SBCWP No.5871/93-Ashok Kumar Sharama vs. State Order dt:14/10/2008 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Ashok Kumar Sharama vs. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.5871/1993 DATE OF ORDER : 14/10/2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Nitin Trivedi, for the petitioner. Mrs. R.R.Kanwar, Deputy Government Counsel. Mr.Harish Purohit, for respondent no.2. 1. Heard learned counsels. 2. Petitioner by this writ petition has claimed that he was entitled to be promoted on the post of Associate Professor (Reader in Opthalmology) under Rule 24 (A) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter referred to as the Rules of 1962) against the vacancies of 1993-94 on the basis of seniority cum merit criteria and respondent no.2-Dr.Anila Khutteta was wrongly promoted by impugned order Annex.2 dated 1.12.1993 against the said vacancy on the basis of `merit' ignoring the case of petitioner. SBCWP No.5871/93-Ashok Kumar Sharama vs. State Order dt:14/10/2008 2/5 3. Learned counsel for the petitioner while drawing attention of the Court towards Rule 24 (5-A) Explanation, which is reproduced hereinbelow, submits that the criteria for promotion followed in Annex.1 dated 28/5/1993 whereby Assistant Professors in Opthalmology were promoted to the post of Associate Professor was that on first point the promotion was made on the basis of seniority- cum-merit and on second point on the basis of merit and again for 1992-93 similar pattern was adopted by the respondents, whereas, for the vacancies determined for the year 1993-94, respondent no.2 Dr.Anila Khuttteta was promoted on the basis of merit ignoring the case of petitioner. “Explanation:-If in a Service, in any category of post, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum- merit and merit in the proportion 50:50, the following cyclic-order shall be followed:- The first vacancy by seniority-cum-merit; the subsequent vacancy by merit; The cycle to be repeated.” 4. Learned counsel for the petitioner Mr.Nitin Trivedi submits that the first available vacancy for the year 1993-94 has to be filled up SBCWP No.5871/93-Ashok Kumar Sharama vs. State Order dt:14/10/2008 3/5 by promotion on the basis of seniority-cum-merit and subsequent vacancy on the basis of merit as per aforesaid Explanation and, therefore, irrespective of the petitioner's claim on account of post falling vacant as Dr.S.S.Mathur went abroad in the year 1986 for a period of more than five years without seeking extension of time by the respondents which vacancy should have been treated as regular available vacancy, the petitioner was entitled to be promoted as Associate Professor at least against the vacancy of 1993-94. 5. On the side opposite Mrs. R.R.Kanwar appearing for the respondent submits that petitioner since was promoted on the basis of recommendation of DPC vide order dated 31/12/1994 against the two vacancies for the year 1994-95, therefore, the promotion of respondent no.2 Dr.Anila Khutteta against the vacancy of 1993-94 cannot be challenged at this stage. 6. Having heard learned counsels, this Court is satisfied that petitioner's case was wrongly ignored by the respondents against the vacancy occurring for the year 1993-94. Whenever, two vacancies arose for the respective years, the first vacancy has been filled up by promotion on the basis of seniority-cum-merit and the subsequent SBCWP No.5871/93-Ashok Kumar Sharama vs. State Order dt:14/10/2008 4/5 vacancy on the basis of merit as per aforesaid Explanation. Therefore, there was no good reason when single vacancy arose for the year 1993-94 to fill up the same on the basis of merit by promoting Dr. Anila Khutteta vide Annex.2 dated 1/12/1993. Admittedly, in the common seniority list of Assistant Professor Dr.Anila Khutteta -respondent no.2 stood below the petitioner and, therefore, if the respondent had adopted the correct criteria of seniority-cum-merit for filling up the vacancy for the year 1993-94, it was the turn of petitioner, who ought to have been promoted against the said vacancy irrespective of another vacancy which could also be taken into consideration on account of Dr. S.S.Mathur remaining abroad for a period more than five years in view of DOP Circular No.F.I(16) Apptts/-II/67 dated 13/12/1973, the vacancy available for the year 1993-94 deserves to be filled up by promotion on the basis of seniority-cum-merit in view of Explanation to Rule 24(5-A) quoted above. 7. In view of above, this writ petition deserves to be allowed and same is accordingly allowed. Annex.2 dated 1/12/1993 is quashed to the extent of respondent no.2 Dr.Anila Khutteta and petitioner is directed to be promoted to the post of Associate Professor (Reader in SBCWP No.5871/93-Ashok Kumar Sharama vs. State Order dt:14/10/2008 5/5 Opthalmology) in Medical College, Jaipur against the vacancy for the year 1993-94 and respondent no.2 shall be deemed to be promoted on the basis of merit against the vacancy for the year 1994-95 in place of petitioner Shri Ashok Kumar Sharma. Copy of the minutes of meeting of DPC dated 31/12/1994 are taken on record. No order as to costs. (DR.VINEET KOTHARI), J. item no.s/1 baweja/-