JUDGMENT M. Katju , J.
1. Heard learned Counsel for the petitioner and the learned Standing Counsel.
2. In this writ petition on 22.2.2001 learned Standing Counsel was granted one month's time to file counter-affidavit. Thereafter on 1.5.2001 respondents were again granted three weeks' time to file counter-affidavit. Then on 23.9.2002 respondents were again granted three weeks' time to file counter-affidavit. Again on 27.11.2002 they were granted three weeks' time for this purpose. Ultimately on 19.12.2002 they were granted three weeks' time and no more to file counter-affidavit. Thus, the respondents were granted sufficient time to file counter-affidavit, as many as on five occasions and on the last occasion, i.e., on 19.12.2002 they were granted three week's further time and no more. Despite these orders and the stop order dated 19.12.2002 no counter-affidavit has been filed so far. We are not inclined to grant any further time for that purpose. Hence we are treating the allegations made in the petition to be correct and are proceeding to dispose it of.
3. It has been alleged in the writ petition that the petitioner was appointed as ad hoc Lecturer in the Motilal Nehru Medical College, Allahabad (hereinafter called the Medical College) by an order dated 24.2.1976 and he joined his duties as such on 1.3.1976. The petitioner was regularised as a Lecturer on 14.5.1979. Thereafter, he was regularised as Assistant Professor on 1.1.1986. On 11.8.1989 the petitioner was promoted as Reader/Associate Professor on personal promotion w.e.f. 1.3.1989. On 10.4.1989 the respondents issued a combined seniority list of Assistant Professors/Lecturers in the Department of Medicine, in U.P. State Medical Colleges (vide Annexure 2 to the writ petition). The petitioner was shown at Sl. No. 15 whereas one Dr. Umesh Chandra Goel was at SI. No. 19. Dr. Goel filed Writ Petition No. 4148 of 1993 praying that his services rendered a Causality Medical Officer be added to the service rendered by him as Lecturer in the Medical College for seniority and regularisation. In that writ petition an interim order dated 21.9.1993 was passed and on that basis he was promoted as ad hoc Associate Professor from 4.10.1993. When the petitioner came to know about the aforesaid order in the case of Dr. Goel he filed the representation dated 1.10.1996 and reminder dated 18.10.1996 and prayed that he should also be promoted as Associate Professor (as he was senior to Dr. Goel). Copy of petitioner's representation is Annexure- 3 to the writ petition. Since nothing was done he filed Writ Petition No. 36101 of 1996 praying that he should be appointed as Associate Professor/Reader as he was senior to Dr. Goel. In Writ Petition No. 36101 of 1996 respondent filed a counter-affidavit admitting that the petitioner is senior to Dr. Goel and further admitting that the petitioner would have been promoted as Associate Professor/Reader in December, 1996 at Moti Lal Nehru Medical College, Allahabad but for the fact that the State Government appointed Dr. Goel as ad hoc Associate Professor on the basis of the interim order of this Court. Inasmuch as there was only one post of Associate Professor and that was occupied by Dr. Goel, hence the petitioner could not be promoted to that post although he was senior. Ultimately the wit petition of Dr. Goel was dismissed and now there is no bar the petitioner's promotion as Associate Professor.
4. In Paragraph 11 of the writ petition it has been stated that the Departmental Promotion Committee considered the case of the petitioner and recommended his name for promotion as Associate Professor in Medicine in Moti Lal Nehru Medical College, Allahabad. Sri Bharatji Agarwal, learned Counsel for the petitioner has invited our attention to Paragraph 16 of the counter-affidavit filed on behalf of the State Government in Writ Petition No. 36101 of 1996, a copy of which is Annexure 4 to the writ petition. In that paragraph it has been stated that had Dr. Goel not been posted at Allahabad (as Associate Professor) the petitioner would have been posted as Associate Professor in the Medical College, Allahabad.
Under Rule 5 of the U.P. State Medical Colleges Teachers' Service Rules, 1990, copy of which is Annexure 10 to the writ petition 50% posts are to be filled in by direct recruitment and 50% by promotion. Rule 15 of the aforesaid Rules states that the recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit in accordance with U.P. Selection in consultation with Public Service Commission (Procedure) Rules, 1970.
5. Since admittedly the petitioner has been selected by the Departmental Promotion Committee, we see no reason why the petitioner should not be granted promotion as Associate Professor. Hence we allow the writ petition, quash the order dated 30.11.2000 and direct the respondents to promote the petitioner as Associate Professor w.e.f. 5.12.1996 (which is the date from which the petitioner should have been promoted and instead Dr. Goel had been promoted) and he shall get all the consequential benefits including arrears of salary within a period of two months from today.