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TMI Blog1998 (12) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... to how the vacancy in the post of Professor of Ophthalmology was to be filled in on the retirement of one Dr. Shiv Inder Singh Rudra, Professor of Ophthalmology, with effect from 31.10.1996. The relevant rule governing such posts is Rule 9(i)(d) of the Punjab Medical College Education Service (Class-I) Rules, 1978 (hereinafter referred to as the Rules'). The said rule reads as under : (9) Method of Appointment : (d) In the case of Professors : (i) 75 percent posts by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the service of the Government of India, or the State Government; (ii) 25 percent posts by direct recruitment; 4. According to the appellant-State, as there were five posts in the cadre of Professors of Ophthalmology in the said college, on the basis of the aforesaid quota rule governing the recruitment in question, every three E vacancies of Professors in the said cadre had to be filled in by departmental promotees while the fourth vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S. Shergill is already working as a Professor in the Department of Ophthalmology as a direct recruit the vacancy in the post in question must go to a promotee as there were only three promotee Professors occupying the posts of Professor in the department at the relevant time. Thus, there was a clear vacancy of 1 post for promotee in the said cadre of 5 posts of Professor. The fifth post, therefore, had necessarily to be filled in by promotion. The writ petition filed by the respondent was, therefore, allowed and the advertisement dated May 10, 1997 issued by the appellant-State for filling up the post of Professor in the Department of Ophthalmology by direct recruitment was quashed and set aside. The appellant-State and its authorities were directed to fill up the post by considering the eligible persons by way of promotion. 5. It is now time for us to note the main contentions canvassed by learned counsel for the appellant-State of Punjab Shri H.K. Puri and also by learned senior counsel Shri P.P. Rao for the intervenor who is a prospective direct recruit candidate for the said post on the one hand and the rival contentions canvassed by learned counsel for the respondent origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the High Court had wrongly applied the ratio of the decision in R.K. Subharwal's case (supra) the appeal is required to be allowed. 8. In the light of the aforesaid rival contentions, the following points arise for our determination : (i)Whether the interpretation of Rule 9(i)(d), which appealed to the High Court, is a correct one; (ii)Even if the roster operates on vacancies in such a way that from the very inception of the roster, vacancies on first three roster points will go to promotees and the vacancy on the fourth roster point will go to a direct recruit and similarly, in future for former vacancies, whether the disputed 16th vacancy should go to a direct recruit or a promotee; (iii) If the answer to the first point is in negative, whether the ultimate decision of the High Court can be sustained on the conjoint reading of Rule 3 and Rule 9(i)(d) of the statutory rules as submitted by learned counsel for the respondent; and (iv) What final order? 9. We shall deal with the aforesaid points in the same sequence in which they are noted* herein-above. Point No. 1: 10. So far as the first point is concerned, the High Court, in the impugned judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he members of Scheduled Castes...When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster. The running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The aforesaid observations, which were heavily relied on by the High Court, and are also relied upon by the respondent's (writ petitioner's) counsel before us, cannot be of any assistance to the appellant-State on the facts of the present case. The result is obvious. As per Article 16(4) which carves out a separate field for itself from the general sweep of Article 16(1) which guarantees equality of opportunity in matters of appointments in Govt. services to all citizen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uits and promotees in. the light of an earlier judgment of this Court in Roshan Lal Tandon v. Union of India, (1968)ILLJ576SC made the following pertinent observations : The key words of the judgment are: the recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C . (emphasis supplied). By this was meant that in the matter of promotional opportunities to Grade 'C', no discrimination could be made between promotees and direct recruits by reference to the source from which they were drawn. That is to say, if apprentice Train Examiners who were recruited directly to Grade 'D' as Train Examiners formed one common class with skilled artisans who were promoted to Grade 'D' as Train Examiners, no favoured treatment could be given to the former merely because they were directly recruited as Train Examiners and no discrimination could be made as against the latter merely because they were promotees. This is the true meaning of the observation extracted above no more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts or for treating the posts mentioned in the rules of recruitment as necessarily referable to total posts in the cadre at a given point of time in the light of R.K. Sabharwal 's judgment (supra), therefore, cannot survive for in the case of a quota rule between direct recruits and promotees the same is to be judged on the touchstone of Article 16(1) and the statutory rules governing the recruitment to the posts of Professor constituting the Punjab Medical Education Service (Class-I) and not on the basis of Article 16(4). The Division Bench in the impugned judgment with respect wrongly applied the ratio of R.K. Sabharwal's case (supra) governing Article 16(4) to the facts of the present case which are governed by Article 16(1). 11. We may also mention that in brief written submissions filed on behalf of the respondent an attempt is made to show that the word 'reserve' means to appropriate or to set aside. Dictionary meaning found in The Law Lexicon' 1997 edition of P. Ramanatha Aiyar is pressed in service in this connection. It is stated therein that reserve would mean 'to set apart' but as we have already discussed Rule 9 is concerned with reserva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another bench of two learned Judges, wherein D.A. Desai, J., was common, clarified the observation in paragraph 11 of the earlier Report as under : In our opinion there is no ambiguity in the judgment. Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one or the other source. Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continues officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well known in service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be co-related to the vacancies which are to be filled in. Who retired and fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments to the posts in the cadre have to be made in the light of the percentage of p 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 F 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 p in invoking the ratio of decision of this Court in R.K. Sabharwal's case (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 g 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 F 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 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discipline 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 discipline 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 third one but the fourth vacancy would go to a direct recruit. That is how Rule 9 laying down quota a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post When ever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. It is difficult to appreciate how this decision can be of any assistance to learned counsel for the respondent. It is obvious that in the aforesaid case the Constitution Bench was concerned with a similar scheme of reservation for SC, ST BC candidates and, therefore, Article 16(4) squarely arose for consideration. To that extent the said decision falls in line with the legal position examined by the earlier Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th vacancies would go to promotees, the 13th vacancy would go to a direct recruit and thereafter the next 14th, 15th and 16th vacancies would go to promotees as per the methodology adopted by the appellants themselves while working out this roster. It was, therefore, contended that 16th vacancy which is the disputed vacancy must go to a promotee. It is difficult to appreciate this contention. Reason is obvious. The so-called correct position of incumbency in the cadre of Professors consisting of five posts as submitted for our consideration by learned counsel for the respondent clearly reflects the seniority list and has nothing to do with the situation emerging from the working out of the roster controlling the entry points for recruitment to the said posts from two different sources. It is obvious that the 8th roster point was to be filled in by a direct recruit and as the counter filed by the appellant in the present proceedings shows that the filling up of the post by direct recruitment took more time because it had to be done through Public Service Commission. Hence the departmental promotee Dr S.S. Rudra was promoted on 1.11.83 but while he was so promoted, he could fill in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not canvassed before the High Court in the writ petition. That may be so. However, we fail to appreciate how a pure question of law centering round the construction of the proviso to statutory Rule 3 cannot be agitated by learned counsel for the respondent for our consideration in these proceedings. No disputed question of fact arises for consideration as wrongly assumed by learned senior counsel for the intervenor. Accepting the facts as well established on the record the only question which would become relevant for considering this alternative contention would be the correct scope and ambit of the proviso to statutory Rule 3 of the rules. For raising such a pure question of law, therefore, respondent's learned counsel, cannot be told off the gates. This preliminary objection is, therefore, overruled. 16. In support of this point, it was submitted by learned counsel for the respondent that the Punjab Medical Education Service (Class-I) was constituted for the first time by the statutory rules with effect from 28th July, 1978. That Rule 4 of the rules lays down that the service shall comprise of posts shown in Appendix 'B'. We have referred to Rule 4 and entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the erstwhile executive instructions for recruitment: (i) The persons concerned must be holding posts specified in Appendix 'B'; (ii) They must be holding posts immediately before the commencement i.e. immediately before 28th July, 1978, meaning thereby they must be working as Professors when the statutory rules came into force; (iii) If the aforesaid two conditions were satisfied then such existing incumbents to the posts in the cadre of Professors would be deemed to have been appointed in service in accordance with the provisions of the rules meaning thereby, they will not be treated to be outside the cadre of Professors as envisaged by the statutory rules i.e. not ex-cadre employees and their existing incumbency will be protected though actually when they were recruited, Rule 9 was not in the picture and it is not the case of any one that Rule 9 has any retrospective effect; if the aforesaid three conditions are satisfied the deeming fiction with reference to these incumbents holding posts of Professors in the cadre on 28th July 1978, will operate and treat them to have been appointed regularly with a view to protect their rank, grade and scale laid down in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto service earlier when executive instructions held the field is a consideration which is foreign to the express wordings of the proviso. It is also obvious that the earlier method of recruiting these persons cannot be said to have any role to play while constituting the statutory service, namely, Punjab Medical Education Service (Class-I) which had to be constituted as per Rule 9 read with Rule 3 first part with effect from 28-7-78 and in undertaking that exercise the proviso would remain out of picture. Valiant effort made by learned senior counsel Shri Rao for the intervenor to extend the scope and reach of the proviso so as to import earlier cycles of rotation of vacancies which had got filled in past when executive scheme of quota and rota operated and to treat them as cycles of rotation Under Rule 9 cannot be countenanced. 17. Once it is held on the correct construction of the proviso to Rule 3 that the incumbents who were holding the posts of Professor in the cadre of Professors of Ophthalmology on 28th July, 1978 were protected and remained employed in that cadre, let us see what factual position emerges by the operation of the proviso on which there is no dispute betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chieved, the cycle took a full turn even under the proviso, as on 28-7-78. As per the proviso to Rule 3 in the light of the aforesaid factual data, therefore, there is no deviation from the conclusion that the earlier cycle of rotation envisaged by the erstwhile executive instructions had taken a full turn. Therefore, any vacancies arising after Dr. Daljit Singh's incumbency would naturally have to be subjected to a new cycle of rotation as per Rule 9(i)(d) of the rules meaning thereby the 1st, 2nd and 3rd vacancies after the rules came into force would go to promotees and 4th would go to a direct recruit. When we turn to the incumbency position in the light of the roster points in the cadre in question, as per the chart at r page 30 of the judgment, we find that after Dr. Daljit Singh at roster points No. 5, the 6th, 7th and 8th points would become roster points nos. 1, 2, 3 and would be available for filling up by promotion, when cycle of rotation Under Rule 9 will operate for the first time. Then roster point No. 9 would operate as point No. 4 for direct recruit. Roster points 10, 11, 12 would operate as roster points 5, 6 and 7 for promotees; roster point 13 occupied by Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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