Dr.. Chandra Mohan Varma And ... vs State Of U.P. Thru' Secretary, ...
2015 Latest Caselaw 5167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Case :- WRIT - A No. - 3327 of 2006
 

 
Petitioner :- Dr.. Chandra Mohan Varma And Others
 
Respondent :- State Of U.P. Thru' Secretary, Medical Education, U.P
 
Counsel for Petitioner :- Anoop Kumar Srivastava,S.P.Gupta,Shubham Agarwal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ashwani Kumar Mishra,J.

(Per Hon. Ashwani Kumar Mishra, J.)

1. Petitioners are Professors and Associate Professors (8 in number) in G.S.V. Medical College, Kanpur, who are aggrieved by the orders of the State Government dated 7.3.2003, regularizing their adhoc appointment as Assistant Professor and Associate Professor, order dated 22.6.2005, promoting them to the post of Professor and Associate Professor, as well as order dated 30.9.2010, rejecting their representation. According to petitioners, such benefit had already been granted to them on 9.3.1999, while the college was managed by the society, formed pursuant to government order dated 2.4.1998, which had since been withdrawn. It is contended that benefits already granted by the society are protected by the de facto doctrine.

2. Facts, in brief, are that petitioners were appointed as lecturer on different dates, in the state medical colleges, initially on adhoc basis. Their services were subsequently regularized. The post of lecturer was re-designated as Assistant Professor. Thereafter, petitioner nos.1 to 6 claim to have been promoted as Associate Professor on adhoc basis and were working as such in the department concerned of the medical college, whereas petitioner nos.7 & 8 were working as Assistant Professor. Petitioners' service conditions were governed by the provisions of the U.P. State Medical Colleges Teachers' Service Rules, 1990 (hereinafter referred to as 'the Rules of 1990'), framed under proviso to Article 309 of the Constitution of India.

3. On 2.4.1998, a government order was issued by the State of Uttar Pradesh, providing for constitution of a society under the provisions of Society Registration Act, 1860, to manage the state run medical colleges including the college in question, as an autonomous body. Avowed object was to ensure delegation of administrative and financial powers at the local level. The society was to have Departmental Minister as its Chairman with Secretary of the Department as its Member. Representation of the Department of Planning, Director General Medical Health of the State and Medical Council of India was also contemplated. So far as creation of post and appointment in the college is concerned, following provisions were made in clause 6 of the Government Order:-

"6½ inksa dk l`tu iwoZ dh Hkkarh 'kklu ds vuqeksnu ls fd;k tk;sxkA ;g blfy, vko';d gS D;ksafd dkyst iw.kZr;k LokyEch ugha gS vkSj [email protected] ds fy, 'kklu ij fuHkZj gSA orZeku es tks Hkh in l`ftr gS rFkk tks Hkfo"; esa l`ftr gksaxs] og lHkh in lkslkbVh ds ekus tk;saxs fdUrq orZeku esa tks LVkQ dk;Zjr gS og 'kkldh; lsok esa cuk jgsxk vkSj lkslkbVh esa izfrfu;qfDr ij rSukr ekuk tk;sxkA bl izfr&fu;qfDr ds fy, mUgsa dksbZ vfrfjDr [email protected] ns; ugha gksxkA mudh lHkh lsok 'krsZ iwoZor jgsaxhA lkslkbVh cu tkus ds ckn tks u;s in l`ftr gksaxs mu ij HkrhZ gksus okys deZpkjh o vf/kdkjh lkslkbVh ds lsod le>s tk;saxs rFkk mudh lsok 'krsZ ogha gksaxh tks fd lkslkbVh ds ckbZykat ds vUrxZr fu/kkZfjr gSA mudh HkrhZ dh izfdz;k vgZrk o osrueku vkfn bl izdkj j[ks tk;saxs] ftlls fd og esfMdy dkmfUly vkQ bf.M;k ds ekud rFkk 'kkldh; uhfr ds vuq:i gksaA"

All existing posts as well as posts created afterwords were to be treated as posts of society, but the existing staff was to continue in government service, and was to be treated on deputation to the society. Their conditions of service, however, was to remain the same. However, persons who were to be appointed against posts to be created after formation of society, were to be treated as employees of the society, and their service conditions were to be governed as per its bye-laws.

4. In furtherance of the government order, aforesaid, Ganesh Shankar Vidyarthi Medical College and Associated Hospitals Society, Kanpur, U.P., came to be registered on 17.10.1998. Memorandum of Association and bye-laws of the society has been annexed as Annexure-14 to the writ petition. Clause 3(12) and 3(17) of the bye-laws, which are relevant for the present purposes, and have been relied upon, are reproduced:-

"3. Objects & functions:

(12)to create teaching, research, administrative, technical & ministerial posts and to make appointment there to in accordance with rules and and bye-laws of the society approved by the Board;

(17)to adopt the rules and bye-laws framed by the Government of Uttar Pradesh hereinafter called ''the State Government". Amendment to these rules and bye-laws if required may be made with the approval of the State Government."

5. Clause 33 of the bye-laws provided for terms and conditions of employees of society, which reads as under:-

"TERMS OF CONDITIONS OF EMPLOYEES OF SOCIETY

Clause 33. NOTWITHSTANDING anything to the contrary contained in these rules:-

(1) Every employee of the State Government working in the G.S.V.M. Medical College, Kanpur and Associated Hospitals immediately before creation of the Society will be required to give an option whether he would like to be an employee of the Society or continue with the State Government. Those who opt to serve the Society shall on and from a specified date be deemed to be employees of the Society. Such employees shall continue to get the same remuneration and enjoy the same rights and privileges regarding pension, leave, gratuity provident fund and other matters as they would have enjoyed, if the Society had not been constituted.

Provided that option once made shall be deemed to be final.

(2) The transfer of services of any employee of the G.S.V.M. Medical College, Kanpur from the college to the Society shall not entitle such employee to any compensation from the State Government.

(3)    Every employee of the State Government in the G.S.V.M. Medical College, Kanpur and Associated Hospitals who does not opt to serve the Society will continue to be treated as State Government employee on deputation to the Society for which no deputation allowance will be payable.
 
(4)   The service conditions of all employees of the Society will be the same as those laid down from time to time by State Government for State Government employees of the same level.
 
Provided that the age of superannuation of all Lecturers, Assistant Professors, Associate Professors, Professors and Director Principals of the Society shall be sixty years or as revised from time to time by the State Government.  
 

6. According to the petitioners, the raison detre to constitute autonomous society for managing the government allopathic colleges was the recommendation of a committee constituted by the Central Government, popularly referred to as "Tikku Committee", which gave its recommendation for improved functioning of the colleges, including suggestion for time bound promotions in the medical colleges. It is asserted that the State Government also appointed a committee under the Chairmanship of the Chief Secretary in respect of one of the six State Medical Colleges i.e. K.G. Medical College, Lucknow, which also recommended to accord time bound promotion on the post of Associate Professor after completion of four year term as Assistant Professor and to the post of Professor upon completion of six year as Associate Professor or eight years of combined service of Assistant and Associate Professor, out of which two year had to be as Associate Professor. This recommendation, according to petitioners, was given effect to in respect of the college concerned but was arbitrarily withheld in respect of other similar state medical colleges.

7. Attention of the Court has been invited to a government order dated 12.11.1998, which required amendments to be incorporated in the bye-laws of the societies. Proceedings of the governing body of the medical college dated 12.11.1998 have also been annexed to demonstrate that recommendations of Tikku Committee were decided to be enforced and it was contemplated that an option would be extended to all employees, who were on deputation, to opt for employment in the society. Those who exercised such option, their claim for promotion on the basis of seniority was to be considered. A government order dated 15.1.1999 was also issued, permitting amendment in the bye-laws, enforcing recommendations of Tikku Committee with a stipulation that additional expenses generated on such account would be borne by the society out of its own funds. A letter dated 8.3.1999 was issued by the Secretary, Medical Education in his capacity as Vice- President of the society, permitting grant of promotional benefit as per the recommendation of Tikku Committee. Petitioners opted to be in the employment of society and their adhoc continuance is said to have been regularized on 5/6.3.1999, and a decision was taken to promote them to the post of Professor and Associate Professor on 9.3.1999, vide orders issued by the society of the date.

8. It appears that in the meantime a bunch of writ petitions came to be filed, before this Court, by various associations of doctors and individuals, challenging the government order dated 2.4.1998 and the consequential registration and formation of societies. These writ petitions came to be allowed on 8.7.1999. One of the major grounds urged and accepted was that under the Rules of 1990, the posts in the service was to be filled in consultation with the Public Service Commission, so as to provide highest degree of purity and quality in selection to public employment, and such safeguards would be done away with, once the Government Order dated 2.4.1998 was enforced. Para 20 of the judgment of the Writ Court is reproduced:-

"20. The statement in this behalf is general and more ambiguous. No particular account is given as to how the Government expeditiously took steps, but the consultation frustrated the schedule of recruitment.

This aspect poses numerous questions. One amongst them is it desirable in public interest to withdraw numerous important post of Public Employment from the purview of the Public Service Commission? After hearing the learned Advocate General at length, we could not get convincing answer in alternative. Function of the Public Service Commission has a constitutional sanctity. The Commission functions for a laudable object to achieve as far as possible highest degree of purity and quality in induction in public employment. The Government in the public interest cannot have a circuitous design to mariginalise the function of the Commission."

9. The State of U.P. felt aggrieved by the judgment dated 8.7.1999, and consequently, approached the Apex Court by filing Special Leave to Appeal No.11840-11843 of 1999. The petitions were entertained and following orders were passed on 16.10.2000:-

"Leave granted.

In the meanwhile, there shall be stay of the impugned judgment, but it is clarified that so far as the existing teachers and the other staff of the colleges is concerned, their status as government servants shall not be altered."

10. In view of the interim protection granted by the Apex Court the society proceeded to convene its second meeting on 9.2.2001. It was noticed that the amendment incorporating recommendation of Tikku Committee as per government order dated 15.1.1999 had not yet been incorporated in the bye-laws and therefore a decision was taken to approve amendment in the bye-laws and have it incorporated. Since benefit of promotion were already allowed, therefore, the matter was referred for legal opinion from the Law Department and the Chairman was authorized to take a decision in this regard. This resolution of the governing body dated 9.2.2001 was approved vide government order dated 28.2.2001. The government order also provided that benefit of recommendations made by Tikku Committee be extended w.e.f. 9.2.2001. The government order dated 28.2.2001 is reproduced:-

"mijksDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd esfMdy dkyst lkslk;Vh ds fpfdRlk f'k{kdksa dks fVDdw desVh dh laLrqfr;ksa dk ykHk fn;s tkus ds lEcU/k esa esfMdy dkyst ,oa lEc) fpfdRlky; lksl;Vh ds ckbZykt dh /kkjk 5 ¼4½ ¼1½ ds vUrxZr okbZykt esa la'kks/ku ,oa ifjorZu djrs gq, xofuZax ckMh dks voxr djkdj ykxw djus gsrq 'kklukns'k la[;k&65 lsd&[email protected]&th&[email protected] fnukad 15&1&99 fuxZr fd;k x;k FkkA rn~uqlkj xofuZx ckMh dh cSBd fnukad 09&2&2001 esa ckbZykt esa la'kks/ku dk izLrko vuqeksfnr dj fn;k x;k gSA

bl lEcU/k esa 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd fVDdw lfefr dh laLrqfr;ksa dk ;g YkkHk fnukad 09&2&2001 ls fn;k tk;sxkA vkils vuqjks/k gS fd d`i;k rn~uqlklj vxzsrj vko';d dk;Zokgh djus dh d"V djsa vkSj d`r dk;Zokgh ls 'kklu dks voxr djkus dk d"V djsaA"

11. The government order dated 28.2.2001 came to be challenged by Saroji Naidu Medical Collage Teachers Association and another versus State of U.P. and others in Writ Petition No.10309 of 2001. It was contended that the government order dated 28.2.2001 is discriminatory inasmuch as those teachers who continue to remain in the employment of State Government are discriminated qua those who have opted for the employment of society, inasmuch as the teachers of society are allowed to have march over them in the matter of promotion. Finding prima facie substance in the submission, this Court proceeded to stay the effect and operation of the government order dated 28.2.2001. The State Government also proceeded to issue following subsequent government order dated 10.12.2001:-

"mi;qZDr fo"k;d egkfuns'kd fpfdRlk f'k{kk ,oa izf'k{k.k mRrj izns'k y[kuÅ ds i= la[;k&Mhth,[email protected]@ 2001 fnukad 3&10&01 ds lanHkZ esa izkIr izLrko ij lE;d fopkjksijkUr 'kklu n~okjk ;g fu.kZ; fy;k x;k gS fd esfMdy dkyst lkslk;Vh dk fodYi nsus okys fpfdRlk f'k{kdksa dks fVDdw lfefr dh laLrqfr;ksa dk ykHk nsus fo"k;d 'kklukns'k la[;k&[email protected]&1&01&th&[email protected] fnukad 28&2&2001 fuxZr fd;k x;k Fkk] dks ek0 mPp U;k;ky; bykgkckn ds vkns'k fnukad 21&3&01 ,oa ek0 mPpre U;k;ky; ds vkns'k fnukad 13&8&01 dk leknj djrs gq, iwoZ esa fuxZr 'kklukns'k fnukad 28&2&01 dks vfxze vkns'kksa rd LFkfxr fd;k tkrk gSA"

It is to be noticed that under the orders of the Apex Court 16.10.2000 the status of existing teachers and other staff of the college were to continue as government servants only, and any change in it permitting promotion etc. would have violated the Apex Court orders.

12. The interim order dated 16.10.2000 of the Apex Court was further clarified by the Apex Court on 13.9.2001, which reads as under:-

"Vide order dated 2nd April, 1998, the State Government converted Government Medical Colleges into Societies. That G.O. Was put in issue in a writ petition in the High court. The High court on 8th July, 1999 quashed the G.O. The order of the High court was challenged through special leave petitions in this Court. On 16th October, 2000, while granting leave and staying the operation of the impugned order this Court clarified, "that so far as the existing teachers and the other staff of the colleges is concerned, their status as government servants shall not be altered". Through these applications clarification of that order is sought.

After hearing learned counsel for the parties, we clarify that the order dated 16th October, 2000 does not prevent teachers and other staff (who had not opted for joining the Society) to accept employment of the Society, so as to be treated at par with other employees of the Society but in the event they do not opt to do so, their status as government servants, which they were enjoying prior to 2nd April, 1998, shall not be affected. We also clarify that should any of the teachers/members of the staff, who have not so far joined the Society, wish to join the Society, they shall be entitled to do so notwithstanding time limit, if any, prescribed by the Government or through any order of the High Court.

In case any orders are made by the Society regarding service conditions of any of the members of the Society, that order shall be without prejudice to the rights of the parties, including non-members and members or employees of the Society and shall be subject to the final outcome of the appeals

I.A. Nos.13-16

The impleadment applications are disposed of with the direction that the applicants shall be permitted to intervene during the hearing of the appeals.

Keeping in view the nature of the controversy, it is directed that the appeals be heard expeditiously."

13. The State Government during pendency of Special Leave to Appeal before Hon'ble Supreme Court issued a subsequent government order dated 8.11.2002, cancelling the government order dated 2.4.1998, on the ground that the object of establishing society, as an autonomous body, capable of generating its own resources was not met, and consequently, the position as existing prior to 2.4.1998, with regard to the medical colleges in question, was restored. This government order was made effective from the date of its issuance. The Government Order dated 8.11.2002 is reproduced:-

"mi;ZqDr fo"k; ij eq>s vkils ;g dgus dk funsZ'k gqvk gS fd fpfdRlk f'k{kk vuqHkkx&1 ds 'kklukns'k la[;k&1578 lsd&[email protected]&[email protected]] fnukad 2 vizSy] 1998 }kjk izns'k ds N% jktdh; ,ykiSfFkd esfMdy dkystksa ds Lo:i dks lfefr ds :i esa ifjofrZr fd;s tkus dk fu.kZ; fy;k x;k FkkA mDr fu.kZ; ds fo:) ek0 mPp U;k;ky;] bykgkckn esa nk;j fjV ;kfpdk la[;k&[email protected]] m0iz0 esfMdy dkyst] VhplZ ,lksfl,'ku] vkxjk o vU; cuke m0iz0 jkT; o vU; esa ikfjr vkns'k fnukad 08&7&1999 ds }kjk mijksDr mfYyf[kr 'kklukns'k fnukad 02&4&1998 dks fujLr dj fn;k x;k FkkA ek0 mPp U;k;ky; ds vkns'k fnukad 08&7&1999 ds fo:) jkT; ljdkj }kjk ek0 mPpre U;k;ky; esa nkf[ky dh x;h fo'ks"k vuqKk ;kfpdk la[;k&11840&[email protected]] m0iz0 jkT; o vU; cuke vkxjk esfMdy dkyst VhplZ ,lksfl,'ku esa ikfjr vUrfjd vkns'k fnukad 16&10&2000 ds vuqikyu esa mDr esfMdy dkyst lkslk;Vht ds Lo:i esa lapkfyr gks jgs FksA

2- ,yksiSfFkd esfMdy dkystksa dks lfefr ds Lo:i esa ifjofrZr djus dk eq[; mn~ns'; ;g Fkk fd bUgsa vkfFkZd n`f"V ls lqn`< ,oa LokyEch cuk fn;k tk; rFkk o Lor% vius lalk/kuksa dk fodkl djds bl fLFkfr esa vk tk; fd mudh jkT; ljdkj ij fuHkZjrk de gks tk; fdUrq foxr o"kksZ esa ;g ik;k fd jkT; ljdkj ij budh fuHkZjrk okLrfod :i ls de ugh agq;hA

3- bu dkystksa esa f'k{kdksa ds fjDr inksa dk foxr o"kksZa esa Hkjs u tkus rFkk esfMdy dkÅfUly vkWQ bf.M;k }kjk LVkQ o bUQzLVªpj dk ekud iw.kZ u djus ds dkj.k oh0ckj0Mh0 esfMdy dkyst] xksj[kiqj esa ,e0ch0ch0,l0 ikB~;dze fMxzh dh ekU;rk okil ysus ds fy, esfMdy dkÅfUly vkQ bf.M;k }kjk Hkkjr ljdkj dks laLrqfr Hksth x;h gSA Hkfo"; esa vU; esfMdy dkystksa esa Hkh ,slh fLFkfr mRiUu gksuk lEHkkfor gSA

4- esfMdy dkystksa esa lfefr O;oLFkk ykxw gksus rFkk iz'[email protected]; Lok;Rrrk iznku djus ds ckn Hkh bu dkystksa ds Lrj esa visf{kr lq/kkj u gksus ds dkj.k vkids i= la[;k&,e0bZ0&[email protected]@125] fnukad 27 tqykbZ 2002 esa bafxr rF;ksa dks n`f"Vxr j[krs gq, 'kklu }kjk lE;d~ fopkjksijkUr izns'k fgr ,oa tufgr esa N% ,yksiSfFkd esfMdy dkyst lkslkbVht ds Lo:i dks fnukad 2 vizSy] 1998 ds iwoZ fo|eku fLFkfr ds vuqlkj jktdh; ,yksiSfFkd esfMdy dkyst ds :i esa ifjofrZr fd;s tkus dk fu.kZ; fy;k x;k gSA rn~uqlkj mijksDr mfYyf[kr 'kklukns'k fnukad 2 viSzy] 1998 fujLr le>k tk;sxkA

5- mijksDr vkns'k fuxZr gksus dh frfFk ls izHkkoh ekus tk;saxsA"

Applications accordingly were moved in the pending civil appeals. The civil appeals came to be withdrawn vide order of the Apex Court dated 9.12.2002, which reads as under:-

"These applications filed by the State of Uttar Pradesh and another, the appellants before us, seek to withdraw the appeals. What was adjudged by the impugned order of the High court was validity and legality of the G.O. dated 2nd April, 1998. The State Government has withdrawn the impugned G.O. Therefore, the question of adjudicating upon the legality or otherwise of the G.O. dated 2nd April, 1998 is rendered academic merely. The appeals are dismissed as withdrawn but we make it clear that we are not expressing any opinion on the rights/grievances of the intervenors nor as to validity or otherwise of any events which have taken place between 2nd April, 1998 and 8th November, 2002."

14. After the special leave petitions were dismissed as withdrawn, the State Government proceeded to issue a government order dated 7.3.2003, regularizing the adhoc promotions granted to petitioner nos.1 to 6 on the post of Associate Professor, in accordance with the Rules of 1990, which governed the petitioners' service conditions. This is the first order under challenge in this writ petition.

15. In the existing service Rules of 1990, promotion was contemplated as per rule 15, which provided for procedure for recruitment by promotion on the basis of seniority subject to rejection of unfit, in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, as amended from time to time. There was no provision of personal promotion. The Rules of 1990 were amended by 'The Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005' to include provision for personal promotion. Rule 15 as it stood originally and the amended provision as per Second Amendment Rules reads as under: -

"9. Substitution of Rule 15.- In the said rules for existing rule 15 set out in column 1 below, the rule as set out in column 2 shall be substituted, namely:-

COLUMN 1

Existing rule

COLUMN 2

Rule as hereby substituted

15. Procedure for recruitment by promotion- Recruitment by promotion shall be made on the basis of seniority subject to the rejection of unfit, in accordance with the Uttar Pradesh Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 1970, as amended from time to time.

15. Proceedings for recruitment by personal promotion-(1) The following procedure shall be followed for personal promotion of a teacher to the higher posts belonging to category 'A'--

(i) A substantively appointed Lecturer shall, after completing three years satisfactory service, as such, be given personal promotion with his own post to the post of Assistant Professor.

(ii) A Teacher who is substantively appointed on the posts of Lecturer or Assistant Professor shall, after completing four years satisfactory service as Assistant Professor and a teacher who possesses a recognized D.M./M.Ch. qualification in the concern speciality after completing two years satisfactory service as Assistant Professor, be given personal promotion with his own post to the post of Associate Professor.

(iii) An Associate Professor who is substantively appointed on the post of Lecturer or on the post of Assistant Professor or Associate Professor shall, after completing six years satisfactory service as Associate Professor or eight years satisfactory service as Assistant Professor and Associate Professor including at least four years service as Associate Professor shall be given personal promotion with his own post to the post of Professor:

Provided that notwithstanding the fact that a teacher has completed the requisite length of service prescribed for personal promotion to the next higher post before the date of the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005, he shall not be given personal promotion to the next higher post from such earlier date which falls before such commencement.

(2) For the evaluation of satisfactory service a Selection Committee shall be constituted as follows:

(a) Principal Secretary/            Chairman  Secretary to the Government in the Medical Education Department. 
 
(b) Director General or               Member                   Additional Director, Medical                          Education and Training, as the                                         case may be.
 
(c) Senior most Principal of a     Member   Government Medical College                                               to be nominated by the Chairman                                       of the Committee.
 
(d) Director IMS, BHU                Member Varanasi/Director SGPGI                              Lucknow/Senior most                                              Professor of the concerned                                        speciality of AIIMS/BHU/AMU/KGMU.
 

 
NOTE- If there is no officer belonging to Scheduled Castes or Scheduled Tribes and an officer belonging to Other Backward Classes in the Selection Committee one officer of each category shall be nominated by the Chairman of the Committee as additional member. 
 
(3) An Associate Professor who is getting non functional selection grade of Professor on the date of the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005 shall be designated as Professor under the aforesaid conditions. 
 

 

16. Benefit of personal promotion in terms of amended provisions were made admissible to the members of service, including the petitioners, from the date of commencement of the Rules of 2005, and not from any earlier date of eligibility. The apparent consequence was that all those teachers who were members of the service and were governed by the rules of 1990 were uniformly granted benefit of time bound personal promotion from the date of enforcement of the amended rules. In terms of the second amendment rules of 2005, claim of all the petitioners got considered as per the amended rules, and personal promotion to the post of Professor was accorded to petitioner nos.1 to 6 vide order dated 22.6.2005. Petitioner nos.7 and 8 were granted personal promotion to the post of Associate Professor with effect from the same date. These orders are the second order, under challenge, in the writ petition.

17. So far as petitioner nos.1 and 2 are concerned, they claim to have joined pursuant to the orders passed in their favour as Professor in the erstwhile society on 9.3.1999. The pay scale of Professor was fixed w.e.f. 9.2.2001, in terms of government order dated 28.2.2001, vide order dated 20.10.2001, subject to the proceedings pending before the Supreme Court. It is, however, admitted to the petitioners that salary of the post of Professor was not paid to them w.e.f. 10.3.1999 to 22.6.2005, and it was released only after promotion was granted to them as per the service rules of 1990 w.e.f. 22.6.2005 and not prior to it.

18. With regard to petitioner nos.3 to 6, it is stated that promotional pay scale of Professor was fixed on 20.10.2001, w.e.f. 9.2.2001, in terms of government order dated 28.2.2001 and they received salary from 9.2.2001 to 30.6.2002, whereafter such benefit of promotional pay scale was denied till they got promoted as per rules of 1990 on 22.6.2005 and are getting promotional pay scale since then.

19. Petitioner no.7 claims to have been promoted by the society to the post of Associate Professor in the department of Psychiatry vide order dated 9.3.1999. Promotional pay scale was fixed vide order dated 20.10.2001 w.e.f. 9.2.2001 and such salary was paid till 30th June, 2002, whereafter it was paid only pursuant to his promotion under the rules of 1990 w.e.f. 22.6.2005.

20. Petitioner no.8 was appointed as an Assistant Professor under the rules of 1990, and was continuing as such on the date of formation of society. He was promoted to the post of Associate Professor in the department of Social and Preventive Medicine vide order dated 9.3.1999, and he claims to have taken charge on the very next day i.e. 10.3.1999. However, pay scale of Associate Professor was never fixed or allowed, till he got promoted under the rules of 1990 as Associate Professor and such benefits have been extended from 22.6.2005.

21. The State Government amended the rules of 1990 vide 'The Uttar Pradesh State Medical Colleges Teachers' Service (Third Amendment) Rules, 2006, published on 13.11.2006 in U.P. Gazette. Rule 15(1), as amended vide Second Amendment of 2005 stood substituted as under:-

"2. Amendment of rule 15- In the Uttar Pradesh State Medical College Teachers' Service Rules, 1990, in rule 15 for existing sub-rule (1) set out in Column 1 below, the sub-rule as set out in Column 2 shall be substituted, namely:-

COLUMN 1

Existing sub-rules

COLUMN 2

Sub-rule as hereby substituted

(1) The following procedure shall be followed for personal promotion of a teacher to the higher posts belonging to category 'A'-

(i) A substantively appointed Lecturer shall, after completing three years satisfactory service, as such, be given personal promotion with his own post to the post of Assistant Professor.

(ii) A Teacher who is substantively appointed on the posts of Lecturer or Assistant Professor shall, after completing four years satisfactory service as Assistant Professor and a teacher who possesses a recognised D.M./M. Ch. qualification in the concerned speciality after completing two years satisfactory service as Assistant Professor, be given personal promotion with his own post to the post of Associate Professor.

(iii) An Associate Professor who is substantively appointed on the post of Lecturer or on the post of Assistant Professor or Associate Professor shall, after completing six years satisfactory service as Associate Processor or eight years satisfactory service as Assistant Professor and Associate Professor including at least four years service as Associate Professor shall be given personal promotion with his own post to the post of Professor:

Provided that notwithstanding the fact that a teacher has completed the requisite length of service prescribed for personal promotion to the next higher post before the date of the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005, he shall not be given personal promotion to the next higher post from such earlier date which fails before such commencement.

(1) The following procedure shall be followed for personal promotion of a teacher to the higher posts belonging to category 'A'-

(i) A substantively appointed Lecturer shall, after completing three years satisfactory service, as such, be given personal promotion with his own post to the post of Assistant Professor.

(ii) A Teacher who is substantively appointed on the posts of Lecturer or Assistant Professor shall, after completing four years satisfactory service as Assistant Professor and a teacher who possesses a recognized D.M./M. Ch. qualification in the concerned speciality after completing two years satisfactory service as Assistant Professor, be given personal promotion with his own post to the post of Associate Professor.

(iii) An Associate Professor who is substantively appointed on the post of Lecturer or on the post of Assistant Professor or Associate Professor shall, after completing six years satisfactory service as Associate Professor or eight years satisfactory service as Assistant Professor and Associate Professor including at least four years service as Associate Professor shall be given personal promotion with his own post to the post of professor:

Provided that notwithstanding the fact that a teacher has completed the requisite length of service prescribed for personal promotion to the next higher post before the date of the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005, he shall not be given personal promotion on the next higher post from such earlier dated which fails before such commencement:

Provided further that if a teacher has worked on the post of Assistant Professor or Associate Professor under the society system in U.P. Government (Allopathic) Medical Colleges, as existed on and from April 2, 1998 till November 8, 2002 by virtue of his option, the services so rendered by him shall be taken into account for the purpose of computing the qualifying service prescribed for personal promotion to the post of Associate Professor or Professor, as the case may be, but such personal promotion shall, in no case, be given with retrospective effect:

Provided also that if a junior teacher becomes eligible for personal promotion to the post of Associate Professor or Professor, as the case may be, on the basis of the aforesaid proviso, a teacher senior to him but who has not worked under the society system in U.P. Government (Allopathic) Medical Colleges shall also be eligible for personal promotion to the post of Associate Professor or Professor, as the case may be, notwithstanding the fact that he has not put in the requisite length of service prescribed for such personal promotion.

22. While this writ petition remained pending, an Application No.255716 of 2010 came to be filed by the petitioners, which got disposed of on 24.9.2010, vide following orders:-

"Civil Misc. Application No. 255716 of 2010.

Heard Sri S.P. Gupta, learned Senior Advocate, assisted by Sri Anoop Kumar Srivastava for the petitioner and Sri C.S. Singh, learned Standing Counsel for the respondents.

This is an application filed by the petitioner praying for a direction that petitioners may also be given the same benefits in letter and spirit as has been given to Dr. A.K. Rathi in pursuance of the Government order dated 26th October, 2005 in the matter of selection and appointment of the Director of the Institute.

The petitioners No.1 and 2, who are working in the L.P.S. Institute of Cardiology, which is a department of G.S.V.M. College, Kanpur, have filed the writ petitioner along with other petitioners praying for quashing the Government orders dated 7th March, 2003 and 22nd June, 2005 insofar as they do not grant the petitioners all rights relating to their regularisation and promotions during the period of functioning of the society.

It has been submitted by Sri Gupta that this application has been filed due to the reason that Professor J.L. Sahani is going to retire on 30th September, 2010 and after his retirement there shall be vacancy on the post of Director of the Institute, which is to be filled up on the basis of seniority. Sri Gupta submits that in the writ petition the petitioners have claimed all benefits on the basis of their working in the society, which was constituted by virtue of the Government order dated 2nd April, 1998 (Annexure-20 to the writ petition). The petitioners have also placed reliance on the Government order dated 26th October, 2005 (Annexure-61 to the writ petition) which was issued by the State Government in the case of Dr. Arvind Kumar Rathi. He prays that petitioners be also similarly treated.

Sri Chandra Shekhar Singh, learned Standing Counsel, has submitted that the prayer in the application to give entire benefits to the petitioners as given to Dr. Arvind Kumar Rathi is basically the principal relief in the writ petition. He, however, submits that before making appointment on the post of Director of the Institute on substantive or officiating basis, the claim of all eligible persons is to be considered and it is open for the petitioners to submit a written representation taking all such pleas as permissible under law including the claim on the basis of the Government order dated 26th October, 2005, which shall be considered by the State Government before making any appointment on the post of Director of the Institute on substantive or officiating basis.

In view of the stand taken by the learned Standing Counsel, ends of justice be served in giving liberty to the petitioners to make a written representation raising all their claim including the claim on the basis of the Government order dated 26th October, 2005 and other relevant Government orders with regard to the post in question before the Principal Secretary, Medical Education, Government of U.P., Lucknow. The petitioners submit that the said representation shall be submitted within three days from today. The representation so submitted by the petitioners may be considered before making any appointment on the post Director of the Institute on substantive or officiating basis.

The application is disposed of with the above observations.

Let a certified copy of this order be furnished to the learned counsel for the petitioners today on payment of usual charges."

23. Petitioners appear to have submitted a representation, as permitted vide order dated 24.9.2010, which came to be rejected on 30th September, 2010. This order has been challenged by way of amendment in the writ petition. Petitioners have also sought a direction to extend benefit allowed to Dr. A.K. Rathi vide government order dated 26.10.2005.

24. Sri S.P. Gupta, Learned Senior Counsel, assisted by Sri Anoop Kumar Srivastava, submits that in the facts of the present case, petitioners' entire service rendered during the period of administration and management of the society, including the orders of promotion, should be credited to their service record, and cannot be wiped out on account of quashing of notification dated 2.4.1998 or its withdrawal vide notification dated 8.11.2002. The submission, aforesaid, is founded on the de facto doctrine. Reliance has been placed upon the decision of the Apex Court in Gokaraju Rangaraju Vs. State of Andhra Pradesh [1981 (3) SCC 132], Dr. A.R. Sarcar Vs. State of U.P. and others [1993 Suppl. (2) SCC 734], and a Division Bench judgment of this Court in U.S. Sinha (Dr.) Vs. State of U.P. and others [2008 (1) UPLBEC 643]. It is also contended that petitioners are entitled to the relief claimed in view of the order passed in review petition No. 32725 of 2003 in Writ Petition No. 39165 of 1999 (Dr. Arvind Kumar Rathi Vs. State of U.P.).

25. In addition, learned Senior Counsel submits that society was an extended arm of the Government, and consequently, the actions undertaken by it viz. regularization and promotion of teachers cannot be withdrawn, as it would render the State action wholly arbitrary. Reliance has been placed upon the judgments of Apex Court in Ramana Dayaram Shetty Vs. I.A.A.I. [1979 (3) SCC 489], Sukhdev Singh Vs. Bhagatram Sardar Singh Raghuvanshi [1975 (1) SCC 421] and Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others [2002 (5) SCC 111].

26. The prayer sought in the writ petition has been opposed by learned Standing Counsel on the ground that service conditions of the petitioners are governed by the statutory rules, and any service benefit could be extended only in accordance with the Rules. It is submitted that petitioners have been promoted in accordance with the rules of 1990, after the scheme for personal promotion was introduced. It is also contended that prior to the second amendment in the rules of 1990, no right in favour of the petitioners got crystallized, in accordance with the rules. Submission is that no right to the promotional post got crystallized in favour of the petitioners, as the benefit extended vide government order dated 28.2.2001 had been suspended, pursuant to the interim order passed by this Court, and the position continued as such till the government order dated 2.4.1998 was set aside by the subsequent government order dated 8.11.2002. Learned Standing Counsel submits that grant of benefit to the petitioners, as claimed, would result in discrimination being caused to those who had not opted for employment in society, inasmuch as for such teachers the benefit of promotion would be available only after rules were amended in 2005, clearly allowing a march for the petitioners and such inequality is not liable to protection under the de facto doctrine.

27. Before we proceed to examine the equitable doctrine of de facto, founded on good sense, sound policy and practical expedience, salient features of the present case needs to be noticed, first. It is undisputed that all the petitioners were appointed to the Uttar Pradesh State Medical Colleges Teachers' Service, a cadre created under rule 4 of the Rules of 1990. The procedure for direct recruitment and promotion to the service has been clearly laid in the rules. We may record that there is no issue on the grant of benefits admissible under the Rules of 1990. The dispute raised is in respect of petitioners' working in the society as well as alleged promotional benefits granted by it.

28. So far as the period spent by the petitioners, in the employment of society, pursuant to option exercised by them is concerned, the same does not pose any difficulty. The Rules of 1990 have since been amended vide The Uttar Pradesh State Medical Colleges Teachers' Service (Third Amendment) Rules, 2006, adding following proviso to rule 15(1) of 1990 Rules:-

"Provided further that if a teacher has worked on the post of Assistant Professor or Associate Professor under the society system in U.P. Government (Allopathic) Medical Colleges, as existed on and from April 2, 1998 till November 8, 2002 by virtue of his option, the services so rendered by him shall be taken into account for the purpose of computing the qualifying service prescribed for personal promotion to the post of Associate Professor or Professor, as the case may be, but such personal promotion shall, in no case, be given with retrospective effect:"

29. The services rendered by the petitioners to the society, therefore, is clearly protected under the Rules of 1990.

30. It is only the grant of alleged promotion by the society, and the status of such conferment, after discontinuance of the society vide government order dated 8.11.2002, which requires consideration.

31. Petitioners admittedly were members of service constituted under the Rules of 1990. Members of service formed a class in themselves, and were to be dealt with, uniformly, by the State.

32. The government order dated 2.4.1998 provided that the existing staff working in the medical colleges, which were to be governed by the autonomous society created under it, would be treated as government employees on deputation to the society, and their service conditions would continue to remain the same. The bye-laws of the society, which have not been shown to be statutory in nature, conferred a right on the employee to opt for the employment of society. Even if an option was to be exercised by an employee of the State, by virtue of Clause 33 (4) of the bye-laws, the service conditions of such employee was to remain the same, as those laid down from time to time by the State Government for State Government employees of the same level. Clause 33(4) has already been extracted above. It is, therefore, clear that even after exercise of option by the petitioners to be taken in the employment of society, the service conditions of petitioners continued to be the same, as was meant for the State Government employees of the same level. The rules, which governed the employees of State Government for the level are the rules of 1990. Uptill this stage, the benefits available to the employees of society, qua the State employees, remained uniform.

33. The bye-laws of the society were sought to be amended, incorporating the recommendations of Tikku Committee, providing for a fixed time frame for promotion, vide government order dated 15.1.1999. The government order clearly contemplated that no additional financial burden was to be borne by the State on such count. The petitioners though claim their regularization and promotion by the society on 9.3.1999, but it needs to be noticed that on the relevant date, no such provision entitling promotion, in terms of Tikku Committee, actually existed in the bye-laws. The governing body of the society approved such amendment in the bye-laws only on 9.2.2001, and not prior to it. It is, therefore, clear that on 9.3.1999 there existed no provision in the bye-laws providing for time bound promotion and the promotion granted by the society was clearly dehorse rule 15 of the Rules of 1990, which was applicable. Since the society was dependent upon the State for its financial resources, as such, it was only with the issuance of government order dated 28.2.2001 that such promotional benefit was made effective. However, the government order dated 28.2.2001 came to be stayed by this Court in Writ Petition No.10309 of 2001 on 21.3.2001. The State Government also issued a consequential government order on 10.12.2001. This position continued till the government order dated 8.11.2002 intervened, discontinuing the society system.

34. Following two aspects, therefore, arise for consideration of the Court, at this stage:-

(a) Whether, in the facts of the present case, a definite right to the promotional post had crystallized in favour of petitioners on 9.3.1999?

(b) Whether, such right of promotion, if recognized, would cause inequality for other members of service, so as to violate Articles 14 and 16 of the Constitution of India?

35. Being a Constitutional Court, primacy has to be accorded to the second question, first. Indisputedly, teachers working in the society and those in the government medical colleges were inducted into the service of Medical College Teachers by undergoing same process of recruitment, possessed same qualification and performed same work. The bye-laws of the society also provided for parity with the similar employees of the State Government, by virtue of Clause 33(4). In the rules of 1990, there existed no provision of personal promotion/time bound promotions. In case, a policy of personal promotion providing for time bound promotions is contemplated, for the teachers of the society, without any corresponding provision introduced for the teachers of State Medical Colleges, then an inequality is bound to arise and different treatment would be meted out to similarly placed teachers, violating Articles 14 and 16 of the Constitution of India. Mere exercise of option to be taken in the employment of society by the petitioners would not have the effect of creating a class for themselves, as there exists no intelligible differentia nor any object is sought to be achieved. It has been settled by the Hon'ble Supreme Court in the case of B. Amurtha Lakshmi vs. State of A.P. And others: (2013) 16 SCC 440 that all those who fall in the zone of consideration constitute a class in themselves and cannot be discriminated. Para 18 of the judgment is reproduced:-

"18. We have got to accept that, if the rules for selection contain a requirement, the same has to be applied uniformly and strictly, and none from the eligible group can be eliminated from being considered on any criteria, other than those which are provided in the rules. If there is a criteria laid down for selection, the Administration has to confine to the same, and it cannot impose an additional criterion over and above whatever has been laid down. If that is done, it will no longer remain an exercise of discretion, but will result into discrimination. It will mean treating similarly situated employees dissimilarly, and denying equal opportunity to some of them in the matter of public employment on the basis of a criterion which is not laid down, resulting into violation of Articles 14 and Article 16(1) of the Constitution of India. If the rules were to provide that in the event of large number of persons coming into the zone of consideration, the names of the senior most alone will be forwarded, then it would have been a different situation. In the absence any such restrictive rule, as in the present case, the decision of the respondents cannot be justified."

36. It is for this reason that in a challenge made to the government order dated 28.2.2001, permitting time bound promotion only to the teachers of the society, this Court stayed its operation. The State Government also took note of the orders passed by this Court on 21.3.2001 in Writ Petition No.10309 of 2001, and the order of Apex Court dated 13.8.2001 to suspend its operation. The State, therefore, had not approved preferential benefits to the employees of the society, which we find to be correct.

37. We further find no justifiable grounds to allow preferential treatment being extended to teachers of society only. We do find substance in the contention advanced by Sri S.P. Gupta, Senior Advocate, that the society formed pursuant to government order dated 2.4.1998 was an extended arm of the State since deep and pervasive control over its affairs was retained by the State. The teachers of society and those of government medical colleges were identically placed and were performing identical work, and therefore, it was not otherwise open for State to allow preferential treatment to the employees of society over the teachers of government medical colleges, particularly when both entered the same service with same recruitment process and qualification and performing same work.

38. The apprehension of teachers of government medical colleges that permitting time bound promotion to the teachers of society, vide government order dated 28.2.2001, would violate Article 14 & 16 of the Constitution of India clearly had substance, and was rightly not allowed to be given effect to.

39. Reverting to the first aspect, it is to be noticed that petitioners assert that they have already been promoted on 9.3.1999. Such promotion is sought to be justified on the ground that petitioners had become the employee of society, having exercised such rights under the bye-laws. It is to be observed that on the relevant date i.e. 9.3.1999, the bye-laws had not been amended to include recommendations of Tikku Committee report. In fact, there existed no provision in the bye-laws permitting such promotion on 9.3.1999. The government order dated 15.1.1999 and the consequential letter dated 8.3.1999 would not have the effect of amending the bye-laws, on its own, particularly as the Government had refused to bear any additional financial burden. The subsequent decision to bear such burden vide government order dated 28.2.2001 had already failed in the circumstances, noticed above.

40. The petitioners have otherwise admitted that benefit of alleged promotion in the form of higher pay scale was not allowed to them, till the petitioners got promoted under the rules of 1990. The payment of promotional pay scale to few of the petitioners for the period 9.2.2001 to 30.6.2002 was under the government order dated 28.2.2001, which apparently was in teeth of the interim order dated 21.3.1999 passed in Writ Petition No.10309 of 2001. In the absence of grant of promotional pay scale, as well as any enabling clause in the bye-laws on the date of alleged promotion, the petitioners cannot be permitted to say that a right of promotion had in fact crystallized in them.

41. The doctrine of de facto finds its recognition in our judicial system in the judgment, delivered by Calcutta High Court, in Pulin Behari Vs. King-Emperor; 13 Cri.L.J. 609. The evolution of doctrine has been traced and recognized by the Apex Court in Gokaraju (supra). It would be apposite to reproduce Paras 4 and 5 of the judgment:-

"4. We are unable to agree with the submissions of the learned counsel for the appellants. The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari v. King Emperor). As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine" (vide Immedisetti Ramkriashnaiah Sons v. State of Andhra Pradesh and Anr.

5. In Pulin Behari v. King Emperor, (Supra) Sir Ashutosh Mukerjee J. noticed that in England the de facto doctrine was recognised from the earliest times. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431. Sir Ashutosh Mookerjee noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges."

42. The doctrine was applied again in the case of Dr. A.R. Sircar (supra), upon which much reliance has been placed by the petitioners. In this case, benefits already granted prior to the enforcement of the rules of 1990, under the Gandhi Memorial and Associated Hospitals (Taking Over) Ordinance, 1981, which got declared ultra virus, subsequently was protected by applying de facto doctrine. This decision, in our view, is clearly distinguishable, inasmuch as the right protected under the doctrine had already crystallized and the question of it offending Articles 14 and 16 of the Constitution of India had not arisen.

43. So far as the judgment in U.S. Sinha (supra) is concerned, the principle laid down by the Division Bench was that the experience gained on account of working of the respondent on the post of Professor could be protected by the doctrine of de facto. Without expressing any opinion upon the judgment relied upon, we find that the decision has no applicability upon the facts of the present case. So far as the experience of working in the society is concerned, in the facts of the present case, we have already noticed the statutory provision introduced vide Third Amendment to the rules of 1990, which clearly applies and protects the experience secured for the purposes of promotion. The amendment made in the rules were not noticed, however, the question of applicability of the doctrine, where it results in inequality, as is the case in hand, had not been examined.

44. The de facto doctrine has been evolved out of necessity, in public interest, to advance the cause of equity and justice and to eliminate state of uncertainty. It is observed by the Apex Court in Gokaraju (supra) that doctrine is founded on good sense, sound policy and practical experience. A consequence which contravenes Article 14 and 16 of the Constitution of India cannot be said to be equitable, based upon good sense and sound policy and would not be protected by the doctrine of the de facto.

45. Since we are of the view that right of promotion had not crystallized in favour of the petitioners, and had otherwise remained inchoate, the same is not liable to be protected, particularly as it offends Article 14 & 16 of the Constitution of India.

46. So far as the claim of petitioners with regard to parity with Dr. Arvind Kumar Rathi and rejection of petitioners' representation vide order dated 30.9.2010 is concerned, it is to be noticed that Dr. Arvind Kumar Rathi had filed writ petition no.39615 of 1999 and the same was allowed on 5.4.2002 while the society continued to manage the medical college. Following observations were made in the judgment dated 5.4.2002:-

"According to rule 5 of the U.P. State Medical Colleges Teachers Service Rules, 1990 framed in exercise of power under the proviso to Article 309 of the Constitution, the post of Associate Professor may be filled by direct recruitment or by promotion of those Asstt. Professors who have completed four years of service in the ratio of 50% each from each source provided that in the event of non availability of suitable candidates for promotion, the post falling in the quota of promotion may also be filled by direct recruitment. Though the vacant posts of Associate Professors were notified by the U.P. Public Service Commission but since the petitioner has given the option to have under the Society, the moot point is whether the petitioner can be granted any of the reliefs claimed herein in accordance with the bye-laws of the Society for the statutory rules of recruitment aforestated do not govern recruitment under the society which has its own bye-laws. The bye-laws of the B.R.D. Medical College Gorakhpur Society, Gorakhpur as amended uptodate contemplate time-bound promotion as envisaged in Tikkoo Committee's recommendations which were earlier implemented in King George Medical College Society Lucknow but have since been amplified for enforcement in respect of colleges managed by the U.P. Medical College Society. Para 33-(12) (ii) of the bye-laws which bears relevance on the controversy involved in this petition, is excerpted below for ready reference:

"Such regular Associate Professors who have completed six years of service on the post of Associate Professor or have completed at least eight years of total service as Asstt. Professors and Associate Professors out of which at least two years service is on the post of Associate Professor, will be granted the designation of Professor and the pay scale of Rs.4500-5700 (revised 14300-18300)."

In the conspectus of the facts stated above, in our opinion, the petitioner is entitled to be given the designation of Professor in the pay scale of Rs.14300-18300/- as per para 33 (12) (ii) of the bye-laws applicable to B.R.D. Medical College Gorakhpur Society, a copy of which has been annexed to the petition as Annexure No.10. The petitioner as stated supra, was appointed as Lecturer in the year 1976 and as Associate Professor under Personal Promotion Scheme in the year 1989 and thus, he has completed six years of service on the post of Associate Professor and is therefore, entitled to be given the designation of Professor in the scale of Rs.14300-18300/-. The grant of designation and pay scale of Professor would, of course, be subject to the result of Special Leave Petition pending in the Apex Court against the judgments of this Court quashing the Government Order dated 2.4.98 entrusting the State Allopathic Medical Colleges to an autonomous society. In terms of para 33 (12) (ii) of the bye-laws, the petitioner is entitled to designation and the pay scale of Professor for personal promotion results in temporary addition to the cadre and therefore, the petitioner would be treated as regular Associate Professor for the purposes of Para 33(12)(ii) of the bye-laws.

It may pertinently be mentioned here that in similar circumstances, Dr. Y.D. Singh has been accorded designation and pay scale of Professor though he was not appointed to the post of Professor on regular basis. The petitioner, as stated herein above, was found suitable for promotion by the Departmental Promotion Committee in the year 1989 and again in the year 1996 and so was Dr. Y.D. Singh but regular appointment letters were not issued either to the petitioner or to Dr. Y.D. Singh. However, since there is no vacant post of Professor in B.R.D. Medical College, Gorakhpur, the petitioner may be given non-functional designation of Professor and pay scale denial of which may lead to infraction of Articles 14 & 16 of the Constitution."

47. The aforesaid judgment was delivered while the Special Leave Petition before the Supreme Court was pending and grant of designation and pay scale of professor was to be subject to the result of pending SLP. The Division Bench had not noticed that under the applicable service rules i.e. Rules of 1990 there existed no provision of personal promotion. The Division Bench had also not examined the question of discrimination arising on account of grant of promotional benefits to a similarly placed employee of the society while those from the parent cadre of government teacher had no such right conferred under the rules. Moreover, the rules of 1990 have since been amended in 2005 which clearly provides that no personal promotion from the date of eligibility can be granted, prior to the enforcement of Second Amendment Rules of 2005, which has been reiterated vide Third Amendment Rules of 2006, and these provisions of the statutory rules are not under challenge. It is settled that in matters of promotion primacy has to be accorded to the statutory rules and executive instructions cannot be read to supplant it. In the present case, the claim of promotion raised by the petitioners from a date prior to 22.6.2005 is in teeth of the express provision of the rules itself and hence, cannot be sustained. Regard can be had to the decision of the Apex Court in Sarva Gramin Bank vs. M.K. Chak: (2013) 6 SCC 287.

48. In such factual scenario, and on account of subsequent change in the applicable service rules, we are of the view that petitioners are not entitled to any parity qua Dr. Arvind Kumar Rathi. We are of the further opinion that since the judgment in the case of Dr. Rathi was delivered without considering the provisions of the service rules, and is clearly contrary to the amendments introduced vide Second and Third Amendments to 1990 Rules, it cannot constitute any basis for the grant of relief, as is being claimed. The order rejecting review in the matter would not be of much significance and the judgment would not be treated as having any binding precedent. Prayer of the petitioners for seeking parity with Dr. Rathi, therefore, is refused and the challenge to the order dated 30.9.2010 fails.

49. For the reasons, aforesaid, we find that petitioners have failed to make out a case for grant of relief in the present writ petition, which consequently fails and is dismissed. However, there shall be no order as to costs.

 
Order Date :-  8.12.2015
 
Ashok Kr./Anil
 
(Ashwani Kumar Mishra, J.)     (Arun Tandon, J.)