Himachal Pradesh High Court
Dr. Arun Singh Thakur vs State Of H.P. And Others on 12 August, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 108 OF 2019
Between:-
DR. ARUN SINGH THAKUR
S/O LATE DR. P.C THAKUR,
R/O FLAT NO. 1,
CHERI
... PETITIONER
(BY MR. SANJEEV BHUSHAN, SENIOR ADVOCATE
WITH MR. RAJESH RAJESH KUMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HEALTH)
TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF SECRETARY(HEALTH)
GOVERNMENT OF HIMACHAL PRADESH
3. DR. SHELJA VASHISTH
W/O SH. RAJEEV SHARMA,
DESIGNATED ASSTT. PROFESSOR
HP GOVT. DENTAL COLLEGE,
SHIMLA, H.P.
.. RESPONDENTS
(MR. AJAY VAIDYA,
SENIOR ADDITIONAL ADVOCATE GENERAL
FOR R-1 AND R-2
(MR. DILIP SHARMA, SENIOR ADVOCATE
WITH MR. MANISH SHARMA, ADVOCATE, FOR R-3)
Whether approved for reporting: Yes.
This petition coming on for orders this day, the court passed the following:
ORDER
2. Being aggrieved and dissatisfied with the decision taken by
respondents, as contained in annexure A-12, whereby special secretary
health to the Government of Himachal Pradesh approved the proposal
.
to fill up one post of Assistant Professor (Dentistry) by way of direct
recruitment, petitioner approached erstwhile Himachal Pradesh
Administrative Tribunal by way of OA No. 280 of 2019, which now
stands transferred to this Court after abolishment of erstwhile Himachal
Pradesh Administrative Tribunal and stands registered CWPOA No. ,
praying therein for following main reliefs:
"i. That impugned decision taken by the respondents as
contained in Annexure A-12, whereby the approval has
been granted to fill up the post by way of direct recruitment
on 20.12.2028 may kindly be quashed and set aside.
ii. That directions may very kindly be given to the respondents
to fill up the post of Assistant Professor (Public Health
Dentistry) by way of promotion from amongst the eligible
candidates, by further granting the seniority and
consequential benefits from the date when post became
available i.e. 26.09.2018 in the interest of law and justice,
by following the Rules 2006."
3. For having bird's eye view of the matter, certain
undisputed facts, as emerge from the pleadings adduced on record by
parties to the lis are that as per Himachal Pradesh Medical
Education(Dental) Services Rules, 2006 (hereinafter, 'Rules 2006')
(Annexure A-1), post of Assistant Professor being a Class I Gazetted
post is to be filled in the following manner:
(i) 50% by promotion failing which by direct recruitment or on
.
contract basis in the manner specified in Column No. 11-A.
(ii) 50% by direct recruitment or on contract basis in the
manner specified in Column No. 11-A.
4. At the time of framing of Rules 2006, there were 9 posts of
Assistant Professors, out of which one post fell to the Department of
Dentistry, but subsequently vide Notification dated 2.3.2009 (Annexure
A-2), 20 more posts were created, out of which, 06 fell to the share of
Assistant Professors and consequently one more post of Assistant
Professor came to the share of Public Health Dentistry. As of today,
there are two posts of Assistant Professors in the discipline of Public
Health Dentistry. According to the petitioner, after framing of Rules
2006, respondent Department is to fill up posts of Assistant Professors
in the Department of Public Health Dentistry by following roster provided
in Chapter XIII of Handbook on Personnel Matters, whereby first post is
to be filled up by way of promotion from amongst the feeder category of
Lecturers and second post by way of direct recruitment. Since the first
post falling to the share of promotional quota in the case at hand, could
not be filled up on account of interim stay granted by Hon'ble Supreme
Court, first post, which as per chapter XIII of Handbook on Personnel
Matters, was meant for promotees came to be filled up on 1.9.2017 by
way of direct recruitment by one Mr. Vinay Kumar Bhardwaj, however,
second post which was to be filled by direct recruitment, came to be
filled by one Ms. Shelly Fotedar on 2.12.2013, on his promotion. Since
Dr. Vinay Kumar Bhardwaj, who was recruited against the first post
.
meant for promotees, stood further promoted to the post of Professor,
one post of Assistant Professor, Public Health Dentistry/Community
Dentistry fell vacant. Precisely the case of the petitioner is that since as
per roster, first post was to go to promotees and second to direct
recruits, post falling at point No.3 of roster, shall fall to the share of
promotees and as such, he being borne on feeder cadre for promotion
to the post of Assistant Professor, ought to have been considered for
promotion to the post of Assistant Professor especially when he was
otherwise fully eligible.
5. It is not in dispute that as per Rules 2006, petitioner, who
was working as Lecturer in the Department since 19.5.2014 became
eligible on 19.5.2017 for promotion to the post of Assistant Professor,
but since his claim for promotion to the post of Assistant Professor was
not being considered after promotion of Dr. Vinay Kumar Bhardwaj to
the post of Professor, he repeatedly filed representations as contained
in Annexures A-5 to A-7, however, respondents did not bother to
respond to the same, as such, petitioner was compelled to serve the
Department with legal notice dated 26.12.2018 (Annexure A-8).
6. After issuance of aforesaid legal notice, representations
having been filed by the petitioner as well as respondent No.3 Dr.
Shelja Vashisth, came to be dealt with by the Department concerned as
is evident from information supplied to the petitioner under Right to
Information Act, 2005, vide communication dated 7.1.2019 (Annexure
A-12). Respondents having taken note of the provision contained in
.
Chapter III of Handbook on Personnel Matters, Vol. I, wherein provision
for maintaining roster, based on reservation in Rules 2006 is provided
and instructions of DOP. No. Per(AP-IIA(3)-2/80 dated 7.11.2001,
wherein method of recruitment has been provided whether by direct
recruitment or by promotion, deputation, transfer and the percentage of
"posts" to be filed in the various method, concluded that since Dr. Vinay
Kumar Bhardwaj, who had vacated the post of Assistant Professor was
appointed as direct recruit, vacancy occurred on account of his
promotion is also required to be filled up by way of direct recruitment.
While taking aforesaid decision, respondents also took into
consideration ratio of 50:50 as provided under Rules 2006 inter se
promotees and direct recruits. However, record reveals that the
petitioner as well as respondent No.3, who was also working as
Lecturer (Public Health Dentistry) on regular basis since 29.5.2014 and
had also completed three years service prescribed for appointment to
the post of Assistant Professor, were designated as Assistant Professor
(Public Health Dentistry/Community Dentistry) vide Notification dated
5.1.2018 (Annexure A-4).
7. Since respondents vide decision contained in Annexure A-
12, decided to fill up post of Assistant Professor vacated by Dr. Vinay
Kumar Bhardwaj on account of his promotion to the post of Professor
by way of direct recruitment, petitioner approached erstwhile Himachal
Pradesh Administrative Tribunal, by way of aforesaid application,
praying therein for reliefs as reproduced herein above.
.
8. Respondents Nos. 1 and 2 in their replies, while justifying
their decision to fill up post of Assistant Professor (Public Health
Dentistry) by way of direct recruitment have claimed, "the incumbent
(Assistant Professor), who has vacated the post from the category of
direct recruitment his post has to be filed up by way of the same method
of recruitment i.e. direct recruitment and in case the post in question
that falls vacant due to promotion, the same has to be filled up by way
of promotion only." Respondents have further claimed in the reply that
since in the case at hand, post came to be vacated by Dr. Vinay Kumar
Bhardwaj, a direct recruit, on account of his promotion on 25.9.2018,
same can be filled up by way of direct recruitment only and not by way
of promotion.
9. Besides above, respondents Nos. 1 and 2 have claimed in
their reply that the Rules 2006, otherwise provide for filling up posts of
Assistant Professors 50% by direct recruitment and 50% by way of
promotion. Since one post falling to the share of promotees, is already
occupied by Dr. Shelly Fotedar, who is a promotee, second post of
Assistant Professor vacated by Dr. Vinay Kumar Bhardwaj cannot be
filled up by way of promotion because in the event of second post of
Assistant Professor being filled up by way of promotion, entire cadre of
Assistant Professors in Public Health Dentistry would be represented by
promotees, which would be in violation of Rules 2006 which provide for
filling up posts of Assistant Professors, 50% by direct recruitment and
50% by way of promotion.
.
10. Respondent No.3 in her reply has claimed that in the cadre
of two posts of Assistant Professors, one post is to be filled up by direct
recruitment and another by promotion. Hence posts were occupied by
candidates from two sources i.e. direct recruitment and promotion in
the ratio of 50:50 and since Dr. Vinay Kumar Bhardwaj coming from the
line of direct recruitment stands promoted to the post of Professor, post
vacated by him in the cadre of Assistant Professors, can only be filled
up direct recruitment and not by promotion, especially when one person
from the category of promotees is already occupying the post of
Assistant Professor in the cadre of two posts.
11. I have heard the parties and gone through the records of
the case.
12. Mr. Sanjeev Bhushan, learned senior counsel representing
petitioner, duly assisted by Mr. Rakesh Chauhan, vehemently argued
that since posts were to be filled up on the basis of roster, provided in
Chapter XIII of Handbook on Personnel Matters, third post would
definitely go to the promotees and not to the direct recruits. He argued
that since the first post which was otherwise meant for promotees came
to be filled by way of direct recruitment on account of non-availability of
candidate from feeder cadre, third post which has fallen vacant on
account of promotion of one of the Assistant Professors, who had
consumed first post of promotee, can only be filled up by way of
promotion and not by way of direct recruitment. Mr. Bhushan, learned
senior counsel, while referring to the Rules 2006 argued that the
.
method of recruitment of posts of Assistant Professors in HP Dental
College, is 50% by direct recruitment and 50% by promotion but while
giving effect to aforesaid provision made in Rules 2006, roster as
prescribed under Chapter XIII of Handbook on Personnel Matters is to
be followed, whereby, first post would go to promotee and second to the
direct recruit, third to promotee and again fourth post to direct recruit. As
per Mr. Bhushan, r learned senior counsel, first post was meant for
promotee but on account of non-availability of candidate from feeder
cadre, post came to be filled up by way of direct recruitment but that
does not mean that post meant for promotee shall be deemed to have
been consumed by promotee though against that post, person by way
of direct recruitment was appointed, rather, in that case, person
occupying the post shall be deemed to have consumed the post meant
for promotee, as a consequence of which post vacated by him, on
account of promotion can only be filled by promotee and not by direct
recruitment. Lastly Mr. Bhushan, learned senior counsel while referring
to certain reply-affidavits filed by respondents in other litigations,
contended that in the case at hand, respondents have taken altogether
contrary stand by stating that the post vacated from the category of
direct recruitment is to be filled up by way of same method i.e. direct
recruitment in terms of instructions of Department of Personnel, dated
7.11.2001, whereas in some other cases, respondents claimed before
the court that 13 point roster is to be made applicable, while filling up
the posts of Assistant Professors in the Department of Dental
.
Education. In support of his contention, Mr. Bhushan, learned senior
counsel placed reliance upon judgment rendered by Hon'ble Apex Court
in State of Punjab v. Dr. R.N. Bhatnagar, (1999) 2 SCC 330, to claim
that since first roster point fell to share of promotee and second to direct
recruit, hence, present vacancy falling at third roster point has to be
offered to the promotee.
13. Mr. Ajay Vaidya, learned Senior Additional Advocate
General and Mr. Dilip Sharma, learned senior counsel representing
respondents Nos. 1 and 2 and respondent No.3, respectively, supported
the decision taken by the respondents in filling up the post fallen vacant
on account of promotion of Dr. Vinay Kumar Bhardwaj, by way of direct
recruitment. Above named counsel vehemently argued that since
expression used in Rules 2006 is "posts" the quota has to be applied to
the posts and not to the vacancies. Mr. Dilip Sharma, learned senior
counsel argued that statutory Rules 2006 prescribe ratio of 50:50 for
direct recruitment and promotees and Chapter XIII of Handbook on
Personnel Matters is by way of administrative instructions. He argued
that mandate of statutory quota is that the posts available in the cadre
may be filled up 50% by direct recruitment and 50% by promotion, but if
the roster is applied in filling up posts in violation of statutory quota, it
would be in complete defiance to the mandate of rules. Lastly Mr. Dilip
Sharma, learned senior counsel, argued that since there are only two
posts of Assistant Professor (Public Health Dentistry), one is required to
be filled up by promotion and another by direct recruitment and in case
.
prayer of petitioner is accepted, both the posts of Assistant Professors
(Public Health Dentistry) would come to be filled by way of promotion,
which would be in complete violation of Rules 2006 and otherwise
would amount to 100% reservation to promotees in the cadre of two.
14. Having heard learned counsel for the parties and perused
the pleadings adduced on record by respective parties, vis-à-vis prayer
made in the petition, this court finds that following question falls for
consideration of this court
"Whether the ratio of 50:50 prescribed for promotees and direct
recruitment in rules 2006, annexure A-1 applies to the "posts" as
contended by respondents or to the "vacancies" as asserted by
the petitioner."
15. Having carefully perused judgment rendered by Hon'ble
Apex Court in R.N. Bhatnagar (supra), this court finds force in the
submission of Mr. Dilip Sharma, learned senior counsel appearing for
respondent No. 3 that aforesaid judgment has no applicability in the
case at hand, for the reason that in the case before Hon'ble Apex Court,
roster was prescribed as per Recruitment and Promotion Rules,
however, in the case at hand, there is no mention of roster in statutory
rules.
16. Mr. Bhushan, learned senior counsel, while referring to
para-9 of the aforesaid judgment vehemently argued that when posts in
cadre are to be filled in from two sources, whether candidates come
.
from departmental promotees or by way of direct recruitment, once both
enter common cadre, their birth mark disappears and they completely
get integrated in a common cadre.
17. As per aforesaid judgment, direct recruits and promotees
lose their birth-marks on fusion into a common stream of service and
they cannot thereafter be treated differently by reference to the
consideration that they were recruited from different sources. Their
genetic blemishes disappear once they are integrated into a common
class and cannot be revived so as to make equals unequal once again.
18. However, in the case at hand, where there is cadre of only
two posts, posts are to be filled in the ratio of 50:50 in terms of Rules
2006, meaning thereby, one post would go to the promotee and another
to the direct recruit.
19. Admittedly as per respondents, first post in the cadre of two
posts of Assistant Professors was to be filled up by way of promotion in
terms of Rules 2006, post meant for promotee could not be filled by way
of promotee on account of some interim stay granted by Hon'ble Apex
Court, post otherwise meant for promotee came to be filled up by direct
recruitment, meaning thereby direct recruit consumed its quota of 50%
in the cadre of two posts. Since after appointment of direct recruits
against the post meant for promotees, second post falling to the share
of direct recruit, came to be filled up by promotee i.e. Dr. Sheilja
Fotedar, meaning thereby that 50% quota meant for promotee in terms
of Rules 2006 also stood consumed. Since there were only two posts,
.
13 point roster as provided under Chapter XIII of Handbook on
Personnel Matters otherwise could not be made applicable in the instant
case.
20. If the submission made by learned senior counsel for the
petitioner is accepted that roster was to be applied while filling up two
posts of Assistant Professors in the discipline of Public Health
Dentistry/Community Dentistry, even then roster stood completely
applied with the appointment of promotee against second post and
direct against first post. In such eventuality, otherwise, post vacated by
direct recruit is to be filled up by way of direct recruitment and not by
promotion.
21. Otherwise also, till the time, one post of Assistant Professor
(Public Health Dentistry) is occupied by promotee, second post which
fell vacant on account of promotion of incumbent, who was a direct
recruit, cannot be filled up by way of promotion, because that would
amount to 100% reservation to the promotees in the cadre of two, which
if permitted shall be in complete violation of law laid down by Hon'ble
Apex Court and against the mandate of Rules 2006 governing the field.
22. If judgment rendered by Hon'ble Apex Court in R.N.
Bhatnagar (supra), is read in its entirety, it clearly reveals that in the
case before Hon'ble Apex Court, percentage for recruitment of Assistant
Professor from departmental candidate was 75% and 25% reserved for
direct recruitment and there was dispute with regard to 16th vacancy at
roster point No. 16. Since in that case, roster was prescribed by
.
statutory Rules, Hon'ble Apex Court while elaborating upon working of
roster point, regulating the recruitment from two sources i.e. promotees
and direct recruits observed that the word "post" as used in rule 9 of
rules, may or may not refer to the total number of posts in the cadre and
may not exclude vacancies. Hon'ble Apex Court further held that
recruitment to fill up vacancies from time to time is controlled by quota
or percentage of posts meant for promotee and direct recruits, meaning
thereby posts are definitely to be filled up as per quota/percentage
prescribed in the Recruitment and Promotion Rules.
23. Mr. Dilip Sharma, learned senior counsel appearing for
respondent No.3, while inviting attention of this court to judgment
rendered by Hon'ble Division Bench in Ram Sarup Kalia & others Vs.
State of H.P. and others, Latest HLJ 2005 (HP)(DB) 520, argued that
wherever there is roster and once quota is filled up, then roster must not
be applied any further.
24. Having carefully perused aforesaid judgment relied upon by
learned senior counsel for respondent No.3 this court finds that the
proposition that, whether quota can be applied to vacancies or to the
posts, came to be considered in the aforesaid judgment passed by
Hon'ble Division Bench of this court. In the case supra, Recruitment and
Promotion Rules for the post of Assistant Engineer in Public Works
Department initially used word "vacancies" while prescribing method of
recruitment but subsequently same was changed by amending the rules
and substituted word, "vacancies" by the word, "posts". Hon'ble Division
.
Bench has specifically taken note of the judgment of Hon'ble Apex
Court in R.N. Bhatnagar (supra) in its judgment in Ram Sarup Kalia
(supra). It would be apt to take note of the para 29 and 30 of the
judgment rendered by this court.
"29. From a perusal of the various judgments of the Apex Court
the position which clearly emerges, is that the State can lay down
a policy with regard to promotion. The State also has the power to
amend the policy with regard to promotion. The State also has
the power to amend the policy even if it to the detriment of certain
class of employees. The only valid ground to challenge such a
policy is that the same violates the mandate of Articles 14 and 16
of the Constitution of India.
30. The judgments relied upon by the petitioners turned on the
words of the rules, which were to be interpreted in each of those
cases. From a perusal of the judgments of the Apex Court cited
above, it cannot be said that the Supreme Court has held that in
every case, where quota is prescribed for recruitment from two or
more sources, it should always be related to vacancies and in no
case can it be applied to post. This would depend on the rules in
each case and the circumstances under which the rule has been
framed. In fact, the Supreme Court itself in RK Sabharwal's case
has deprecated the practice of operating a roster ever after the
quota has been reached. It has also stated that concept of
vacancies has no reliance in operating the percentage of
reservation. The argument of the petitioners is that this judgment
only relates to cases of reservations and not to cases of
recruitment from two different sources. The answer to this
argument lies in the observation of the Apex Court case in All
India Judges' Association case wherein the Supreme Court has
again, in no uncertain terms stated that wherever, there is a
.
roster once the quota is filled then the roster should not be
applied any further.
25. It is not in dispute that aforesaid judgment has attained
finality on account of dismissal of Civil Appeal No. 3606 of 2008 having
been filed by respondent State in the Hon'ble Apex Court.
26. Careful perusal of aforesaid judgment passed by Hon'ble
Division Bench of this Court, reveals that that Hon'ble Division Bench
while distinguishing the judgment rendered by Hon'ble Apex Court in
R.N. Bhatnagar (supra), ruled that it cannot be said that in every case,
where quota is prescribed for recruitment from two or more sources, it
should always be related to vacancies and in no case can it be applied
to post, rather, this would depend on the rules in each case and the
circumstances under which the rule has been framed. In Ram Sarup
Kalia (supra), Hon'ble Division Bench has observed that, in fact, the
Supreme Court itself in RK Sabharwal's case has deprecated the
practice of operating a roster ever after the quota has been reached.
The argument of the learned senior counsel appearing for the petitioner
that R.K. Bhatnagar (supra) only relates to cases of reservations and
not to cases of recruitment from two different sources, is not tenable in
view of findings rendered by Apex Court case in All India Judges
Association and Ors. v. Union of India and Ors., (2002) 4 SCC 247,
wherein the Supreme Court has again, in no uncertain terms has held
that wherever, there is a roster once the quota is filled then the roster
.
should not be applied any further.
27. It would be also relevant to take note of judgment passed
by Hon'ble Apex Court in All India Judges Association vs. Union of
India, wherein Hon'ble Apex Court has held that one of methods of
avoiding litigation and bringing about certainty in this regard by
specifying quotas in relation to "posts" and not in relation to "vacancies".
"22. The respondents also placed reliance on All India Judges'
Association and others V. Union of India and others. In this case,
the Supreme Court in para 29 placing reliance on R.K.
Sabharwal's case supra held thus:
"29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in order
to decide the relative seniority from the officers recruited from
the two different sources, namely, promotees and direct
recruits. As a result of the decision today, there will, in a way, be
three ways of recruitment to the Higher Judicial Service. The
quota for promotion which we have prescribed is 50 per cent by
following the principle "merit¬cum¬seniority", 25 per cent
strictly on merit by limited departmental competitive
examination and 25 per cent by direct recruitment. Experience
has also shown that the least amount of litigation in
the country, where quota system in recruitment exists, insofar as
seniority is concerned, is where a roster system is followed. For
example, there is, as per the rules of the Central Government, a
40¬point roster which has been prescribed which deals with the
quotas for Scheduled Castes and Scheduled Tribes.
Hardly, if ever, there has been a litigation amongst
the members of the service after their recruitment as
per the quotas, the seniority is fixed by the roster
points and irrespective of the fact as to when a person is
.
recruited. When roster system is followed, there is no question
of any dispute arising. The 40 point roster has been considered
and approved by this Court in R.K. Sabharwal v. State of
Punjab, (1995) 2 SCC 745. One of the methods of avoiding any
litigation and bringing about certainty in this regard is by
specifying quotas in relation to posts and not in relation to the
vacancies. This is the basic principle on the basis of which the
40 point roster works. We direct the High Courts to
suitably amend and promulgate seniority rules on the basis of
the roster principle as approved by this Court in R.K. Sabharwal
case as early as possible. We hope that as a result thereof there
would be no further dispute in the fixation of seniority. It is
obvious that this system can only apply prospectively except
where under the relevant rules seniority is to be determined on
the basis of quota and rotational system. The existing relative
seniority of the members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the future.
Appropriate rules and methods will be adopted by the High
Courts and approved by the States, wherever necessary by 31-
3-2003.".
28. Otherwise also, in Ram Sarup Kalia (supra), Hon'ble
Division Bench of this Court has held that State can lay down a policy
with regard to promotion. The State also has the power to amend the
policy, with regard to promotion. The State also has the power to amend
the policy even if it is to the detriment of certain class of employees. The
only valid ground to challenge such a policy is that the same violates
the mandate of Articles 14 and 16 of the Constitution of India.
29. Interestingly, in the case at hand, neither there is challenge
.
to policy of State to fill up posts form two sources, by applying quota
neither learned senior counsel for petitioner has been able to
demonstrate that on account of filling up to posts of from two streams
i.e. 50% by direct recruitment and 50% by promotion, in the cadre of
two, prejudice if any can be said to be caused to category of promotee
who at present is otherwise occupying one post of Assistant Professor
in the cadre of two posts.
30. Though there is no specific mention with regard to
applicability of roster as prescribed in Chapter XIII of Handbook on
Personnel Matters in the Rules 2006 occupying the field, but otherwise
also petitioner on the strength of administrative instructions, if issued
under Chapter XIII of Handbook on Personnel Matters cannot be
permitted to claim that action of the respondents is illegal. Petitioner has
not been able to make out a case that by initiating process for filling up
present vacancy by direct recruitment, respondents, in any manner,
violated the mandate of 50:50 between direct recruits and the
promotees.
31. Judgment of Hon'ble Apex Court in RN Bhatnagar has no
applicability in the case at hand, for the reason that in that case,
Recruitment and Promotion Rules itself provided for roster but as has
been observed above, there is no mention of word 'roster' in the Rules
2006 while filling up two posts of Assistant Professors in the
Department of Public Health Dentistry,
32. Having perused the replies, Annexure A-9 and A-10 filed in
.
some other petitions, this court finds that in Department of paedontrics,
there were three posts of lecturer and as such, ratio of 50:50 as
prescribed under Rules 2006 cannot be maintained unless roster is
applied. But in the cadre consisting of two posts, ratio of 50:50 can be
maintained between direct recruits and promotees by giving one share
to each category. Since in the cadre of 3 posts ratio of 50:50 cannot be
maintained, posts are offered by rotation so as to obey the mandate of
rules.
33. Leaving everything aside, after having taken note of the
fact that at present one post of Assistant Professor is already occupied
by a promotee, this court is of the view that second post, which
otherwise has been vacated by direct recruit, must go to the same
category, i.e. direct recruit and not to the promotee category.
34. Since both the categories stood represented in the cadre of
Assistant Professors, as such, now the posts are to be filled up from the
category, which vacated the same i.e. post occupied by direct recruit
would go to direct recruit and the post vacated by a promotee would be
filled up by way of promotion, so as to maintain the ratio of 50:50 for
both the categories in terms of Rules, 2006.
35. In view of detailed discussion made supra, present writ
petition is dismissed being devoid of merit. All pending applications are
also disposed of. Interim directions, if any, stand vacated.
.
(Sandeep Sharma),
Judge
August 12, 2021
(vikrant)
r to
