Medical College On The Post Of Medical Officer. vs State Of Rajasthan, Through Its Secretary To The

Vijyant Tak S/o Shri Vidhya Sagar Tak, Aged About 43 Years, Resident Of 8/196, Malviya Nagar, Jaipur (Rajasthan). At Present Working In Sms Hospital And Medical College On The Post Of Medical Officer. ----Petitioners Versus

1. State Of Rajasthan, Through Its Secretary To The Government, Department Of Personnel, Government Of Rajasthan, Government Secretariat, Jaipur.

2. Secretary, Medical Education Department, Government Of Rajasthan, Government Secretariat, Jaipur.

3. Secretary, Medical And Health Department, Government Of Rajasthan, Government Secretariat, Jaipur. ----Respondents For Petitioner(s) For Respondent(s) : Mr. R.N. Mathur, Senior Counsel assisted by Mr. Shovit Jhajharia. : Mr. Mahendra Shah, Senior Counsel assisted by Ms. Harshita Thakral. Mr. Kamlesh Sharma. Mr. Ashish Kishore Saksena. HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE MANEESH SHARMA 25/02/2025 Order Both the parties are in agreement that the issue involved in this writ petition has been considered and decided by the Co- ordinate Bench of this court at Principal seat Jodhpur in the matter [2025:RJ-JP:8608-DB] (2 of 8) [CW-4132/2021] of Dr. Daulat Singh & Ors Vs. State of Rajasthan & Ors (D.B. Civil Writ Petition No.6342/2023 decided on 01.08.2024, wherein the following order was passed:- “1. Six Assistant Professors have joined together to challenge the Note Nos. 4 and 5 appended to Rule 24B of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, (in short, Rajasthan Medical Service Rules). These writ petitioners have also challenged the orders dated 30th March 2021 and 31st March 2021vide Annexure-6 to the writ petition primarily on the ground that the respondent nos. 5 to 21 could not have been granted permission to switch over to super- speciality pursuant to Note No. 4, which is basically intended to provide one-time option to the Assistant Professors for the purpose of promotion. 2.The petitioners have pleaded that pursuant to Advertisement No. 08/2019-20 issued on 17th January 2020 they were selected for appointment to the post of Assistant Professor; the results were published on 10th March 2021. On the same day, a Notification was issued under the signature of Joint Secretary to the Government by the order of and in the name of the Governor for amendment in Rule 24B. According to the petitioners, the respondent nos. 5 to 21 were given the benefits under Note No. 4to the Notification dated 10th March 2021 though they had failed in their attempt to qualify for the post of Assistant Professor in their respective super-speciality subject. The anxiety of the petitioners is that their appointment letters were issued on 22nd May 2021and, therefore, they would rank below the respondent nos. 5 to 21 in the seniority list. 3.The Medical Service Rules provide that in the clinical wing all the doctors already working as Readers and Professors shall be deemed to have been substantively appointed to these posts included in the service except those who are working in a purely temporary or officiating capacity. Rule 5 further provides that all doctors who had worked as Lecturers for a period of 3 years on 1st October 1961 shall be deemed to have been substantively appointed to the post of [2025:RJ-JP:8608-DB] (3 of 8) [CW-4132/2021] qualifications, Lecturer. However, sub-Rule 3 to Rule 5provides that the seniority of the persons referred to in sub-Rule(I) (i), (ii) and (2) shall be determined on adhoc basis by the Government. It is also provided that the seniority of the persons referred to in sub- Rule (1) (iii) shall be determined by the Government on the advice of the Committee referred to in sub-Rule (1) (iii). Rule 7 provides that on commencement 4. of the Medical Service Rules recruitment shall be made through (a) direct recruitment (b) by promotion of (substantive) members of the service and (c) selection made by a Special Recruitment Board under the provisions of the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968. Under Chapter IV, the procedure for direct recruitment has been laid down; by inviting applications. Under this Chapter, the age, nationality, eligibility, academic and technical disqualification, frequency of recruitment etc. are provided. Later on, Rule 24A providing for criteria, eligibility and procedure; Rule 24AA providing for restriction in promotion of persons foregoing promotions; Rule24B providing for promotion under Dynamic Assured Career Progression Scheme and; Rule 24BB laying down the procedure for granting DACP, were incorporated through amendments. 5.In the background of the aforementioned statutory Rules, the petitioners have laid a challenge to Note No. 4 appended to the amended Rule 24B vide Notification dated 10th March 2021.Mr. Yashpal Khileree, the learned counsel for the petitioners referred to the procedure laid down for promotion to the post of Associate Professor, Professor and Senior Professor and submitted that the Note appended to the said Notification shall apply only in cases of promotion and not for the direct recruitment to the post of Assistant Professor. It is submitted that a Note shall be primarily in the nature of a clarification but cannot regulate the main provision and, in any event, cannot be applied in cases of direct recruitment. 6.The Rajasthan Medical Services Rules have been framed in exercise of the powers under proviso to Article 309 of the Constitution of India. This is by now well-settled that under [2025:RJ-JP:8608-DB] (4 of 8) [CW-4132/2021] proviso to Article 309 of the Constitution the Government is entitled to frame Rules laying down the procedure for recruitment and other conditions of a service under the State or the Union. The Notification dated 10th March 2021 has been issued in exercise of the powers conferred by proviso to Article 309 of the Constitution and, therefore, any challenge to the exercise of powers for making “amendment” in the existing Rule 24B cannot sustain. In so far as applicability of Note No. 4 to the Notification dated 10th March 2021 is concerned, it would be apposite to examine the provisions made under the amended Rule 24B which reads as under: “24B. Promotion under Dynamic Assured Career Progression (DACP) Scheme.- 3"(1) Notwithstanding anything contained in rule 25 and subject to the provisions of rule 24BB, members of the service shall be granted promotions under 2Dynamic Assured Career Progression Scheme, herein after referred to as the DACP Scheme, as under:- S.No.

1. Promotion under DACP Scheme From Assistant Professor To Associate

2. Professor Associate Professor Number of years of regular service required for promotion By promotion amongst substantively appointed Assistant Professor specialities concerned who have completed 6 years regular service under the provisions contained in relevant rule and if possessing degree in superspeciality subject as prescribed by the MCI, 03 years regular service of the post of Assistant Professor. By promotion Associate Professor of the concerned specialities who have completed 4 years regular service on the said post.

3. Professor Senior Professor By promotion Professor concerned specialities [2025:RJ-JP:8608-DB] (5 of 8) [CW-4132/2021] who have completed 4 years regular service on the said post. Note.- 1. Associate Professor who has completed 14 years of service including four years as Associate Professor as on 01.04. 2011 and promoted as Professor under DACP Scheme from 01.04.2011 shall be granted grade pay of Rs. 10,000/- as Senior Professor on completing two years of service as Professor i.e. with effect from 01.04.2013. 2. Professor regularly promoted before 01.04.2011 and who has completed total service of 14 years as on 01.04.2011 but has not completed two years of service as Professor as on 01.04.2011shall also be granted grade pay of Rs. 10,000/-as Senior Professor with effect from 01.04.2013. 3. In Case a new department of any speciality is started, the Medical Teachers from other speciality who are permitted as per provisions in regulations of the MCI/RUHS may be placed at equivalent position as per their technical and academic qualification as mentioned in the said regulations. 4. The existing regular Medical Teachers possessing degree in super-speciality subject as prescribed by the MCI in subjects other than their subject of appointment shall exercise one-time option to shift to the speciality of their subject of super-speciality as prescribed by the MCI as Assistant Professor on available vacant posts. 5. If the existing regular Medical Teachers shifted to the speciality of their subject of super-speciality as per note above, then experience shall be counted from first day of April next following the date of joining as Assistant Professor in the new speciality.”

7.On a glance at the aforesaid Note No.4, it becomes clear that the existing teachers possessing degree in super-speciality other than the subject in which they were appointed shall exercise one-time option to shift to their subject of super-speciality. There is no dispute that the respondent nos. 5 to 21 possess a degree in super-speciality [2025:RJ-JP:8608-DB] (6 of 8) [CW-4132/2021] other than the subject in which they were initially appointed. As we understand, Note 4 provides one-time option to such teachers who have acquired degree in super-speciality in other subject to shift to that super- speciality subject in order to provide them an opportunity to serve in their super-speciality subject. The petitioners who also hold a degree in super-speciality subject cannot have any grievance as regards providing such an opportunity to the teachers who were regularly appointed in other subject. The submission that Note No. 4 to Rule 24B is only to be applied in cases of promotion is devoid of any merits. Similarly, the submission that the Note No. 4 has been incorporated only to extend some benefit to the respondent nos. 5 to 21 cannot be accepted. According to the petitioners, the respondent nos. 5 to 21 had failed in their attempt to secure appointment as Assistant Professor in super-speciality subject and the impugned notification with amendment in Rule 24B was issued to help the respondent nos. 5 to 21. But in the backdrop of the aforementioned scenario, this cannot be countenance in law that the framers of Notification dated 10th March 2021 had apprehended or knew that the respondent nos. 5 to 21 would fail in their attempt to get selected in super-speciality subject. 8.Equally true is that the Note No. 4 is not being applied in case of the respondent nos. 5 to 21 to make them at par with the petitioners who are directly recruited Assistant Professors. The provision under Note No. 4 is intended to introduce and infuse more number of specialist Assistant Professors in the service. Moreover, the scheme of DACP must be held distinct from the scheme of regular promotions. The scheme of DACP is intended at mitigating the sense of frustration that may hamper the performance of the members in the service by providing assured career progression on completion of a certain length of service. Furthermore, there is complete lack of pleadings to lay a foundation for challenging the Note No. 4. This is a trite law that there should be specific pleadings to challenge the Rules because in absence of such pleadings, the respondent(s) cannot have an opportunity to rebut the same. Moreover, the [2025:RJ-JP:8608-DB] (7 of 8) [CW-4132/2021] respondent(s) shall not have an opportunity to bring on record the object behind the Rules that were brought into force. 9.This is well-settled that the Rules framed under proviso to Article 309 of the Constitution shall have statutory force and the approach of the Court while examining the challenge to a particular provision under the Medical Service Rules should be in favour of validity of the Rules. The Court can strike down a statutory Rule where it is not possible to sustain the same but the approach of the Court cannot be to find fault or to search for defects in the drafting of the provision in a statute or the statutory Rules. In any event, a challenge to the Note No.4 to Rule 24B can be laid only on the ground of violation of the Constitutional provisions or the Parent Act or on the ground that the Government has exceeded its powers in carrying out amendment in Rule 24B. None of these situations arise in the present case and, therefore, we would dismiss this writ petition devoid of any merits. 10.The anxiety of the petitioners is that they would rank below the respondent nos. 5 to 21 as their appointment letters were issued on 22nd May 2021 but before that the respondent nos. 5 to21 were permitted to shift to the super-speciality subject through office orders dated 30th March 2021 and 31st March 2021. However, the Government was conscious of the consequence of one-time shifting of the existing teachers to super- speciality subject. Therefore, under Note No. 5 it is provided that the experience of the existing regular medical teachers who would shift to the subject of super-speciality shall be counted from 1st day of April next following the date of joining as Assistant Professor in the new speciality. This is well- settled a proposition that the dispute arising in a service matter can not be decided with mathematical calculation. It is also too well settled that a person shall be born in the cadre only from the date of his substantive appointment and not from the date when the result was published. In our opinion, this is no ground to challenge the Note No. 4 that the respondent nos. 5 to 21 would rank above the petitioners because their appointment letters were issued on a later date. [2025:RJ-JP:8608-DB] (8 of 8) [CW-4132/2021]

11. Accordingly, the present D.B. Civil Writ Petition No. 6342 of 2023 is dismissed.” In that view of the matter, this writ petition is dismissed in view of the judgment passed by the Co-ordinate Bench of this court in the matter of Dr. Daulat Singh & Ors. (supra). (MANEESH SHARMA),J (INDERJEET SINGH),J Mahima/MG/247