[Cites 1, Cited by 0]
Madhya Pradesh High Court
Dr. Ashish Kaushal vs The State Of Madhya Pradesh on 31 March, 2026
1 W.P.No. 7729/2026
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION NO. 7729 OF 2026
DR. ASHISH KAUSHAL
Versus
STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Surendra Singh Gautam - Advocate for the petitioner.
Shri Brij Mohan Patel - GA for respondents/State.
Shri D.P.Singh- Advocate for respondents no. 4 to 6.
RESERVED ON: 12/03/2026
ORDER PASSED ON: 31/03/2026
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O R D E R
By way of this petition, the petitioner has challenged the in-house
advertisement, dated 06.02.2026 (Annexure P-1), issued by respondent
no.4, whereby Gajra Raje Medical College (in short 'GRMC'), Gwalior has
invited applications for filling up one post of Professor in Orthopedics. The
petitioner has also prayed for a direction to respondent no.4 to notify the
definite procedure for assessment of candidates for promotion and the
vacant post of Professor in Orthopedics be filled through departmental
promotion instead of filling up the same by direct recruitment.
2. The petitioner was initially appointed as Assistant Professor in
Department of Orthopedics in GRMC, Gwalior, on 28.05.2005. He was
promoted to the post of Associate Professor in the said department on
25.03.2013 and was designated as Professor on 21.03.2018. It is the
contention of petitioner that the post of Professor in Orthopedics is required
to be filled by promotion and he is working on the feeder post of Associate
Professor since 2013 and has completed more 12 years of service which is
sufficient for being considered for promotion on the post of Professor. It is
his submission that the direct recruitment on a post meant to be filled up by
promotion shall cause serious prejudice to him and his right to be
considered for promotion shall be violated.
3. The learned counsel for the petitioner vehemently argued that the post
is to be filled up by direct recruitment/promotion as per the statutory rules
framed for autonomous medical colleges known as M.P. Autonomous
Medical and Dental College Educational Model Service Rules, 2018 (in
short 'Rules'). The posts to be filled up by direct recruitment as per Rule 7
and by promotion as per Rule 8. He submitted that in department of
Orthopedics, two posts of Professor are sanctioned which is evident from
Schedule I & II appended to the Rules. As per Schedule II, both the posts
are required to be filled up by way of promotion. The learned counsel
submitted that instead of convening DPC to fill up the post by promotion,
the respondent no.4 has issued impugned advertisement to fill up one post
by direct recruitment from among the in-house candidates. It is his
submission that the respondent no.4 has advertised only one post falling
under UR category and has thus violated the reservation roster and
prevailing norms of NMC and also the Rules of 2018. He submitted that the
petitioner submitted his grievance in this regard on 22.02.2026 to
respondent no.2 & 4, however the same is not considered and the
respondent no.4 is proceeding with the impugned advertisement. The
learned counsel relied upon orders passed by this Court in W.P.
No.10142/25, W.P. No.11978/24, W.P. No.15791/25, W.P. No.31493/24 &
W.P. No.16370/21 passed in similar circumstances.
4. Per contra, the petition is vehemently opposed by learned counsel for
respondent no.3 to 6. He submitted that under Rule 7 & 8 of Rules of 2018,
the posts can be filled up either by direct recruitment or by promotion. It is
further contended by him that vide memo dated 10.12.2025, (Annexure R-1)
the Director, Medical Education, Public Health & Medical Education
Department has issued instructions to follow the existing procedure for
filling up vacant post of Professor and Associate Professor till fresh
instructions are issued for implementing Public Services Promotion Rules,
2025. The respondent no.4 has therefore decided to fill up the post by direct
recruitment from among the in-house candidates. It is his submission that in
view of memo dated 10.12.2025 received from Department of Public Health
and Medical Education, it was decided 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 medical college
and if the in-house candidates are not available then only the posts will be
filled up by open recruitment for outsider candidates.
It is further argued by learned counsel that in view of Note-2 of
Schedule II of the Rules of 2018, since there is legal impediment in
promotion in view of issue relating to reservation in promotion pending
before the Apex Court and status quo order prevailing, therefore, the
respondent no.4 has decided to carry out the process through direct
recruitment and while doing so, to save the chances of the candidates 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 if no
in-house candidate is found to be eligible, then the candidates from open
market will be called. He, therefore, contended that the posts have been
converted into direct recruitment under emergent circumstances to meet out
the exigency. As per his submission, the action of respondents 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 in the college itself and not from outsiders. It is only
when candidates are not available in feeder cadre then outsiders will be
considered.
5. Learned counsel thus submitted 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. He also submitted that the petitioner
himself has applied for the post pursuant to impugned advertisement.
Therefore, no prejudice is caused to him by impugned advertisement. He
also submitted that the petitioner having applied for the post, is estopped
from challenging the advertisement. Therefore, the petitioner has no valid
cause or reason to be aggrieved by the action of respondents.
6. The learned counsel for the petitioner in rejoinder submitted that
despite the position that the advertisement in question is in-house and open
only to the candidates for feeder cadre, yet it will prejudice the rights of the
petitioner inasmuch as even a junior candidate can get selected in the
process of direct recruitment. It is contended by him that in direct
recruitment all the medical teachers in feeder cadre would be at par and
there are all the chances that a junior person may be selected on the basis of
merit. The action of respondents not only prejudices petitioner's right of
promotion but the same is also contrary to the method adopted for
promotion where the selection is done by merit-cum-seniority. This would
be prejudicial to the petitioner's interest, though the advertisement may be
captioned as in-house advertisement and may be projected to be as an
alternative to promotion.
7. Heard the counsel for parties and perused the records.
8. The objection of the learned counsel for the respondents, regarding
estoppel against the petitioner for having participated in the process, is to be
considered first. The counsel for the respondents contended that the
petitioner having applied in the selection process, cannot now challenge the
advertisement.
9. The advertisement in question was issued on 06.02.2026. The
petitioner immediately lodged an objection to the same on 22.02.2026 &
23.02.2026. Thereafter, the present petition was filed on 25.02.2026. Now,
in order to avoid losing his right to participate in the process, if the
petitioner has submitted his application for consideration, the same cannot
be said to be illegal. It is not the case where the petitioner has challenged
the selection process after being unsuccessful in the process. It is a case
where the petitioner during on-going process has made challenge to the
same. Therefore, in the considered opinion of this Court, the petition does
not seem to be barred by estoppel. The objection raised by respondents is
accordingly rejected.
10. Now, the merits of the case need to be considered. It is the specific
case of the petitioner that the post in question is required to be filled up by
way of promotion. The respondents have not specifically denied this factual
assertion. Rather, they have tried to defend the same by citing memo, dated
10.12.2025, (Annexure R/10) issued by Director, Medical Education. It is
thus no more in dispute that the post of Professor (Orthopedics) advertised
vide impugned advertisement, is required to be filled up by promotion as
per the Rules of 2018.
11. Under the Rules of 2018 framed by the State Government, different
procedure is provided for making appointment by direct recruitment and by
promotion. As per Rule 6, the appointment under the rules can be made
either by direct recruitment or by way of promotion as per Schedule II
thereof. Rule 7 prescribe the procedure for direct recruitment while Rule 8
makes provision for promotion. The relevant Rules 6, 7 & 8 are as under:-
"¼6½ fjDr inksa ij fu;qfDr&
fjDr in rFkk Hkfo"; esa gksus okys fjDr inksa ij fu;qfDr
fuEukuqlkj gksxh&
¼1½ fjDr inksa esa ls lh/kh Hkjrh ds in vkSj inksUufr ds in dh
x.kuk lyXu vuqlwph& nks vuqlkj dh tk,xhA
¼2½ fjDr inksa dh iwfrZ ds vko';d U;wure vgZrk ds ekin.M esa
dk;Zdkfj.kh lfefr ladYi ikfjr dj vko';drkuqlkj o`f) dj
ldsxh] rFkk vfrfjDr vgZrk fu;r dj ldsxhA inokj vgZrk dk
fooj.k layXu vuqlwph rhu vuqlkj gSA
¼3½ p;u lfefr laHkkxk;qDr dh v/;{krk esa gksxh ftlesa egkfo|
ky; ds eq[; dk;Zikyu vf/kdkjh ds vfrfjDr U;wure nks lsokjr
vFkok lsokfuo`Rr [;kfrizkIr lnL; laHkkxk;qDr }kjk le;≤
ij euksuhr fd, tk,axsA
7 lh/kh HkrhZ dh izfdz;k&
¼1½ lh/kh Hkjrh ds inksa dh iwfrZ ds fy, dk;Zdkfj.kh lfefr foKfIr
tkjh djrs gq, ikjn'khZ izfdz;k viuk,axhA
¼2½ lh/kh Hkjrh ds fjDr inksa dh iwfrZ ds fy, dk;Zdkfj.kh lfefr
ladYi ikfjr dj ;Fkko';d fyf[kr ijh{kk vFkok lk{kkRdkj vFkok
nksuksa fu;r dj ldsxhA
¼3½ p;u lfefr esfjV ds vk/kkj ij ,oa esfjV dze esa vH;fFkZ;ksa ds
p;u gsrq vuq'kalk nsxh vkSj rnuqlkj ojh;rk dze esa fu;qfDr dh
tk ldsxhA
¼4½p;fur vH;FkhZ dks fu;qfDr izFker% ,d o"kZ dh vof/k ds fy,
ifjoh{kk ij vuqca/k ij dh tk,xhA
ijUrq mDr fcUnq 7¼3½ ds rgr p;fur vH;FkhZ }kjk egkfo|ky;
esa ,d o"kZ dh vof/k ds fy, lhfu;j jsftMsUV MkWDVj ds in ij
dk;Z fd;k gks rks mls fu;fer lsok esa fu;qfDr nh tk ldsxhA
¼5½ ifjoh{kk vof/k esa fpfdRlk f'k{kd ds 'kS{kf.kd ,oa fpfdRldh;
dk;ksZa ds vk/kkj ij p;u lfefr lacaf/kr O;fDr dks fu;qDr djus
vFkok vU;Fkk dh vuq'kalk djsxh vkSj rnkuqlkj vks'k tkjh fd;k
tk,xkA
¼6½ egkfo|ky; esa lsokjr O;fDr tks lh/kh Hkjrh ds in ds fy,
vgZrk/kkjh gks] lh/kh Hkjrh ds in ds fo:) vkosnu nsus ds fy,
Loraa= gksxk vkSj ,sls vkosnu ds fy, mls fu;ksDrk ls vukifRr
ugaha ysuk gksxhA
¼7½ egkfo|ky; esa lsokjr O;fDr dk vuqlwph&,d esa fofufnZ"V
fdlh in ds fo:) p;u fd;k tkus dh n'kk esa ,sls O;fDr dk
fpfdRlk f'k{kd ds fofufnZ"V in ij osru mlds }kjk egkfo|ky;
esa nh xbZ iwoZ lsok vof/k dh x.kuk esa ysdj fd;k tk,xkA
8- inksUufr }kjk fu;qfDr dh izfdz;k&
¼1½ inksUufr ds fjDr inksa dh iwfrZ ds fy, dk;Zdkfj.kh lfefr
le;≤ ij ladYi ikfjr dj fuEu esa ls dksbZ Hkh ,d ;k
vf/kd ekin.M viukus dk fu.kZ; ys ldsxh&
¼v½ dk;Zdkfj.kh lfefr ds Lo'kklh egkfo|ky; esa dh xbZ lsok
vof/k dk ewY;kaduA
¼c½lk{kkRdkjA
¼l½ fyf[kr ijh{kkA
¼2½ eq[; dk;Zikyu vf/kdkjh ds in ij inksUufr ds fy, izk/;kid
dks izk/;kid ds in ij inksUufr ds fy, ;g lg izk/;kid dh ,oa
lg izk/;ikd ds in ij inksUufr ds y, lgk;d izk/;kid dks
fopkj.k {ks= esa j[kk tk,xkA
¼3½ inkUufr ds fy, fopkj.k {ks= esa mu lHkh vH;fFkZ;ks dks j[kk
tk,xk tks mijksDr fu;e 6¼2½ ds vuqlkj inksUufr ds in dh
vgZrk j[krs gksA fopkj.k {ks= lwph egkfo|ky;ksa esa dh xbZ lsok
vof/k dze esa cukbZ tk,xhA
¼4½ p;u lfefr mEehnokjksa dk p;u dj inksUufr gsrq vuq'kalk
nsxh vkSj p;u lwph ds ojh;rkdze esa fjDr inksa ds fo:) inksUufr
vkns'k tkjh fd, tk,axsA^^
12. As per Rule 7, the appointment by way of direct recruitment can be
made either by conducting written test or by interview or both. Similarly,
Rule 8 provides that promotions to any post can be made by assessment of
service in feeder post or by conducting written test or interview or the
combination of these.
13. Further, note-2 of the Schedule provides as under:
"2- dkWye 5 esa n'kkZ;sa inksa dks inksUufr ds fy;s rRle;
vgZrk/kkjh mEehnokj miyC/k ugha gksus dh n'kk esa vFkok inksUufr
ij oS/kkfud ck/kk gksus dh n'kk esa lh/kh HkrhZ dh izfØ;k ds ek/;e
ls Hkjk tk ldsxk A bl gsrq le;≤ ij dk;Zdkfj.kh lfefr
ladYi ikfjr dj ldsxh A "
14. Thus, the post meant to be filled up by way of promotion can be filled
by direct recruitment only when it cannot be filled by promotion or there is
any legal impediment in making promotion.
15. From the return filed by respondents, it is evident that no effort has
been made so far for filling up the post by promotion. During the course of
arguments, the learned counsel for respondents argued that in view of
pendency of SLP in the case of R.B. Rai before Apex Court, there is legal
impediment in making promotion. As per his submission, the College has
decided to fill up the post by direct recruitment by inviting only the in-house
candidates which does not prejudice the petitioner's interest. However, such
a submission is not acceptable inasmuch as pursuant to impugned
advertisement, even those candidates are eligible to participate in the
process who are otherwise not eligible for consideration in matter of
promotion. Further, there is no weightage given to the service rendered in
feeder cadre. This would certainly prejudice the interest of eligible
candidates in feeder cadre.
16. The controversy has been dealt with by coordinate bench of this
Court in the case of Dr. Rajni Thakur vs. State of Madhya Pradesh & ors.
in W.P. No.31493/2024. The court held as under:
"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.
With the aforesaid directions, the petition is allowed."
17. This case stands on similar footing with the case of Dr. Rajni Thakur.
Therefore, this case is also disposed of with the direction that the order
passed by this Court in the case of Dr. Rajni Thakur shall apply mutatis
mutandis to this case also. The impugned advertisement dated 06.02.2026
(Annexure P-1), issued by respondent no.4, is accordingly quashed.
(ASHISH SHROTI)
JUDGE
JPS/-
