Madhya Pradesh High Court
Dr. Jagram Verma vs The State Of Madhya Pradesh Through ... on 8 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:535
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 8th OF JANUARY, 2025
WRIT APPEAL No. 1274 of 2024
DR. JAGRAM VERMA
Versus
THE STATE OF MADHYA PRADESH THROUGH PRINIPAL
SERETARY AND OTHERS
Appearance:
Shri Piyush Mathur - Senior Advocate assisted by Shri Madhusudan
Dwivedi, counsel for the petitioner.
Shri Bhuwan Gautam - Government Advocate for the respondent No. 1
to 3/State.
Shri L.C.Patne - Advocate for respondent No. 4.
WITH
WRIT APPEAL No. 1605 of 2024
DR. (MRS.) SHENAL KOTHARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri L.C.Patne - Advocate for the petitioner.
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 10-01-
2025 18:09:17
NEUTRAL CITATION NO. 2025:MPHC-IND:535
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Shri Bhuwan Gautam - Government Advocate for the
respondent/State.
Shri Piyush Mathur - Senior Advocate assisted by Shri Madhusudan
Dwivedi, counsel for respondent No. 4.
JUDGMENT
Per: Justice Vivek Rusia
This appeal under Section 2(1) of the Madhya Pradesh Uchcha
Nyayalaya (Khan Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed by
the appellant/writ petitioner against the order dated 22.03.2024 passed in Writ
Petition No. 25631/2021 whereby the learned Single Judge has dismissed the
petition with liberty to renew the prayer after disposal of Writ Petition
No.7501 of 2023.
02. This appeal has been filed by the appellant who was intervener
in the Writ Petition No. 25631 of 2024 and prayed for its dismissal as not
maintainable.
03. The appeal is filed with a delay of 25 days. Considering the
reasons mentioned in I.A.No.6148/2024 which is an application for
condonation of delay, the same is allowed. Delay in filing the appeal is
hereby condoned.
Facts of the case in brief:
04. The appellant/writ petitioner Dr. Jagram Verma (in
W.P.No.1274 of 2024) was initially appointed on the post of Assistant
NEUTRAL CITATION NO. 2025:MPHC-IND:535
Professor in the E.N.T. Department of Mahatma Gandhi Memorial
Government Medical College, Indore vide order dated 16.02.2010. The
MGM Government Medical College was made an Autonomous College as
per the policy decision taken by the Government in the year 1998. The
service conditions of working Doctors / Teaching staff in the college are
governed by the M.P. Autonomous Medical College Medical Service Model
Rules, 2018 (hereinafter referred to as 'Rules of 2018').
05. As per Rule 6 of Rules of 2018, the vacant posts are to be filled
by way of promotion and direct recruitment. The Executive
Committee/Departmental Promotion Committee shall ascertain the minimum
qualification of the candidates, who are to be considered for promotion. Rule
7 of the Rules of 2018 provides for filling up of the post through direct
recruitment and a conjoint reading of Rules 6.2 and 8 of the aforesaid Rules
provides that the vacant post shall be filled up through promotion and if no
eligible candidate is available, the said post will be filled up through direct
recruitment. According to the appellant/petitioner, he fulfills all the
necessary qualification for promotion to the post of Professor but instead of
filling the post by way of promotion, the respondent No. 3/Medical College
has issued an advertisement dated 29.10.2021 for filling the vacant post of
Professor in E.N.T. Department through direct recruitment. Appellant
submitted his candidature pursuant to the said advertisement for direct
recruitment on the post of Professor, E.N.T. and simultaneously submitted a
representation to the respondent for promotion as he is the only eligible
candidate in the department. When the aforesaid prayer was not considered
and respondent No.3 proceeded with the advertisement, the appellant
approached this Court by way of writ petition No. 25631 of 2021.
NEUTRAL CITATION NO. 2025:MPHC-IND:535
06. In the writ petition, Dr. (Mrs.) Shenal Kothari (respondent No.4
herein) filed an application seeking intervention in order to oppose the
petition. The said intervention application was allowed and she was
impleaded as respondent No. 4. Respondent No. 4 filed reply by submitting
that she was one of the aspirants who has applied for the post of Professor to
be filled by direct recruitment. According to respondent No. 4, the
appointment of appellant/petitioner to the post of Associate Professor itself is
illegal for want of vacancy in the cadre of Associate Professor in the E.N.T.
Department. Respondent No. 4 submitted that the post of Associate Professor
in the E.N.T. Department is occupied by one Dr. Yamini Gupta who was
appointed on the said post by virtue of appointment order dated 24.08.2018.
07. Respondents No. 1 to 3 also filed their reply by submitting that
no candidate was found eligible for promotion to the post of Professor,
therefore advertisement was been issued for direction recruitment.
08. The writ Court heard the writ petition and held that the
appellant/petitioner has raised his objection on 10.03.2021 and 29.10.2021
i.e. prior to issuance of the advertisement on 29.10.2021. Therefore, despite
participation in the selection process, he can still challenge the process of
selection by virtue of his earlier objection. However, the writ petition has
been dismissed only on the ground that eligibility of the appellant/petitioner
appointed as Associate Professor is under challenge in Writ Petition No. 7501
of 2023 therefore, the writ petition is liable to be dismissed.
09. Shri Piyush Mathur, learned Senior Advocate appearing for the
appellant/petitioner submits that the appellant is not a party in the pending
W.P.No. 7501 of 2023. The aforesaid writ petition is filed by respondent
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No.4/Dr. (Mrs.) Shenal Kothari challenging the appointment of Dr. (Ms.)
Yamini Gupta. Therefore, the learned writ Court has wrongly dismissed
Writ Petition No. 25631 of 2021 on the ground that the appointment of the
appellant/petitioner on the post of Associate Professor is under challenge.
10. On the other hand, Shri L.C.Patne, learned counsel for
respondent No. 4 submits that respondent No. 4 has filed the connected Writ
Appeal No. 1605 of 2024 challenging the finding recorded by the writ Court
in paragraph 17 and 18 of the impugned order that the writ petition filed by
the appellant/petitioner is maintainable.
11. Shri Patne further submits that once appellant/petitioner has
participated in direct selection, he has given up his right of promotion to the
same post, hence, impugned order be set aside and writ petition be dismissed
as not maintainable.
12. Heard learned counsel for the parties. Perused the record.
13. We are unable to accept the contention raised by Shri Patne and
we are satisfied with the reasoning given by the writ Court in paragraph 17
and 18 that the appellant/petitioner can challenge the process of direct
appointment simultaneously by claiming his right of promotion to the same
post. Therefore, the writ petition has rightly been held maintainable.
14. So far as dismissal of the writ petition on the ground that
respondent No.4 has challenged the appointment of the appellant/petitioner in
W.P. No. 7501 of 2023, is factually incorrect. The cause title of W.P.No.
7501 of 2023 is reproduced for reference :
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15. Respondent no. 4 has only challenged the appointment of Dr.
(Ms.) Yamini Gupta on the post of Associate Professor in the E.N.T.
Department. Even otherwise, as on today, neither the appointment of
appellant/petitioner nor appointment of Dr. (Ms.) Yamini Gupta has been
canceled or declared illegal by this Court. Therefore, the writ petition has
wrongly been dismissed on the ground of pendency of W.P.No. 7501 of 2023
in which neither the issue of promotion nor direct appointment to the post of
Professor is involved. In fact, respondent No. 4 has challenged the
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appointment order dated 24.03.2018 whereby Dr. (Ms.) Yamini Gupta was
appointed on the post of Associate Professor (Otorhinolaryngology Unit) in
the E.N.T Department whereas the present appellant/petitioner was appointed
on 29.09.2018 on the post of Associate Professor in the E.N.T. Department.
16. In view of the foregoing discussions, the impugned order dated
22.03.2024 is set aside. Resultantly, W.P.No. 25631 of 2021 is restored for
adjudication on merits. However, the findings recorded in paragraph 17 and
18 of the impugned order is hereby upheld.
17. Appeals are disposed of accordingly. Let a copy of this
judgment be retained in the connected file.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
