STATE OF PUNJAB v. DR. R.N. BHATNAGAR AND ANR.
Citation: [1998] SUPP. 3 S.C.R. 693; 1998 INSC 491
Court: Supreme Court of India
Bench: S.B. MAJMUDAR , M. JAGANNADHA RAO
Judgment date:
Case summary
1998 INSC 491. Supreme Court of India judgment dated 1998-12-18. STATE OF PUNJAB v. DR. R.N. BHATNAGAR AND ANR. Read the judgment and case details on...
Judgment text
STATE OF PUNJAB v. DR. R. N. BHATNAGAR AND ANR. DECEMBER 18, 1998 [S. B. MAJMUDAR AND M. JAGANNADHA RAO, JJ. ] Service Law: Punjab Medical College Education Service (Class /) Rules, 1978: Rule 9(i)(d)-Promotion-Quota-rota rule-Vacancies-Filling up of- By promotees and direct recruits-In the ratio of 3: I-Application of-Held: Rule 9 deals with reservation of appointment from two sources i. e. , departmental promotees and direct recruits-Hence, Art. 16(1) and not Art. 16(4) applicable-Constitution of India, 1950, Arts. 16(1) and 16(4). , Rule 9- 'Post '-Meaning of-Does not refer to total posts in the cadre but refers to vacancies-Once recruitment is made from two sources i. e. , departmental promotees and direct recruitment, the candidates get fused and their birthmarks obliterated-Discrimination in further promotion not permitted.
Rule 3 proviso and Rule 9-Promotion-Quota-rota rule-Vacancies- Fil/ing up of-By promatees and direct recruits-In the ratio of 3:1-Cadre consisted of 5 posts-First three vacancies filled up by promotees, 4 1 h by direct recruits and 5 1 h, 6 1 h, and 7'h by promotees-Thereafter, 8 1 h roster point A B c D E was to be filled up by direct recruit but as this took mare time, departmental F promotee was promoted-validity of-Held: Such departmental promotee could fill in only the 9'h vacancy earmarked for promotees and not the 8 1 h vacancy earmarked for direct recruits which is to be carried forward- Therefare, when a direct recruit is appointed qua roster point 8, though he was treated as junior to the said pramotee, he could be said to be appointed on roster point 8 which was carried forward-Hence, counting 9'h roster G point as starting point for a fresh cycle for 3 promotees, the J 6 1 h point must go to a direct recruit.
Rule 3 proviso-Date of cammencement-28-7-1978-Recruitment of ,Professors-Under erstwhile executive instructions-Deeming fiction under- H 693 694 SUPREME COURT REPORTS [1998] SUPP. 3 S. C. R. A Applicability-Conditions and effect of-Cadre of Professors consisted of 5 posts-But only 4 posts were actually occupied since the second incumbent had retired prior to the coming into force of the proviso to R. 3-0ut of the said 4 posts, 3 were occupied by promotees and the 4'h by a direct recruit- Held: The incumbents of all posts in the cadre actually holding the posts on the said date would remain in the cadre irresp~ctive of their source of B recruitment-Fifth incumbent not covered by proviso to R. 3-Therefore, fresh rotational cycle will start with the fifth incumbency since the earlier rotational cycle envisaged under R. 9 is complete-Consequently, roster point 16 has to be filled up by a promotee.
c D E Statute Law: Deeming fiction-Extension of-By analogy-Held: Cannot be extended to cover any other field not meant to be covered. Practice and Procedure: New plea-Raising of-For the first time before Supreme Court-Held: Can be raised if it is a pure question of law not involving disputed question of/act. Words and Phrases: "Post"-Meaning of-Jn the context of R. 9 of the Punjab Medical College Education Service (Class I) Rules, 1978. The respondent, an Assistant Professor in the Department of Ophthalmology in Government Medical College, was a promotee from the F post of Senior Lecturer. The question arose as to how the vacancy in the post of Professor of Ophthalmology was to be filled in on the retirement of the then incumbent. The relevant rule governing such posts is Rule 9(i)(d) of the Punjab Medical College Education Service (Class-I) Rules, 1978.
The said rule reads as under: G "(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 H amongst the Associate Professors, or where Associate Professors ,,. -.. --- .... -· STA TE v. DR. R. N.
BHATNAGAR 695 are not available, from amongst the Assistant Professors, or by A transfer of official already in the service of the Government of India, or the State Government; (ii) 25 percent posts by direct recruitment;" According to the appellant-State, as there were five posts in the cadre B of Professors of Ophthalmology in the said College, on the basis of the aforesaid quota rule governing the recruitment in question, every three vacancies of Professors in the said cadre had to be filled in by departmental promotees while the fourth vacancy would be filled in by direct recruitment and thereafter succeeding vacancies to be filled in by promotees and direct recruits in the successive cycles of 3: 1.
The case of the appellant-State was C ·that in the cadre of Professors of Ophthalmology in the said College, right from the beginning when the erstwhile executive instructions on the same lines operated till the date of the falling of the vacancy in question, there were in all 15 Professors including the said Dr. R, who retired, as aforesaid and, therefore, on his retirement the 16th vacancy arose. As per the appellant- D State, on the operation of the quota rule and the roster cycles of3:1, the 16th vacancy would be available to a direct recruit as under: 1st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to direct recruit, 9th, 10th and 11th to promotees, 12th to direct recruit, 13th, 14th E and 15th to promotees and the 16th to direct recruit. Consequently, the said vacancy was advertised for being filled up by direct recruitment.
That brought the respondent to the High Court by way of a writ petition. His contention in the writ petition was that in the light of the Constitution Bench judgment of this Court in R. K. Sabharwa/'s case, as F there were total five posts in the cadre of Professors of Ophthalmology 75% thereof, namely, 3. 75 posts had to be reserved for promotees and 1. 25% of the remaining posts had to be reserved for direct recruits. Rounding up these figures by taking digits upto . 50 as nil and beyond . 50 as 1, four posts in the said cadre had to be filled in at a given point of time by promotees and G one post had to be filled in by direct recruitment and as at the time when the vacancy arose, there was already one direct recruit holding the post of Professor, the vacancy in question had to go to the departmental promotee as he was the senior most Assistant Professor in the Department of Ophthalmology.
His claim to be promoted to the said post should have been processed in accordance with law and the said post should not have been H 696 SUPREME COURT REPORTS [1998] SUPP. 3 S. C. R. ·A advertised for direct recruitment. The Division Bench of the High Court accepted this contention of the respondent. Hence this appeal. On behalr of the appellant, it was contended that the decision in R. K. Sabharwa/ 's case pertained to a scheme of reservation for Scheduled Caste and Scheduled Tribe persons under Article 16(4) of the Constitution and had B nothing to do with the present s. :heme of the rule regulating the recruitment from two sources under Article 16(1) of the Constitution; and that a new plea regarding the applicability of the proviso to Rule 3 should not be permitted to be raised for the first time before this Court.
On behalf of the respondent, it was alternatively contended that in view C of the proviso to Rule 3 of the statutory rules, the cycle of 3: I would operate in connection with all future vacancies that fell in the cadre w. e. f. 28-7-1978 and earlier cycle had to be ignored. It was also contended that even in the working of the cycle in the cadre in question the 16th vacancy (which would . become the I Ith vacancy if reckoned from a roster commencing from 28-7- D 1978) would go to a promotee and not to a direct recruit. Dismissing the appeal, this Court '· HELD: I. I.
As per Article 16(4) of the Constitution which carves out a separate field for itself from the general sweep of Article 16(1) which E guarantees equality of opportunity in matters of appointments in Government services to all citizens of India, the reservation for these categories of employment has to be achieved by earmarking requisite percentage of posts for the reserved category of candidates and by pitchforking these posts on roster points on requisite points roster and when such a roster takes a full cycle, posts earmarked on reserved point will enable the requisite reserved· F category of candidates to fill up these posts. After that is done, the roster would be treated to have achieved its purpose. Whenever a reserv~ candidate vacated a reserved post, the said post was liable to the fi! led in only by a candidate belonging to the reserved category. If after.
-the roster is first / operated and thereafter it is again operated on future vacancies also, a G situation may arise wherein a cadre may get reserved category exceeding permitted quota of reservation. 1706-F-HI I. 2. So far as Rule 9 of the Punjab Medical College Education Service (Class-I) Rules, 1978 is concerned it has nothing to do with reservation of posts in the cadre of Professors. It is not a rule of reservation envisaged for H a specified category of persons as permitted by Article (16)4 of the ·- STATE v. DR. R. N. BHATNAGAR 697 '. Constitution. On the contrary, it is a rule of recruitment from two different A . sources, namely, in case of Professor's cadre 75% of posts has to be filled in by promotion while 25% by direct recruitment. These two sources of recruitment permit departmental promotees and direct recruits from the open market to get absorbed in the cadre. They merely, serve as two entry points for the cadre.
Rule 9 deals with reservation of appointment to the post B of Professor and does not deal with reservation of posts of Professor for any special class or category of candidates. It is well settled that once recruitment is made from two sources, i. e. , departmental promotees and direct recruitment from open market and once the concerned candidates enter into any cadre through entry point reserved for them they get fused and blended into one single cadre and their birthmarks get obliterated. This would be in consonance C with the thrust of Article 16(1) of the Constitution of India. No question of exception to the said general thrust of the constitutional provision would survive as Article 16(4) would be out of picture in such a case. Consequently, the decision rendered by the Constitution Bench in R. K.
Sabharwa/'s case in connection with Article 16(4) and the operation of roster for achieving D the reservation of posts for STs, STs and BCs as per the scheme of reservation cannot be pressed in service for the present scheme of Rule 9(1) is not as per Article 16(4) but is governed by the general sweep of Article 16(1). (707-A-D; 708-D-EJ R. K. Sabharwa/v. State of Punjab, (1995) 2 SCC 745, held inapplicable. 1. 2. When under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled E 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 F po! nts taking Into consideration vacancies that fall due at a given point of time.
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 or the vacancy created by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by G ~ t> the onward motion of 3 promotees and one direct recruit. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits. (711-D-F; 712-A-Bl H 698 \, SUPREME COU! l. T REPORTS (1998) SUPP. 3 S. C. R. A 2;1. Though the word "Post" is used in Rule 9 of the rules it cannot· be said that it must necessarily refer to total posts in the cadre and not to vacancies.
It is obvious that recruitment to rm up the vacancies as may be _ existing from time to time in the cadre is controlled by the quota or percentage of posts earmarked for promotees as compared to direct recruits. For working out the rule of recruitment envisaging appointments from two sources of B promotees and direct recruits, vacancies in the cadre of Professors have to . be kept in view and not the posts themselves. Rule 9 laying down quota and rota for monitoring recruitment from two sources of departmental promotees ~ and direct recruits can work uniformly in all the departments for recruitment of Professors wh~re the posts of Professor in the concerned cadres of_ C departments may consist of a solitary or two posts or more than two posts or may be five posts, as in the present case. This would result in a harmonious operation of Rule 4 and Rule 9 and no part of Rule 9 will be rendered otiose __ or truncated in such a case. [713-C-E; 715-A-B) · · ' ' 2. 2.
As the perc~ntage for ~~ruil. ;,ent of Prof. S. ors f~~m departmental D candidates was 75% and 25% of the appointments to posts were reserved for direct recruits, the first three vacaricies in the cadre '-'ould go to promotees . · and the fourth vacancy would go to a direct recruit; similarly 5th, 6th and 7th were to be filled in by departmental candidat. S and the 8th vacancy would '·go to a direct recruit, 9th 10th and 1 lth would go to departmental promotees and the 12th vacancy would go to a direct recruit, 13th, 14th and 15th E vacancies would go to departmental promotees. Therefore, the disputed 16th vacancy would necessarily go to a direct recruit. Thai is how the roster points were worked out by the appellant for regulating the recruitment from two sources i. ~. promotees and direct recruits. The reasoning adopted by the High Court in connection with the working of the afores~id Rule falls foul c.. -F- .
on th"e touchstone or Article 0 16(1) read wUh statutory scheme as envisaged by these rules. [713-A-C; 715-B-CI ' . . . Pai-amjit Singh v; Ram Rakha, [1975) 3 sec 478, ·'• ... State of Kash",,,irv. Xriloki Nath Khosa, [l974[ 1 SeR 771 and Roshan G Lal. Tandon v. Union of India, )1968[ 1SeR185;relied on. R. K. Sabharwalv. State of Punjab, [1995[ 2 sec 745 and Post Graduate Institute of Medical Education & Research. Chandigarh v. Faculty Association. [1998) 4 sec 1, held inapplicable. _/ ointment from two sources ofpromotees and direct recruits wherein only Article 16(1) would hold the field, un-inhibited by the exceptional category carved out from said sub-article ( 1) by sub-article (4) thereof. The first point for determination is, therefore, answered in favour of the appellants and against the respondent. F Point No.
2: So far as this point is concerned, learned counsel for the respondent heavily relied upon the factual position regarding constitution of the cadre of Professors of Ophthalmology, which according to him, would show the G correct application of the roster points. It was submitted that even assuming that the interpretation of learned counsel for the appellant for working out the roster for future vacancies is correct, and which we have found to be correct while answering point no. I as aforesaid, according to learned counsel for the respondent, when vacancies were filled up from the very inception in the cadre consisting of five posts of Professor of Opthalmology, the following H picture emerged : STATEv. DR. R. N. BHATNAGAR [S. B. MAJMUDAR, J. ] 717 THE CORRECT POSITION ACCORDING TO LEARNED A COUNSEL FOR THE RESPONDENT: I. Dr. Dhanwant Singh 3. 5. 67 Promotion 2. Dr. Ranbir Singh 9. 10. 68 Promotion 3. Dr. Sohan Lal Sharma lD. 9. 69 Promotion B 4. Dr. M. R. Chadha 13. 12.
71 Direct recruitment 5. Dr. Daljit Singh 26. 6. 74 Promotion 6. ' Dr. K. K. Khanna 29. 6. 81 Promotion 7. Dr. D. C. Bansal 9. 1. 82 Promotion c 8. Dr. S. S. Rudra 1. 11. 83 Promotion 9. Dr. Charanjit Lal 22. 85 Direct recruitment 10. Dr. D. C. Aggarwal 26. 9. 85 Promotion 11. Dr. M. S. Hora 3. 10. 85 Promotion D 12. Dr. Pawanjit Singh 20. I0. 90A Promotion ' Sandhu l. 10. 93R ·I 13. Dr. S. S. Shergill 8. 7. 94 Direct recruitment E 14. Dr. M. S. Bhatia 6. 12. 96 Promotion 15. Dr. Sat Paul 7. 12. 96 Promotion It was submitted that let us assume that the first three vacancies in the said cadre of five Professors would go to promotees and the fourth point would F go to a direct recruit, then up to Dr D. C. Bansal at point no. 7, rotational cycle can be said to have correctly operated. However when we go to roster point no. 8, that was filled in by Dr. S. S. Rudra on 1. 11.
83 by promotion, it could be said that the 8th point which would have been reserved for direct recruit was made available by the department on account of the exigency of service to a promotee. Therefore, 8th point was shifted to 9th point which was given G - to Dr. Charanjit Lal by way of direct recruitment. Thereafter when the cycle was to operate vacancies arising beyond the 9th vacancy I Oth, I Ith and 12th . 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 H 718 SUPREME COURT REPORTS [1998] SUPP. 3 S. C. R. A 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 Professo~s 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 th1: roster controlling the entry points for recruitment to the B 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 C 1. 11. 83 but while he was so promoted, he could fill in only the 9th vacancy which was earmarked for a departmental promotee. The 8th roster point earmarked for a direct recruit was, therefore, carried forward and when Dr.
Charanjit Lal came to be appointed qua roster point no. 8 on 2. 2. 85 though he was treated as junior to Dr S. S. Rudra, he could be said to be appointed on the roster point no. 8 which was carried forward. He could not be said to have D occupied roster point no. 9 which was meant only for a departmental promotee and on which point Dr S. S. Rudra got advance or accelerated promotion. Consequently, the 9th roster point got exhausted by promotee Dr. Rudra and I 0th, I Ith points went to promotees, counting 9th point as starting point for fresh cycle for 3 promotees and 12th point then was for direct recruit- Dr S. S. E Shergill. Similarly, 13th, 14th and 15th vacancies went to promotees and consequently, th«~ 16th vacancy must go to a direct recruit as rightly submitted by learned counsel for the appellants and learned senior counsel for the intervenor and that is how the roster on reservation of vacancies operated from the inception i. e.
from 1967 onwards firstly, as per executive instructions and later on with effect from 28th July, 1978 as per the statutory rules. The F working of the roster points up to 15 as indicated in an earlier part of this judgment subject to what has to be considered while deciding point no. 3, cannot be found fault with. In the result, the second point for determination also has to be answered in favour of the appellant and against the respondent. G Point No. 3: In the light of our conclusions on point nos. I and 2, this appeal would have been required to be allowed and the decision of the High Court would have been required to be set asid~. However, a fresh contention canvassed for our consideration in the alternative by learned counsel for the respondent H requires a closer scrutiny, as in our view the decision thereon in favour of the I - STATE v. DR. R. N. BHATNAGAR [S. B. MAJMUDAR, J.
] 719 respondent may entitle him to succeed and get the final decision of the High A Court allowing the writ petition sustained on this alternative ground. We may, however, mention at the outset, one primary objection pressed in service by Shri Rao, learned senior counsel for the intervenor in this connection. He submitted that this alternative contention in any case should not be entertained for the first time in this appeal as such a contention was 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 consiJeration in these proceedings. B No disputed question of fact arises for consideration as wrongly assumed by C 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. D 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 E in Appendix 'B'. We have referred to Rule 4 and entries in Appendix 'B' while considering point no. I Rule 9(i) lays down that appointment to the posts in the service shall be made in the manner provided therein.
As noted earlier, Rule 9(i)(d) enjoins that in case of Professors 75% of posts were to be filled in by promotion while 25% posts by direct recruitment. Therefore, the Punjab Medical Education Service (Class-I) which was constituted with effect from F 28th July, I 978 as per the statutory rules had to comprise of cadre of Professors mentioned in Appendix 'B'. The recruitment to such cadres of Professors would be governed by Rule 9(i)(d). It becomes, therefore, clear that from 28th July, 1978 onwards while working out the statutory scheme of the rules for the purpose of constitution of the service in question, the rotational cycle G envisaged by the quota of rule as aforesaid had to start from the very first vacancy in the cadre occurring on or after 28th July, 1978. This conclusion is reached on a conjoint reading of Rules 3 and 9 of the rules as aforesaid.
As Rule 3 clearly provides that there shall be the constitution of service to be known as the "Punjab Medical Education Service (Class-I)" con~isting of persons recruited to the service under Rule 9 after the commencement of H 720 SUPREME COURT REPORTS (1998] SUPP. 3 S. C. R. A these rules. Thus, fresh recruitment to the service had to be made under Rule 9 after the commencement of the rules. However, a question arose as to what was to be done with respect to those incumbents in the cadre who were earlier recruited when the erstwhile executive instructions were holding the fleld and wherein the same quota rule governing the recruitment from two sources i. e. B promotion and direct recruitment was holding the field. For answering that question proviso to Rule 3 got enacted. It has to be examined closely.
It lays down that "the persons holding the posts specified in Appendix 'B' to these rules immediately before such commencement shall be deemed to be appointed to the service in accordance with the provisions of the rules on the designation, grade and any scale laid down in Appendix 'B' to these rules or the grade C and pay scale for which they duly exercised their option". If the proviso was to operate, the following conditions were to be satisfied before the deeming fiction laid down therein could give signals in favour of incumbents in the cadre of Professors recruited earlier under the erstwhile executive instructions for recruitment : D (i) The persons concerned must be holding posts specified in E 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 ~ame into force; (iiO 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 F 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 G H 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 Appendix 'B' to the rules or the grade and pay scale for which they duly exercised their option earlier. The deeming fiction created by the proviso has a limited effect. It only regulates - - --. .... STATEv. DR. R. N. BHATNAGAR [S. B. MAJMUDAR, J.
] 721 the incumbency of the holders of the post of Professors in the A cadre on the appointed day when the statutory rules operated and, therefore, regularisation will be deemed to be under the new rules for the purpose of protecting their rank, grade and scale of pay. The deeming fiction has been created by the proviso for this limited purpose only. It, therefore, becomes obvious that B this deeming fiction cannot be extended by analogy to cover any other field not meant to be covered by its sweep. It is difficult to accept the contention of learned senior counsel Shri Rao for the intervenor that because of this deeming fiction it can also be visualised that all those Professors who were earlier recruited under the erstwhile executive instructions can be C deemed to have been recruited as per 75% quota of departmental promotees and 25% quota of direct recruits as envisaged by Rule 9(i)( d).
To accept this contention would amount to re- writing the proviso to the effect that the persons appointed to the posts specified in Appendix 'B' of these rules immediately before such commencement including those who have retired D and were not holding any post as on 28th July, 1978 shall be deemed to be in service in accordance with the provisions of these rules on the designation, grade and any scale laid down in Appendix 'B' etc. to these rules or the grade and pay scale for which duly exercised their option. It is obvious that the E proviso has purposely not used the phraseology "persons appointed to the posts" but has only used the phrase "persons holding posts as found in Appendix B". The source of their appointments under the erstwhile executive instructions and the erstwhile percentage of reservation earmarking posts for promotees and direct recruits as per executive instructions earlier F operating, would remain outside the scope and sweep of the proviso.
In other words, ifthe aforesaid four conditions envisaged by the proviso were satisfied then the incumbents of all posts in the cadre who were actually holding such posts when the statutory rules applied would remain in the cadre irrespective of G the source of their earlier recruitment and nothing more. How they came into 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, H 722 A B SUPREME COURT REPORTS [1998] SUPP. 3 S. C. R. 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. Once it is held on the correct construction of the proviso to Rule 3 that C 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 between the parties. In fact Shri Rao, learned senior counsel for the intervenor in fairness placed for our consideration a chart showing the exact factual data, which is also D accepted by learned counsel for the respondent.
The chart submitted by Shri Rao for our consideration is as under: E F Appointments made according to roster in the cadre of Professors of Ophthalmology from time to time : SI. No. Name Dt. of Joining Dt. of Retitrement I. Dr. Dhanwant Singh 3. 5. 67(P) After 28. 7. 1978 2. Dr. Ranbir Singh 9. I0. 68(P) Retired on 1. 6. 1974 ' Dr. Sohan Lal Sharma I0. 9. 69(P) After 28. 7. 1978 . ). 4. Dr. M. R. Chadda 13. 12. 7l(D) After 28. 7. 1978 5. Dr. Daljit Singh 26. 6. 74(P) After28. 7. 1978 G Now, a mere look at this chart shows that on 28th July, 1978 when the statutory rules came into force, in the cadre of Professors consisting of five posts only four were actually occupied as Dr. Ranbir Singh who had joined on 9. 10. 1968 being a promotee had retired from 1st June, 1974 and was no longer available to be covered by the sweep of the proviso to Rule 3, as he was not a person holding the post of the Professor immediately before the H commencement of the rules. Once Dr.
Ranbir Singh is excluded from r . __ ,. STA. TEv. DR. R. N. BHATNAGAR [S. B. MAJMUDAR, J. ] 723 consideration and is not within the sweep of the proviso to Rule 3, the latter A will project the following picture qua incumbents to the posts of Professor in the cadre in question. Dr. Dhanwant Singh, Dr. Sohan Lal Sharma and Dr. Daljit Singh were promotee Professors while Dr M. R. Chadda was a direct recruit. Thus, out of the five posts in the cadre, three were filled in by departmental promotees and one was filled in by a direct recruit. The rotational cycle which was earlier envisaged by the executive instructions was on the B same lines as the statutory rotational cycle envisaged by Rule 9. Meaning thereby, the first three vacancies will go to promotees and the fourth vacancy will go to a direct recruit.
Consequently, by the time the statutory rules came into force and constituted the Punjab Medical Education Service (Class-I) in the cadre of Professors of Ophthalmology three posts were filled in by C promotees and one post was filled in by a direct recruit and the proviso would protect them and treat them as cadre employees. That resulted in the complete running up of the first rotational cycle as according to learned counsel for the appellant and learned senior counsel for the intervenor the rotational cycle for the purpose of earmarking the posts in the cadre of Professors would be 75% of posts for promotees and 25% of posts for direct recruits. D Meaning thereby, out of four vacancies three will go to promotees and one will go to a direct recruit. Moment that is achieved, the cycle took a full tum 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 E instructions had taken a full tum. 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 tum to the incumbency position in the light of the roster points in the cadre in question, as per the chart at F 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. I, 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 IO, 11, 12 would operate as roster G points 5, 6 and 7 for promotees; roster point 13 occupied by Dr. Pawanjit Singh will be treated as roster point no. 8 for direct recruit and roster point nos. 14, 15 will in effect become roster point nos. 9 and 10 available to promotees. Therefore, the last vacancy of roster point shown at serial no. 16 in substance will become roster point no. 11 available to a promotee and only thereafter the next future vacancy at point no. 17, which in substance, would be point H 724 SUPREME COURT REPORTS [1998] SUPP. 3 S. C. R. A no. 12 in the cycle envisaged by Rule 9(i)(d) would only go to a direct recruit. Uptill now that vac:ancy has not arisen in the cadre. The disputed point at serial no. 16 which in substance falls at roster point no. 11, therefore, goes to the promotees. Consequently, on this alternative point, the conclusion is inevitable that the disputed point no. 16 which in ~ubstance is point no.
I I when considered in the light of new cycle of rotation as per Rule 9(i)(d) as B discussed earlier would be a vacancy point available to be filled in by a departmental promotee. The submission of learned senior counsel, Shri Rao for the intervenor that even though Dr. Ranbir Singh was not holding the post on the appointed day when the statutory rules came into force his vacancy has to be treated to have been occupied by roster point under the earlier C rotational system of executive instructions meant for a promotee and that may be considered for working out the cycle under the erstwhile executive instructions cannot be countenanced for the simple reason that the said submission would n:sult in enlarging the scope of the proviso and the deeming fiction beyond the limited periphery on which it is required to be operated, as discussed earlier. In the result, it must be held that the alternative point D no.
3 is well sustained and has to be answered in favour of the respondent and against the appellants and the intervenor. Once this conclusion is reached, the final decision rendered by the High Court in the impugned judgment to the effect that the advertisement dated I 0th May, 1977 has to be quahed when it sought to fill up the post of Professor in the Department of Ophthalmology E by direct recruitment, has to be sustained. The final decision of the High Court is upheld by us entirely on a different reasoning centering round the consideration of the new alternative point no. 3, though the reasoning adopted by the High Court for coming to the said conclusion is not accepted by us while deciding point no. I as seen in earlier part of this judgment. It is, therefore, held that the impugned advertisement was unauthorised and illegal F as it was in connection with roster point no. 16 which in substance was roster point no. 11 and was to be filled in only by a departmental promotee.
Point No. 4: In the result, this appeal fails and is dismissed. However, on the facts G and circumstance of the case, there will be no order as to costs. v. s. s. Appeal dismissed.
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