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Dr.Ishwar Chandra Khare v. State Of Up & Others - WRIT - A No. 16471 of 1993 [2006] RD-AH 7025 (31 March 2006)


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Civil Misc. Writ Petition No.16471 of 1993

Dr. Ishwar Chand Khare


State of U.P. & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Shishir Kumar, J.

Application for restoration is allowed in view of the grounds taken in the affidavit filed in support of the said application. The order dated 23.09.2005 passed on the restoration application is recalled. The application for restoration is restored to its original number and heard.

In view of the grounds taken in the affidavit filed in support of the said application, the restoration application is allowed. The order dated 17.10.2001 dismissing the writ petition as infructuous is recalled. Heard the petition on merit.

This writ petition has been filed for quashing the impugned order dated 17.03.1993 (Annex.XI) by which the respondent no.4 had been appointed as an Associate Professor (Radiotherapy) and to issue a further direction to advertise the said post so that the petitioner may also be considered.

The facts and circumstances giving rise to this case are that the petitioner was appointed on the post of Lecturer in Radiology (Radiotherapy) on 28.11.1980 in J.K. Cancer Institute Kanpur. The services of the petitioner stood regularised as Lecturer on 26.04.1985. Thereafter he was designated as Assistant Professor (Radiotherapy). The petitioner is still working on the said post and could not be promoted for want of vacancy on the post of Associate Professor (Radiotherapy). One post of Associate Professor (Radiotherapy) was advertised  by the U.P. Public Service Commission vide advertisement dated 14.12.1990, for which the respondent no.4 had applied along with others and the selection was made accordingly. One person was appointed on the said post. Subsequently, the post which was meant to be filled up by promotion from the departmental candidates, was also filled up by direct recruitment from the panel prepared for one post. Hence the present petition.

Shri R.B. Singhal, learned counsel appearing for the petitioner has submitted that it is settled legal proposition that the Authority could not fill up the vacancy over and above the number of vacancies advertised and as only one post was advertised and the same was filled up, the selection process stood exhausted. Therefore, there was no occasion for the respondents to appoint the respondent no.4 as Associate Professor on the post to be filled up by promotion. Hence the petition deserves to be allowed and the order dated 17.03.1993 is liable to be quashed.

On the other hand, Ms. Archana Srivastava, learned Standing Counsel and Shri Pankaj Srivastava holding brief of Shri Satish Chaturvedi, learned counsel appearing for the respondent no.4 have vehemently opposed the writ petition contending that the advertisement dated 14.12.1990 itself provided that the number of vacancies could be increased or decreased  at the time of selection. More so, a policy decision was taken that to fill up the post of Associate Professor (Radiology) by direct selection. The Medical Council of India had not provided any eligibility and  as candidates were not easily available, therefore, the State Government made a recommendation to fill up the said post also by direct recruitment withdrawing it from the quota of Departmental candidates and His Excellency the Governor had accorded sanction vide order dated 30.01.1992. No fault can be found with the selection of respondent no.4. Petition is devoid of any merit and is liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and perused the record.

Admitted facts remained that in the advertisement, one post of Associate Professor (Radiology) was advertised on 14.12.1990 with a clear stipulation that the number of vacancies can be increased or decreased. It is also the admitted case that before the selection could take place,  sanction was sought from His Excellency, the Governor to fill up one more post by direct recruitment and the sanction had been accorded vide order dated 30.01.1992. The selection of respondent no.4 had been made on the post considering that he was in the merit list next to the candidate appointed for the one post which was advertised vide advertisement dated 14.12.1990.

Undoubtedly, the submissions made by Shri Singhal that the respondent authority cannot be permitted to fill up the vacancies over and above the number of vacancies advertised, has a substance as this view stands fortified by the judgments of the Hon'ble Apex Court particularly in Union of India & Ors. Vs. Ishwar Singh Khatri & Ors, 1992 Suppl. (3) SCC 84; State of Bihar & Ors. Vs. The Secretariat, Assistant S.E. Union, 1986 & Ors, AIR 1994 SC 736; Prem Singh & Ors. Vs. Haryana State electricity Board & Ors., (1996) 4 SCC 319;  Surinder Singh & Ors. Vs. State of Punjab & Ors., AIR 1998 SC 18; Virendrer Singh Hooda Vs. State of Haryana, AIR 1999 SC 1701; and  Punjab Vs. Raghbir Chand Sharma & Ors., AIR 2001 SC 2900.

However, the facts of this case are quite distinguishable for the reason that it is well-known principle of service jurisprudence that the Executive is competent to increase or decrease the number of vacancies at the time of selection taking a policy decision but in order to avoid any chance of manipulation, nepotism, fraud and corruption, such a decision should be taken promptly, depending upon the facts and circumstances of a particular case.

In the instant case, as advertisement itself provided that the number of vacancies could be increased or decreased vide advertisement dated 14.12.1990 and the State Government had placed sufficient material to the effect that the Medical Council of India had not provided any eligibility for the post and sufficient number of persons were not available even in the department to fill up the post by promotion, the State Executive has taken a policy decision to fill up this post by direct recruitment and His Excellency, the Governor has accorded the sanction vide letter dated 30.01.1992 much prior to the appointment of respondent no.4.

Thus, in view of the above, as the matter relates to the policy decision based on the circumstances which had been placed before the Hon'ble Governor of the State and sanction was also obtained from His Excellency, we do not find any fault with the appointment of the respondent no.4 or filling up the vacancy by direct recruitment rather than by promotion.

Even otherwise, the respondent no.4 is working since 1993 and it would be against all equitable principles to disturb him at such a belated stage. We do not find any cogent reason to interfere in the matter. Petition stands dismissed.




Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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