Dr. Mahesh Chandra vs Union Of India & Others

Ajanta Dayalan, Member (A)

Heard the counsel for the applicant. He states that in the O.A., the applicant is challenging order dated 14/28.6.2017 (Annexure A-19) as well as

advertisement published in December 2019 for filling some posts including post of Assistant Professor (Urology) on regular basis through Union Public

Service Commission. He states that in case this selection is made, the applicant who joined Government Medical College and Hospital in 2005 as

Senior Lecturer (General Surgery) through UPSC, will be denied the chance for selection to this post. The learned counsel for the applicant further

states that right from 2005 onwards, the applicant was working in the field of urology and has conducted number of procedures in urology. He also

took DNB course of 3 years in urology during 2008 to 2011. And as such, he is eminently suitable for the post. The applicants counsel also pleads that

in 2010, post of Assistant Professor was shifted from Department of General Surgery to Department of Urology. So, after creation of new

Department in 2017, he should also have been shifted. But, this was not done and vide order dated 14/28.6.2017, he was deputed till the regular

incumbent joins, which is improper. The counsel for the applicant further pleads urgency as the respondent department has already advertised the post

through UPSC.

On the other hand, the respondents have stated that in their Institute, urology has always been a branch of Department of Surgery till 2017. The

substantive post of the applicant is in Department of General Surgery only. As earlier urology was part of Department of Surgery, hence his services

were being used for training students and for urology procedures etc. as and when demand arose. However, in 2017, a separate Department of

Urology has been created. This Department has two faculty posts - one each of Assistant Professor and Associate Professor. The Recruitment Rules

for these posts namely Government Medical College and Hospital, Chandigarh, Assistant Professor and Associate Professor (Group A) (Gazetted)

(Non-Ministerial) for the Department of Urology Recruitment Rules, 2018 (Annexure R-9) have already been published on 29.10.2018. As such, the

Presidential Notification of 13.1.1992 for applying the rules of corresponding posts in Punjab Government to these posts is no longer applicable.

Further, as per Column 10 of Schedule to the Recruitment Rules (Annexure R-9), the post of Associate Professor (Urology) is to be filled by

Composite Method (deputation (ISTC) plus promotion). The Composite Method is explained in detail in Column 11 of the Schedule. The post of

Assistant Professor (Urology) is to be filled by direct recruitment. Hence, these posts are not available for transfer from other departments. The

respondents have also stated that the applicant has in fact applied for the post of Associate Professor through UPSC. However, this post was vacant

since 2010 and has to be revived before it can be filled up. The proposal for filling up the post of Assistant Professor under direct recruitment quota

has already been sent to the Union Public Service Commission and the applicant can apply for the same and compete with other candidates.

We observe that as Urology was a branch within the Department of Surgery in the respondent Institute, the services of the applicant were being

utilized by the respondent Institute in the field of urology. This situation prevailed right from 2005 till 2017. During this period, the applicant did work in

urology and conducted number of procedures and also underwent a 3-year DNB Course in this field. However, the position has completely changed in

2017 when a separate Department of Urology has been created. Recruitment Rules for the newly created posts stand notified in 2018 (Annexure R-

9). The respondents have argued that with the coming in the force of these Recruitment Rules, the Presidential Notification of 1992 for applying the

conditions of service of corresponding posts in Punjab Government to the U.T. employees, is no longer applicable. This is because of the provisions of

1992 Notification itself which, inter-alia, state ""subject to any other provision made by the President in this behalf"".

It is clear from above that unless the matter regarding applicability of the 1992 Notification or otherwise is settled, no decision in the instant case

can be taken. Meanwhile, the applicant is free to apply for the post advertised (he is understood to have already applied for the post of Associate

Professor) and compete against other candidates if he so desires.

The applicant is not only questioning the Recruitment Rules but is also questioning creation of a separate department. Hence, no interim relief can

be granted to the applicant unless these fundamental questions are decided in his favour.

It is also observed that after creation of Department of Urology in 2017, order deputing the applicant to Department of Urology was issued on

14.6.2017 (Annexure R-4). This order clearly stated that the applicant is on deputation ""for the time his services are required or till the regular

incumbent joins on the said post"". The applicant joined on these terms. So, he does not now prima facie have any right to restrain the respondents from

filling up the post on regular basis - and definitely not till the O.A. is finally decided.

In view of all above, prayer for interim relief is rejected.

Needless to mention that the observations made hereinabove would not have any effect on the ultimate decision in the case.

Both the M.As, are, dismissed.