Pradeep Jain, Under Article 226 of the Constitution of India, praying for a direction to the State of Rajasthan, to make promotion to the post of Reader, Dental(Orthodontia), after considering the petitioner for the said post and to promote the petitioner to that post.
2. The petitioner passed the examination of Bachelor of Dental Surgery (BDS) in the year 1982, from the University of Lucknow; and thereafter, he passed the examination of Master of Dental Suregery (Orthodontia) from the same University, in the year 1985. The petitioner was recruited to the post of Lecturer in Dentistry (Orthodontia) through the Rajasthan Public Service Commission (RPSC); and was by an order of the Government of Rajasthan in Medical & Health Department, dated Apr. 2, 86 (Ann. 2), appointed on the said post. The petitioner was confirmed as Lecturer in Dentistry (Orthodontia) by order of the Government dated May 15,'88 (Ann. 3). The present writ petition was filed on Sept. 26, '89, and it was alleged that by the said date, the petitioner had completed more than 3 years & 5 1/2 months of service as Lecturer in Orthodontia, and he thus fulfilled the conditions of eligibility for promotion as Reader in Orthodontia. By an order of the Government and Medical & Health Department No. F. 18(44)ME/Gr.I/85, dated Aug. 16, '85, certain temporary posts were created for the Medical College and attached teaching hospitals at Jaipur (Ann. 3.A). One of the temporary posts created by Annexure 3. A was that of Reader Dental (Orthodontia) in the pay-scale of Rs. 1600-2325 from the date the post was filled in and it was created for the period upto Feb, 28, '86. The term of the temporary post of Reader, Dental (Orthodontia) was, from time to time, annually extended by the Government by its orders dated July, 21, '86; May 29, '87; July 17, '89; Aug. 11, '89; May 5, '90; and July 31, '90, as would appear from the orders (Annex. Rule 2 to Rule 6 and the latest extension-order filed by the respondents, alongwith the additional affidavit dated Sept. 10, '90. It appears from the order dated July 31, '90, that the term of the temporary post of Reader, Dental (Orthodontia) has now been extended upto Feb. 28, '91. This temporary post could not be filled for a long time because of non-availability of any eligible person. The petitioner alleges that according to the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (for short, "the Rules of 1962"), the post of Lecturer is required to be filled in 100 percent by direct recruitment, and the posts of Readers and Professors, 100 percent by promotion. According to the provisions contained in Rule 23 of the 1962-Rules, Lecturers are eligible on the basis of seniority-cum-merit, for promotion to the post of Reader, in Medical Colleges-Bikaner, Ajmer and Jaipur.
3. The petitioner contends that the Government was not vested with any power under the rules to treat the vacancy in Orthodontia as a vacancy in General Dentistry. Once the post of Reader in Orthodontia had been created, that had to be filled from amongst the eligible persons. The petitioner was the only eligible person entitled to be promoted as Reader in Orthodontia, in Rajasthan. On the basis of these averments, the petitioner has prayed that the respondents may be directed to promote him as Reader in Orthodontia. It has also been prayed that the order of the Government dated Oct. 21, '89 (Ann. 7), may be declared illegal and be quashed, and the Government of Rajasthan be directed to make promotion on the post of Reader in Orthodontia by considering the case of the petitioner.
4. Replies to the writ petition have been filed by the State of Rajasthan; Special Secretary, DOP; and by the RPSC. So far as respondents Nos. 1 & 2 (State of Rajasthan and Special Secretary, DOP) are concerned, they have stated in their joint reply that the eligibility for promotion has to be considered as on 1st of April of the year of selection. In the present case, the selection for promotion was held in the year 1989, and the petitioner had not fulfilled the requirement of 3 years' experience as on 1st Apr., '89 and, therefore, he would be eligible for consideration only against the vacancies of 1990-91. He could not be considered to be eligible for the year 1989-90, as he had joined as Lecturer on April. 5, '86 in pursuance of his appointment-order dated Apr. 2, '86 (Ann. 2). It is admitted that the post of Reader in Dental (Orthodontia) had been created by the State Government under its order dated Aug. 16, '85 (Ann. 3.A). Respondents Nos. 1 & 2 have further pleaded that merely because the post of Reader, Dental, was bracketed with Orthodontia, it could not have precluded the consideration of Lecturers in Dentistry for, the said post. The petitioner's contention that he was the only eligible person, is denied. The DPC met on July 19, '89 for the purpose of considering the cases of promotions to the post of Reader in Dentistry. Since the rules for making promotions in the Super-Specialities were still under consideration, and the post was created in Dental with the suffix of Super-Speciality, the said post was considered to be that of Dental (Dental being the genus; and Orthodontia' being species thereof). It is pleaded that there was no legal impediment for considering the post with the suffix of Super-Speciality, as a general post; and accordingly three posts of Reader were taken into consideration, and by order dated Oct. 21, '89, three appointments were made by promotion, on the posts of Readers in Dentistry. Until the rules regarding Super-Specialities were finalized, the post has been treated to be that of General-Category, and no illegality has been committed. In any event, it is stated that the petitioner has no locus standi to raise any grievance as he had not completed three years' experience. These respondents have also said that the order dated Oct. 21, '89 (Ann. 7) could be challenged before the Rajasthan Civil Services Apellate Tribunal; and that since the petitioner had an effective alternative and adequate remedy available to him by way of approaching the Rajasthan Civil Services Appelate Tribunal, the writ petition deserves to be dismissed. It is also said that the petitioner has chosen only to implead Dr. A.K. Tandon as Respondent No. 4 while the other two promotees have not been impleaded as respondents. The petition is, therefore, bad for non-joinder of necessary and proper parties.
5. So far as RPSC is concerned, it has stated in its reply that the writ petition relates to the appointment of Reader through DPC, under the 1962-Rules and the Commission has unnecessarily been made a party.
6. It may be stated that on Sept. 5, '90, this Court had directed respondents Nos. 1 & 2 to produce before this Court, together with an affidavit, to show, whether the post of Reader in Dental (Orthodontia) was extended after Feb. 28, '86, and whether it did exist till today. They were also required to produce before this Court the orders of extension of this post from time to time issued by the Government of Rajasthan and the proceedings of the DPC disclosing by an affidavit as to for what post the DPC had met and made promotions covered by order dated Oct 21, '89. They were further required to swear by an affidavit whether promotions were made by the DPC, of any doctor to the post of Reader in Dental (Orthodontia). In pursuance of this direction, an affidavit was filed of Dr. H.H. Hathi, Professor of Oral Surgery, Dental Wing, SMS Medical College, Jaipur, wherein it was sworn in that the post of Reader/Assistant Professor in Dental (Orthodontia) was extended from time to time after Feb. 28, '86, and that the last extension was made on July 31, '90, extending the temporary post of Reader in Dental (Orthodontia) upto Feb. 28, '91, vide Annexure-R/1. It was further sworn in that the meeting of the DPC was held on July 19, '89, and that it had considered for appointment on the post of Associate Professor/Reader, Dentistry, and Dr. A.K. Tandon was recommended for selection on the basis of seniority-cum-merit against the quota of 1988-89 and one Dr. (Smt.) Marjadhi Urvashi was also recommended for selection on the basis of seniority-cum-merit, and there was no other eligible candiate available, and therefore, no recommendation was made for merit quota. It was also mentioned that the DPC did not consider for the post of Reader/Associate Professor in Dental (Orthodontia) as there was no requisition for that post.
7. On Sept. 10, '90, this Court had further directed respondents Nos. 1 & 2, to file an additional affidavit on the point as to whether any promotion was even made to the post of Reader/Associate Professor in Dental (Orthodontia) right from the time the post was created till today. In case, any promotion was made to the post of Reader/Associate Professor in Dental (Orthodontia), the order of promotion and the recommendations of the DPC in that respect were sought to be produced. Respondents Nos. 1 and 2 were also required to disclose whether the DPC was requested at any time to make its recommendations for promotion to the post of Reader/Associate Professor, Dentistry (Orthodontia) or whether this post was still vacant. To this direction, an additional affidavit was filed by Dr H.H. Hathi on Oct. 29, '90, in which, it was sworned that there were eight posts sanctioned by the Government of Readers/Associate Professors in Dentistry, Dr. M.K. Sharma, Dr. Yogesh Kamthan, Dr. Ashok Kumar Tandon, Dr. (Mrs.) Marjadhi Urvashi, Dr. V.K. Bihani, Dr. A.K. Gupta, Dr. M.B. Mishra and Dr. Pradeep Jain (petitioner) were the holders of the post of Reader/Associate Professor in Dentistry and they were appointed as Reader on the recommendations of the DPC held from time to time. So far as the petitioner was concerned, he was promoted to the post of Reader/Associate Professor, on the recommendation of the DPC for the year 1990-91. Arguments were completed on Oct. 10, '90. The petitioner filed an additional affidavit on Nov. 1, '90, to counter the additional affidavit of Dr. H.H. Hathi. On behalf of respondent No. 4, some written arguments were submitted, although, he had not filed any reply to the writ petition. To the written arguments of respondent No. 4, the petitioner also submitted his written submissions on Nov. 1, '90.
8. It is not in dispute that the petitioner passed his BDS Examination in the year 1982, from the University of Lucknow, and thereafter, he passed his MDS (Orthodontia) from the same University, in the year 1985. It is also not in dispute that the petitioner was regularly recruited through the RPSC on the post of Lecturer in Dentistry (Orthodontia) and was appointed on the said post by order dated April 2, 86 (Annex. 2). The petitioner joined his appointment as Lecturer in Dentistry (Orthodontia) On Apr. 5, '86. The petitioner was confirmed on the post of Lecturer in Dentistry (Orthondontia) by order dated May 15, '88 (Annex. 3).It is an admitted position that a temporary post of Reader, Dental (Orthodontia) was created by the Government of Rajasthan by its order dated Aug. 16, '85 (Annex. 3.A). The term of this temporary post of Reader, Dental (Orthodontia) was extended by the State Government from time to time by its orders (Exs. Rule 2 to Rule 6). The latest extension of this post was made by an order dated July 31, '90, for the period with effect from July 1, '90 to Feb. 28, '91.
9. As a matter of fact, respondents Nos. 1 and 2 have categorically admitted that this post of Reader in Dental (Orthodontia) was considered in the general category, and after considering this post in general category, filling up of three posts of Readers in Dentistry was taken into consideration by the DPC and on its recommendations, Dr. V.K. Bihani, Dr. (Smt.) Marjadhi Urvashi and Dr. A.K. Tandon were promoted as Readers in Dentistry and were respectively posted by order dated Oct. 21, '89 (Annex. 7) at Medical Colleges-Bikaner, Ajmer and Jaipur. This admission of respondents Nos. 1 and 2 is borne out from Paras 3, 5 and 10(c) of their reply. The stand taken by respondents Nos. 1 and 2 is that until rules relating to super-specialities were finalised, the post of Reader, Dental (Orthodontia) had been treated to be a general vacancy, and accordingly, three posts were taken into consideration; and by order dated Oct. 21, '89, three appointments were made by promotion to the post of Reader in Dentistry. The second stand taken by respondents Nos. 1 and 2 is that for promotion to the post of Reader, the minimum experience of three years as Lecturer is necessary, and the crucial date for counting this period of three years is 1st April of the year of selection. According to them, in the instant case, selections were held in the year 1989, and therefore, the experience acquired upto Apr. 1, '89, could only be counted. Upto that date, there were five days short in the petitioner's acquiring three years' experience. The petitioner was, therefore, not eligible for consideration in the promotions made in the year 1989. The last plea taken by respondents Nos. 1 and 2 is that the impugned order dated Oct. 21, '89 (Annex. 7) could be conveniently and effectively challenged before the Rajasthan Civil Services Appellate Tribunal and since the petitioner has filed this writ petition without availing of the effective alternative and adequate remedy available to him under law, the writ petition deserves to be dismissed on this ground alone. Respondent No. 4 also, in his writ ten-arguments, has submitted that the matter involved in the writ petition, is a "service-matter" and the petitioner ought to have availed the alternative, efficacious and speedy remedy available to him by filing an appeal before the Rajasthan Civil Services Appellate Tribunal. Since this alternative remedy was available to the petitioner, the writ petition Under Article 226 of the Constitution was not maintainable.
10. I shall first deal with the plea taken by the respondents with regard to the non-maintainability of the present writ petition for the reason that an alternative effective and efficacious remedy as available to the petitioner by way of appeal before the Rajasthan Civil Services Appellate Tribunal against the impugned order dated Oct. 21, '89 (Annex. 7). Reference may be made to a Division Bench decision of this Court in Ved Prakash Khare v. State of Rajasthan and Ors. DB Civil Writ Petition No. 2330 of 1986, decided on Aug. 31, 87) in this connection. In Ved Prakash Khare's case (supra), the petitioner had challenged the seniority and promotion of respondent No. 3, to the post of Office Assistant against the vacancies of the year 1984-85. On behalf of respondent No. 3, a preliminary objection against the maintainability of the writ petition was raised on the ground that an appeal lay before the Rajasthan Civil Services Appellate Tribunal and since an alternative remedy was available, the writ petition was not maintainable. On behalf of the petitioner in that case, it was urged before the Division Bench that the availability of the remedy of appeal to the Tribunal was no bar to the maintainability of the writ petition in as much as the said remedy of appeal to the Tribunal was not an effective remedy. The Division Bench upheld the preliminary objection raised on behalf of respondent No. 3 and dismissed the writ petition on that score.
His Lordship S.C. Agrawal, J. (as he then was), speaking for the Division Bench, and dealing with various contention raised on behalf of the petitioner, observed as follows:
In our opinion, a comparison between the provisions of the Act (The Rajasthan Civil Services (Service matters) Appellate Tribunals Act, 1976) and the provisions of Administrative Tribunals Act, 1985, is misconceived inasmuch as the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985, are intended to exercise their jurisdiction to the exclusion of the jurisdiction vested in the High Courts Under Article 226 of the Constitution, in relation to the matters in respect of which jurisdiction has been conferred on Central Administrative Tribunals by the Administrative Tribunals Act, 1985. In other words, the Central Administrative Tribunals constituted under the Administrative Tribunals Act, 1985, are a substitute for the jurisdiction of the High Court Under Article 226 of the Constitution, and the orders passed by the Central Administrative Tribunals can be challenged by way of appeal by special leave before the Supreme Court..... The petition is, however, different in the case of a Tribunal constituted under the Act, because, the constitution of the said Tribunal does not in any way affect jurisdiction of this Court Under Articles 226 and 227 of the Constitution, and orders of the Tribunal are open to the judicial review before this Court Under Articles 226 and 227 of the Constitution..... It cannot be said that the composition of the Tribunal constituted under the Act is such that the remedy of appeal provided before the Tribunal is not an effective remedy.....
It is no doubt true that the Act and the Rules do not contain any provisions with regard to implementation of the orders of the Tribunal. It is also true that cases have come before this Court in which in spite of the directions contained in the circulars of the State Government referred to above, the authorities have failed to implement the orders of the Tribunal and the Government Servant has to initiate contempt proceedings or to invoke the jurisdiction of this Court Under Articles 226 and 227 of the Constitution for issuing a writ of mandamus to implement the directions given by the Tribunal.....But, the fact that the implementation of the directions is delayed by the authorities and the party has to seek the enforcement of the directions of the Tribunal by moving for contempt, does not mean that the remedy available to a party to approach the Tribunal is not an effective remedy.....
It is true that the Tribunal constituted under the Act has not been conferred the power to take action for its contempt. But, we find that Under Sub-section (4) of Section 6 of the Act, the Tribunal is deemed to be a civil court for the purposes of Contempt of Courts Act, 1971, which means that in case where a person commits a contempt of the orders passed by the Tribunal, the Tribunal can make a reference to this Court under the Contempt of Courts Act, 1971, for taking action for contempt of court against the defaulter. It cannot, therefore, be said that no action can be taken against a person who fails to implement the directions given by the Tribunal and thereby commits contempt in respect of the orders passed by the Tribunal.
Having considered the submissions urged by Shri Singhvi, we are unable to hold that the remedy of appeal to the Tribunal, provided under the Act is not an effective remedy and the availability of the said remedy cannot be a bar to the maintainability of this writ petition. The preliminary objection raised by Shri Singhvi must, in our view, prevail and the writ petition must be dismissed on the ground that the petitioner has a right to file an appeal before the Tribunal against the orders dated 3rd October, 1986 and 20th October, 1986 impugned in this writ petition and the said remedy of appeal before the Tribunal is an efficacious remedy.
11. It may be observed that I am bound by the Division Bench decision in Ved Prakash Khare's case (supra). It would be useful to refer to some decisions of the Supreme Court on the question of alternative remedy. His Lordship S.R. Das, C.J., in State of U.P. v. Mohammad Nooh AIR 1958 SC 86 observed:
It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.....But, this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.
12. In Rashid Ahmed v. The Municipal Board, Kairana , S.R. Das, C.J., said:
Learned Advocate General of Uttar Pradesh, appearing for the intervener drew our attention to Section 318, U.P. Municipalities Act, 1916, and submitted that the petitioner having adequate remedy by way of apeal, this Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari. There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the power given to this Court Under Article 32 are much wider and are not confined to issuing prerogative writs only.....We do not consider that the appeal Under Section 318 to the local Government.....is in the circumstances of this case, an adequate legal remedy.
13. In K.S. Rashid and Son v. Income Tax Investigation Commission and Ors. , it was observed:
The remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.
14. In Union of India v. T.R. Verma , it was said that where alternative and equally efficacious remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition Under Article 226, unless there are good grounds therefor. In A. v. Venkateswaran v. Ramchand Sabhraj Wadhwani and Anr. , his Lordship Rajagopala Ayyangar, J. observed:
The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner Under Article 226 having to exhaust his remedies before he approached the court would be practically a dead letter, because, in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.
We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion.....
The passage in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principle on which the Court should act having been clearly laid down, their application to the facts of each particulars case must necessarily be dependent on a veriety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which come up before the Court.
Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court Under Article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statuortry remedy by his own fault in doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition Under Article 226 to exercise its discretion in his favour. Indeed the second passage extracted from the judgment of the learned C.J. in Mohammad Noh's case (AIR 1958 SC 86 at p. 93) with its reference to the right of appeal being lost "through no fault of his own.
15. The Supreme Court then proceeded to examine the question whether in the circumstances of the case, it should interfere with the decision of the High Court. In this regard, their Lordships of the Supreme Court considered three points. Firstly, that the levy of the duty at 78 3/4% was manifestly erroneous. Secondly, the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold-plated fell within item-61(8). This might be some indication that the adjudication by the Custom Authorities was in pursuance of a settled policy of the entire hierarchy of the department. Lastly, the learned Solicitor-General did not dispute the correctness of the principles of law as enunciated by Chagla, C.J. His complaint was that the law as laid down by the Chief Justice has not been properly applied to the facts of the case before him. On these points, their Lordships of the Supreme Court held that if the challenge to the judgment of the High Court were of the former type, the Supreme Court might have to interfere to lay down the lay correctly lest error creeps into the administration of justice. But, where the error is only in the application of the law correctly understood to the facts of a particular case, their Lordships should be persuaded that there had been a miscarriage of justice which the learned Solicitor General could not succeed in doing. The question was not whether if the respondent's writ petition was before the Supreme Court, it should have directed the writ to issue, but the question was whether the Judges of the Bombay High Court, having in their discretion which they admittedly possessed made an order, there was justification for our interfering with it. On the whole and taking into account the peculiar circumstances of the case that the High Court had not exercised its discretion improperly the Supreme Court did not interfere in the order of the High Court in an appeal Under Article 136 of the Constitution.
16. In M/S Babu Ram Prakash Chandra Maheshwari v. Antrim Zila Parishad Muzaffarnagar , His Lordship Ramaswamy, J., speaking for the Court, observed:
It is a well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rasheed Ahmed v. Municipal Board, Kirana , the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds there for. But, it should be remembered that the rule of exhaustion of alternative remedy before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and the Court may, therefore, in exceptional cases, issue a writ, such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted.....There are at least two well-recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court Under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice.
17. It has already been stated that a Bench of this Court in Ved Prakash Khare's case (supra), has already held that there is an alternative remedy in such type of cases available to a petitioner before the Rajasthan Civil Services Appellate Tribunal and the remedy is an efficacious remedy. Normally when such an alternative and efficacious remedy exists, this Court would not exercise its jurisdiction to interfere in writ petition and direct the petitioner to exhaust the alternative remedy. The only point to be considered is whether there are exceptional circumstances in the case justifying the entertaining of this writ petition and deciding it on merits. It is clear that the existence of an alternative staturoty remedy does not affect the jurisdiction of the High Court to issue a writ. It is sound rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law.
18. The exceptional circumstances in the present case are that notices to the respondents were directed to be issued in the present writ petition on Nov. 8, '89 as to why it may not be admitted and finally decided. Replies to the writ petition were filed in March, 1990. Although respondents Nos. 1 and 2 in their reply took objection regarding alternative remedy being available to the petitioner, but when on Aug. 29, '90, the learned Counsel for the petitioner completed his arguments, counsels for the respondents did not raise the above objection as a preliminary objection before the hearing of the writ petition on its merits. On Sept. 5, '90, arguments on behalf of respondents Nos. 1 and 2 were heard. The arguments advanced on behalf of the respondents convered the merits of the case. On hearing the writ petition on merits, the Court directed respondents Nos. 1 and 2 to produce additional affidavit regarding the extensions and continuance of the post of Reader in Dental (Orthodontia) and also the proceedings of the DPC. Additional affidavit was filed and the minutes of the meeting of the DPC held on July 19, '90 were also produced. Some more directions were made to respondents Nos. 1 and 2 on Sept. 10, '90. Arguments were completed on Oct. 10, '90. Twice additional affidavits were filed on behalf of respondents Nos. 1 and 2. Even respondent No. 4 gave his written submissions on merits and the petitioner also filed his written submissions to counter the same. The writ petition was thus completely heard on its entire merits, without the question of alternative remedy being available to the petitioner being raised and argued as a preliminary objection against the maintainability of the writ petition. In L. Hirday Narain v. Income-Tax Officer, Bareilly , Shah, J., observed as follows:
We are unable to hold that because a revision application could have been moved from an order correcting the order of the Income Tax Officer Under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition which was entertained and was heard on the merits.
The same view has been propounded by the decisions of this Court in Gafoor v. Regional Transport Authority, Jaipur and in Purshattam Singh v. Union of India and Anr. 1980 WLN 321. In the former case, D.P. Gupta, J. (as he then was), stated:
Moreover, the existence of an alternative remedy is not a bar to the jurisdiction of the Court and in view of the fact that the matter has been heard fully on merits as well, it would now be proper for this Court, in the circumstances of this case, to decide the same on merits.
Similarly, S.K. Mal Lodha, J. stated in the latter case:
The objection that the petitioner had an alternative remedy to file an appeal against the order of his removal from service passed by the Senior Divisional Engineer Under Rule-18 of the Railway Servants (Discipline & Appeal) Rules, 1968 does not survive when the writ petition had already been admitted and heard on the merits.
19. As already stated, the present writ petition has not only been heard fully on its merits but all necessary material has been produced by the petitioner as well as respondents Nos. 1 and 2 including additional affidavits and relevant documents as per directions of the Court. In these exceptional circumstances, it would be proper for this Court to exercise its jurisdiction in deciding this writ petition on its merits. It is, however, emphasized that whenever a plea regarding availability of alternative efficacious remedy to the petitioner is raised by the respondents, it is always necessary that such a plea should be raised before the Court at the very inception of the arguments as a preliminary objection, and the Court should be requested to decide that objection first before entering into the merits of the case. Much injustice is likely to be caused when a writ petition is allowed to be fully argued on its merits and during reply to the arguments, the question of availability of alternative remedy to the petitioner is raised by the respondents, alongwith their arguments on the merits of the case. In the above-mentioned exceptional circumstances of the case, I am of the view that this Court should exercise its discretion in deciding this writ petition on merits, and I proceed to decide it on its merits.
20. I have already observed above that the temporary post of Reader, Dental (Orthodontia), which was created by the State Government on Aug. 16, '85, was from time to time, extended and the latest extension of the term of this post was upto Feb. 28, '91. It is also an admitted position on behalf of respondents Nos. 1 and 2 that this post of Reader, Dental (Orthodontia) was, while making promotions, treated as a post in general category of Dentistry and on that basis, promotion was made on the post of Reader.
21. First question, therefore, which needs determination is whether promotion to the post of Reader, Dental (Orthodontia) could be made by the Appointing Authority by treating the post created by the State Government in the speciality of Dental (Orthondotia) as a post of general category of Reader in Dentistry? It is more than clear from the order of the Government of Rajasthan in Medical and Health Department dated Aug. 16, '85 (Annex. 3.A.) and the other extension-orders (Ex. Rule 2 to Rule 6 and the latest order dated July 31, '90) that the State Government had created the temporary post of Reader in Dental (Orthodontia) and had from time to time extended the term of this temporary post. There is no order of the Government of Rajasthan converting the temporary post of Reader in Dental (Orthodontia) into a post of Reader in the general category of Dentistry. The intention of the State Government was clear that there shall be a post of Reader in Dental (Orthodontia). Respondents Nos. 1 and 2 have not produced any document conveying sanction of the State Government for converting the post of Reader in Dental Orthodontia) into a post of Reader in Dentistry simpliciter. On the other hand, the intention of the State Government is clearly manifested by the fact that even till today this post stands extended as a post of Reader, Dental (Orthodontia) and not as a post of Reader in general category. In the absence of any order of the State Government converting this post as a post of Reader in the general category of Dentistry, it was not at all open for the Appointing Authority to make promotion to this post of Reader in a speciality by expressly or impliedly treating it as a post in general category of Reader in Dentistry. Promotion to this post had to be made by recognising it as a post of Reader in Dental (Orthodontia) and not otherwise.
22. Respondents Nos. 1 and 2 in their reply in para 5 have stated that as the rules for making promotion to super-specialities were still under consideration and the post of Reader in Dental (Orthodontia) was created in Dental with the suffix of super-speciality, this post was considered to be that of Dental simpliciter, Dental being the genus and Orthodontia being species thereof. They state that there was no legal impediment against considering the post with the suffix of super-speciality as a general post, and accordingly, three posts were taken into consideration and by order dated October 21, 1989, three appointments were made by promotion to the post of Reader in Dentistry. The incorrectness of treating the post of Reader, Dental (Orthodontia) as a post of Reader in Dentistry simpliciter has already been discussed above, and it has been held that when the State Government had created the post of Reader, Dental, in the speciality of Orthodontia, it was not open to the Appointing Authority to treat this post in the general category of Reader in Dentistry simpliciter and to require the DPC to make its recommendation for promotion to the post of Reader in the general category of Dentistry. The Appointing Authority was clearly wrong in requiring the DPC to consider the post of Reader in Dental (Orthodontia) as a post of Reader in the general category of Dentistry, and to consider the lecturers in the general category for promotion to this speciality post of Reader.
23. Promotion to the post of Reader in Rajasthan Medical Service (Collegiate Branch) is governed by the Rules of 1962, framed under proviso to Article 309 of the Constitution of India. Part-V of the Rules of 1962 deals with the procedure for promotion. Sub-rule (1) of Rule-23 inter alia provides that the persons enumerated in column-5 of the Schedule, shall be eligible on the basis of seniority-cum-merit, for promotion to the post specified in column-2, subject to their possessing the minimum qualifications, and experience as laid down by the Rajasthan University teaching staff in Medical Colleges. The Schedule itself does not specify the qualifications and experience needed by lecturers for being promoted as Readers. For this purpose, we have to refer to the minimum qualifications and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges, as required by Rule-23 (1) of 1962 Rules. The University of Rajasthan had enacted Ordinance-65, laying down the minimum qualifications and experience for teachers in various faculties and specialities for colleges affiliated to the said University. In relation to "Dentistry", apart from the general category posts, qualifications and experience required for various posts, in specialities of Dentistry like posts in Oral Surgery, Oral and Dental Pathology, Prosthentic Dentistry, Peridontia, Orthodontia etc. were specified. Previously, for promotion to the post of Reader in Dental, Orthodontia, the minimum qualification prescribed was BDS, MDS (Orthodontia) and the minimum experience required was Lecturer in the subject for four years in a Medical College. However, this was amended by Syndicate Resulotuion No. 6, dated March 28, 1987, and the minimum qualifications for the existing ones for teachers in Dentistry were prescribed in Part-VI of Ordinance-65 of the University Hand-Book-Part-II. After this amendment, it was specified that academic qualifications for the post of Reader would be "a BDS-Degree of an Indian University or an equivalent qualification with Post-Graduate qualification in the subject." Regarding teaching experience it was prescribed that the person concerned should have "three years" teaching experience as Lecturer, after he gets his Post-Graduate qualification."
24. The petitioner possessed a BDS degree and he also possessed a Post-Graduate qualification in Dental Surgery (Orthodontia). As a matter of fact, the petitioner was recruited and appointed on the post of Lecturer in Dentistry (Orthodontia) through the Rajasthan Public Service Commission, by order dated Apr. 2, 86. He joined on that post on April 5, 1986 and was confirmed on the post of Lecturer in Dentistry (Orthodontia) by order of the Government dated May 15, '88. He completed his three years teaching experience as Lecturer in Dentistry (Orthodontia) after his obtaining Post-Graduate qualification in the subject on Apr. 5, '89.
25. I may here refer to a judgment of this Court in Surendra Kumar Pareek v. State of Rajasthan and Ors. S B Civil Writ Petition No. 1661 of 1985, decided by a learned Single Judge, on October 14, 86. In Surendra Kumar Pareek's writ petition (supra), one of the quesations considered by the learned Single Judge was as to whether the academic qualifications and experience laid down by the Medical Council of India in the form of Regulations for the Teachers in Medical Colleges will hold the field or the academic qualifications and experience laid down in Ordinance-65 VII of the University of Rajasthan will apply. The learned Single Judge observed:
As already stated earlier, under Entry-25 of List III (concurrent list), Education including technical education and medical education and universities is subject to the provisions of Entries 63 to 66 of List-I and thus so far as the topic covered by Entry-66 are concerned, the State Legislature cannot legislate.....The power to legislate in repsect of that entry vests in Parliament, and therefore, when power exclusively vests in Parliament, the State Legislature has no power to legislate. It cannot, therefore, provide any other qualifications for the teaching staff in the Medical Colleges other than provided by Regulations framed Under Section 33(k) of the Act. A look at Article 309 of the Constitution of India will show that its provisions are subject to the provisions of the Constitution. Therefore, Article 309 is subject to Article 246(1) and Entry-66 of List-I (Union List) of the Seventh Schedule to the Constitution.....I am of the opinion that so far as the recommendations for academic and technical qualifications and experience for the teachers in Medical Colleges are concerned, that have become regulations in 1971, have statutory force, and are mandatory.....In my opinion, the academic and technical qualifications and experience as laid down by the Regulations by the Medical Council of India Under Section 33 (of the Indian Medical Council Act, 1956) will hold the field and not the academic and technical qualifications and experiences as provided by Ordinance-65-VII by the University from time to time.
It may be noted that another learned Single Judge had earlier, in Chand Ratan v. State of Rajasthan and Ors. SB Civil Writ Petition No. 1842 of 1975, decided on Sept. 12, '84, taken a different view. In Chand Ratan's case (supra), after referring to Section 33(j) and (k) of the Indian Medical Council Act, 1956 and the power of the Medical Council of India to make regulations on those matters, it was held:
It does not take away the power of the University to provide higher qualification. The provisions of the Indian Medical Council Act, 1956 are mandatory to some extent that the University cannot prescribe a qualification lower than the qualification prescribed by the Act. However, the Act does not take away the power of University to improve the standard of education and to provide requisite qualifications for the better and highly qualified persons.....The University was justifieds in providing higher qualification for the teaching staff and is not inconsistent with the provisions of the Indian Medical Council Act, 1956.
Commenting on the decision of this Court in Chand Ratan's case (supra), the learned Single Judge in Surendra Kumar Pareek's case (supra), observed:
In my opinion, the learned Judge did not take into consideration the exclusive field to legislate in respect of Entry-66, List-I (Union List).
26. It would be useful here to refer to the decision of their Lordships of the Supreme Court in Government of Andhra Pradesh and Anr. v. Dr. R. Murali Babu Rao and Anr., , on the point, wherein, his Lordships A.P. Sen, J., speaking for the Court, observed as follows:
The Indian Medical Council constituted Under Section 3 of the Act is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance. We may only cite the case of Madhya Pradesh v. Km. Nivedita Jain , where the Court had to consider the effect of the Regulations framed by the Medical Council and the various orders issued, by the State Government. Analysing the various provisions of the Act in depth, it was observed as follows:
An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution, composition and its functions; and the main function of the Council is to maintain the medical register of India and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners. The scheme of the Act appears to be that the Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post-graduate medical education and will further regulate the standards of professional conduct and etiquette and Code of Ethics for medical practitioners.
A fortiori, the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory. It is not for the Council to prescribe qualifications for recruitment to posts of Professors, Readers and Lecturers. It can only lay down broad guidelines therefor. Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to Article 309. Right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to Article 309.
In another part of the judgment, his Lordship A.P. Sen; J. observed:
There is no substance whatever in the contention that the alternate qualification in clause (b) being in the conflict with the recommendation of the Medical Council of India, must be deemed to have been repealed by implication and was non est w.e.f. May 31, 1977.....The Government failed to appreciate the recommendation which was later approved of by the Government of India and acquired the status of a regulation, was only recommendatory and could not override a rule framed under the proviso to Article 309 of the Constitution.
In view of the above decision of their Lordships of the Supreme Court in Government of Andhra Pradesh and Anr. v. Dr. R. Murali Babu Rao and Anr. (supra), the decision of the learned Single Judge on the point in Surendra Kumar Pareek's case (supra) does not lay down correct law. It is clear that for the purpose of promotion to the post of Reader, academic qualifications and teaching experience could only be prescribed Under Article 309 of the Constitution of India and the State Legislature or the Governor, as the case may be, was perfectly competent to do so.
27. In the case of Union of India and Ors. v. Dr. (Mrs.) S.B. Kohli and Anr. , it was stated, "to say that to be appointed a Professor in Orthopaedics a person must have a post-graduate degree in Orthopaedics, was not to make a classification without reference to the objectives sought to be achieved. In that case, one of the questions involved was as to what was the meaning of the phrase, "a post-graduate degree in the concerned speciality." It was held that in the matter of promotion to the post of Professor of Orthopaedic Surgery, the Departmental Promotion Committee could not make any relaxation in the qualification of "post-graduate degree in the concerned speciality" mentioned in Part-A of Annexure-II of Central Health Service Rules, 1963 (as amended in 1966 and 1968).
28. Reference may also be made to the observations made by Desai, J. in Dr. M.C. Gupta and Ors. v. Dr. Arun Kumar Gupta and Ors. , It was observed:
Undoubtedly, if the post is in a specialist department, the requisite teaching/research experience will have to be in the speciality. To illustrate, if one were to qualify for being appointed as Professor/Associate Professor of Cardiology, his teaching experience must be in Cardiology.....A person having such experience in the general subject medicine cannot qualify for the specility. That is what distinguishes the speciality from the general subject.....The matter has to be looked at from this angle, viz., that where general subject, such as medicine or surgery is being dealt with in a regulation, the specialist branch under it would be covered, though not vice versa, because, if one wants to hold a post in the specialist branch, he must of necessity have teaching experience in the specialist branch.
It is thus clear that for promotion to the post of Reader, Dental (Orthodontia), the person to be considered for promotion should have completed three years' teaching experience as Lecturer in Dentistry (Orthodontia) after his obtaining post-graduate qualification in Dental (Orthodontia). It is contradiction in terms on the part of respondents Nos. 1 and 2, on the one hand, to state that until the rules regarding super-specialities were finalised, the post of Reader, Dental (Orthodontia) had been treated to be that of general category, and in the same breath, on the other hand, to state that Dental was the genus and Orthodontia was the species thereof. There can be no denying of the fact that the post was that of Reader in a speciality and had to be filled in treating the same to be a speciality post and not a general category post.
29. It appears from the minutes of the meeting of the DPC held on July 18, 1989 for selecting persons for promotion to the posts of Associate Professor, Dentistry, that for the year 1988-89, three posts of Reader/Associate Professor were determined to be filled in Dentistry. The zone of consideration was of ten persons. Out of these three posts, it was recorded that two posts were to be filled in on the basis of seniority-cum-merit and one, on the basis of merit. It may further be mentioned that in this very meeting of the DPC, one post of Associate Professor in Dentistry, which had fallen vacant in the year 1985-86, was also to be considered to be filled in by promotion. For the post relating to the year 1985-86, Dr. V.K. Bihani was the only candidate eligible for consideration and he was recommended for promotion. As regards the three posts determined relating to the year 1988-89, it is recorded that only two lecturers were eligible for considration. The DPC considered the service-records of two lecturers named Dr.(Smt.) Marjadhi Urvashi and Dr. A.K. Tandon and recommended the names of both of them for promotion on the basis of seniority-cum-merit. Since there was no other eligible lecturer available, no recommendation was made for the recommendations of the DPC, by order dated Oct. 21, '89 (Annex. 7), Dr. V.K. Bihani was promoted and posted as Associate Professor, Dentistry, in Medical College-Bikaner, as against the vacancy of the year 1985-86, and Dr. (Smt.) Marjadhi Urvashi and Dr. A.K. Tandon were promoted as Readers in Dentistry in relation to the vacancies of the year 1988-89 and were posted as Assistant Professor, Dentistry respectively at Medical Colleges, Ajmer and Jaipur. No recommendation was made in respect of the third vacancy of the year 1988-89 by the DPC on the ground that no other candidate was eligible.
30. The respondents have kept it secret and obscure as to in respect of which year the vacancy for the post of Reader in Dental (Orthodontia) was treated as vacancy of Reader in the general category of Dentistry. However, in para No. 2 of their reply, respondents Nos. 1 and 2 have stated that the eligibility was to be considered as on 1st April of the year of selection and in the present case, the selections were held in the year 1989 and the petitioner did not complete the requirement of three years' teaching experience as on 1st Apr. '89, and therefore, he would get the eligibility for the purpose of consideration against the vacancies of 1990-91 and he could not be considered to be eligible in the year 1989-90, as he had joined as Lecturer on 5th Apr. '86, in pursuance of the order dated 2nd Apr. '86. These averments in para-2 of the reply indicate that the post of Reader in Dental (Orthodontia) was treated as post of general category in Dentistry in relation to three posts considered by the DPC in relation to the year 1988-89. It was not so treated in relation to the vacancy of the year 1985-86 against which Dr. V.K. Bihani was promoted. As already stated, for the year 1988-89, three posts of Reader were considered by the DPC, for promotion, but only two persons, i.e., Dr. (Smt.) Marjadhi Urvashi and Dr. A.K. Tandon (Respondent No. 4) were recommended for promotion and were promoted and posted by order dated Oct. 21, '89 (Annex., 7). There was no recommendation of the DPC in relation to the third post of the year 1988-89, as no candidate was eligible.
31. To continue further narration, it appears from Annexure R/5 that in a subsequent meeting of the DPC, held on Aug. 21, '90, during the pendency of this writ petition, three vacancies of the post of Reader of the year 1989-90 were considered for promotion. Only one candidate, Dr. Arun Kumar Gupta was found to be eligible and he was recommended to be promoted to the post of Associate Professor by the DPC on the basis of seniority-cum-merit. In this very meeting, two more posts of Reader in Dentistry with respect to the vacancies occuring in the year 1990-91 were considered. Both these posts were reserved-one for Scheduled Castes and the other for Schedule Tribes. Three persons were considered eligible including the petitioner as well. No candidate belonging to Scheduled Castes or Scheduled Tribes was available within the zone of consideration, and as against these three posts, the DPC recommended the names of the petitioner and Dr. M.B. Mishra for promotion to the post of Associate Professor, Dentistry, on the basis of seniority-cum-merit. The proceedings of the meeting of the DPC held on Aug. 21, '90 (Annex. R/5) go to show that the petitioner was considered, during the pendency of this writ petition, for promotion to the post of Associate Professor, Dentistry, simpliciter, as against the vacancies occuring in the year 1990-91. The petitioner was never considered for promotion to the post of Reader in Dental (Orthodontia), for the obvious reason that respondents Nos. 1 & 2 illegally started treating this post in the general category of Dentistry, which, for reasons already seated, they could not do. Even till today, it is the post of Reader, Dental (Orthodontia) which stands extended upto the end of February, 1991.
32. Respondents Nos. 1 & 2 have not disclosed as to who has been promoted by the State Government as against the post of Reader, Dental (Orthodontia) by wrongly treating the same as a vacancy of the post of Reader, Dentistry, simpliciter. However, the fact lies that the post of Reader, Dental (Orthodontia) does exist and it could not be treated as a post of Reader in Dentistry simpliciter. Promotion to this post could only be made of a Lecturer who fulfilled the academic qualifications and possessed the teaching experience as prescribed by the University of Rajasthan in Ordinance-65, i.e., a BDS degree of an Indian University with post-graduate qualification in Dental (Orthodontia) and three years' teaching experience as Lecturer after post-graduation in Dental (Orthodontia).
33. I may next consider the question of elgibility of the petitioner for consideration for promotion to the post of Reader, Dental (Orthodontia). The petitioner acquired three years' teaching experience as Lecturer, after his post-graduation in Dental (Orthodontia), on Apr. 5, '89. Determination of vacancy is made as on 1st April occurring in the financial year. In relation to the financial year 1988-89, for which determination of three vacancies was made and which were considered for the purpose of recommendation of names by the DPC for the purpose of promotion on July 19, '89, was obviously made as on 1st April, 88 and the vacancies were of the period upto March 31, '89. Upto March 31, '89 the petitioner had not completed 3 years' teaching experience as Lecturer after acquisition of post graduate degree in Dental (Orthodontia). He was falling short by five days. The pre-condition for consideration of the petitioner for promotion to the post of Reader, Dental (Orthodontia), was not only the passing of minimum academic qualification (which the petitioner did possess) but also the acquiring of three years teaching experience after his post graduation. That three years' teaching experience, the petitioner acquired only on 5th Apr. 89 and therefor, the petitioner's consideration for promotion to the post of Reader, Dental (Orthodontia) could be made only as against the vacancy of the year 1990-91 and not as against the vacancies occuring in the year 1988-89 or in the year 1989-90.
34. In view of the above discussion and findings, the writ petition filed by the petitioner deserves to be partly allowed. Respondents Nos. 1 and 2 are hereby by a writ of mandamus, commanded not to treat the post of Reader, Dental (Orthodontia) created by the State Government by its order dated Aug. 16, '85 (Annex. 3.A) and extended from time to time by its orders (Annex Ex. R/2 to R/6) and by its latest order dated July 31, '90 as a post in the general category of Dentistry, are to be treat this post only as a post of Reader, Dental (Orthodontia). Respondents No. 1 and 2 are further commanded to consider the case of the petitioner for promotion to the post of Reader Dental, (Orthodontia) as against the vacancy of this post, by treating it to be occuring in the year 1990-91. As the writ petition has been partly allowed, the parties are left to bear their own costs.