Raj Kumar Sharma [Dr.] vs State and Others

S.N. Jha, C.J.—The dispute in this Letters Patent Appeal arising from SWP No. 153/1988 relates to appointment on the post of Lecturer in

the Department of Medicine, Government Medical College, Jammu.

The appellant filed the writ petition for quashing a government order dated 1.6.1986, by which private respondents were appointed as Lecturers

in Medicine Department, Government Medical College, Jammu, and for a mandamus to appoint him on the post with consequential benefits of

salary, promotion etc. The appellant meantime had been appointed as Lecturer in the Department of Medicine on ad hoc basis on 24-10-1986.

Like him, some other doctors were also appointed on ad hoc basis. These appointments came in under challenge in different writ petitions. All the

writ petitions including the one preferred by the appellant i.e. SWP No. 153/1988 were disposed of with certain directions, by a common

judgment dated 19-11-1990. We shall refer to the findings of the learned single Judge and the directions issued at the appropriate place later in this

judgment. Persons aggrieved by the said judgment including the appellant preferred Letters Patent Appeals. The appeal preferred by the appellant

was registered as LPA No. 8/1991. On the prayer of the appellant, his appeal was segregated while other appeals were disposed of on

13.5.1993 with direction to the respondents to regularize the services of the appellant in consultation with the Public Service Commission on

evaluation of their work and conduct based on the confidential reports within three months. Such evaluation was to be done by the Public Service

Commission. Doctors so regularized were to be appointed as Lecturers with effect from the date from which they had been continuously working

as Lecturers, while services of those not so regularized could be terminated by the respondents. The direction of the learned single Judge vide his

order dated 19-11-1990 thus stood modified. The J&K Public Service Commission challenged the order of the Division Bench before the

Supreme Court. The Supreme Court vide judgment titled J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc.,

, held that regularization of ad hoc employees in violation of statutory rules by purportedly relaxing rules was not permissible as only condition of

service could be relaxed and not the condition of eligibility. Accordingly, the order of the Division Bench was set aside and that of the learned

single Judge dated 19-11-1990 (supra) was restored.

LPA No. 8/1991 by the appellant which remained pending as indicated above, came to be disposed of on 3-2-1999. In order to steer clear the

above decision of the Supreme Court in J&K Public Service Commission v. Dr. Narinder Mohan and Ors., which apparently was/is against the

appellant, a stand was taken that his writ petition had wrongly been clubbed and decided with other writ petitions, as in his case, the issue involved

was distinct and same required independent consideration. Reliance was placed on the pleadings in the supplementary affidavit filed by the

appellant and it was submitted that appellant had been held to be ineligible by the Commission as lacking in experience, but in the case of one Dr.

Shashi Gupta who stood at par with him, a different treatment was given. Reference was made to 'experience certificate' as in the case of Dr.

Shashi Gupta and it was submitted that those certificates were not taken into consideration, unlike the case of Dr. Shashi Gupta. The Division

Bench noticed that these pleadings were made for the first time in appeal and passed the following order: --

......................

We have given our earnest consideration to the facts of the case and the rule position governing the same. We hold it to be just and expedient to

remand back the writ petition to the writ court for considering the certificate which are said to have been produced before the Commission and

also form a part of the writ petition. We also direct the writ court to consider the supplementary pleadings filed by the parties before the Appellate

Bench and take them on record. The writ court will allow the parties to exchange the pleadings if they so choose.

.......................................................................................

This is how the writ petition was revived which ultimately came to be dismissed, again, by judgment and order dated 7-9-1999 giving rise to this

appeal.

The case of the appellant at this stage may briefly be stated as follows. The appellant passed MBBS examination in the year 1977 standing first

in Jammu University. He completed his one year's internship in June 1978. He did House Job form July 1978 to June 1979 in General Medicine.

In July 1979, he joined as Assistant Surgeon and continued as such till March 1981, when he was selected for admission to the post graduate

medical course in Medicine in Maharishi Dayanand Medical College, Rohtak. He completed the course and got M.D. degree in 1983. While

doing post graduation, he also taught under-graduate students ""as per the prevalent practice"" in Maharishi Dayanand Medical College, and thus

acquired teaching experience. Teaching experience certificate was issued by the Principal of Medical College on 25-5-1983. After doing post

graduation, he returned to the State of Jammu and Kashmir and resumed the post of Assistant Surgeon and started performing the duties of

Registrar, Department of Medicine in June 1983. On 15-6-1983 he was appointed as Regular Registrar for a period of two years.

On 30.5.1985, Jammu and Kashmir Public Service Commission invited applications for selection/appointment of lecturers in different faculties in

the Medical Colleges at Jammu and Srinagar. Advertisement notice stated that a candidate must possess, apart from the academic qualification,

teaching experience as Registrar/Tutor or an equivalent post in Medicine for three years in a Medical College or a recognized teaching medical

institutions of which one year's should be after post graduation. The appellant applied for the post of Lecturer in the Department of medicine. He

was called for interview by the Public Service Commission Srinagar. According to the appellant, members of the Interview Board were satisfied

with his qualification and experience for appointment as Lecturer and did not doubt his eligibility in terms of the advertisement notice dated 30-5-

1985. However, while the private respondents were selected and appointed vide Government Order No. 168-ME of 1987 dated 1-6-1987. He

was not appointed. The appellant approached the Commission, but he was not told the ground of rejection. In the writ petition which he filed, the

commission disclosed, vide objections filed in the case, that the Medical College i.e. Medical College and Hospital, Rohtak, was not a Medical

Institution recognized by the Medical Council of India for the purpose of teaching experience and that experience allegedly gathered by the

appellant while doing post-graduation could not be recognized as teaching experience on the post of Registrar/Tutor or equivalent post, therefore,

not being eligible, he was not appointed on the post.

Meanwhile, as indicated above, before the selection was finalized by the Commission, the appellant was appointed as ad hoc Lecturer on 24-

10-1986. After his non-selection/appointment vide Government order dated 1-6-1987, he filed writ petition i.e SWP No. 153/1988, on 3-2-

1988. On 6-2-1988, as interim order was passed in the following terms: --

........It is submitted by Mr. Thakur that one of the selected candidates for the post of Lecturer namely Dr. Krishan Lal Gupta appearing at serial

No. 5 in Government Order 168-ME of 1987 dated 1-6-1987 has not joined in Medical College as Lecturer. If this post is available, the

petitioner be allowed to continue on that post on ad hoc basis. The prayer is granted. It is directed that till Dr. Krishan Lal, respondent No. 7, joins

his post as Lecturer in Jammu Medical College, petitioner shall be permitted to continue as lecturer on ad hoc basis in the department of Medicine

in Medical College, Jammu.

Above said ad hoc appointment too came in under challenge along with other similar appointments in different writ petitions, as mentioned

above. All the writ petitions including SWP No. 153/1988 preferred by the appellant, were clubbed together and disposed of by a common

judgment and order dated 19-11-1990. The learned Single Judge held that appointment could be made only if a person is eligible under Rule 7 of

the SRO 517 dated 19-9-1997 and not otherwise. The condition of eligibility can be relaxed under proviso to Sub-rule (1) only if the public

Service Commission agrees to such relaxation, after obtaining views of the Medical Council of India. The said proviso may be quoted here itself as

under: --

Provided that the Commission may recommend, for consideration by the Government, the appointment of a person to a post in the service who

otherwise not eligible under these rules, is opinion of the Commission, possessing exceptional merit as well as professional experience of higher

order in his speciality. Such a case will be considered by the Government after obtaining the views of the Medical Council of India.

The learned Single Judge observed that such consultation with Public Service Commission was not an empty formality in view of the decisions of

the Apex Court which learned Judge noticed in the Judgment. Thus the appointment of doctors made in relaxation of the rules as per proviso to

Rule 7(1) could not be sustained. As regards appointment on ad hoc basis, like the one in favour of the appellant, the learned Judge held that under

Rule 5 of the Rules, appointments could be made either by direct recruitment or by promotion or selection. The rule does not envisage ad hoc

appointments. Rule 16 of SRO 517 read with Rule 25(4) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules,

1956 did permit ad hoc appointments in certain situations, but such appointments cannot continue for more than three months. It may be useful to

quote Rule 16 of SRO 517 and Rule 25(4) of the CCA Rules as under: --

Rule 16...........in regard to matters not specifically covered by these rules or by orders issued there under, the members of the service shall be

governed by the rules and regulations applicable to the State Civil Service in general in so far as they are not inconsistent with the reference..........

XXX XXX XXX XXX

Rule 25(4): Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill

immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or

expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules

temporarily until a person is promoted in accordance with these rules, but such temporary promotions shall in no case exceed three months on

each occasion.

The learned Judge noticed the earlier decisions of this court and the Supreme Court and finally held that continuance of the doctors including the

appellant for the last so many years being un-constitutional and violative of Service Rules were liable to be set aside.

Adverting to the writ petition of the appellant, learned Single Judge did not find any illegality in the appointment of the private respondents i.e.

respondents 4 to 9. While considering the plea of the appellant for appointment against the post remaining vacant on account of non-joining of Dr.

Krishan Lal Gupta, the learned Single Judge noticed that the appellant had been permitted to participate in the interview/selection along with others

pursuant to interim direction of this court in SWP No. 869/1985 (even though the appellant was not a party to the case) on his own risk, by way of

fair play, on provisional basis subject to the determination of his eligibility. However, as the appellant did not possess the requisite teaching

experience at the time of selection and appointment, he was rightly not selected. The learned Judge observed that allowing the appellant to be

appointed in relaxation of eligibility and experience would adversely affect a number of similarly situated persons who had appeared in the

interview but not selected on similar ground that they did not possess requisite experience and eligibility.

Upholding thus the stand of the respondents, the learned Judge, among other things, directed that such of the doctors who are holding the post

of lecturer on ad hoc basis shall continue on the post only for a period of three months where-after the post held by them shall be deemed to have

become vacant. The respondents were directed to fill up the posts on permanent basis positively within a period of three months. The doctors

whose selection has been quashed were permitted to apply subject to their possessing prescribed qualification, the Government was directed to

consider sympathetically the question of relaxation of upper age limit prescribed for appointment to the post, if any of them had crossed the age

limit during the continuance of his appointment as lecturer or ad hoc lecturer. The appointment order dated 1-6-1987 impugned by the appellant

was upheld. The post remaining vacant on account of non-joining of Dr. K.L. Gupta was ordered to be filled as per the rules and the directions in

the judgment.

At the stage of hearing of the appeal i.e. LPA No. 8/1991, after it was segregated from other appeals, the questions touching upon the

eligibility conditions as mentioned in the advertisement notice dated 30-5-1985 do not seem to have been canvassed. No objection, indeed seem

to have been taken to the finding of the learned Single Judge on the point of appellant's eligibility in terms of the advertisement notice, before the

Division Bench. Appellant's case appears to have been canvassed on the ground that experience certificates produced by him regarding the

teaching experience while he was prosecuting post graduate studies in Medical College and Hospital, Rohtak, were not taken into consideration by

the learned Single Judge; secondly, one Dr. Shashi Gupta has been allowed benefit of similar teaching experience and thus appellant had been

meted out dis-similar treatment.

The Division Bench, as noticed above, took the view that it would be just and expedient to remand the case to the writ court for considering

the certificates which are said to have been produced before the Commission, and formed part of the writ petition, and accordingly directed the

writ court to consider the supplementary pleadings filed by the parties before the appellate bench, taking them on record.

At this stage, before noticing the submissions advanced on behalf of the appellant, it would be appropriate to briefly refer to the supplementary

pleadings. In para 12 of the memo of appeal wherein reference is made to the supplementary affidavit filed by the appellant, it has been stated that

during the pendency of appeal i.e. LPA No. 8/1991, the appellant came to know that one Dr. Shashi Gupta in similar circumstances had obtained

teaching experience during her post-graduation in Jaipur Medical College and given the benefit of such experience, and also appointed as Lecturer

in the Department of Gynaecology and Obstetrics. The appellant enclosed copies of two certificates issued by the office of Principal of the

concerned College and Hospital dated 22-7-1983. The appellant also relied on decision of the Medical Council of India regarding teaching

experience gained by students doing post-graduation vide its letter dated 11-6-1974. It may be stated that after the supplementary affidavit was

taken on record, the Public Service Commission filed objections and also produced the relevant record.

Strictly speaking, thus, in view of the order of the Division Bench dated 3-2-1999 (supra), the scope of the writ petition was limited to the

supplementary pleadings/affidavit of the appellant, however, submissions were made before the learned Single Judge as well as before us touching

upon the eligibility/ineligibility of the appellant which as indicated above, do not seem to have been canvassed before the Division Bench at the time

of hearing of LPA No. 8/1991. In the interest of justice, however, we do not propose to take a narrow view of the matter and limit consideration

of the appellant's case only to the points/grounds/facts stated in the supplementary affidavit.

Mr. Z.A. Shah, appearing for the appellant made the following submissions. He submitted that the basic question for consideration is whether

the appellant lacked in qualifications in 1987. Only when this question is answered in the negative, that other questions would arise for

consideration. He urged that what was required in terms of the advertisement notice was that the candidate should have teaching experience and

such experience could be acquired even by a post-graduate student without holding the post or Registrar/Tutor etc. Reliance was placed on a

letter of the Medical Council of India dated 4-9-1974 communicating the decision of the Executive committee of the Council to the effect :--

......the teaching experience of post-graduate students who are (1) holding teaching appointments, or (2) holding beds under their charge; or (3)

doing tutorial work, may be considered as teaching experience for purposes of appointment of Lecturers in medical colleges.

Reference was also made to Medical Council of India's Brochure containing recommendations regarding qualifications for appointment on teaching

posts in Medical Colleges and Teaching Hospitals of the year 1983 in terms of which the only qualification for appointment on the post of Lecturer

in General qualification for appointment on the post of Lecturer in General Medicine was ""requisite recognized post-graduate qualification in the

subject"". It was submitted that what is of essence is that the candidate had teaching experience, whether he also held the post of Registrar/Tutor is

not important. Reliance was placed on a decision the Supreme Court in the case of Dr. Asim Kumar Bose Vs. Union of India (UOI) and Others, .

Thus, counsel urged, even if a legalistic view is taken, in view of the certificates of the Principal/HOD of Medical College Rohtak, dated 25-5-

1983 and 4-12-1990, it should be held that the appellant had requisite teaching experience and thus was eligible for appointment on the post.

Mr. Shah also submitted that as a matter of fact, the State Government appointed the appellant on ad hoc basis on its own on 24-10-1986

which was continued without court's intervention upto 6-2-1988. There being an independent order, not pursuant to any order of the court, during

the selection process it was not open to respondents to object to his eligibility as on date. The appellant has continued on the post of Lecturer for

about 17 years and it would be very harsh if he is held ineligible for the post and his appointment is invalidated Counsel submitted that lack of

requisite teaching experience, if any, at the time of selection stands more than satisfied by experience gathered by virtue of his ad hoc appointment

as Lecturer during these years. In response to the observation of the court as to whether validating his appointment, would not rise give to the

consequences affecting rights of others, considering that number of persons having been appointed and promoted on higher post during the

intervening period, counsel submitted that the appellant may be treated as the last appointee of 1987 selection leaving any dispute as to seniority

etc. vis-'-vis subsequent appointees to be decided by the State Government after notice and opportunity of hearing to them.

The relevant part of the advertisement notice dated 30-5-1985 may be quoted at this stage as under:

Qualifications : M.D. (Medicine/General Medicine); MRCP; FRCP, Speciality Board of Internal Medicine (USA) or an equivalent qualification in

the subject.

Note -- Must possess teaching experience as Registrar/Tutor or an equivalent post in Medicine for three years in a Medical College or a

recognized teaching medical institution such as AIIMS New Delhi; PGI Chandigarh, JIMER Pondichery and such other institutions as are

recognized by the Medical Council of India of which one year should be after post graduation.

It is relevant to mention here that in the State of Jammu and Kashmir, recruitment rules titled Jammu and Kashmir Medical Education

(Gazetted) Service Recruitment Rules, 1979, have been framed under SRO 517 dated 19-9-1997 under proviso to Section 124 of the

Constitution of Jammu and Kashmir regarding appointments in the Medical Education Service Cadre. Rule 5 of the said Rules provides that

appointment to the Service shall be made by direct recruitment or by promotion by selection in the manner indicated against each post in Schedule

III. Under Rule 7 a person is not eligible for recruitment/ promotion to a post in the Service unless he possesses the qualifications and fulfils the

requirement of recruitment prescribed for a that post in Schedule-II. For the post of Lecturer in Medicine the prescribed qualification prior to the

amendment by SRO 225 dated 26-6-1988 apart from the academic qualification of MD/MRCP etc. was three years minimum teaching/research

experience as Demonstrator/Tutor/Registrar or an equivalent position the Medical College or a recognized Medical Teaching Institution such as

AIIMS New Delhi, PGI Chandigarh, JIMER Pondichery or such other qualifications as are recognized by the Medical Council of India of which

one year should be after post graduation. It would appear that the qualification mentioned in the advertisement notice dated 30-5-1985 was the

same as prescribed in the recruitment rules. It is true that experience qualification was amended under SRO 225 dated 29-6-1988 whereby

instead of three years experience, the eligibility was reduced to two years experience as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident

in a recognized medical Institution recognized by the Medical Council of India or the University of Kashmir/Jammu. However, this amendment is of

no help to the appellant as not only the recruitment process was initiated but selection also was finalized prior to the amendment.

It was submitted on behalf of the appellant that as appointment on the post of Registrar was only for a period of two years, it could not confer

adequate teaching experience and that is why, considering the inadequacy and futility of the rule, the provision was amended in 1988. On behalf of

the Commission it was submitted that the three years experience clause/rule worked well between 1979 and 1987 and therefore, the fact that

appointment on the post of Registrar/Tutor was a tenure appointment for two years was of no consequence.

Adverting to the basic question, as the counsel for the appellant put it, we are of the view that the words ""as Demonstrator/Tutor,

Registrar/Tutor in the rule/advertisement admits of only one meaning -- that the candidate must be holding the post of Demonstrator,

Registrar/Tutor etc. and only then his experience can be recognized as teaching experience. It is an admitted position that the appellant did not hold

any post of Demonstrator/Tutor/Registrar prior to his appointment as Registrar on 15-6-1983. The experience claimed by him during the period of

his post-graduation studies can not be regarded as teaching experience ""as Demonstrator/Tutor/Registrar.

In the case of Dr. Asim Kumar Bose (supra), the appellant was holding a substantive, non-teaching specialized post of Radiologist in a

teaching hospital and functioning ex-officio as Associate Professor in the Medical College to which the hospital was attached. Dispute arise as to

whether teaching the experience acquired by him as such could be counted while considering his eligibility for the substantive teaching post of

Associate Professor/Professor. The Supreme court noticed that though the appellant was holding a non-teaching post as a Specialist (Radiologist),

he was also functioning ex-officio, as Associate Professor in the Medical College to which the hospital in which he held such non-teaching post of

Radiologist was attached. The court held in the circumstances that the qualification ""at least six years experience as Associate Professor/Assistant

Professor/Reader"" in paragraph 2(b) and 3 of Annexure-I to the Schedule or the qualification ""at least five years experience as Reader/Assistant

Professor"" in paragraph 3 and Sub-rule (2A) of Rule 8 of the Central Health Service Rules must be interpreted in its original sense as meaning

teaching experience gained ""in the capacity of"", accordingly held that the appellant had requisite teaching experience and was thus eligible for

appointment as Professor of Radiotherapy under Rule 8(2) by direct recruitment. It would thus appear that the case of Asim Kumar Bose was

decided on facts and lends no help to the appellant.

From the earlier judgment of the learned Single Judge dated 19-11-1990, it is clear that positive finding was recorded to the effect that the

appellant did not possess the requisite teaching experience at the time of selection and he was therefore rightly not selected. Learned Judge also

observed that allowing him to be appointed in relaxation of eligibility and experience would adversely affect a number of similarly situated persons

who had appeared in the interview but not selected on the ground of their not possessing the requisite experience. As seen above, this aspect of

the case does not seem to have been canvassed before the Division Bench which made a limited remand for considering the two certificates dated

25-5-1987 and 4-12-1990 on the analogy of the case of Dr. Shashi Gupta. The two certificates read ad under:-

Experience Certificate

Dated 25th May, 1983.

This is to certify that Dr. Raj Kumar Sharma S/O Kai Kumar Sharma has worked as a regular Post graduate student in Department of Medicine

for the degree of M.D. (Medicine) from 1-4-1981 to 31-3-1983.

He has been actively participating in academic departmental activities, running of speciality clinic (cardiovascular clinic) and teaching of under-

graduate (M.B.B.S.) students.

He has successfully completed the course and obtained the degree of M.D. (Medicine) in May, 1983. His work and conduct has been good.

Sd/- (Illegible) Principal,

Medical College Rohtak.

Certificate Dated 4-12-1990.

Dr. Raj Kumar Sharma worked in my department as a full time postgraduate resident for a period of two years (1-4-1981 to 31-3-1983) and

qualified the MD (Medicine) examination in April-May 1983 in first attempt.

I have pleasure in testifying to his experience etc. during the period he was posted under my charge where he performed all duties assigned to full

time Registrars/Residents. These included work in indoor medical wards, OPD, Cardiovascular clinic and undergraduate teaching to junior and

final professional MBBS students consisting of bed side teaching and tutorials: Dr. Sharma performed these duties assiduously and always

impressed me with his keen sense of dedication and hard work.

I am told he is now being considered for appointment to the post of a Lecturer in Medicine for which he is very well qualified. He should prove a

competent teacher and clinician.

Sd/-(S.C. Srivastava)

Professor & Head of

Medicine Department.

The certificates, it would appear, are in the nature of testimonials showing the activities of the appellant as postgraduate student from 1-4-1981

to 31-3-1983. They cannot be used as certificate of 'teaching experience' which, in terms of the rule and advertisement, a candidate was required

to posses as ""Demonstrator/Tutor, Registrar/Tutor"" or an equivalent post, as he did not hold any equivalent post muchless the post specified in the

ruled/advertisement. As a matter of fact, these certificates are sought to be relied upon by the appellant for drawing analogy to the case of Dr.

Shashi Gupta, whose experience in more or less similar circumstances was construed as requisite teaching experience and selected for

appointment.

While dealing with this aspect, in the reply to the supplementary affidavit of the appellant, the Commission stated that as per the record of the

Commission, Dr. Shashi Gupta worked as Resident Registrar from 29-12-19080 to 31-12-1981, as Senior Registrar from 1-1-1982 to 31-12-

1982 and as Registrar from 23-6-1983 to 21-6-1985. The Commission decided to recognize the teaching experience in view of the decision of

the Commission dated 14-8-1985 to the effect that the doctors who were holding teaching assignment like the Demonstrator/Registrar/Tutor or

equivalent post during post-graduation and in whose cases the Principal of respective colleges had issued categorical certificates to the effect that

they held the teaching assignment during their post-graduation, the relevant period be counted towards teaching experience.

Mr. D.C. Raina, appearing for the Commission submitted that even if it is held that the Commission interpreted the rule in a different manner in

the case of Dr. Shashi Gupta, it would not mean that the rule got diluted. He submitted that if the decision of the Commission in allowing teaching

experience to Dr. Shashi Gupta was not correct, it would not confer any legal right on the appellant for claiming similar treatment which may

amount to committing another wrong which is not the object of Article 14 of the Constitution. He submitted that the Commission was required to

follow the rules framed by the State Government and to make selection in accordance with the prescribed qualifications as mentioned in the

advertisement notice and to that extent the guidelines of the Medical Council of India can not be regarded as relevant. He submitted that in any

view the recommendations of the Medical Council do not have binding effect.

Though the action of the Commission in selecting Dr. Shashi Gupta by recognizing her so-called teaching experience during post graduation

cannot be held to be legal, the question for consideration is whether direction can be issued to the Commission to give similar treatment to the

appellant. It is well settled that one wrong cannot justify commission of another wrong and the equality clause contained in Article 14 of the

Constitution cannot be stretched for continuing the illegality. It would amount to relaxing the condition of eligibility which would be contravention of

the decision of the Supreme Court in case of Dr. Narinder Mohan (supra) and Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir

Others, .

At the same line the appellant has continued on the post of Lecturer for about 17 years though on the strength of Court's orders. As noticed

above, on 6-2-1988 he got an interim order on the premise that one of the selectees Dr. K.L. Gupta had failed to join the post, the court directed

that if the post is available, the petitioner will be allowed to continue on the post on ad hoc basis till Dr. K.L. Gupta joins the post. Dr. K.L. Gupta

never joined the post and the appellant continued on the post. At the time of final hearing, it appears that the appellant canvassed his claim also

from that angle, which was rejected observing that mere fact that Dr. K.L. Gupta had not joined despite his selection does not confer any

additional right upon the appellant for appointment on the post for which he did not possess the requisite qualification at the relevant time. After

writ petition was dismissed, again interim order was passed and the appellant continued on the post as ad hoc Lecturer.

However, while it is true that the appellant has continued on the post on the strength of orders of the court, it is equally true that with the

passage of time, he has acquired teaching experience more that the experience required at the time selection in 1986-1987. In some cases the

Supreme Court has taken the view if the person was not eligible for appointment but with the passage of time comes to possess the requisite

qualification, his appointment may be regularized. In District Collector and Chairman, Vizianagaram Social Welfare Residential School Society,

Vizianagaram and Another Vs. M. Tripura Sundari Devi, , in terms of the advertisement the candidates were required to possess 2nd class post-

graduate degree for appointment of Grade-I and Grad-II teachers. The person concerned had 3rd class post-graduate degree but he was

inadvertently selected. Later on scrutiny of the original certificates, he was found to be short of qualification and as such was not allowed to join.

The Supreme Court upheld the action of the authorities but as he had subsequently acquired the requisite qualification and had been serving on the

post pursuant to the order of Tribunal, considering that by then he had become over aged for the post and many who were under qualified had

been appointed, held that it would be unjust to deprive him of the post at this stage. He was accordingly directed to be appointed on the post 'from

the ensuing academic year' even by creating a post, if no vacant post was available. In Ram Sarup Vs. State of Haryana and Others, , the

appellant, was initially appointed as a Statistical Officer -- in 1968 was appointed as Labour-cum-Conciliation Officer. In 1977 he was reverted to

the post of Statistical Officer on the ground that he did not possess the minimum qualification, namely, experience of at least five years in the

working of Labour Laws as Labour Inspector, Deputy Chief Inspector of Shops and Wage Inspector. The Supreme Court on appeal took the

view that the appointment was irregular but he acquired the necessary qualification of five years experience while working as Labour-cum-

Conciliation Officer, which was a post higher that the post of Labour Inspector, Deputy Chief Inspector of Shops and Wage Inspector, in view of

the experience gained by him as such in the working of Labour Laws, he came to fulfil the requirement of five years experience as laid down in the

rule. He could not there after be reverted to the post of Statistical Officer.

Making the appellant's appointment retrospective may affect the rights of others who have been appointed as Lecturer -- many of them since

promoted on higher posts in the meantime. That is why counsel took a stand that the appellant may be placed at the bottom of the 1987 selection

leaving the inter se rights between the appellant and subsequent appointees to be decided separately by the government. However, we do not think

that it will be proper to do so, for, such retrospective appointment is likely to unsettled the existing seniority, affecting their chances of promotion,

and therefore give rise to claims by the subsequent appointees/promotees. At the same time it may not be necessary to make appellant's

appointment prospective. Ends of justice would be served by regularizing the appointment of the appellant as Lecturer, placing him below the last

appointee on the post of Lecturer i.e. at the bottom of the list. Such a course would take care of the appellant's status as Lecturer without

disturbing the rights of others.

In the result, the respondents are directed to regularize the appointment of the appellant as Lecturer in General Medicine in Government

Medical College, Jammu with effect from the date of last appointment on the post of Lecturer (General Medicine) placing him at the bottom of the

list. The order of the learned Single Judge is modified to this extent and the appeal is thus allowed in part. There will be no order as to costs.