--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 73 / 2010 DR. KUNDAN KUSHWAH Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 01/11//2011) The petitioner before this Court, serving as an Asstt. Professor, Orthopaedics at Mahatma Gandhi Memorial Swashasi Medical College, Indore, has filed this present writ petition for issuance of an appropriate writ, order or direction for quashing order dt. 17/11/09 passed by the respondent No.3. The contention of the petitioner is that he is Doctor by profession and has completed his MBBS course from Indore University in the year 1991 and has obtained a Master's Degree in Orthopaedics in the year 1994. Petitioner has further stated that he was appointed at Mahatma Gandhi College (an autonomous college) on 12/10/2004 and submitted his joining on 18/10/2004 . Petitioner has further submitted that he was regularised vide order dt. 16/4/07 on --- 2 --- the post of Asst. Professor, Orthopaedics. The contention of the petitioner is that he is a member of Scheduled Tribe and the State of MP has enacted MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and the petitioner being a Scheduled Tribe is covered under the provisions of the MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994. Petitioner has further stated that the respondents are duty bound to follow the statutory provisions as contained under the MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and also the Circular providing reservation, issued by the General Administration Department dt. 25/9/97. Petitioner has further stated that there are 3 posts of Asstt. Professor of Orthopaedics at Mahatma Gandhi Memorial College & Swashasi Medical College, Indore, out of which one post is reserved for SC / ST / OBC and two other posts are meant for General category. Petitioner has --- 3 --- further stated that one Dr. Dinesh Sonkar who hails from reserved category was holding the reserved post and he was transferred on promotion vide order dt. 1/5/07 to Rewa Medical College. Petitioner has further stated that the respondent No.4 was transferred as an Associate Professor by an order dt. 10/9/07 ignoring the fact that the third post was to be filled by a candidate belonging to a reserved category. Petitioner has further stated that respondent No.4 could not have been transferred to an autonomous institution as the services are not transferable and promotions are required to be done only from persons working with respondent No.3 autonomous college. Petitioner has further stated that as per the Model Roaster prepared from time to time by the State Government, the said post of Associate Professor is to be alloted to a ST candidate and the petitioner belongs to the ST category. Petitioner has also enclosed the Rules of 2002 known as MP Lok Seva Promotion Rules, 2002 along with the writ petition. Petitioner has further stated that a writ petition was preferred before this court in the year 2007 and the same was registered as WP NO. 602 / --- 4 --- 2007 (s) and this court has disposed of the aforesaid writ petition WP NO. 602 / 2007 (s) on 7/4/08, on the ground that it was premature and a liberty was granted to the petitioner to seek requisite relief at appropriate stage in accordance with law. Petitioner has further stated that he has completed 5 years experience required for the post of Associate Professor on 17/10/09 and therefore a representation was submitted by him to the authorities for appointing him as an Associate Professor on the vacant post reserved for ST only. Petitioner has further stated that he was informed vide Annexure P/1 that there is no vacant post of Asstt. Professor in the Department of Orthopaedics and therefore, the petitioner left with no other choice has approached this Court, challenging (Annexure P/1) dt. 17/11/09. Petitioner's further grievance is that the third post which is exclusively reserved for the candidates belonging to the reserved category could not have been filled by posting respondent No.4. who is a person belonging to General category and once the petitioner has acquired the requisite experience in 2009 as Associate Professor, he is --- 5 --- entitled to be promoted against the reserved vacancy. Petitioner has further stated that one Dr. Manish who hails from reserved category was promoted as Associate Professor by the respondents and one Dr. Ramsharan Raikwar has also been promoted as Associate Professor. However, the date of promotion of both the individuals are not reflected in the writ petition in para 5.10. It has been further stated that one Dr. Sunil who belongs to General category has been promoted to the post of Associate Professor and has joined in the month of July, 2000. Petitioner has raised various grounds before this Court. The first ground raised by the petitioner is that the respondents are duty bound to follow the provisions of the MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and the circular issued by the State Government dt. 25/9/97 and the petitioner is entitled to be promoted to the post of Associate Professor. The second ground raised in ground 6.2 is that the impugned action of the respondents is contrary to the provisions of the MP Lok Sewa (Anusuchit Jatiyon, --- 6 --- Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and also is contrary to the Circular issued by the State Government dt. 25/9/97. The third ground raised in ground No. 6.3 is that as per the Model Roaster, the reserved seat of Associate Professor has to be alloted to a Scheduled Tribe Candidate only and petitioner is a Scheduled Tribe candidate. The respondents should have promoted the petitioner on the post of Associate Professor. Petitioner has raised another ground and his contention is that after the promotion of Dr. Sonkar, the post reserved for SC / ST / OBC could not have been filled up by person not belonging to the aforesaid categories and therefore the post on which the respondent No.4 is working and who belongs to General Category has been filled up by the Government by transferring respondent No.4 from Gwalior to Indore and the action of the government is in violation of the provisions of the MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and the circular dt. 25/9/97. Petitioner has also raised a ground that respondent --- 7 --- No.3 being an autonomous body could not have permitted respondent No.4 to join on transfer and promotions are required to be done only from the persons working with respondent No.3 College. Petitioner has prayed for quashing of order dt. 17/11/09 and has prayed for the following reliefs : (i) That, by issue of an appropriate writ, direction or order, the impugned order (Annexure P/1) passed on 17/11/2009 by the respondent No.3 be quashed and the respondents be directed to promote the petitioner on the post of Associate Professor reserved for Scheduled Tribe only. (ii) Any other relief which this Hon'ble Court deems fit be granted to the petitioner. (iii) The cost of this petition be awarded to the petitioner. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the Division Bench of this court in the case of Vikash Shukla Vs. High Court of MP reported in 2011 (2) MPLJ 697 and his contention is that the Division Bench of this Court in the aforesaid case has held that a candidate cannot be appointed against a reserved vacancy which was reserved for ST candidates in the --- 8 --- aforesaid case. Petitioner's counsel placing reliance upon the aforesaid judgment has vehemently argued before this court that petitioner is entitled for promotion to the post of Associate Professor and respondent No.4 cannot be permitted to continue on the vacancy reserved for SC / ST / OBC. A reply has been filed by the State Government and the stand of the State Government is that at present there is no vacant post available in the Department of Orthopaedics and 3 posts of Associate Professor are filled up. They have categorically stated that 3 persons are already working on the post of Associate Professor and the petitioner cannot be promoted in absence of a post. Petitioner has thereafter filed a rejoinder and he has reiterated that there are 3 posts of Associate Professor at MGM Medical College, Indore and out of three, one is reserved for SC / ST / OBC. It has also been argued on behalf of the petitioner that the earlier writ petition preferred by the petitioner ie., WP No. 7062 / 2007 (s) was disposed of at the relevant point of time as premature keeping in view the fact that the petitioner was --- 9 --- not having 5 years requisite experience and now as he is having 5 years requisite experience, he is entitled for promotion / appointment to the post of Associate Professor. It has also been stated that the respondents, in the present case, have taken contrary view, with the view earlier taken by them while filing a reply in WP No. 6072 / 2007 (s) and the reply filed in WP No. 6072 / 2007 (s) is also enclosed along with the rejoinder. A return has been filed by respondent No.4 and respondent No.4 has denied that there is one post reserved for SC / ST / OBC. Respondent No.4 has further stated that such categorisation was never done by the State Government. It has also been stated that the service conditions of the staff of the College are governed as per the Swasashi Chikitsa Mahavidyalaya Ka Samvardhan Evam Samviliyan Sambandhi Niyam, 1998 and as per the aforesaid Rules, the Doctors appointed prior to enactment of the aforesaid Rules enjoys certain protections. It has also been stated that respondent No.4 was an Asstt. Professor appointed in the year 1982 and has worked as an Associate Professor from 1993 to 1985. It has also been stated that --- 10 --- being an appointee of the year 1993 as Associate Professor his post is protected and he was never appointed against any reserved seat. Respondent No.4 has prayed for dismissal of the writ petition. This Court on 19/8/10 has directed the official respondents to file a detailed affidavit furnishing all minute details in respect of teaching posts and details in respect of reservation in the Institution and an affidavit has been filed by respondents No.1 to 3. The affidavit has been filed by the Dean, Medical College, Indore and the stand of the respondent Nos. 1 to 3 in the Affidavit is that there are 15 posts of associate professor (Orthopaedics) under the Medical Education Department of the State of MP. It has also been stated that the aforesaid posts have been filled up or are being filled up after taking into account the MP Public Service Promotion Rules, 2002 by applying a 100 point roaster. It has also been stated that in the year 1997 – 1998 Medical Colleges in the State of MP were declared as autonomous institutions and rules were framed known as 'Samvardhan Evam Samvilian Niyam, 1998. It has been --- 11 --- further stated that a roaster has been prepared in respect of appointment and promotion and the same is also enclosed as Annexure R/2. The respondents have further stated in the affidavit that there are 3 sanctioned posts of Associate Professors in the Department of Orthopaedics and against two posts, one Dr. Sunil is working who is an appointee of the year 2005 on the post of Associate Professor and against another post another promotee who is a promotee of the year 1993 namely; Dr. S.K. Lunawat, respondent No.4, is posted and he has been posted in the College since 2008. The third post is occupied by Dr. Madhusudan Mukherjee, meaning thereby all the 3 posts are filled up and there is no post available to be filled up. It has been further stated that as per the absorption rules unless and until the gradation list of the State Government is exhausted, the petitioner does not have any claim for promotion / appointment to the post of Associate Professor. The respondents have also stated that as and when a post falls vacant, they will certainly fill up the same by taking into account the MP Lok Seva Promotion Rules, 2002, the Swasashi Chikitsa Mahavidyalaya Ka --- 12 --- Samvardhan Evam Samviliyan Sambandhi Niyam, 1998 and the Rules relating to reservation ie., MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994. Respondents have stated that the petitioner is not entitled for any relief of whatsoever kind and the petition deserves to be dismissed. Petitioner has also filed an additional affidavit on 19/4/11 and the the contention of the petitioner is that the last person in the gradation list of Asstt. Professors namely Dr. Sunil has also been promoted to the post of Associate Professor and therefore the petitioner is entitled to be promoted in the autonomous college and the respondents are duty bound to consider the case of the petitioner and to promote him to the next higher post. Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the motion hearing stage itself with the consent of the parties. In the present case, the petitioner before this court is an Asstt. Professor, posted at Mahatma Gandhi Memorial College, --- 13 --- Indore. He has obtained a Master's Degree in 1994 and was appointed on 12/10/2004 as an Asstt. Professor. He was regularised on 16/4/07. The respondent No.4 is an associate professor working in the same Department ie., Orthopaedics and posted in the same College. He was appointed as an Asstt. Professor in 1982 and became an associate professor in 1993. He has been transferred out and he was transferred back to the College in question by an order dt. 10/09/2007. It is pertinent to note that one Dr. Dinesh Sonkar who was working in the year 2007 at M.G.M. Medical College, Indore was promoted and transferred to Rewa by order dt. 1/5/07 and against this vacancy the respondent No.4 was transferred and is continuing as an associate professor of Orthopaedics. The petitioner has earlier also approached this Court being aggrieved by posting of respondent No.4 as an associate professor and a prayer was also made for his promotion to the post of Associate Professor on the ground that the vacancy created on account of transfer of Dr. Sonkar was required to be filled up from reserved category candidate. The Writ Petition preferred by the present petitioner was registered as WP NO. 602 / 2007 and as the petitioner was not having requisite experience ie., 5 years experience as an --- 14 --- Associate Professor, the writ petition was disposed of as premature with a liberty to the petitioner to seek requisite relief at an appropriate stage in accordance with law. The contention of the petitioner is that now he is having five years experience and therefore the respondent No.4 should be transferred out and the petitioner be considered for promotion being a reserved category candidate and specially in view of the fact that he has put in more than 5 years of service as an associate professor. In the present case, it is also noteworthy to mention that respondent No.4 was promoted and posted as professor meaning thereby to the next higher post by an order dt. 27/11/10 and as he was being posted to Bhopal, he has submitted an application foregoing his promotion on the post of Professor Orthopaedics and after foregoing his promotion, he has been permitted to continue on the lower post ie., the post of Associate Professor Orthopaedics. In the present case, it is true that the provisions of MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 are applicable in the matter of reservation and the post has to be filled up keeping in view the statutory provisions prescribing reservation. The Affidavit of the Dean, Medical College, Indore --- 15 --- reflects that there are 15 posts of Associate Professor (Orthopaedics) under the Medical Education Department of the State of MP and the aforesaid posts have been filled up or being filled up by taking into account the MP Lok Seva Promotion Rules, 2002 by applying a 100 point roster. The Affidavit further reflects that there are 3 sanctioned posts of Associate Professor in the Department of Orthopaedics at Indore. Against one post, one Dr. Sunil is working who is an appointee of 2005, against second post Dr. M. S. Mukherjee is working and against the third post Dr. S. K. Lunawat has been posted in the College since 2007. At present there is no post available in the Department. The petitioner by way of this petition is trying to make an attempt to dislodge respondent No.4 who is continuing since 2007 – 2008 on the post of Associate Professor that too on the ground of reservation but the fact remains that at the relevant point of time when Dr. Lunawat was posted, the petitioner was not eligible to be considered for promotion to the post of Associate Professor. The Swasashi Chikitsa Mahavidyalaya Ka Samvardhan Evam Samviliyan Sambandhi Niyam, 1998 framed by the State Government in the matter of absorption of Doctors and in the matter of granting autonomy to Medical Colleges, --- 16 --- also provides that unless and until the gradation list of the State Government is exhausted, the teachers appointed in autonomous college do not have any claim for promotion / appointment for the post of Associate Professor. It has been stated categorically in the return that as and when a post falls vacant, the same shall certainly be filled up by taking into account the MP Lok Seva Promotion Rules, 2002 read with Swasashi Chikitsa Mahavidyalaya Ka Samvardhan Evam Samviliyan Sambandhi Niyam, 1998 and therefore this Court does not find any reason to interfere with the order dt. 17/11/2009 rejecting the petitioner's representation for promotion. It is pertinent to note that Dr. Dinesh Sonkar who was earlier occupying the post was not a candidate of reserved category and Dr. Lunawat, respondent No.4 who has been in the year 2007 – 2008, is again not a candidate of reserved category. At present in the State of MP autonomy has been granted to all the medical colleges by virtue of Swasashi Chikitsa Mahavidyalaya Ka Samvardhan Evam Samviliyan Sambandhi Niyam, 1998, and therefore keeping in view the peculiar facts and circumstances of this particular case specially in view of the fact that respondent No.4 has foregone his promotion as professor as he was being --- 17 --- transferred to Bhopal, the question of dislodging the respondent No.4 only because the petitioner has now become eligible for promotion, does not arise. In the present case, as now the petitioner has become eligible and as and when a vacancy occurs, the respondent shall fill up the same by applying the 100 point roaster and keeping in view the provisions of the MP Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994. This Court does not find any reason to interfere with the order passed by the State Government and the writ petition is accordingly disposed of as aforesaid. (S. C. SHARMA) J U D G E KR