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Madhya Pradesh High Court · body

2011 DIGILAW 1236 (MP)

Kundan Kushwah v. State of M. P.

2011-11-01

S.C.SHARMA

body2011
Judgment 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 entitled, to be promoted against the reserved vacancy. 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 M.P. 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 candidates cannot be appointed against a reserved vacancy which was reserved for ST candidates in the 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 Orthopedics and 3 posts of Associate Professor are filled up. In the present case, the petitioner before this court is an Astt. Professor, posted at Mahatma Gandhi Memorial College, Indore, He has obtained a Master's Degree in 1994 and was appointed on 12/10/2004 as an Asstt. Professor. He was regulated 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 Orthopedics. 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 Orthopedics. The petitioner has earlier also approached this Court being aggrieved by posting of respondent No. 4 at 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 i.e. 5 years experience as an 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 there by 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 i.e., the post of Associate Professor Orthopaedics. In the present case, it is true that the provisions of MP Look 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. In the present case, it is true that the provisions of MP Look 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 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, 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. 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 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.