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2003 DIGILAW 136 (HP)

N. S. SHARMA v. STATE OF H. P.

2003-06-02

A.K.GOEL, V.K.GUPTA

body2003
JUDGMENT On a very short question touching upon a very basis rule of service jurisprudence, this petition can be disposed of. The undisputed facts are that the petitioner Dr. N.S. Sharma was appointed as Assistant Professor on regular basis on 11.5.1981 and respondent No.2 Dr. Subhash Chander Negi became Assistant Professor on regular basis on 22.11.1982. Even though in this particular case, the ad hoc service rendered by both of them in the respective periods may not be relevant, yet it may not be out of place to note that the petitioner was appointed as Assistant Professor on ad hoc basis on 24.7.1980 whereas respondent No.2 was so appointed on 4.9.1980. Both being Assistant Professors in Surgery, as per the relevant Recruitment Rules, both were eligible as on the, date of consideration for promotion to the post of Associate Professor. Vide notification No. GSR/1-71/69 -H&FP dated 19th January, 1974, the Government of Himachal Pradesh framed Himachal Pradesh Health Services Rules, 1974. Rule 9(111) which relates to the appointment of Associate Professors reads thus: *(111) ASSOCIATE PROFESSORS The post of Associate Professor shall be filed 100% by promotion from Assistant Professors having 3 years regular service as such in the concerned speciality, failing which by direct recruitment in the manner specified in the Second Schedule." 2. As noticed above, at the time of consideration for appointment on the post of Associate Professor, in the year 1989, both the petitioner as well as respondent No.2 were eligible. Departmental Promotion Committee accordingly accorded its due consideration to both of them/these two only being short listed as falling in the zone of consideration and since the petitioner was senior to respondent No.2, the Departmental promotion Committee recommended petitioners promotion and accordingly the petitioner was appointed as Associate professor. The petitioners appointment was challenged by respondent No.2 before the Tribunal, which has by the impugned judgment set aside and quashed petitioners appointment on a plea, which is wholly untenable in law. 3. Mr. Shrawan Dogra, learned Counsel appearing for respondent No.2 has argued that the appointment of the post of Associate professor was to be through the mode of selection. The argument is being noticed only to be rejected because the rule position is absolutely clear. As noticed above it unambiguously lays down that the appointment on the post of Associate Professor shall be 100% by promotion. The argument is being noticed only to be rejected because the rule position is absolutely clear. As noticed above it unambiguously lays down that the appointment on the post of Associate Professor shall be 100% by promotion. In the course of judgment by the Tribunal, it has come to be noticed that in the A.C. Rs. grading of the petitioner and respondent No.2, whereas the petitioner was rated as "good", respondent No.2 was rated as "very good". Taking note of these two grading of the two officers, D.P.C. came to the conclusion that the petitioner should be promoted because he was senior to respondent No.2. In an appointment procedure guided by rule of promotion", as opposed to the rule of selection" (based on the principle of merit-cum-seniority, amongst other such salutary principles) the petitioner deserved to be promoted because it cannot be said by any stretch of imagination that because he possessed the rating of "good", the petitioner could be superseded by respondent No.2 because respondent No.2 had been rated as "very good". We have noticed the judgment of the Tribunal and find that the Tribunal without assigning any valid reasons has nonetheless quashed and set aside the petitioners promotion, which cannot be countenanced by us. 4. For the foregoing reasons, therefore, this petition is allowed. The judgment of the Tribunal dated 22.3.2000 is set aside. The appointment of the petitioners Associate Professor vide notification dated 20.11.1989 is upheld with all consequences. No order as to costs.