Dr. Rahul Janak Sinha vs King George'S Medical ...
2017 Latest Caselaw 7930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED  
 
Case :- SERVICE BENCH No. - 26630 of 2017
 
Petitioner :- Dr. Rahul Janak Sinha
 
Respondent :- King George'S Medical University, Thru. Its Registrar & Ors
 
Counsel for Petitioner :- Anupam Mehrotra
 
Counsel for Respondent :- C.S.C.,K. Chandra
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rajnish Kumar,J.

( Delivered by Hon'ble Rajnish Kumar,J.)

1. Heard Sri Anupam Mehrotra, learned counsel for the petitioner, Sri Krishna Chandra appearing for the opposite party nos. 1 and 2 and learned Standing Counsel for opposite party no.3.

2. The facts, in brief, as emerged from the writ petition, are that initially the petitioner was appointed as Assistant Professor in the King George's Medical University, U.P., Lucknow (hereinafter referred to as ''K.G.M.U.') vide letter dated 09.03.2010 in pursuance of an advertisement dated 03.07.2009. The petitioner joined on the post of Assistant Professor in the Department of Urology on 09.03.2010. The petitioner was given personal promotion on the post of Associate Professor, Department of Urology, K.G.M.U. w.e.f. 09.03.2012, i.e., the date of eligibility of the petitioner for the said promotion on completion of two years vide letter dated 03.08.2013 and he took charge on 17.02.2014, after the period of leave sanctioned for higher studies, was over. Personal promotion of the petitioner on the post of Associate Professor was duly modified as communicated by the letter of the Registrar, KGMU dated 04.06.2014 and it was provided that the personal promotion of the petitioner on the said post shall be effective from the date of eligibility, i.e., from 09.03.2012 without any financial benefit of payment of arrears for retrospective period, which shall not be payable to him under Financial Rules.

3. The date of eligibility of the petitioner for his personal promotion to the post of Professor, Department of Urology, KGMU was due on 09.03.2015, i.e., after completion of 3 years as Associate Professor, so the petitioner wrote a letter to the Registrar, KGMU with a request for taking necessary steps in this regard. In compliance thereof, the Registrar, KGMU vide letter dated 10.04.2015 wrote a letter to the Medical Council of India (hereinafter referred to as ''MCI') on the pretext of confirming the eligibility for personal promotion as Professor in the Department of Urology. In the meantime, the Government issued a letter dated 11.08.2015 addressed to the Registrar, KGMU proposing to make the salary and allowances of all the teachers of KGMU equal to that of the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow ("SGPGI"), mentioning therein that His Excellency, the Governor of U.P. has approved the re-organization of the posts in the KGMU creating a new post/ designation therein, viz.,Professor, Junior Grade (Additional Professor) (hereinafter referred to as 'Additional Professor') with effect from the date of issuance of the aforesaid letter dated 11.08.2015 subject to, inter alia, the condition stated in Paragraph 5 of the letter dated 11.08.2015, namely, the KGMU Statutes shall be amended accordingly. But no amendment in pursuance of the letter dated 11.08.2015 of the State Government has been made till date accordingly the same has not been incorporated in the First Statutes of the KGMU.

4. The Registrar of the University, vide letter dated 28.09.2016, prescribed a proforma for the application seeking promotion and directed to the Head of the Department of Urology, KGMU, Lucknow to submit the request of the eligible teachers on the prescribed proforma, so that further action for promotion be taken by the Promotion Committee. In pursuance thereof, the petitioner again applied for personal promotion to the post of Professor in the Department of Urology, KGMU on 07.10.2016. Thereafter, the Vice Chancellor of the University issued a circular dated 24.11.2016, by which (Brigadier) Professor U.B. Mishra, Head of Hospital Administration, was designated as Dean (Recruitment and Promotion) of K.G.M.U. Super Specialty Cancer Institute, CG City, Lucknow and he was directed to supervise recruitments and promotions in KGMU and in Cancer Institute according to existing MCI Rules/ Bye Laws of Institute and Government Orders. The Vice Chancellor issued another circular dated 05.01.2017, in which the guidelines for promotion and screening etc. were provided. Since the promotion of the petitioner to the post of Professor had not been considered, the petitioner made representations dated 23.01.2017 and 24.04.2017 in the form of reminders.

5. The Registrar, KGMU vide letter dated 11.08.2017 informed to the petitioner that the Selection Committee for promotion from Associate Professor to the next due promotion in the Department of Urology, KGMU, U.P. Lucknow shall meet on 21.08.2017 at about 10:00 a.m. and directed to the petitioner to bring his original degree/ diploma/ mark sheets/ testimonials/ certificates/ awards/ paper publications applicable as per MCI Regulation, 1998 (amended upto May, 2015) and other related documents to be produced before the Selection Committee as well as to bring seven sets of his bio data. In pursuance thereof, the petitioner duly appeared before the Selection Committee on the stipulated date, i.e., on 12.08.2017.

6. The Selection Committee found the petitioner successful and selected him for promotion from Associate Professor to next due promotion i.e. the post of Professor. However, the letter of the Registrar, K.G.M.U. dated 28.09.2017 communicated that the Executive Council in its meeting held on 26.09.2017 and 27.09.2017 has granted personal promotion to the petitioner as "Professor Junior Grade (Additional Professor)" granting him extra-legal / non-existent designation in a most arbitrary and unlawful manner instead of promoting him to the post of Professor. However, in the interest of students and patients, and considering the requests of the officers/ authorities of the K.G.M.U., the petitioner joined on the post of "Additional Professor" on 28.09.2017. Thereafter, he wrote a letter to the Registrar, K.G.M.U. on 03.10.2017 mentioning therein that he has joined on the post of "Additional Professor" without prejudice to his immediate entitlement to promotion as Professor and his right to seek redressal in this regard.

7. Since the petitioner has not been granted personal promotion on the post of Professor as per the First Statute of the K.G.M.U., the petitioner has approached to this Court with the following prayers :-

"(i) Issue a writ, order or direction in the nature of certiorari setting aside the decision of the Executive Council, KGMU in its meeting held on 26.09.2017 and 27.09.2017, alongwith the letter of the Registrar, KGMU dated 28.09.2017 communicating the said decision of the Executive Council, in so far as the personal promotion of the petitioner to the post of Professor in the Department of Urology, KGMU has been made on an extralegal designation of "Professor Junior Grade (Additional Professor)" so as to make the said promotion of the petitioner as Professor in the Department of Urology, KGMU with effect from the date of eligibility i.e. 09.03.2015:

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent - University, the KGMU to correct the petitioner's designation by making the personal promotion of the petitioner to the post of Professor in the Department of Urology, KGMU, alongwith all benefits of service, with effect from the date of eligibility ie. 09.03.2015:

(iii) Issue a writ, order or direction in the nature of mandamus commanding the State of U.P. to ensure that the KGMU does not violate law in the garb of the letter (the so called Govt. order) dated 11.08.2015 (Annexure No. 7 to the Writ Petition) or otherwise:

(iv) issue a writ, order or direction in the nature of mandamus commanding such action against the respondents as may be deemed appropriate for deliberately delaying the petitioner's personal promotion to the post of Professor, Department of Urology, KGMU from the date of eligibility i.e. 09.03.2015 and then making the said promotion as "Professor Junior Grade (Additional Professor:

(v).....

(vi)...."

8. The opposite party nos. 1 and 2 have filed their short counter affidavit duly signed by Sri Rajesh Kumar Rai posted as Registrar, King George's Medical University, Lucknow. It has been stated in the short counter affidavit that the State Government issued a Government Order dated 11.08.2015, by which the teachers of the King George's Medical University were given the same pay scale and allowances which were available to the teachers of the S.G.P.G.I., Lucknow and in paragraph 6 of the aforesaid Government Order dated 11.08.2015, it was provided that K.G.M.U. will amend its Statutes accordingly. In pursuance thereof, the Executive Council passed a resolution dated 04.09.2015, by which the amendment in the Statutes 10.01 (6) of the First Statutes of the K.G.M.U., U.P., Lucknow was made in accordance with the Government Order dated 11.08.2015. However, on the aforesaid resolution of the Executive Council, the assent of the Chancellor of the King George's Medical University could not be obtained.

9. Learned counsel for the petitioner submitted that he does not want to file any rejoinder affidavit to the short counter affidavit.

10. Sri Anupam Mehrotra, learned counsel for the petitioner submitted that in the entire process of the promotion of the petitioner to the post of Professor, except the impugned decision dated 28.09.2017, there was no mention of "Additional Professor" which is an extra legal creation. The petitioner had applied for personal promotion to the post of Professor, as such, there arises no question for his selection or appointment as "Additional Professor". He further submits that the criteria for selection and promotion cannot be changed in the middle after start of process. The petitioner had initially applied for promotion on the post of Professor vide letter dated 08.02.2015 but no action was taken and deliberately the Registrar, K.G.M.U. wrote a letter to the MCI on 10.04.2015 for confirming the eligibility criteria for personal promotion as Professor. He further submitted that in the mean time, the Government issued a letter dated 11.08.2015, by which it was proposed to make the salary and allowances of all the teachers of KGMU equal to that of the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow ("SGPGI"), and for this purpose, it was provided that the Government of U.P. has approved the re-organization of posts in the K.G.M.U. creating a new post/ designation therein "Professor Junior Grade (Additional Professor)" with effect from the date of issuance of the aforesaid letter dated 11.08.2015. However, in paragraph 5 of the said letter, the University was directed that it shall make the aforesaid amendment in the First Statute, 2011 of the K.G.M.U., Lucknow separately, but till date the said amendment has not been made. So the same cannot be made applicable unless the Statutes are amended and the same is incorporated in the Statutes. Accordingly, the personal promotion of petitioner could not have been made on the post of "Additional Professor" on the basis of a letter issued by the Government and he submitted that if law requires that a particular thing should be done in a particular manner, it must be done in that way and not otherwise. In this regard, he relied upon the case of the Hon'ble Apex Court reported in (2014) 3 SCC 502 (Dipak Babaria versus State of Gujrat).

11. He further submits that even if the letter is to be applied, it cannot be said that it is a Government Order and it can be applied without amending the Statutes, as it has not been issued in accordance with the procedure prescribed for authentication. He further submitted that the Order dated 11.08.2015 is not a Government Order, as it has not been issued in compliance of the Article 166 (1) and (2) of the Constitution of India and the U.P. Authentication Rules, 1975 and in this regard, the petitioner has relied upon judgments of the Apex Court reported in AIR 1963 SC 395 (Bachhittar Singh versus State of Punjab) and (1986) 4 SCC 632 (State of Kerala versus A Lakshmikutty).

12. He further submits that since in such reorganizations of posts, law is prospective, therefore, the same cannot be applied on the petitioner, as he became eligible on the post of Professor on 09.03.2015, i.e., prior to issuance of letter dated 11.08.2015 and he had already applied for it.

13. Further submission of the learned counsel for the petitioner is that in an identical matter, in writ petition filed by the wife of the petitioner bearing No. 4660 (SB) of 2017 (Dr. Seema Mehrotra versus King George's Medical University, U.P. Lucknow),this Court vide order 27.04.2017 has been pleased to hold that the order dated 12.05.2016 issued by the Registrar of the University is unsustainable being in violation of the provisions of the First Statute of the University as well as Regulations framed by the MCI and the G.O. dated 11.08.2015, and therefore, the order dated 12.05.2016 has been quashed and the University was directed to re-consider the case of the petitioner therein for personal promotion to the post of Professor, Associate Professor and Assistant Professor strictly in accordance with the Regulations framed by the M.C.I., viz,. Regulations, 1998 as amended in 2009 for determination of petitioner's minimum salary on the post of Professor. He also relied upon a judgment of the Apex Court in this regard reported in (2006) 11 SCC 42 (V.C.Banaras Hindu University versus Shrikant) and (2006) 10 SCC 399 (Feroz Ahmad versus Delhi Development Authority).

14. Learned counsel for the opposite parties, Sri K. Chandra submits that the University had taken action promptly in pursuance to the Government Order dated 11.08.2015 issued by the Government and the Executive Council of the University passed a resolution on 04.09.2015, by which amendment in the Statute 10.01 (6) of the First Statute of the K.G.M.U. was made in accordance with the Government Order dated 11.08.2015. However in pursuance of the aforesaid resolution of the Executive Council, the assent of the Chancellor of the K.G.M.U. could not be obtained and is still awaited. However, he further submits that since the Government Order dated 11.08.2015 has been made applicable with immediate effect, accordingly the personal promotion of the petitioner has rightly been considered and he has been promoted on the post of "Additional Professor" in accordance with law. He further submits that since the petitioner has joined in pursuance of the promotional order dated 28.09.2017 on the same date itself, he is debarred from challenging the promotional order dated 28.09.2017.

15. We have considered the submissions of the parties and gone through the records.

16. The definition of 'Teacher' given in the K.G.M.U. Act is reproduced hereunder :-

"Teacher" means a teacher employed by the University for imparting instruction and guiding and conducting research in the University."

17. The K.G.M.U. First Statutes 10.01 specifically provides three categories of teacher :-

"(1) Professor

(2) Associate Professor

(3) Assistant Professor/ Lecturer"

18. In respect of the promotions to the post of Professor and Associate Professor criteria has been provided in Section 36 of the First Statute of the University which, on reproduction, reads as under :-

"36. Promotion to the post of Professor and Associate Professor:-

(1) Notwithstanding anything contained in any other provision of this Act, an Assistant Professor substantively appointed in the University or an Associate Professor substantively appointed or promoted under this section in University who has put in such length of service and possesses such qualifications as may be prescribed may be given personal promotion respectively to the post of Associate Professor or Professor.

(2) The promotion under sub section (1) shall be given on the recommendation of the selection committee constituted under sub section (4) of section 35 in such manner and subject to such conditions as may be prescribed."

19. As per MCI guidelines, three years' teaching experience is required for a Associate Professor for being considered and designated as Professor.

20. In view of the aforesaid provision made in the First Statute of K.G.M.U., only three posts are provided viz., Professor, Associate Professor and Assistant Professor/ Lecturer. No other post has been provided in the Statutes.

21. Letter dated 11.08.2015 issued by the Government by which the Governor has approved the re-organization of the posts in the K.G.M.U., a new post of Professor Junior Grade(Additional Professor)" has been sought to be created but in the said letter itself, it is mentioned that the K.G.M.U. shall make the amendment accordingly in the K.G.M.U. First Statute, 2011. As admitted by the learned counsel for the opposite party nos. 1 & 2 in their short counter affidavit that though the amendment has been made by the Executive Council of the University, the assent of the Chancellor is still awaited. Section 60 of the Universities Act specifically provides that the amendment made in the Statute shall be applicable from the date of assent accorded by the Chancellor. Since on the Statutes, as amended by the Executive Council, the assent has still not been accorded by the Hon'ble Chancellor, it cannot be said to be incorporated in the First Statutes of the University.

22. It is a settled proposition of law that unless the Statutes are amended in accordance with the decision taken by the Government, the same cannot be applied and no selection or promotion can be made, and if any promotion is made without incorporation in the First Statutes, the same dehors the Rules. The Apex Court has specifically held in (2006) 11 SCC 42 (V.C., Banaras Hindu University versus Shrikant) that the expression "existing Rules" indisputably would mean the procedure laid down under the Rules, i.e., in terms of the provisions of the Statute or Ordinance. It has further been provided that the Executive Council, the Vice Chancellor or any other authority, who are creatures of the Statute must act within the four corners thereof. The relevant paragraph 20 and 21 are reproduced hereinunder :-

"20. The expression "existing Rules" indisputably would mean the procedure laid down under the Rules, i.e., in terms of the provisions of the Statute or Ordinance which as indicated hereinabove lay down matters relating to initiation of disciplinary action against the employees.

"21.The Executive Council, the Vice - Chancellor or any other authority, who are creatures of the Statutes must act within the four corners thereof.They were also required to follow the procedure laid down for initiation of a disciplinary proceeding against an employee."

23. In this regard, in the judgement of the Hon'ble Apex Court in the case of Dr. Bal Krishna Agarwal versus State of U.P. and others, (1995) 1 SCC 614, in which the parties, Dr. Bal Krishna Agarwal, Dr. M.M. Joshi and Sri P.K. Sharma were Professors in Physics in the Allahabad University. The claim of appellant therein was that he was appointed on the post of Professor in Physics on 09.11.1984, so the seniority should be regulated by the provisions contained in the Statutes as they existed on the said date and the amendments, which were made in the Statutes by notification dated 21.02.1985, would have no application in the matter of determination of his seniority. Under Clause (b) of Statute 18.05, as it stood on 09.11.1984, when the appellant joined as Professor in Physics, the appellant, who was holding the post of Professor in Physics Faculty, was senior to respondent nos. 4(Dr. M.M. Joshi) and 5(Dr. P.K. Sharma), who were promotees under the Personal Promotion Scheme. Section 31-A, which provides for personal promotion, was introduced in the Act w.e.f. 10.10.1984, but the said provision could be given effect to only after the prescribed length of service as well as the qualifications prescribed in the Statutes and this was done only by the amendments which were introduced in the Statutes by notification dated 21.02.1985, therefore, personal promotion of respondents 4 and 5 therein could have legal effect only from the date of such amendment in the Statutes. The Hon' ble Apex Court after considering the matter held that the orders of the Government could not be given effect till necessary amendment was made in the Act making provision for personal promotion and in view of the provisions contained in Section 31-A and Section 2(14) of the Act, there is no escape from the conclusion that respondent nos. 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by notification dated 21.02.1985, promotion under the Personal Promotion Scheme could not be made prior to 21.02.1985, and accordingly, the Hon'ble Apex Court held that the appellant (Dr. Bal Krishna Agarwal) should have been treated as senior to respondents 4 and 5 in the cadre of Professor in Physics and the Executive Council was not justified in placing him junior to the said respondents and, therefore, the appeal has been allowed.

The relevant portion of the judgment is reproduced hereinunder:

"We are of the opinion that in view of the provisions contained in Section 31-A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21.2.1985, promotion under the Personal Promotion Scheme could not be made prior to 21.02.1985. The Executive Council in its Resolution No. 198 dated 08.11.1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12.12.1983 and 25.02.1984. At that time Section 31 of the Act provided for appointment of teacher by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10.10.1984. But Section 31-A could be given effect only after the necessary provision was made in the Statues prescribing the length of service and the qualifications for personal promotion. This was done by notification dated 21.02.1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21.02.1985 and it has to be treated to have been made with effect from 21.02.1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis."

24. This Court had dealt with the issue in the case of Dr. Manoj Kumar Agrawal and another versus State of U.P. and others (Writ Petition No. 463 (SB) of 2012) by a Division Bench of this Court, in which one of us, namely, Dr. D.K. Arora was a member, and has been pleased to hold as under:-

"We may notice the fact that vide letter dated 03.02.2011 (Annexure No. 6 to the writ petition) the Registrar, Lucknow University did not inform that the petitioners are not eligible for promotion under the existing Career Advancement Scheme, rather vide letter dated 03.02.2011, the Registrar has informed that the petitioners are not eligible for promotion in view of the Government Order dated 31.12.2010, which is not the part of the First Statutes of the Lucknow University, as admitted by the respondents, i.e., State Government as well as Lucknow University. We find force in the submissions of the petitioners that merely on the basis of notification of the University Grants Commission or by the State Government, the petitioner cannot be deprived from promotion under Career Advancement Scheme under existing First Statute of the Lucknow University. As First Statutes of the Lucknow University has not been amended so far, therefore, the petitioners are not covered under the aforesaid Regulations, as alleged and they ought to have been considered in accordance with existing Statute as held by this Hon'ble Court time and again."

25. This Court had occasion to deal with identical issue in Writ Petition No. 4660 (SB) of 2017 (Dr. Seema Mehtrotra versus King George's Medical University, U.P., Lucknow and others) in which the petitioner therein has assailed the order dated 12.05.2016, passed by the Registrar, King George's Medical University, Lucknow to the extent that it was contrary to the Government Order dated 11.08.2015 since it provides the minimum pay scale as well as academic grade pay to the petitioner on the post of Professor lower to the pay scale and grade determined vide Government Order dated 11.08.2015. After considering the matter, this Court held that the respondents have failed to substantiate the classification with any of the provisions of Statute of the University as well as the provisions made by the MCI/ Dental Council of India. Accordingly, it has been held that the order passed by the Registrar of the University is unsustainable being in violation of the provisions of the First Statute of University as well as Regulations framed by the MCI and the Government Order dated 11.08.2015 and the impugned order dated 12.05.2016 has been quashed with a direction to the respondents to consider the case of the petitioner strictly in accordance with the Regulations framed by the MCI, viz., Regulations 1998 as amended in 2009 for determination of petitioner's minimum salary on the post of Professor in the Department of Obstetrics and Gynaecology in terms of order dated 11.08.2015 in the Pay Band-4 of Rs. 37400-67000 and Academic Grade pay of Rs. 10,500 w.e.f. 04.09.2015. The relevant portion of the order is reproduced hereinunder:

"The State Government has made an effort to justify their action by classifying the post of Professor in two categories. One was clothed with full salary of Professor as it provided under the Government Order dated 11.08.2015, whereas next other has been designated as Professor Junior Grade (Additional Professor) and the distinct pay band as well as academic grade has been provided, which are available after completion of three years' service on the post of Associate Professor. However, the respondents have failed to substantiate this classification with any of the provisions of Statute of the University as well as the provisions made by the MCI/Dental Council of India. Statute 10.01 of the University has categorized the post of teachers in the following manner:

"Statute 10.01.- (1) ...

(2) ...

(3) The following shall be the different categories/statutory positions of the University teachers/faculty members:-

(a) Professor;

(b) Associate Professor;

(c) Assistant Professor/Lecturer."

Regard being had to the aforesaid submissions, we hold that the order dated 12.05.2016 issued by the Registrar of the University is unsustainable being in violation of the provisions of the First Statute of the University as well as Regulations framed by the MCI and the Government Order dated 11.08.2015, therefore, we hereby quash the order dated 12.05.2016 passed by the Registrar of the University. We further issue a writ of mandamus to the respondents to reconsider the petitioner's matter of personal promotion to the post of Professor, Associate Professor and Assistant Professor strictly in accordance with the Regulations framed by the MCI viz. Regulations, 1998 as amended in 2009 for determination of petitioner's minimum salary on the post of Professor in the Department of Obstetrics and Gynaecology in terms of Government Order dated 11.08.2015 in the Pay Band-4 of Rs.37400-67000 (minimum salary Rs.51600/-) and Academic Grade Pay of Rs.10500 w.e.f 04.09.2015."

It is relevant to mention that the Special Leave Petition preferred by the King George's Medical University against the judgment and order dated 27.4.2017 was dismissed by judgment and order dated 28.8.2017 passed by the Hon'ble Supreme Court.

26. In view of aforesaid discussion, we are of the considered opinion that as the First Statutes have not been amended, the Government Order dated 11.08.2015 cannot be applied without making necessary amendments in accordance with law, as such, the promotion of the petitioner on the post of "Additional Professor" has wrongly been made in place of the post of Professor. Hon'ble Apex Court has also been pleased to hold in the case of (2006) 10 SCC 399 (Feroz Ahmad versus Delhi Development Authority) that if no Rules have been framed in accordance with law, the earlier Rules validly framed shall prevail. The relevant paragraph 13 is reproduced hereunder:

"13. The question raised by the appellant would, however, depend upon the validity and / or applicability of the rules. If no rules have been framed in accordance with law, the earlier rules validly framed shall prevail. A statutory rule, it is trite, cannot be supplemented by an executive order."

27. Accordingly, since the Rules have still not been amended, the provisions of the Government order dated 11.8.2015 cannot be applied, as such, the Rule existing on the date of eligibility / selection of the petitioner shall prevail and in accordance with the existing Rules, the promotion of petitioner is to be made to the post of Professor and the promotion of petitioner and giving designation and pay scale of Additional Professor(Junior Grade) is not sustainable in the eyes of law.

28. The Registrar, KGMU, while issuing the letter dated 11.08.2017, had informed to the petitioner that the Selection Committee for promotion from Associate Professor to next due promotion in the Department of Urology, K.G.M.U., Lucknow shall meet on 21.08.2017 and the petitioner was required to bring with him all his original degree/ diploma/ Mark Sheets/ testimonials/ certificates/ awards/ paper publications applicable as per MCI Regulation 1998 (amended upto May 2015) and other related documents to be produced before the Selection Committee as well as to bring seven sets of his bio data, which also goes to show that the petitioner was invited for consideration by the Selection Committee for the next promotional post from Associate Professor in accordance with law and as per the MCI Regulation 1998 amended upto May, 2015 and the First Statutes of the K.G.M.U., the next promotional post from Associate Professor is Professor,as the post of "Additional Professor" on which the petitioner has been promoted has still not been created by incorporating in the First Statutes of the K.G.M.U. due to want of assent by the Chancellor. Accordingly, we are of the considered opinion that the petitioner was called for his consideration of the personal promotion on the post of Professor from Associate Professor and without any authority of law, the Executive Council has granted the personal promotion to the petitioner on the post of Professor Junior Grade (Additional Professor) which is not in accordance with law. As per the existing Statutes, the promotions ought to have been made on the post of Professor from the post of Associate Professor.

29. It may be pointed out here that the Hon'ble Supreme Court has also held in the case of (2014) 3 SCC 502 (Dipak Babaria versus State of Gujrat) that if law requires that a particular thing should be done in a particular manner, it must be done in that way and not otherwise. Accordingly, the opposite party nos. 1 and 2, who called the petitioner for promotion to the next promotional post from Associate Professor, could not have promoted and designated him on the post of Additional Professor, which is unsustainable in law as well as fact and is liable to be modified/corrected by the University.

30. Since we have held that the letter dated 11.08.2015 could not have been implemented by the KGMU for restructuring of the posts without there being amendment in the First Statute in accordance with the prescribed procedure, we need not to go to consider the authenticity of the letter dated 11.08.2015 whether it is a Government order or not for the present controversy.

31. In view of the aforesaid facts and circumstances, we hereby hold that the petitioner is entitled for designation of Professor on promotion in the Department of Urology, K.G.M.U. from the date of eligibility from the post of Associate Professor in accordance with the existing First Statutes of the K.G.M.U.

32. Accordingly the writ petition is partly allowed and the opposite parties nos. 1 and 2 are directed to amend/correct the order dated 28.09.2017 and issue a fresh order to the petitioner accordingly within a period of four weeks from the date of production of certified copy of this order with all consequential service benefits.

33. No order as to costs.

[ Rajnish Kumar,J.][ Devendra Kumar Arora,J.]

Order Date : 13th December, 2017

Akanksha S.

Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rajnish Kumar,J.

The writ petition is partly allowed vide order of date passed on separate sheets.

Order Date : 13th December, 2017

Akanksha S.