Madhya Pradesh High Court
Dr. Rajni Thakur vs State Of Madhya Pradesh Through Its ... on 12 August, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
WP No.31493 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 31493 of 2024
DR. RAJNI THAKUR
Versus
STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL
SECRETARY HEALTH AND OTHERS
.........................................................................................................
Appearance:
Shri Saurabh Sunder - Advocate for the petitioner.
Shri Vijay Shukla - Panel Lawyer for the respondents / State.
Shri Shubham Manchani - Advocate for the respondent No.3.
..........................................................................................................
ORDER
(Reserved on 17/06/2025)
(Pronounced on 12 /08/2025)
By way of this petition, the petitioner has called into question the
recruitment notice (Annexure P-1) whereby the respondent No.3- Medical
College i.e. Autonomous Gandhi Medical College, Bhopal has advertised
vacancies for various posts. The petitioner is concerned with the post of
Associate Professor in Anesthesia.
2. The contention of learned counsel for the petitioner is that the post of
Associate Professor in Anesthesia is required to be filled by promotion and
the petitioner since is working on the feeder post of Assistant Professor
since 2012 and has completed 12 years of service which is sufficient for
being considered for promotion as per Teachers Eligibility Qualification in
Medical Institutions Regulations, 2022 framed by the National Medical
Commission, therefore, the direct recruitment on a post meant to be filled
up by promotion has caused great prejudice to the petitioner whose rights
to be considered for promotion have been violated.
3. Learned counsel for the petitioner vehemently argued that once the
post is meant to be filled up by direct recruitment as per the statutory rules
framed for autonomous medical colleges and brought on record as
(Annexure P-8) and known as M.P. Autonomous Medical and Dental
College Educational Model Service Rules 2018, the posts are meant to be
filled up by direct recruitment as per Rule 7 and by promotion as per Rule
8. The Schedules have been framed under the said rules and as per the
Schedule framed for the respondent No.3- medical college, which is placed
on record as Annexure RJ-1 with the rejoinder, there are 9 posts of
Associate Professors in Anesthesia as provided in Schedule-1. As per
Schedule-2, it is provided that 2 posts are to be filled up by direct
recruitment and 7 posts are to be filled up by promotion and therefore, the
respondents could not have converted the posts meant for promotion to be
filled up by direct recruitment. It is contended that this has violated the
legal right of the petitioner to be considered for promotion because the
right to consideration for promotion is vested right which could not have
been violated by the respondents.
4. It is further argued that there is infact, no legal impediment for
promotion inasmuch as the status quo order of the Hon'ble Supreme Court
passed in case of State of M.P. Vs. R.B. Rai ( SLP No.13954/2016) is not
applicable in situation where there is single candidate eligible for
promotion despite which the respondents have wrongly converted the
vacancy into one for direct recruitment and notified it as such. It is
contended that though the note as appended to Schedule-II of the
recruitment rules duly mentions that in case of any legal impediment in
promotion, the post of promotion can be filled up by direct recruitment but
there is no legal impediment to promotion and further that the second
condition of the said note is non-availability of candidates in feeder cadre,
and that condition is also not available in the present case because the
petitioner is available in feeder cadre who is otherwise in the zone of
consideration for promotion and therefore, the respondents have wrongly
converted the post of promotion to a post of direct recruitment.
5. By placing great reliance on the letter dated 17.11.2020 (Annexure
P-14), it is contended that the State Government has directed all the
autonomous colleges to fill up the vacant posts, therefore, promotion or
direct recruitment as permissible in light of Rules of 2018 was to be carried
out. However, this letter did not give a liberty to the respondent No.3 to
convert post of promotion to a post of direct recruitment and therefore, the
rights of the petitioner have been greatly prejudiced by non-consideration
for promotion.
6. Per contra, the petition is vehemently opposed by respondent No.3
on the ground that as per the prevailing norms governing faculty
appointment in promotion within broad specialty (MD/MS) is laid down in
Regulations of 2022 and when the said regulations are conjointly read with
Rule 6 & 8 of the M.P. Rules of 2018, then it is evident that the posts can
be filled up either by direct recruitment or by promotion. It is further
contended that vide letter dated 20.10.2022, no instructions were received
from Commissioner of Medical Education regarding the promotion process
having ceased. It was therefore decided to fill up the post by direct
recruitment in view of the letter dated 20.10.2022 (Annexure R-1) received
from the office of Commissioner, Medical Education.
7. It is further contended that in view of letter (Annexure R-2) dated
24.07.2024 received from the State Government, Department of Public
Health and Medical Education, it was directed that for the post of
promotion/direct recruitment, first in-house advertisement should be issued
for considering those candidates who are available in feeder cadre in the
concerned medical college and if the in-house candidates are not available
only then the posts will be filled up by open recruitment for outsider
candidates. Therefore, on strength of these two letters, it is vehemently
argued by learned counsel for the respondents that in view of note-2 of
Schedule II of the M.P. Rules of 2018, since there is legal impediment in
promotion in view of issue relating to reservation in promotion pending
before the Hon'ble Supreme Court and status quo order prevailing,
therefore, the respondent No.3 was directed by the State Government to
carry out the process through direct recruitment and while doing so, to save
the chances of the medical teachers in feeder cadre like the petitioner, it
was decided that firstly in-house candidates only will be permitted to apply
in the selection process and thereafter the candidates from open market will
be considered if no in-house candidate is found to be eligible. Therefore, it
is contended that the posts have been converted into direct recruitment
under emergent circumstances to save the recognition of medical college
which is one of the oldest medical colleges in M.P. because in absence of
senior teaching cadre in the posts of Associate Professor and Professor, the
recognition of medical college in itself would have been in danger.
Therefore, the State Government to save the recognition of the medical
college has directed the concerned medical college to fill up the
promotional post through direct recruitment which does not prejudice the
rights of the petitioner who is in feeder cadre of promotion because the
process is initially conducted only from the candidates available in the
feeder cadre and not from outsiders and only if candidates are not available
in feeder cadre then outsiders will be considered. It is for this reason that
in-house advertisement has been issued at this stage in which no outsider
can appear and therefore, the rights of the petitioner are fully secured who,
if has completed the requisite years of service in feeder post and fulfills
other requirement as per NMC Regulations of 2022 can be considered in
direct recruitment which is only open for in-house candidates. Therefore,
no prejudice is caused to the petitioner by converting the post into direct
recruitment in place of promotion and carry out direct recruitment in place
of promotion which is only a formality. Therefore, the petitioner has no
valid cause or reason to be aggrieved by this conversion of post from
promotion to direct recruitment.
8. The learned counsel for the petitioner in rejoinder submissions has
submitted that despite the position that the advertisement in question is in-
house advertisement only and open only to the candidates for feeder cadre
yet it will prejudice the rights of the petitioner inasmuch as if a junior
person is selected on the basis of merit in the internal advertisement then
the right of the petitioner would be prejudiced. It is contended that in direct
recruitment all the medical teachers in feeder cadre would be at par and
there is high probability that a junior person may be selected on the basis of
merit through internal advertisement, which will be contrary to the method
adopted for promotion where the selection is done by merit-cum-seniority.
This would be prejudicial to the interest of the petitioner, though the
advertisement may be innocuously captioned as in-house advertisement
and may be projected to be as an alternative to promotion.
9. Heard.
10. First the objection of the learned counsel for the respondents as to
estoppel against the petitioner for having participated in the process is
taken up. The counsel for the respondent No.3 had vehemently contended
that the petitioner having participated in the selection process cannot now
challenge the very process.
11. The advertisement in question has been issued on 29.08.2024
whereas the petition has been filed on 14.10.2024 before close of the
selection process. It is not the case where the petitioner has jumped up to
challenge the selection process after being unsuccessful in the process and
then suddenly become wiser and challenging the very inception of the
process. It is a case where the petitioner during ongoing process has made
challenge to the same and therefore, in considered opinion of this Court,
the petition does not seem to be barred by estoppel because it is not a
petition by unsuccessful candidate, realizing after rejection, that the entirel
process was illegal. Moreover, it is settled in law that there can be no
estoppel against law and where law requires something to be done in a
particular manner and if it is not done in that manner then it would have no
existence in law. The Supreme Court in case of Krishna Rai v. Banaras
Hindu University, (2022) 8 SCC 713 has held that merely upon
participation in selection process the candidate cannot be prevented from
challenging the illegal process. The Hon'ble Supreme Court has held as
under:-
"23. However, the Division Bench fell in error in applying the
principle of estoppel that the appellants having appeared in the
interview and being unsuccessful proceeded to challenge the
same and on that ground alone, allowed the appeals, set aside
the judgment [Krishna Rai v. Banaras Hindu University, 2011
SCC OnLine All 1347] of the learned Single Judge. The Division
Bench having approved the reasoning of the learned Single
Judge, ought not to have interfered in the judgment of the
learned Single Judge on a technical plea. The Division Bench
ought to have considered that the appellants were Class IV
employees working from 1977 onwards and expecting from them
to have raised serious objection or protest at the stage of
interview and understanding the principles of changing the rules
of the game, was too far-fetched, unreasonable and
unwarranted.
24. The case laws relied upon by the Division Bench would have
no application in the facts of the present case as none of the
judgments relied upon by the Division Bench laid down that
principle of estoppel would be above law. It is settled principle
that principle of estoppel cannot override the law. The manual
duly approved by the Executive Council will prevail over any
such principle of estoppel or acquiescence."
12. Now this Court proceeds to consider the case on merits.
13. It is undisputed that as per the Schedule framed for the respondent
No.3-medical college the posts of Associate Professor in Anesthesia are
total 9 in number out of which 7 are to be filled up by promotion and 2 are
to be filled up by direct recruitment. Now by the impugned advertisement
the respondent No.2 has advertised one post of Associate Professor in
Anesthesia to be filled up by direct recruitment. It is not disputed between
the parties that the posts of direct recruitment are otherwise filled up and
the post which is advertised has been converted from promotion to direct
recruitment.
14. The said conversion was defended by placing reliance on Schedule
to the recruitment rules placed on record as Annexure RJ-2 wherein as per
note-2 of the schedule as available at page 21 to the rejoinder the following
has been mentioned :-
"2. कॉलम 5 म दशाय पद को पदो नित के िलये त समय अहताधार
उ मीदवार उपल ध नह ं होने क दशा म अथवा पदो नित पर
वैधािनक बाधा होने क दशा म सीधी भत क या के मा यम से
भरा जा सकेगा। इस हे तु समय-समय पर कायका रणी सिमित संक प
पा रत कर सकेगी ।"
15. Either of the two conditions which are pre-requisite to convert the
post of promotion into direct recruitment is that either there should be a
legal impediment in promotion, or there can be a case where there are no
available candidates entitled for promotion.
16. Admittedly, the condition of no candidate being available in the zone
of consideration does not exist in the present case and the post has been
converted into direct recruitment only because it is stated that there is legal
impediment in filling up the post by promotion in view of the pendency of
case before the Hon'ble Supreme Court in R.B. Rai (supra).
17. Though, it is true that a Coordinate Bench of this Court in WP No.
12257/2022 has held that in view of the judgment in case of State of M.P.
Vs. Vinay Kumar Babele (SLP Civil No.5868/2023), the Hon'ble
Supreme Court has permitted the State Government to carry out promotions
and has held that there is no legal impediment in filling up the posts by
promotion. However, subsequently in case of Chairman, MP Pollution
Control Board Vs. Sunita Jhore (Civil Appeal No.1159/2025, decided on
28.1.2025), the Hon'ble Supreme Court has held the issues are to be
decided by the High Court and remanded the matter to the High Court in
Writ Appeal No. 657/2020. This was passed when a similar order passed by
the High Court was put to challenge before the Hon'ble Supreme Court.
Therefore, it cannot be said that there is no legal impediment at present
because even the subsequent M.P. Public Service Promotion Rules, 2025
have been put to challenge before this Court and the challenge to the said
rules is still pending. Therefore, the legal bar to promotions does exist, and
now the other ground of conversion of the post to direct recruitment
affecting the rights of the petitioner, has to be taken up.
18. The respondents have justified the conversion of post to direct
recruitment by stating that there is legal bar in promotion and secondly on
the ground that the rights of the petitioner are fully secured because the
post has not been converted into direct recruitment for open market
candidates but only for in-house candidates and the petitioner otherwise
being in zone of consideration for promotion, can still apply and get
selected though not by promotion but by direct recruitment.
19. As per the Rules of 2018 framed by the State Government, different
procedures are laid down for appointment by recruitment and by
promotion, which are in Rule 6, 7 & 8. As per Rule 6 the provision for
direct recruitment is laid down, as per Rule 7 there is procedure for direct
recruitment and as per Rule 8 the provision is for promotion. The relevant
Rules 6, 7 & 8 are as under:-
(6) र पद पर िनयु -
र पद तथा भ व य म होने वाले र पद पर िनयु िन नानुसार होगी-
(1) र पद म से सीधी भरती के पद और पदो नित के पद क
गणना सल न अनुसूची-दो अनुसार क जाएगी।
(2) र पद क पूित के आव यक यूनतम अहता के मापद ड म
कायका रणी सिमित संक प पा रत कर आव यकतानुसार वृ कर
सकेगी, तथा अित र अहता िनयत कर सकेगी। पदवार अहता का
ववरण सल न अनुसूची तीन अनुसार है ।
(3) चयन सिमित संभागायु क अ य ता म होगी जसम
महा व ालय के मु य कायपालन अिधकार के अित र यूनतम दो
सेवारत अथवा सेवािनवृ ता याित ा त सद य संभागायु त ारा
समय-समय पर मनोनीत कए जाएंगे।
7 सीधी भरती क या -
(1) सीधी भरती के पद क पूित के िलए कायका रणी सिमित व ि
जार करते हुए पारदश या अपनाएगी।
(2) सीधी मरती के र पद क पूित के िलए कायका रणी सिमित
संक प पा रत कर यथाव यक िल खत पर ा अथवा सा ा कार
अथवा दोनो िनयत कर सकेगी।
(3) चयन सिमित मे रट के आधार पर एवं मे रट म म अ यािथय
के चयन हे तु अनुशंसा दे गी और तदनुसार वर यता म म िनयु क
जा सकेगी ।
(4) चयिनत अ यथ को िनयु थमत: एक वष क अविध के िलए
प रवी ा पर अनुबंध पर क जाएगी।
पर तु उ ब द ु 7 (3) के तहत चयिनत अ यथ ारा महा व ालय
म एक वष क अविध के िलए सीिनयर रे जडे ट डॉ टर के पद पर
काय कया हो तो उसे िनयिमत सेवा म िनयु द जा सकेगी।
(5) प रवी ा अविध म िच क सा िश क के शै णक एवं
िच क सक य काय के आधार पर चयन सिमित संबिं धत य को
िनयु करने अथवा अ यथा क अनुशंसा करे गी और तदानुसार आदे श
जार कया जाएगा।
(6) महा व ालय म सेवारत य , जो सीधी भरती के पद के िलए
अहताधार हो, सीधी भरती के पद के व आवेदन दे ने के िलए
वतं होगा और ऐसे आवेदन के िलए उसे िनयो ा से अनाप नह ं
लेना होगी।
(7) महा व ालय म सेवारत य का अनुसच
ू ी-एक म विन द
कसी पद के व चयन कया जाने क दशा म ऐसे य का
िच क सा िश क के विन द पद पर वेतन उसके ारा महा व ालय
म द गई पूव सेवा अविध क गणना म लेकर कया जाएगा ।
8 पदो नित ारा िनयु क या -
(1) पदो नित के र पद क पूित के िलए कायका रणी सिमित
समय-समय पर संक प पा रत कर िन न म से कोई भी एक या
अिधक मापद ड अपनाने का िनणय ले सकेगी -
(अ) कायका रणी सिमित के वशासी महा व ालय म क गई
सेवा अविध का मू याकन।
(ब) सा ा कार।
(स) िल खत पर ा ।
(2) मु य कायपालन अिधकार के पद पर पदो नित के िलए
ा यापक को ा यापक के पद पर पदो नित के िलए सह ा यापक
क एवं सह ा यापक के पद पर पदो नित के िलए सहायक
ा यापक को वचारण े म रखा जाएगा।
(3) पदा नित के िलए वचारण े म उन सभी अ यिथय को रखा
जाएगा जो उपरो त िनयम 6 (2) के अनुसार पदो नित के पद क
अहता रखते हो । वचारण े सूची महा व ालय म क गई सेवा
अविध के घटते म म बनाई जाएगी।
(4) चयन सिमित उ मीदवार का चयन कर पदो नित हे तु अनुशंसा
दे गी और चयन सूची के वर यता म म र पद के व पदो नित
आदे श जार कए जाएगे।
20. The procedure for direct recruitment has been laid down in Rule 7
which is ambiguous in itself because as per rule 7 (2) the requisite criteria
can be written test or interview or both. In similar manner in Rule 8(1) the
criteria for promotion can be service record or interview or written test, or
either of them, or any one of them, or all of them.
21. As per Rule 7(2) and as per Rule 8(2) the exact procedure to be
followed out of three methodologies has to be decided by the Executive
Committee. This Court put a pointed query to the counsel for the
respondent No.3 that whether any methodology has been set in place by the
Executive Committee till date to which learned counsel for the respondent
No.3 was unable to give any categorical answer.
22. The methodology for recruitment is two folds i.e. written test and
interview or either of them or both. The said provision though gives liberty
to the Executive Committee to device the procedure for recruitment but no
resolution of the Executive Committee has been brought on record whereby
the Executive Committee has taken decision to follow a particular method
for direct recruitment. If the Executive Committee decides on different
methodology for different recruitment it would only give rise to instances
of bias and arbitrariness in the selection process. The Executive Committee
may decide a particular method that which of the two or both of the two has
to be followed and in what manner and what is the respective weightage of
written test and interview. However, no general decision has been taken by
the Executive Committee which would apply to all the recruitments. If the
Executive Committee after advertising the post in each case and after
accepting the applications, then devices the procedure for appointment,
there cannot be a better example of arbitrariness in selection process.
23. Similarly in case of promotion also three methods are provided as
per Clause 8(1) (अ) (ब) and (स) which are service record, interview and
written test or either of them or all of them or some of them. In the case of
promotion also the Executive Committee has not taken decision which
should be a general decision for all cases of promotion to arrive at any
specific methodology to carryout promotions which would apply in all
cases, present or future. The Rule 8 as it stands, if allowed to operate
differently in each different case of promotion would give a illegal leverage
to the college management to change the procedure in each case of
promotion. Rules 7 & 8 are enabling provisions but in pursuance to said
rules it was obligatory for the Executive Committee to have devised
procedure for direct recruitment and promotion and which procedure would
not change for each recruitment or for each promotion but would remain
consistent for each recruitment and each promotion.
24. The respondents may be right in saying that as there is legal
impediment in filling up the post by promotion therefore they have gone
ahead with direct recruitment and restricted it to in-house candidates.
However, if that was to be done then the same methodology was to be
adopted which is to be adopted for promotion and if any different
methodology apart from promotion is adopted then it would definitely give
cause of prejudice to petitioner who is in line for promotion because even if
in-house candidates only are considered for direct recruitment but in
absence of following the same procedure which is followed for promotion,
then the vested right of the petitioner to be considered for promotion would
be frustrated and defeated. That vested right of consideration can be
protected only when for carrying out in-house direct recruitment, the same
procedure for assessment is followed which is to be followed in case of
promotion.
25. The respondent No.3 till date having not carved out any definite
procedure for promotion i.e. any definite procedure for assessment to
promote the candidates, therefore, conversion of post of promotion to direct
recruitment without following the procedure for promotion because even
the procedure for promotion has not been devised till date, is a patently
illegal exercise being undertaken by the respondent No.3. Without devising
the procedure for promotion by Executive Committee which should be
consistent for all future promotions in the college, the college having
converted the post of promotion to direct recruitment has committed
illegality because in case of direct recruitment past service record is not the
relevant consideration which should be the consideration in case of
promotion. Therefore, this Court has no hesitation in holding that the
impugned recruitment notice (Annexure P-1) suffers from illegality
inasmuch as the said recruitment notice does not mention that the same
criteria would be followed for in-house direct recruitment of candidates
which would have been followed for promotion and secondly, till date no
definite criteria for promotion and direct recruitment has been notified by
the Executive Committee of the college. Therefore, the impugned
recruitment notice (Annexure P-1) deserves to be and is hereby set aside
with following directions:-
(a) The impugned recruitment notice (Annexure P-1) stands
set aside.
(b) The respondent No.3 would first notify a definite
procedure for assessment of candidates for promotion which
should be disclosed to all the teachers. Separate procedure for
direct recruitment shall also be devised and notified.
(c) After devising such promotional criteria and procedure,
the respondent No.3 would take a decision whether to convert the
post of promotion into direct recruitment and if still there is a
legal impediment, then the respondent No.3 would be at liberty
to issue a fresh advertisement for in-house candidates. But in that
advertisement which would be initially open only for in-house
candidates, the same criteria would be followed which has been
previously notified by the Executive Committee to be followed
for all cases of promotion.
26. With the aforesaid directions, the petition is allowed.
(VIVEK JAIN)
nks JUDGE
