Dismissed

Dr. Professor Rajendra Chaudhary v. State of U.P. and 4 Others

Allahabad HC6 Apr 2018WRIA/17078/2016

Case brief

AI extract

What is this about?

The Court dismissed writ petitions challenging the validity of advertisements for Professor posts in UP medical colleges. It upheld the age limit, clarified that reservation does not apply to specialties with fewer than five posts, and rejected challenges to experience qualifications as they pertain to personal promotion rules, not direct recruitment.

What did the court decide?

The writ petitions challenging the recruitment advertisement were dismissed with no order as to costs.

Dr. Professor Rajendra Chaudhary Vs State… — Pension and Retirement Benefits | Allahabad HC (2018)

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(A.F.R.)

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Reserved on 21.02.2018 Delivered on 06.04.2018

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Case :- WRIT - A No. - 17078 of 2016

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Petitioner :- Dr. Professor Rajendra Chaudhary Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Hira Lal Yadav,Sunil Kumar Counsel for Respondent :- C.S.C.,F.A.Ansari,Gopal Das Srivastava,Nisheeth Yadav

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With

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Case :- WRIT - A No. - 56654 of 2017

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Petitioner :- Dr. Kuldeep Chandel And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- 47ra Lal Yadav,Sunil Kumar Counsel for Respondent :- C.S.C.,F.A.Ansari,M.N. Singh

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With

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Case :- WRIT - A No. - 59624 of 2017

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Petitioner :- Dr. Ashwani Kumar Nigam And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C.S.C.,M.N. Singh

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Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.

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(Delivered by Hon'ble Saral Srivastava, J.)

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1. We have heard Sri Sunil Kumar, learned counsel appearing in the first two writ petitions, Mohd. Anas Raj, Advocate holding brief of Sri Gautam Baghel, learned counsel in the third writ petition for the petitioners and Dr. Rajeshwar Tripathi, learned Chief Standing Counsel-II for the State of U.P. & Sri F.A. Ansari, learned counsel for the U.P. Public Service Commission. The record has also been perused.

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2. The petitioners in this bunch of writ petitions are working as

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Associate Professors on ad hoc basis in different Medical Colleges and have questioned the validity of the Advertisement No.2/2015-16 dated 21.12.2015 issued by the Uttar Pradesh Public Service Commission revised by Advertisement No.1/2017-18 dated 24.10.2017 for selection on 47 posts of Professor in various specialties of Allopathy Medical Colleges of State Government under the Director General of Medical Education and Training, Uttar Pradesh, Lucknow.

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3. Since the facts in all the writ petitions are common, therefore, the facts of Writ Petition No.17078 of 2016 are delineated hereinbelow in order to decide the dispute in this bunch of petitions.

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4. The petitioner Dr. Professor Rajendra Chaudhary belongs to Scheduled Caste category (Dhobi). He has completed his MBBS in the year 1989 from G.S.V.M. Medical College, Kanpur. The petitioner was selected for the post of Medical Officer in category of Scheduled Castes in October, 1992 by the U.P. Public Service Commission. The petitioner, thereafter, completed his MD in Medicine in September, 2000 from B.R.D. Medical College, Gorakhpur and was appointed as Lecturer in Department of Medicine, B.R.D. Medical College on 03.02.2001. Subsequently, on 29.10.2009 the petitioner was promoted as Associate Professor.

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5. The U.P. Public Service Commission (hereinafter referred as ‘The Commission’) issued an Advertisement No. 2/2015-16 dated 21.12.2015 inviting applications for selection on 47 permanent posts of Professors in different specialties in Medical Education Department, U.P. (Allopathy). The eligibility criteria for selection on the said post was as follows:

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(i) The upper age limit was 65 years.

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(ii) The candidate should possess MS/MD in the concerned specialties or equivalent qualification recognized by Medical Council of India.

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6. It is mentioned in the aforesaid advertisement that Reservation was applied on the number of vacancies in each specialty.

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7. The record reveals that another Advertisement No. 1/2017-18 dated 24.10.2017 stated to be a revised advertisement of Advertisement No. 2/2015-16 dated 21.12.2015 was issued by the U.P. Public Service Commission. By the said revised advertisement, the only change made in the eligibility criteria was the educational qualification which is as follows:-

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Sl. No.8 Professor-	(A)	M.D. (Medicine/General Medicine) or an equivalent qualification recognized by Medical Council of India.
General Medicine	(B)	As Reader/Associate Professor in (Medicine/General Medicine) for four years in a recognized Medical Colleges.
Desirable	-	Minimum of four Research publications indexed in index Medicus/National journal and one Research Publication in international journal.

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8. The petitioners have set up the challenge to the aforesaid advertisement on three grounds; firstly the upper age limit of 65 years (till the date of retirement) prescribed for application/appointment for General Candidate in the advertisement, 5 years additional age relaxation (i.e. up to 70 years) to OBCs/SC/ST/Government employees, 3 years additional age relaxation (i.e. up to 68 years) to Ex. Military servicemen and 15 years additional age relaxation (i.e. up to 80 years) to physically handicapped candidates is illegal, arbitrary and against Rule 9 of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005 (hereinafter referred to as 'Rules, 2005') inasmuch as the said Rule 9 provides 45 years as maximum age for appointment on the post of Professor by direct recruitment.

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9. The second ground of challenge is that the experience of 4 years as Associate Professor was illegal, arbitrary and contrary to Rule 15 of Rules, 2005 inasmuch as it provides for total 11 years of

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teaching experience which includes the past teaching experience as Lecturer and Assistant Professor also. Thus, the experience of Lecturer and Assistant Professor have been given a go by in the said advertisement.

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10. The third ground of challenge is that since the total number of posts was 47 and, therefore, 50% vacancy should have been allocated to the reserved category.

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11. The contention is that as per Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as 'Act, 1994'), 27% of the posts (i.e. 13 posts) should go for OBC candidates, 21% (i.e. 9 posts) should be allocated to Scheduled Castes candidates and 2% (i.e. 1 post) should be allocated to Scheduled Tribes candidates. Thus in this way, total 23 posts out of 47 advertised posts should have been reserved for OBC/SC/ST candidates.

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12. The State Government has filed a counter affidavit stating therein that so far as the controversy regarding maximum age of 65 years prescribed in the advertisement is concerned, the same is settled by a Division Bench of this Court in Service Bench No.- 4292 of 2016 (Dr. Juhi Singhal and 3 others Vs. State of U.P. and another) with regard to the same advertisement, and this Court has upheld the prescription of 65 years of age limit in the advertisement as proper and correct.

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13. The state government further pleads in the counter affidavit that all the 47 posts of Professor are to be filled up from general category candidates only. It is stated in the counter affidavit that as per Appendix 'Ka' of Column-1, Pillar-2 to the Rule 2005, the selection on specialization post are made; and since in each specialization the number of posts was less than 4, therefore, no post could be allocated to the reserved category candidates. It is further

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stated that the qualification prescribed in the advertisement is correct and as per the norms and guidelines framed by the MCI.

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14. The U.P. Public Service Commission also filed a counter affidavit stating therein that the advertisement prescribed the qualification as per the norms of MCI. The essential qualification prescribed by MCI Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (Amended Upto 8^th June, 2017) is as follows:-

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“The above clause 6 has been substituted vide gazette notification dated 08.06.2017 as under:

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“The teachers in a medical college or institution having a total of 8 years teaching experience out of which at least 4 years teaching experience as Assistant Professor with two research publication in indexed journals gained after obtaining postgraduate degree shall be recognized post graduate teacher in broad specialties.

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In case of super specialties only those teachers who possess 6 years teaching experience out of which at least 2 years teaching experience as Assistant Professor gained after obtaining the higher specialty degree shall be recognized post graduate teacher.”

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I. Broad Specialties (MD/MS)

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Posts	Aca. Qual.	Teaching & Research Exp.
Professor/Addl. Professor (8 year of Post PG	A post graduate qualification MD/MS in the	Associate Professor in the subject for 3 years in a permitted/ approved/ recognized medical
Experience)	concerned subject and as per the TEQ Regulation	college/institution with 4 Research Publications in Indexed Journal on Cumulative basis with minimum of 2 Research Publication during the tenure of Associate Professor as Ist Author or as corresponding author.

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15. We have heard the rival submissions of the parties and perused the record.

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16. The contention of the petitioners challenging the enhancement in upper age limit upto 65 years is not sustainable in view of the Division Bench of this Court in the case of Dr . Juhi Singhal (supra) wherein the validity of upper age limit with regard to the same advertisement was upheld. Consequently, we hold that the age limit prescribed in the advertisement is correct and based on the Rules.

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17. Now coming to the next contention of the petitioner with regard to the allocation of 50% post to the reserved category candidates i.e. SC/ST/OBC. In this regard it would be useful to notice Rule 6 of Rules, 2005 which provides for reservation. The said Rule is reproduced herein-below:-

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“6. Reservation. --Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time, and the orders of the Government in force at the time of the recruitment :

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Provided that for the purpose of application of reservation, the total number of posts belonging to each speciality/department in category 'A' shall be deemed as a single unit.”

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18. A bare perusal of proviso to Rule 6 makes it clear that number of posts belonging to each specialty/department is treated to be a single unit and, therefore, the reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be calculated as per number of posts in each specialty/department in category 'A'.

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19. The requisition sent by the State Government to the

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Commission is filed as Annexure no.1 to the counter affidavit of the Commission which indicates that selection is for 25% posts of Professor by direct recruitment in specialized category in category 'A' and in each category number of posts was less than 4. It is specific case of the State Government that since number of posts in each category was less than 4, therefore, reservation cannot be applied.

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20. Dr. Rajeshwar Tripathi, learned Chief Standing Counsel-II has submitted that if the reservation is applied then quota of Scheduled Castes, Scheduled Tribes and Other Backward Classes would go beyond permissible limit of 21%, 7% and 27% as prescribed in Section 3 of the Act, 1994 which is not permissible.

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21. In this regard it would be useful to notice that a controversy arose as to whether roster in respect of reservation can be applied with regard to the promotion in respect of Class III posts in Intermediate College where the number of posts is less than 5. The said question was referred to Full Bench of this Court. The Full Bench in the case of Heera Lal Vs. State of U.P. and others [2010 (6) ADJ 1 (FB)] answered the said question holding that where the number of posts in a sanctioned cadre is less than five, the roster in respect of reservation cannot be applied. The relevant paragraphs of the Full Bench judgment are extracted herein-below:

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“27. However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. The prescription of law therefore cannot be designed through an interpretive tool to make it look upside down. Neither the Government Order dated 8th March, 1973 or the subsequent orders nor the provisions of U.P. Act No. 4 of 1994 project and support any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so

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do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law. 28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same.

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29. It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as

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arithmetical calculations are also one of the logical foundations for reason. The calculation cannot be violated as explained above and if that is done then it would be unreasonable as well as unconstitutional.

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30. The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. The case of Mahendra Kumar Gond (supra) did not decide the question which has been raised in relation to the calculation of the minimum number of posts to be available for applying the rule of reservation.”

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22. It is evident from the record that the number of posts in each category is less than 4 and, therefore, no post can be allocated to the reserved category candidates. Proviso to Rule 6 of Rules, 2005 as extracted herein-above makes it manifestly clear that for the purposes of application of reservation, the total number of posts belonging to each speciality/department in category 'A' shall be deemed to be a single unit. The present selection is with regard to the post belonging specialty/department in 'A' category and, therefore, in view of the Full Bench judgement in Heera Lal (supra) , no post can be allocated to the reserved category candidates where the number of posts are less than five.

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23. The petitioners have not questioned the validity of proviso to Rule 6 of Rules, 2005 and, thus, the contention of the petitioners that the reservation has to be applied on the total number of posts advertised is not sustainable in the light of proviso to Rule 6 of Rules, 2005 and the Full Bench judgment of this Court in case of Heera Lal (supra) .

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24. The petitioner has heavily relied upon Rule 15 of Rules, 2005 in submitting a challenge to the educational qualification prescribed in the advertisement. Thus, it is useful to have a glance at Rule 15 of

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Rules, 2005 in order to appreciate the submission of the petitioner regarding educational qualification which is extracted herein-below:-

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“ 15. Proceedings for recruitment by personal promotion --(1) The following procedure shall be followed for personal promotion of a teacher to the higher posts belonging to category 'A'--

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(i) A substantively appointed Lecturer shall, after completing three years satisfactory service, as such, be given personal promotion with his own post to the post of Assistant Professor.

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(ii) A Teacher who is substantively appointed on the posts of Lecturer or Assistant Professor shall, after completing four years satisfactory service as Assistant Professor and a teacher who possesses a recognized D.M./M.Ch. qualification in the concern speciality after completing two years satisfactory service as Assistant Professor, be given personal promotion with his own post to the post of Associate Professor.

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(iii) An Associate Professor who is substantively appointed on the post of Lecturer or on the post of Assistant Professor or Associate Professor shall, after completing six years satisfactory service as Associate Professor or eight years satisfactory service as Assistant Professor and Associate Professor including at least four years service as Associate Professor shall be given personal promotion with his own post to the post of Professor:........”

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25. A bare perusal of Rule 15 of Rules, 2005 indicates that it provides the procedure for recruitment by personal promotion of a teacher to a higher post belonging to 'A' category.

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26. The respondents have taken a specific case in the counter affidavit that Rule 15 is not applicable in the present case inasmuch as the Rule 15 provides for recruitment by personal promotion whereas the selection in the present case is by direct recruitment on the post of Professor. The qualification prescribed by MCI are applicable and the advertisement contains the qualification as provided by MCI Minimum Qualification for Teachers in Medical

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Institutions Regulations, 1998 (Amended Upto 8^th June, 2017).

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27. In our opinion Rule 15 of Rule 2005 is not applicable in the instant case for the reason that it deals with procedure for recruitment by personal promotion and it does not prescribe the qualification for Direct Recruitment. The MCI Act prescribes the qualification for Direct Recruitment and since the advertisement has been issued in consonance with the qualification prescribed by the Medical Council of India which is a body of expert, and therefore, the contention of the petitioners regarding wrong prescription of qualification in the advertisement is misconceived and not sustainable.

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28. Thus, for the reasons given above, none of the grounds of attack are sustainable in law, therefore, all the writ petitions lack merit and are, accordingly, dismissed . There shall be no order as to costs.

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Order Date :- 06.04.2018 S.Sharma

Dr. Professor Rajendra Chaudhary v. State of U.P. and 4 Others

Case brief

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Dr. Professor Rajendra Chaudhary v. State of U.P. and 4 Others

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