IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.9338/2011-D Reserved on: 7.12.2011 Decided on:22.12. 2011 _____________________________________________ 1. Dr. Suneet Karol son of Sh. Yash Pal Sood, resident of Arti Sadan, Kotla Nala, Rajgarh Road, Solan, H.P. 2. Dr. Nisha Thakur wife of Dr. Narotam Ghezta, resident of Charan Niwas, Village Frood, Lower Cemetry, Sanjauli, Shimla, H.P. …Petitioners. Versus 1. State of Himachal Pradesh through Principal Secretary Health to the Government of Himachal Pradesh, Shimla-2. 2. The Director of Medical Education-cum-Principal, H.P. Government Dental College, Shimla-1. 3. Deepak Shama son of Sh. H.R. Sharma, resident of Trinity House, Keleston Estate. …Respondents. Civil writ petition under Article 226 of the Constitution of India. _______________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. R.K. Bawa, A.G. with Mr. Ankush Sood, Addl. A.G. and Mr. J.K. Verma, Dy. A.G. For respondents No. 1 and 2. Ms. Jyotsna Rewal Dua, Advocate for respondent No.3. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 ____________________________________________________ Per Justice Rajiv Sharma, Judge. CMP No. 12508/2011 Heard. In view of the averments contained in the application, duly supported by an affidavit, the same is allowed. The Registry is directed to carry out necessary correction in the memo of parties. The application stands disposed of. CWP No. 9333/2011 2. Petitioner No.1 completed his B.D.S. from Calicut University, Kerala in the year 1998. Petitioner No.2 completed her B.D.S. from Magadh University, Bodhgaya, Bihar in the year 1997. Petitioner No.1 joined as Medical Officer (Dental) on 25.2.2000 and petitioner No.2 joined on 24.2.2000. Petitioner No.1 joined M.D.S. (Periodontics) in H.P. Dental College and Hospital, Shimla in June, 2008. He completed his M.D.S. in June, 2011. Petitioner No.2 joined M.D.S. (Periodontics) in H.P. Dental College and Hospital, Shimla in May/June, 2007. She completed her M.D.S. in September, 2010. Respondent-State has framed a policy for selection of Lecturers in Himachal Pradesh Dental College, Shimla vide notification dated 21.7.2009. There are three posts of Periodontics as per para 2 of the policy. These three posts are to be filled up 75% by transfer from amongst in service G.D.Os., failing which by direct recruitment and 25% by 3 direct recruitment, failing which from in service G.D.Os. (Dental Surgeons). 3. Respondent-State issued advertisement on 21.10.2011 for filling up two posts of Lectures in Periodontics in H.P. Government Dental College on tenure basis. The last date of receipt of applications was 31.10.2011. According to the advertisement dated 21.10.2011, one vacancy was to be filled up by G.D.O. and second by direct recruitment. Petitioners made a representation vide Annexure P-4 to the Director, Medical Education and Research on 21.10.2011. According to the petitioners, three seats are to be filled up by G.D.Os. followed by one seat of direct category. The representation made by the petitioners was rejected on 31.12.2011, vide Annexure P-7. The written test and interviews were held on 26.11.2011. 4. Mr. Dilip Sharma has strenuously argued that two vacancies are to be filled up only from the G.D.Os. and the decision of the respondent-State to fill up the vacancies in the ratio of 1:1 from G.D.Os. and director recruitment is arbitrary. 5. Mr. R.K. Bawa, learned Advocate General and Ms. Jyotsna Rewal Dua have vehemently argued that the ratio prescribed is 75% by G.D.Os. and 25% by direct recruitment. According to them, Dr. Pravesh Jhingta has occupied point No.1 as per the roster maintained and the subsequent two 4 vacancies have rightly been distributed in the ratio of 1:1 from the category of G.D.Os. and direct category. 6. We have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Paras 7.1 and 7.2 of Annexure P-1 dated 21.7.2009 makes it abundantly clear that 75% vacancies are to be filled up from amongst the in service G.D.Os. (Dental Surgeon) and remaining 25% from the direct recruitment. The respondent-State was directed to produce the roster register maintained for filling up the posts strictly as per para 7. The roster register has been produced. According to the roster register, one Dr. Pravesh Jhingta has already been selected and appointed against point No.1 in the recruitment year 2010 from the category of G.D.Os. It is in these circumstances, according to learned Advocate General, second vacancy has gone to G.D.O. and third to direct recruit. 8. Mr. Dilip Sharma has also argued that in fact two vacancies already stand consumed since according to him one Dr. Ajay Mahajan had already been appointed in the G.D.Os. category. However, the fact of the matter is that it was before the notification issued on 21.7.2009. The only post, which has been filled up according to the roster in the year 2010 after the issuance of notification dated 21.7.2009 from the category of G.D.Os. 9. Mr. Dilip Sharma has also argued that in case the proposition of the State is accepted, in that eventuality the 5 category to which the petitioners belong will get 66% posts and 37% posts will go to the direct recruit. The formula in which the ratio is calculated is given in para 3 of the reply whereby out of three posts, 2.25, say 2 will go to G.D.Os and ¾, say 1 will go to the candidates belonging to direct category. In case the contention of Mr. Dilip Sharma is accepted in that eventuality, the petitioners will get 80% and the candidates belonging to direct recruit may not get a seat. This interpretation process as argued by Mr. Dilip Sharma will render the ratio of 75:25 nugatory and otiose. It is clear that when the ratio of 75:25 is applied, the first two vacancies will go according to the roster to G.D.Os and third vacancy will go to the direct recruit and following two vacancies will go to G.D.Os and next to the candidate belonging to direct category. 10. Mr. Dilip Sharma has placed reliance on State of Punjab and others versus Dr. R.N. Bhatnagar and another, AIR 1999 SC 647. Their Lordships have held that when under the recruitment Rule 9, there was 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. Their Lordships have held as under: 6 12. x x x 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 (1995 AIR SCW 1371) (supra) 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 (AIR 1979 SC 1073) (supra) read with the decision of this Court in the same case reported in (1982) 3 SCC 191 : (AIR 1983 SC 314) 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 : 7 AS PER THE STATE GOVERNMENT ROSTER POINT: 1. Dr. Dhanwant Singh 3- 5-67 Promotion 2. Dr. Ranbir Singh 9-10-68 Promotion 3. Dr. Sohan Lal Sharma 10- 9-69 Promotion 4. Dr. M. R. Chadha 13-12-71 Direct recruitment 5. Dr. Daljit Singh 26- 6-74 Promotion 6. Dr. K. K. Khanna 29- 6-81 Promotion 7. Dr. D. C. Bansal 9- 1-82 Promotion 8. Dr. Charanjit Lal 2- 2-85 Direct recruitment 9. Dr. S. S. Rudra 1-11-83 Promotion 10. Dr. D. C. Aggarwal 26- 9-85 Promotion 11. Dr. M. S. Hora 3-10-85 Promotion 12. Dr. S. S. Shergill 8- 7-94 Direct recruitment 13. Dr. Pawanjit Singh Sandhu 20-10-90A Promotion 1-10-93 R 14. Dr. M. S. Bhatia 6-12-96 Promotion 15. Dr. Sat Paul 7-12-96 Promotion As noted earlier, we are concerned with the disputed vacancy No. 16 which occurred at the roster point No. 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 the 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 would go to a 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 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 8 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 post 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 I). 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 Professors 9 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 not 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 to 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 the 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 disciplines 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 disciplines 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 10 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 becomes obvious that the disputed 16th vacancy in the cadre of Professors of Ophthalmology consisting of five posts would necessarily go to a direct recruit and not to a departmental promotee as wrongly assumed by the High Court while allowing the writ petition.” 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. 22.12. 2011 *awasthi*