Moti Lal Nehru Medical College ... vs State Of U.P. & Others
2015 Latest Caselaw 1788 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 9
 

 
Case :- WRIT - A No. - 59582 of 2009
 

 
Petitioner :- Moti Lal Nehru Medical College Teachers Association & Anr
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- G.K. Singh, Chandreshwar Prasad, G.K. Malviya,R.D. Tiwari, V.K. Singh
 
Counsel for Respondent :- C.S.C., Ashok Khare, C.S. Singh,Kapil Rathore, R.K. Upadhya, S.D.Kautilya, Siddharth Khare, Vikas Budhwar, Yogesh Agarwal
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ashwani Kumar Mishra,J.

1.This writ petition has been filed by the Moti Lal Nehru Medical College Teachers Association through its Secretary and by Dr. Dileep Chaurasiya, who is working as Professor in the same Moti Lal Nehru Medical College and is alleged to be Secretary of the Association. The petitioners before this Court seeks quashing of the orders dated 29.10.2009, 15.06.2009, 31.01.2009 and dated 29.10.2009.

2.Facts, in short, leading to the present writ petition are as follows:-

(a). Moti Lal Nehru Medical College, Allahabad (hereinafter referred to as "Medical College") was originally the Faculty of Medicines of the University of Allahabad (when it was a State University), but subsequently it was converted into a Government Medical College. The University of Allahabad continued to be the examining body only.

(b). In the State of Uttar Pradesh, Medical Officers to be appointed for various District Hospitals and other Government dispensaries are selected by the U.P. Public Service Commission in accordance with U.P. Medical and Health Service Rules, 1945, as amended and substituted by Medical and Health (Group B) Services Rules, 1995 and now known as U.P. Medical and Health Services Rules, 2004 (hereinafter referred to as "Rules, 2004"), which have been enforced w.e.f. 11.08.2004. The Doctors appointed under the said Rules are commonly known as Members of Provincial Medical Health Services (hereinafter referred to as "P.M.S. Cadre").

(c). So far as the teaching Faculty to be appointed in Government Medical Colleges are concerned, their appointment and service conditions are regulated by U.P. State Medical Colleges Teachers Service Rules, 1990 (hereinafter referred to as "Rules, 1990").

(d). It is not in dispute that the minimum qualifications prescribed for the post covered under the P.M.S. Cadre Rules and those applicable to the Teachers of Medical Colleges are different. The petitioner no.1 before us is the Association of Cadre Members covered by the Rules, 1990.

(e). The respondent nos.5 to 8 and 10 are persons who were selected by the U.P. Public Service Commission for the P.M.S. Cadre and these persons were sent on deputation to Moti Lal Nehru Medical College at Allahabad on various dates prior to the year 2005.

(f). The records reflect that the sending of these respondent nos.5 to 8 and 10 was for a fixed term, which was extended from time to time.

(g). On 19.07.2005, the University of Allahabad was declared to be a Central University by an Act of Parliament being Act No. 26 of 2005.

(h). The respondent nos.5 to 8 and 10 are stated to have submitted their option for being absorbed as the Teachers of the Central University and because of the pendency of their applications in the matter of such absorption the State Government permitted them to continue at the Moti Lal Nehru Medical College, Allahabad.

(i). We may record that this exercise of option by respondent nos.5 to 8 and 10 was in pursuance of an interim order dated 23.03.2007 passed in Public Interest Litigation No.32844 of 1997. The petition is stated to have been decided under the judgment and order dated 16.12.2011. The relevant part of the interim order dated 23.3.2007, which deals with the exercise of option, is being reproduced herein below:-

"The MD Eye Hospital matter has attracted the attention of the Court to many such deputationist of the State Government, who are still working in the Medical College and its Associated Hospitals. They have no lien on the post and that their deputation should not have exceeded beyond the date, when the MLN Medical College and its associated hospitals became a part of the University. Their options for absorption have to be considered by the University in consultation with the State Government. In the circumstances, all those doctors and employees of the State Government on deputation to MLN Medical College and its Associated Hospitals, will be allowed to continue and will draw their salaries for the University only if they have given their option to accept the terms and service conditions of the University and are relieved by the State Government to be absorbed in the service of the University by the University in accordance with the ordinances to be made by the University in this regard. Any teacher, officer or employee, who do not opt to do so may be relieved by the University to join back in the State Government."

(j). No finding was returned by the High Court in the said P.I.L. with regards to the right of respondent nos.5 to 8 and 10 to be absorbed as the Teachers of the Central University or otherwise nor any issue in that respect was examined in the final judgment. We may also record that the interim order, which referred to the exercise of option by persons like the respondents for being absorbed as Teachers of the Central University, itself records that the absorption was to be considered as per the Ordinances to be made by the University and in consultation with the State Government.

(k). With reference to Act No. 26 of 2005, it may be noticed that Moti Lal Nehru Medical College, Allahabad was included as a University College under Statute 30 sub-clause 4 of the First Statute of Allahabad University, which were framed by the Central Government, and were made part of the Act itself as Schedule 1. Relevant Statute 30 sub-clause 4 is being quoted herein below:-

"30(4) The following shall be the University Colleges, namely:-

The Motilal Nehru Medical College and Swarup Rani Nehru Hospital, Allahabad."

(l). The State Government was not satisfied with the said institution being declared to be a University College of the Central University. The matter in that regard was taken to the Apex Court in Civil Appeal No. 1812 of 2007, wherein it was directed that the issue as to whether the college and the associated Hospital should continue as a State Government College or should be a University College belonging to the University must be settled between the University, the State and the Union at the earliest having regard to the statutory provisions, and till then status quo was directed to be maintained. The oder of the Apex Court relevant for our purposes is being quoted herein below:-

"The issue as to whether the College and the associated Hospital should continue merely as a constituent State Government College affiliated to the University, or should be a University College belonging to the University, as also questions relating to its administrative control, financing and other related issues shall be settled by the University, the State and the Union of India at the earliest having regard to the relevant statutory provisions. Till then, status quo, as on today, shall continue.

The Appeal is disposed of accordingly."

(m). The matter was examined between the University, the State Government and the Central Government, and ultimately Notification dated 16.07.2008 was issued whereby Statute 14.1(iv), Statute 14(6) and Statute 30(4) of the First Statutes of Allahbad University were repealed. For ready reference, the Notification dated 16.07.2008 is reproduced herein below:-

"The Government of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi, has communicated, vide letter No.3214/2007-Desk(U) dated: the 9th July, 2008 (which has been received on 15th July, 2008), that H.E. The President, in her capacity as the Visitor of University of Allahabad, in exercise of the powers vested in her under Section 28(5) of the University of Allahabad Act, 2005, has been pleased to repeal the following Statues of the University:

(i) Statute 14(1)(iv) relating to the Faculty of Medicine.

(ii) Statute 14(6) relating to the Departments under the Faculty of Medicine.

(iii)Statute 30(4) relating to the Motilal Nehru Medical College and Swarup Rani Nehru Hospital. Allahabad being a University College of the University.

Accordingly the "Motilal Nehru Medical College and Swarup Rani Nehru Hospital Allahabad" ceases to be a University College of the University, with immediate effect."

(n). It is not in dispute that subsequent to 16.07.2008 the Moti Lal Nehru Medical College and Swarup Rani Nehru Medical Hospital are under the administrative and supervisory control of the State Government. The University of Allahabad has even ceased to be the examining body. The college is now affiliated to Shahuji Maharaj Medical University, Lucknow. It is also not in dispute that all Teachers and Staff of Moti Lal Nehru Medical College and Swarup Rani Nehru Medical Hospital including respondent nos.5 to 10 are being paid salary by the State Exchequer.

(o). It is admitted to the respondents nos.5 to 10 that they are drawing salary from the State Exchequer subsequent to the Notification dated 16.07.2008.

(p). The petitioners in view of the aforesaid facts contend that since the respondent nos.5 to 8 and 10 are Members of the P.M.S. Cadre and were working on deputation at the Medical College at Allahabad and further since the maximum period of deputation has expired with reference to the order of State Government itself, they must be repatriated to their parent department, and they can no longer be permitted to continue at Medical College at Allahabad. They seek quashing of the orders referred to above, wherein directions were issued for the continuance of respondent nos.5 to 8 and 10 at Medical College at Allahabad till the issue of absorption was finally determined upon and ultimately under the impugned order dated 29.01.2009 the State Government has directed that respondent nos.5 to 8 and 10 stand absorbed in the service of the Medical College, their lien in P.M.S. Cadre ceases, and they would be treated as Teachers of Medical College.

3.Sri G.K. Singh, learned Senior Advocate assisted by Sri G.K. Malviya, Advocate on behalf of the petitioner, has submitted before us that the only mode and manner of appointment for Teachers in Medical College, as has been provided for, is by direct recruitment on the recommendations of the U.P. Public Service Commission under the U.P. State Medical Colleges Teachers Service Rules, 1990. There is no provision for appointment by way of deputation under the Rules, therefore, the respondent nos.5 to 8 and 10 must be repatriated to their parent department. Submission is that the order of the State Government dated 29.01.2009 cannot be legally sustained. In support of his contention Sri G.K. Singh has relied upon the judgment of the Apex Court in the case of Arun Kumar and Others Vs. Union of India and Others1, particularly paragraph 11 thereof.

4.The stand taken on behalf of the petitioner is contested by Sri Ashok Khare, learned Senior Advocate assisted by Sri Vikas Budhwar, Advocate on behalf of the respondent nos.5 to 8 and 10 as well as on behalf of respondent no.9. Sri Ashok Khare submitted before us that once the respondent nos.5 to 8 and 10 had exercised their option in terms of the order of the High Court and they had been paid salary by the Central University of Allahabad between the period 2006-2008, they shall be deemed to have been recognized as University Teachers/declared as Teachers of the University, within the meaning of Section 7 sub clause (vi) and (vii) respectively of Act No. 26 of 2005. It is explained that once the respondents are recognized as University Teachers/declared as Teachers of the University, they would be treated to be as the Teachers of the Medical College which was declared to be a University College under Statute 30(4) of the First Statute of the University and even if vide Notification dated 16.07.2008 the Statute 14.1(iv), and Statute 14 (vi) as well as Statute 30(iv) have been repealed, their rights as Teachers of the Medical College would be saved in view of Section 6 of the General Clauses Act.

5.It is his case that the rights of the respondents as Teachers of the Medical College stands established/crystallized with the payment of salary from the Central University, subsequent to the exercise of their option for being treated/declared as Teachers of the Central University. Sri Khare has also referred to the definition of the University recognized Teachers as contained in Section 3 sub clause (z) as well as to the definition of University College as contained in Section 3 sub clause (x). For ready reference, the sections relied upon i.e. 3(x), 3(z), 7(vi) and 7(vii) are being quoted herein below:-

"3(x) "University College" means a college or an institution maintained by the University or admitted to the privileges of the University as a Faculty;

3(z) "University recognized teacher" means a teacher recognized by the University for imparting instruction and conducting research in a college or institution admitted to the privileges of the University;

7.The university shall have the following powers, namely:-

7(vi) to recognize persons as University recognized teachers;

7(vii) to declare persons working in any other University or organization, a teachers of the University;"

6.It is also the case of Sri Khare that even otherwise the rights of the respondents are protected under Section 5 sub clause (d) of the Act No. 26 of 2005. The State Government is, therefore, justified in passing the order dated 29.01.2009 wherein it has been held that the respondents stand absorbed as Teachers of the Medical College and they have lost their lien in the P.M.S. Cadre.

7.Sri Ashok Khare also submitted before us that petitioner no. 1 was an unregistered society at the time the writ petition was filed, therefore, it is not maintainable. So far as the petitioner no. 2 is concerned, it is stated that he is working in a different department and can have no objection to the continuance of respondent nos.5 to 8 and 10, as they are working in different department. Therefore, the writ petition at their behest be dismissed.

8.Sri Khare also referred to the judgment passed in writ petition no. 53934 of 2013 in the case of Dr. Sidharth (respondent no. 10 before us) Vs. State of U.P. and Another2 wherein a Division Bench of this Court has provided parity in the matter of absorption, at par with Dr. D. C. Srivastava, who is respondent no.5 to the present petition. It is, therefore, submitted that the right of absorption which has been recognized by the Division Bench in favour of Dr. Sidharth cannot be undone by this Court while hearing collateral proceedings.

9.The Standing Counsel on behalf of the State Authorities has supported the order of the State Government dated 29.01.2009, for the reasons which have been recorded therein.

10.The court has been informed that a set of written submissions has been filed but these written submissions were not asked for by this Court nor were placed before the Court, till the judgment was delivered in the open Court. We are, therefore, confining ourselves to whatever has been argued before us only.

11.Having heard counsel for the parties and examined the records available, we are of the opinion that following issues require determination by this Court in the present petition:-

a) Whether the writ petition, as presented before us, is maintainable or not?

b) Whether under the Act No.26 of 2005 any option from any Teacher of the College mentioned in the Act or Statute was required to be called for or not?

c) Can the High Court, by means of an order passed in writ, create a right for the Members of P.M.S. Cadre for opting for the service of the Central University, without their being any Statutory provision in that regard, and what would be the effect of such an interim order once the writ petition is finally decided ?

d) Whether in the facts of the case there has been any order by the University accepting the option, if any, exercised, and whether the alleged right of respondent nos.5 to 8 and 10 was inchoate on the date the Notification for 16.07.2008 for repealing of the Statute has been enforced ?

e) Whether Section 6 of the General Clauses Act would save such inchoate rights, and whether the intention, which follows from the repeal of the Statutes 14.1(iv), 14(vi) and 30 (iv) of the First Statutes of the Allahabad University necessarily, lead to a situation that respondent nos.5 to 8 and 10 must be deemed to have been continued on deputation in the Medical College at Allahabad, and that no rights of absorption have been granted in their favour ?

12.So far as the issue of maintainability of the present writ petition is concerned we may record that the petitioner no.1 which was an unregistered society has since been registered during the pendency of writ petition on 16.11.2009. The writ petition as on date is on behalf of a registered Association, and therefore, the objection of Sri Khare is, therefore, more technical than substantive in nature. We are further of the opinion that both the Association as well as the petitioner no.2 have every right to see that persons who are not Members of the Cadre of U.P. State Medical College Teachers Rules, 1990 are not inducted through back door into the said Cadre of Teachers. They have locus to challenge the action of the State Government which leads to such illegal induction inasmuch as every Member of the Cadre has a right to ensure that the Cadre contains only those persons who are legally appointed into the Cadre and not strangers having no right to enter the Cadre under the relevant service rules. For all the said reasons, the first objection raised on behalf of Sri Khare stands rejected.

13.So far as issue nos. (b) to (e) are concerned, they are inextricably interwoven with each other and are therefore being taken up together. We have perused Act No. 26 of 2005, as well as Statutes framed therein, which were included as Appendix 1 to the Act itself. We find that there is no provision in the Act or the statute asking for any option from any Teacher working in any College covered by Statute 30 for being absorbed in the employment of Central University.

14.In our opinion the High Court can not create a new source for being inducted as Teacher of the Central University, by permitting those who were working on deputation in the Medical College at Allahabad to submit their option for such absorption as Members of the Central University. But we may not dilate any further on the said aspect in the matter, inasmuch as even if such option could have been exercised or has been exercised under orders of this Court, we are of the opinion that no indefeasible right was created for absorption of respondent nos.5 to 8 and 10, merely by exercise of such option, and by mere payment of salary to them, during the period the issue with regard to continuance of Swarup Rani Nehru Hospital and Moti Lal Nehru Medical College being University Colleges was being agitated and contested by the State Government. The matter was engaging the attention of the Supreme Court. At best, in our opinion, inchoate right in respondent nos.5 to 8 and 10 was created only for the purpose of making an application for consideration of their claim for being treated as Teachers of the University, on the Medical College being declared to be a University College, and nothing beyond it. Such inchoate right in the petitioner lost life with the issuance of Notification dated 16.07.2008, when Statute 14 and Statute 30(iv) were amended and declared to have been repealed.

15.We may also note that the option as was exercised by respondent nos.5 to 8 and 10 was with reference to the interim order of this Court dated 23.03.2007 passed in Public Interest Litigation No. 32844 of 1997 as noticed above. The order of the High Court itself records that the issue of absorption shall be considered by the Central University and State Government in accordance with the Ordinances to be framed by the University in this regard. It is, thus, clear that the consideration of option exercised by respondent nos.5 to 8 and 10 was dependent upon the Ordinances to be framed by the University.

16.It is nobody's case that any Ordinance had been framed by the Allahabad University in the matter of absorption of Teachers of Moti Lal Nehru Medical College/respondent nos.5 to 8 and 10 at any point of time either before the notification dated 16th July, 2008 or subsequent thereto. It is, thus, clear that absolutely no right was created in the respondent nos.5 to 8 and 10 merely because submission of options under the order of High Court, what to talk of crystallized right.

17.We may record that Section 6 of the General Clauses Act only saves such rights, which get crystallized in favour of a person, under the old provision, prior to its repeal. Section 6 of the General Clauses Act does not save inchoate rights. The legal position in that regard has been settled by the Apex Court in the case of M.S. Shivananda Vs. Karnataka State Road Transport Corporation and others3. Relevant paragraph nos. 13 to 16 of the judgment are reproduced:-

"13. It is settled both on principle and authority, that the mere right existing under the repealed Ordinance, to take advantage of the provisions of the repealed ordinance, is not a right accrued. Sub-section (2) of Section 31 of the Act was not intended to preserve abstract rights conferred by the repealed Ordinance. The legislature has the competence to so re-structure the Ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re-enact the Ordinance according to its original terms, or amend or alter its provisions.

14. What were the 'things done' or 'action taken' under the repealed Ordinance ? The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub-clause (3) to Clause. 20. The employees of the former contract carriage operators in normal course filled in the proforma giving their service particulars and reported to duty. This was in the mere 'hope or expectation' of acquiring a right. The submission of these 'call reports' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. On May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter-se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers-cleaners, there should be a 'trade test' and' the staff cleared by the Committee for the posts of helper 'B', helper 'A' and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators, who were eligible for absorption, should be interviewed by that Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an inchoate right.

15. The distinction between what is, and what is not a right preserved by the provisions of Section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of', or liberty to apply for, acquiring a right. In Director of Public Works v. Ho Po Sang (1961)2 ALL ER 721, 731 (PC) Lord Morris speaking for the Privy Council, observed:

"It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should not be given. On a repeal, the former is preserved by the Interpretation Act. The latter is not." (Emphasis supplied)

It must be mentioned that the object of Section 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced.

16. Further, it is significant to notice that the saving clause that we are considering in Section 31(2)(i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even Section 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute."

18.We may also examine the claim of respondent nos.5 to 8 and 10 under Act No.26 of 2005 viz-a-viz Teachers of the University, as well as the Teachers of the Degree Colleges and other Colleges, which were earlier affiliated college of the University of Allahabad, prior to it being declared a Central University. We find that Statute 14 provides for the faculties of the University, Statute 14 (1) and (iv) talks of the Faculty of Medicines while Statute 14(vi) talks of the Departments which are to be part of the Faculty of Medicines. Statute 14 (iv) and 14 (vi) has since been deleted. Similarly, we find that the Statute 30 declares the Institute of Inter-Disciplinary Studies, Institute of Professional Studies and the National Centre of Experimental Mineralogy and Petrology to continue as University Institutions. The Centre of Behavioural and Cognitive Sciences has been declared to be an independent Centre of the University. The Institute of Correspondence Courses and Continuing Education has been declared as a temporary self-financing University Institute. The Moti Lal Nehru Medical College and Swarup Rani Nehru Hospital were declared to be a University College under Statute 30 (iv) while the Govind Ballabh Pant Social Science Institute, Allahabad, the Harish Chandra Research Institute of Mathematics and Mathematical Physics, Allahabad and the Kamla Nehru Postgraduate Medical Institute, Allahabad was declared to be the constituent institutions of the University, while 11 Degree Colleges were declared as constituent colleges.

19.We may further record that Statute 30 (iv), which declares the Moti Lal Nehru Medical College and Swarup Rani Nehru Hospital, as University College, has since been repealed. From the definition of University College quoted above, it is clear that only such College or Institution maintained by the University, are entitled to the privileges of the University.

20.Once Moti Lal Nehru Medical College and Swarup Rani Nehru Hospital have been taken away from the Statute, they cease to be covered by the definition of University College, as University of Allahabad neither maintains it nor has admitted it to the privileges of the University.

21.It may be noted that University recognized Teachers are defined under Section 3(z). A power has been conferred upon the University of Allahabad (Central University) to recognize persons as University recognized Teachers under Section 7(vi) and to declare persons working in any other University or Organization as Teachers of the University under Section 7(vii). It will be seen that the Acts and the Statutes do not confer any power upon the University to recognize a person as a Teacher of any of the constituent Institutions of the University or of the constituent Colleges of the University as well as of the University College itself. The power is confined to recognition of a person as a University recognized Teacher only.

22.Similarly, Section 7(vii) confers a power upon the University to declare a person who is working in any other University or any other Institution as University Teacher. We may record that this Section also does not confer power upon the University to recognize any person as a Teacher of a constituent college, as the recognition can only be as a Teacher of the University.

23.We are recording this only for the purpose that even if the entire case as set up by respondent nos. 5 to 8 and 10 is accepted on the face value that they be absorbed as the Teachers of the University of Allahabad, then such absorption would mean that they become Teachers of the University and not Teachers of the Medical College as is claimed by them. The finding is in addition to the basic finding that so far as respondent nos.5 to 8 and 10 are concerned, they were never recognized as Teachers of the University, nor they were declared as Teachers of the University College. There has been no recognition or declaration as Teachers of the University in respect of respondent nos.5 to 8 and 10 at any point of time.

24.Mere payment of salary by Central University for some period when the matter was under consideration with regard to the status of Medical College before the High Court/Apex Court will not mean that respondent nos.5 to 8 and 10 stand declared/recognized as Teachers of the University or there has been a declaration in their favour, as Teacher of the University.

25.The State Government appears to have been completely misread and misconstrued the provisions of Act No. 26 of 2005 and the First Statute framed thereunder while dealing with exercise of option by respondent no.5 to 8 and 10, for the conclusion that they had lost lien under P.M.S. Cadre, as they stood merged as the Teachers of the Medical College at Allahabad. There has been complete non-application of mind at the hands of the State Government viz-a-viz the provisions of the Allahabad University Act, 2005 and the First Statute framed therein.

26.So far as the judgment in the case of Dr. Sidharth is concerned, it proceeds on the ground of parity to be provided to Dr. Sidharth viz-a-viz Dr. D.C. Srivastava. Once we have come to the conclusion that Dr. D.C. Srivastava himself never got declared as a Teacher of the University under Section 7(vii) of the Act No.26 of 1995, the question of Dr. Sidharth being treated as a Teacher of the University of Allahabad on account of parity also does not survive. Even otherwise the said judgment does not deal with the issues, which have been raised before us on behalf of the petitioner. The judgment is binding only in respect of the issues raised, contested and decided.

27.This Court made pointed query from the learned counsel for the petitioner as to under which cadre respondent nos.5 to 8 and 10 would stand absorbed in terms of the plea as set up before this Court. Sri Vikas Budhwar, learned counsel for the respondents made a specific statement before us that the respondents would become member of the cadre covered by Rules, 1990. In our opinion such stand on behalf of respondent nos.5 to 8 and 10 is wholly misconceived. It will mean that a separate Cadre of Teachers of the Medical College at Allahabad has been created for respondent nos.5 to 8 and 10 which Cadre would be different from the Cadre of U.P. State Medical Colleges Teachers Service Rules, 1990. This is not the intention of the provisions of the Act No. 26 of 2005 or any other statutory provisions.

28.We further find force in the submission advanced by counsel for the petitioner that in view of provisions of the U.P. State Medical Colleges Teachers Service Rules, 1990, the respondents, who were sent on deputation, could not be absorbed in the service under any provision of Rules, 1990. Undisputedly, the service conditions of the State Medical Colleges are governed by the Uttar Pradesh Medical Colleges Teachers Service Rules, 1990 framed under Article 309 of the Constitution of India. Definition clause, as contained in Rule 3 of 1990 Rules, defines members of the service, service, and substantive appointment. Part 3 of the Rules of 1990 provides for recruitment. Rule 5 provides for source of the recruitment. Under the Rules of 1990, all posts of Assistant Professor are to be filled by direct recruitment, whereas posts of Associate Professor and Professor are to be filled by direct recruitment and by promotion. Rules of 1990 do not provide for absorption/deputation as a source of recruitment to the Cadre of Teachers of the U.P. State Medical Colleges Teachers.

29.It has been settled that deputation is one of the method of recruitment by the Apex Court in the case of K. Narayanan Vs. State Of Karnataka4. It is equally settled that unless service rules specifically provide for recruitment to be made by way of deputation, it could not be resorted to for the purpose of making recruitment to the service. Paragraph 11 of the judgment of the Apex Court in the case of Arun Kumar (supra) is reproduced:-

"11. Before we proceed further, we may make it clear that, in our judgment, we have observed earlier that we do not find any infirmity in the action of the State Government in absorbing respondent no. 4 as Deputy Superintendent of Police in Punjab Police Service. However, there is a caveat. According to us, strictly on interpretation of the said 1959 Rules, there is no scope for opening of a third mode of recruitment. Deputation is not the source of recruitment under the said 1959 Rules. It is only as an exceptional case that respondent no. 4 was given the benefit of absorption in Punjab Police Service as Deputy Superintendent of Police and we do not find any fault with that exercise. It is the genuine exercise. However, when her services are regularized by the State not from 16.8.1993/17.8.1993, when she stood appointed as a deputationist, but from 9.6.1989, when she was appointed as Assistant Commandant in CRPF, then infirmity in the action of the State Government crept in. CRPF functions cannot be compared with Punjab Police Service. Apart from policing, an officer of Punjab Police Service has to do the work of investigation of crime detection, which is not within the purview of CRPF. A Deputy Superintendent of Police in CRPF need not have the knowledge of CrPC, IPC etc., which an officer in Punjab Police Service needs to possess. The Service Rules governing CRPF are different from the Service Rules which governed Punjab Police Service. Therefore, even functionally, the two cadres are different. In fact, respondent no. 4, Ms. Amrit Brar, has not undergone training as contemplated under the Punjab Police Service Rules. However, she has put in 5 years' service as Deputy Superintendent of Police in Punjab Police Service between 16.8.1993/17.8.1993 and 11.9.1998. That experience should be given due weightage. In our view, having examined the above Punjab Police Service Rules, 1959, it is clear that deputation is not the source of recruitment. Direct recruitment is the source. Promotion is the source. However, deputation is not the source for recruitment. Moreover, in the present case, we are concerned with the rights of the appellants. We are concerned with the inter se seniority in the said post of Deputy Superintendent of Police since that seniority ultimately counts for promotion to the next higher cadre. The post of Deputy Superintendent of Police is a feeder post in that sense and when the post is a feeder post, the inter se seniority has the role to play. In the circumstances, if deputation is not the source of recruitment, then even in exceptional cases of this nature, weightage cannot be given, in the absence of the rules, to the services rendered by Ms. Amrit Brar in CRPF. Rule 14 talks of relaxation. However, Rule 14 is not applicable to the rules which do not provide for recruitment through deputation. Rule 14 would have applied if the said 1959 Rules had a third source of recruitment, namely, deputation. There is no such third source of recruitment. Hence, Rule 14 has no application. Rule 14 refers to relaxation of rules. Rule 14 contemplates existence of a rule of recruitment. If there is no such rule providing for third source of recruitment, the Government cannot relax a non-existent rule. Therefore, the High Court had erred in treating deputation as a third source of recruitment. There is a difference between direct appointment as a source of recruitment and deputation/ transfer as a source of recruitment. In certain cases, cited before us, weightage has been given to the service put in by the transferee. However, in all those cases, the third source of recruitment was transfer/deputation. In the present case, there is no such rule to that extent. There is an error in the impugned judgment of the High Court. As state above, Ms. Amrit Brar has put in 5 years' service as a deputationist in Punjab Police Service between 16.8.1993/17.8.1993 and 11.9.1998. She is certainly entitled to the weightage for the services rendered by her during these 5 years. However, she is not entitled to weightage of service between 9.6.1989 and 16.8.1993/17.8.1993, as held by the High Court, for the fixation of inter se seniority."

Considering the provisions of the applicable Service Rules of 1990, referred to above, as well as the ratio of law laid down by the Apex Court, we have no doubt that respondent nos.5 to 8 and 10, who were members of P.M.S. Cadre and had been sent on deputation to the Medical College, could not have been absorbed as Associate Professors in the Cadre of Teachers of U.P. State Medical Colleges, and their absorption in the Medical Colleges as well as subsequent promotions etc. are wholly without an authority of law.

30.From the records, we further find that respondent nos.5 to 8 and 10 had been sent on deputation for a limited period, which period was extended from time to time. The tenure of a deputationist in a different Cadre than the Cadre from which he is appointed would have to be governed by the applicable provisions of Fundamental Rules as well as relevant Government Orders. It has been submitted that maximum period for which a deputationist can continue in the lending department is prescribed. Reference has been made to the provisions of Government Order No.4379/2-Ka-661-1957 dated 19.11.1959, according to which ordinarily the period of deputation is to subsist for three years, and even in exceptional circumstances, such period of deputation can be extended upto four years. We have not been shown any contrary provision, whereunder a deputationist could continue beyond the aforesaid period. The continuance of respondent nos.5 to 8 and 10, therefore, on deputation cannot continue at Moti Lal Nehru Medical College, Allahabad as the maximum period prescribed for working of the deputationist has come to an end. We may reiterate that Rules of 1990 do not admit of recruitment to be made by deputation, and therefore, the continuance of respondent nos.5 to 8 and 10 was otherwise de hors the Rule. In such view of the matter, we are of the opinion that the respondent nos.5 to 8 and 10 are not entitled to continue in the Moti Lal Nehru Medical College, Allahabad any further.

31.In view of the discussions, aforesaid, we answer the question nos.(b) to (e) by holding that no right of absorption was created in favour of respondent nos.5 to 8 and 10, on the basis of provisions of Act No.26 of 2005, which remained applicable upon Moti Lal Nehru Medical College and Swarup Rani Nehru Medical Hospital till 16.7.2008.

32.For all the aforesaid reasons, the writ petition is allowed. The orders of the State Government dated 29th January, 2009, 29.10.2009, 15.6.2009, 28th January, 2009, in respect of respondent nos.5 to 8 and 10 are hereby set aside. The respondent nos.5 to 8 and 10 are declared to have continued as Members of the P.M.S. Cadre. The State Government must revisit the matter in respect of continuance of respondent nos.5 to 8 and 10 at Medical College, Allahabad in light of the provisions of 1990 Rules as well as the provisions relating to deputation as contained in Fundamental Rule 15(b) of Financial Handbook part (ii) to (iv), as well as Government Order No.4379/2-Ka-661-1957 dated 19.11.1959, as well as any subsequent Government Order applicable.

33.So far as respondent no.9 is concerned, we find that he does not claim absorption in the University of Allahabad. He only seeks absorption in the Cadre of Medical College Teachers under the Rules of 1990 from the P.M.S. Cadre. In view of the provisions of the applicable Rules of 1990 and in light of the provisions of law, as noticed above, we are of the opinion that respondent no.9, being a Doctor from P.M.S. Cadre, cannot be absorbed in the Cadre of Medical College Teachers. The continuance of respondent no.9, as Associate Professor in the Cadre of Medical College Teachers, is thus contrary to the Rules of 1990. Therefore, the same is set-aside. The State Government may revisit the matter and pass a fresh order in respect of continuance of respondent no.9 also in the light of the observations made above.

34.Writ petition is allowed subject to the observations made.

 
Order Date :- 13.8.2015
 
Kirti/Anil
 

 
(Ashwani Kumar Mishra, J.)           (Arun Tandon, J.)