Promotion vs 50. Thus
2021 Latest Caselaw 1028 HP

CWP No.642 of 2021 09.02.2021 Present: Mr. Sanjeev Bhushan, Senior Advocate

.

with Mr. Rakesh Chauhan, Advocate, for

the petitioner.

Mr. Ajay Vaidya, Senior Additional Advocate General, for the respondents-

State.

(Through Video Conference)

CWP No.642 of 2021 & CMP No.1117

of 2021 Apart from instructions dated 04.02.2021, no further instructions have been made

available.

Heard Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioner as well as Mr. Ajay

Vaidya, learned Senior Additional Advocate General for the respondents.

The respondents have taken steps for

filling up the vacant post of Assistant Professor in the

Department of Pathology in Dr. R.P. Government Medical College, Kangra at Tanda, by way of promotion. Whereas,

according to the petitioner, this post falls at Sr. No.6 of the roster points and has to be filled up by way of direct recruitment. It is further submitted that the cadre of Assistant Professor in the Department of Pathology in Dr. R.P. Government Medical College, Kangra at Tanda, consists of three posts, for which the quota prescribed is in the ratio of 50:50 for direct recruitment and promotion, respectively.

Learned Senior Counsel for the petitioner further submits that the roster vis-à-vis quota has to be maintained in the following manner:-

                           Roster Number       Mode of Filling
                           1.                  Promotion
                           2.                  Direct Recruitment
                           3.                  Promotion





                    4.                    Direct Recruitment
                   5.                    Promotion
                   6.                    Direct Recruitment




                                                                .

                         He has further submitted that the first

point was accordingly filled up by way of promotion on

19.01.2011. The second point by way of direct recruitment was filled up on 04.10.2012 and third point by way of promotion was filled up on 18.11.2013. The

fourth point, which was meant for direct recruitment, was actually filled up by way of promotion on 18.02.2016. The fifth point meant for promotion was

filled up by way of direct recruitment on 05.01.2018.

There is interchange between fourth and fifth point. However, this will not affect the filling up of sixth point by

way of direct recruitment. In this regard, learned Senior Counsel has pressed into service (1999) 2 SCC 330, titled State of Punjab and others Versus Dr. R.N.

Bhatnagar and another, relevant portion whereof is

extracted hereinafter:-

"11. On the other hand, the situation which has fallen for our consideration in the present case in the light of Article 16(1) is

squarely covered by a decision of this Court in Paramjit Singh's case as clarified by a latter decision in the very same case reported in Paramjit Singh. In the aforesaid main case, D.A. Desai, J., speaking for a Bench of two learned Judges of this Court, had to consider in para 11 of the Report a recruitment rule which permitted fixed percentage of posts to be filled up in the given cadre from two different sources, namely, promotees and direct recruits. Rule 6 of the Punjab Police Service Rules, 1959, which came for consideration in that case provided for a method of recruitment from two different sources, i.e., 80% by promotion from the rank of Inspectors and 20% by direct recruitment. Examining the working of the aforesaid quota rule for recruitment in the light of the relevant rotational scheme of vacancies in the cadre to which such recruitment was to be made, the following pertinent observations were made in paragraph 11 of the Report: (SCC p.485) "11. Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of Confirmation, Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage. The quota would then be

co-related to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing, the

.

question of their inter se seniority would surface."

As there was some doubt about the observations found in the aforesaid paragraph 11 and as to how the recruitment rule in question was to be operated in the light of the quota prescribed

therein and the rotational method of achieving the said quota of recruitment from two sources, a later Bench clarified the position in the subsequent judgment in the case of Paramjit Singh (supra). Another Bench of two learned Judges, wherein D.A. Desai, J., was common, clarified the observations in para 11 of

the earlier Report as under: (SCC pp. 195-96, paras 6 and 7) "6. In our opinion there is no ambiguity in the judgment. Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into

the cadre except where there has been a substantial violation

of the quota giving undeserved advantage to one or the other source. Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continues officiation. These notions of service jurisprudence may have to yield place to

the specific rules and the fact situation with reference to Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well known in service jurisprudence. What this

Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota

should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who came to the service at

an advanced age may retire, early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when it said: [SCC p.486, para 14: SCC (L&S) p. 318] 'The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.' The quota in the present case is 4:1, that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit. That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation. The sentence which seems to have created a

difference of opinion reads as under: [SCC p. 486, para 14 : SCC (L&S) p.318] 'A roster is introduced while giving confirmation

.

ascertaining every time which post has fallen vacant and

recruit from that source has to be confirmed in the post available to the source.'

7. The sentence cannot be read in isolation. It has to be read

with the earlier sentence that the quota rule would apply to me vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time

of confirmation."

The aforesaid decision which squarely applies to the facts of the present case, therefore, leaves no room for doubt that when under the recruitment Rule 9 in question there is no reservation

of any given category of candidates like SCs, STs or BCs to the

posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points

taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct

recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be

filled by the onward motion of 3 promotees and one direct recruit Consequently, learned counsel for the appellant and learned senior counsel for the intervenor were right when they contended that the High Court in its impugned judgment had

patently erred in invoking the ratio of decision of this Court in R.K. Sabharwal's case which was rendered in an entirely different context for resolving an entirely different controversy which did not arise on the facts of the present case. They were also right in contending that the ratio of the decision of this Court in Paramjit Singh's case read with the decision of this Court in the same case reported in Paramjit Singh would get squarely attracted in the facts of the present case. Once that conclusion is reached, the result becomes obvious. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits. Exactly in this way the roster in the present case was operated by the appellant- State to regulate entry in the cadre of Professors. The factual position in the present case, in the light of operation of the roster for appointing candidates in the cadre of Professors of Ophthalmology projects the following picture:

AS PER THE STATE GOVERNMENT ROSTER POINTS:

        1.     Dr. Dhanwant Singh  3-5-1967     Promotion
        2.     Dr. Ranbir Singh    9-10-1968    Promotion





         3.     Dr.    Sohan    Lal      10-9-1969           Promotion
               Sharma
        4.     Dr. M.R. Chadha          13-12-1971          Direct




                                                           .
                                                            recruitment





        5.     Dr.   Daljit Singh       26-6-1974           Promotion
        6.     Dr.   K.K. Khanna        29-6-1981           Promotion
        7.     Dr.   D.C. Bansal        9-1-1982            Promotion





        8.     Dr.   Charanjit Lal      2-2-1985            Direct
                                                            recruitment
        9.     Dr.   S.S. Rudra         1-11-1983           Promotion
        10.    Dr.   D.C. Aggarwal      26-9-1985           Promotion
        11.    Dr.   M.S. Hora          3-10-1985           Promotion





        12.    Dr.   S.S. Shergill      8-7-1994            Direct
                                                            recruitment
        13.    Dr. Pawanjit Singh       20-10-1990 A        Promotion
               Sandhu                   1-10-1993 R
        14.    Dr. M.S. Bhatia          6-12-1996           Promotion
        15.
           r   Dr. Sat Paul             7-12-1996           Promotion

As noted earlier, we are concerned with the disputed vacancy no. 16 which occurred at Roster Point 16. As the percentage for recruitment of Professors from departmental candidates was 75% and 25% of the appointments to posts were

reserved for direct recruits, the first three vacancies in the cadre would go to promotees and fourth vacancy would go to a direct recruit, similarly 5th, 6th and 7th were to be filled in by departmental candidates and the 8th vacancy go to direct

recruit, 9th, 10th and 11th would go to departmental promotees and the 12th vacancy would go to a direct recruit 13th, 14th and

15th vacancies would go to departmental promotees. Therefore, the disputed 16th vacancy would necessarily go to a direct recruit. That is how the roster points were worked out by the appellant for regulating the recruitment from two sources i.e.

promotees and direct recruits. Though the word "post" is used in Rule 9 of the rules it cannot be said that it must necessarily refer to total posts in the cadre and not to vacancies. It is obvious that recruitment to fill up the vacancies as may be existing from time to time in the cadre is controlled by the quota or percentage of posts earmarked for promotees as compared to direct recruits. As laid down by this Court in the aforesaid two decisions rendered by the Division Benches of two learned Judges, speaking through D.A. Desai, J., it has to be held that for working out the rule of recruitment envisaging appointments from two sources of promotees and direct recruits vacancies in the cadre of Professors had to be kept in view and not the posts themselves. Learned counsel for the appellant and learned senior counsel for the intervenor were right when they contended that if the view which appealed to the High Court is to be accepted the very Rule 9 and the scheme envisaged by it for effecting appointments to the cadre in the ratio of 75% for promotees and 25% for direct recruits would get stultified and frustrated. It was rightly submitted that if four vacancies are filled in from promotees and only one vacancy is to be kept for a direct recruit on the basis that there are-total five posts in the cadre, then 75% of five posts would work out at 3.75 and have to be rounded up as four for the promotees and the remaining

1.25 posts have to be rounded up as only one being less than 1.50. Thus, in substance, the source of recruitment for promotees would get enhanced to 80% and that of direct recruits

.

would be reduced to 20%, That would fly in the face of the

statutory rule which does not envisage such percentage of reservation for promotees and direct recruits. It was also rightly contended that the rule in question controls the recruitment to

entire Punjab Medical Education Service (Class 1). This service consists of various categories of posts as specified in Appendix 'B' to the rules. Rule 4 provides that the service shall comprise the posts shown in Appendix 'B'. When we turn to Appendix 'B', we find that there are number of posts of Professors sanctioned as on 1st September, 1974 in various disciplines. For example,

in the Department of Pharmacology there are only 2 posts, while in the Department of Forensic Medicine there is only one post of Professor. Now, if the reasoning adopted by the High Court is pressed in service for applicability of Rule 9 of the recruitment

rules then a very curious and anomalous situation would arise. In the Department of Pharmacology out of the two posts of

Professor if 75% of the total posts in the cadre are to be earmarked for being filled in by departmental promotees then it would result in earmarking of 1.50 posts for promotees and only 0.50% posts for direct recruits. Ignoring these digits it would result in earmarking one post for promotee and one post for a

direct recruit in the entire cadre of Professors of Pharmacology. If that happens, then earmarking would reflect an entirely different scheme of recruitment rules namely, 50% of posts of Professor would be available to be filled up by promotees and

50% of posts would be available to be filled up by direct recruits. That is not the scheme of Rule 9. Similarly, in case of Forensic

Medicine there is only one post of Professor. Adopting the line of reasoning which appealed to the High Court for working out Rule 9 if 75% of the said posts of Professor is earmarked for promotees it would result into one as more than 0.50% has to be

rounded up to one. Therefore, there being only one post of Professor in the cadre of Professor of Forensic Medicine, it will always go to a promotee and there will be no direct recruitment for that post Meaning thereby, Rule 9 in its applicability for regulating recruitment to the post of Professor in Forensic Medicine would result in earmarking the post for a departmental promotee only by way of 100% reservation and there will be no direct recruitment to me said post at any time in future making 0% reservation for that service. This would stultify the operation of Rule 9 so far as the cadre of Professors in Forensic Medicine goes. It must, therefore, be held that Rule 9 which regulates appointments to the posts in the Punjab Medical Education Service (Class-I) has to be applied uniformly for recruitment of Professors in all the cadres of disciplines. In such cases the method followed by the appellant-State for recruitment of Professors in diverse cadres of discipline as shown in Appendix 'B' to the rules remains the only workable one. It is to the effect that as and when vacancy arises in the concerned cadre of posts in any of the discipline first three future vacancies would go to departmental promotees and the fourth future vacancy would go to a direct recruit. Meaning thereby, even in the cadre of Professor of Forensic Medicine where only one post of Professor is for the first time to be filled in, it will go to a

promotee and as and when such promotee retires or resigns or unfortunately dies in harness the second vacancy would also go to a promotee, similarly, the third one but the fourth vacancy

.

would go to a direct recruit. That is how Rule 9 laying down

quota and rota for monitoring recruitment from two sources of departmental promotees and direct recruits can work uniformly in all the departments for recruitment of Professors where the

posts of Professor in the concerned cadres of departments may consist of a solitary post or two posts or more than two posts or may be five posts, as in the present case. This would result in a harmonious operation of Rule 4 and Rule 9 and no part of Rule 9 will be rendered otiose or truncated in such a case. It must, therefore, be held that reasoning adopted by the High Court in

connection with the working of the aforesaid rule falls foul on the touchstone of Article 16(1) read with statutory scheme as envisaged by these rules. In the light of our aforesaid conclusion, it become obvious that the disputed 16th vacancy in

the cadre of Professors of Ophthalmology consisting of five posts would necessarily go to direct recruit and not a departmental

promotee as wrongly assumed by the High Court while allowing the writ petition."

In light of the above, till the next date of

hearing, the respondents are directed not to take any further action on the basis of Annexure P-2. Parties are

directed to complete the pleadings before the next date.

List on 24th February, 2021 before the

appropriate Bench.

Copy dasti.

Jyotsna Rewal Dua Vacation Judge February 09, 2021 Mukesh