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Gauhati High Court · body

2000 DIGILAW 155 (GAU)

Farida Begum (Dr. ) v. State of Assam

2000-04-25

A.K.PATNAIK, BRIJESH KUMAR

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Brijesh Kumar, C. J.-In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notification dated 9.3.94 promoting and appointing (he respondent No.5 to officiate as Associate Professor of Obstetrics and Gynaecology and for directing the respondents to fix inter-se seniority of the petitioner above the respondent Nos 5,6 and 7 and to correct the date of entry of the petitioner in Govt service and the date of birth of the petitioner in the Gradation List dated 8.2.91. 2. The relevant facts briefly are that by notification dated 27.2.74 of the Govt of Assam, FP (B) Department, the petitioner was initially appointed for a period of 4 months as Registrar of Anaesthesiology under Regulation 3 (f) of the Assam Public Service Commission (Limitation and Function) Regulations, 1951 (for short APSC (L&F) Regulations, 1951) with effect from the date of taking over charge and posted at the Medical College, Guwahati. Pursuant to said notification, the petitioner joined and took over charge as Registrar of Anaesthesiology on 5.3.74. Thereafter her appointment as Registrar of Anesthesiology was regularised in consultation with the Assam Public Service Commission (for short the APSC) by notification dated 6.11.74 of the Govt of Assam, Health Department The respondent Nos 5 and 6 were appointed as Registrar of Obstetrics and Gynaecology (for short O&G Department) by notification dated 14.11.74 and posted at the Assam Medical College and the Silchar Medical College respectively on the recommendation of APSC. The respondent No.5 joined on 28.11.74 and the respondent No.6 joined on 7.12.74 as Registrar in O&G Department pursuant to the said notification. The petitioner was then appointed as Registrar of O&G Department for a period of 4 months under Regulation 3 (f) of the APSC (L&F) Regulations, 1951 and posted at the Medical College, Guwahati and pursuant to die said appointment she took over charge on 1.9.75 as Registrar of O&G Department. The petitioner then applied for regular appointment to the said post of Registrar O&G Department. The respondent No.7 who had also been appointed under Regulation 3 (f) as Registrar, O&G Department, Medical College, Guwahati by notification dated 10.9.75 also applied for regular appointment to the said post. The petitioner then applied for regular appointment to the said post of Registrar O&G Department. The respondent No.7 who had also been appointed under Regulation 3 (f) as Registrar, O&G Department, Medical College, Guwahati by notification dated 10.9.75 also applied for regular appointment to the said post. The selection was conducted by a the APSC for the post of Registrar of O&G Department and the APSC recommended and placed the respondent No.7 above the petitioner in the merit list for selected candidates and pursuant to the said recommendation both the respondent No.7 and the petitioner were appointed as Registrar of O&G Department by notification dated 7.7.76 of the Govt of Assam, Health and FP (B) Department. Pursuant to the said notification dated 7.7.76, the petitioner and the respondent No.7 continued as Registrars of O&G Department, Medical College, Guwahati. Thereafter, with effect from 25.1.87, the respondent No. 5 was promoted and appointed to officiate as Assistant Professor of O&G Department. Similarly, with effect from 20.11.87, the respondent No. 6 was promoted and appointed to officiate as Assistant Professor in O&G Department. The petitioner and the respondent No.7 were promoted and appointed to officiate as Assistant Professors in O&G Department with effect from 11.2.88. The promotions of respondent Nos 5,6 and 7 and the petitioner to the post of Assistant Professor were regularised with retrospective effect from the date of taking over charge as Assistant Professor with the approval of APSC by order dated 2.8.90. On 8.2.91 a notification was issued by the Govt of Assam, Health and FW (B) Department, approving the provisional Gradation List of Assistant Professors of O&G Department in Medical College of Assam and in the said Gradation List the respondent No.5 was shown in 3rd position, the respondent No.6 was shown in the 4th position, the respondent No.7 was shown in the 6th position and the petitioner was shown in the 7th position. Aggrieved, the petitioner submitted an objection dated 7.2.92 to the said provisional gradation list of Assistant Professors of O&G Department. In the said objection, the petitioner inter alia stated that her date of birth was shown in the Gradation List as 1.3.49 but according to her HSLC Examination Certificate her date of birth is 10.12.49. Aggrieved, the petitioner submitted an objection dated 7.2.92 to the said provisional gradation list of Assistant Professors of O&G Department. In the said objection, the petitioner inter alia stated that her date of birth was shown in the Gradation List as 1.3.49 but according to her HSLC Examination Certificate her date of birth is 10.12.49. In the said objection dated 7.2.92, the petitioner further stated that her date of entry into Govt service in the said Gradation List has been shown as 1.9.74 but it should have been 5.3.74 as she joined as Registrar of Anaesthesiology on 5.3.74. The petitioner also pointed out in her said objection dated 7.2.92 that since she joined Govt service on 5.3.74, she should have been placed just below Dr. Mukul Chandra Das who had joined the service on 18.5.73. She further contended in her said objection dated 7.2.91. that one Dr. (Ms) Kabita Baruah had similarly joined on 10.10.72 as Demonstrator in Anesthesiology but later on was appointed as Registrar, E&T Department on 21.7.82 and her date of entry into Govt service was taken as 10.10.72 and she was given seniority accordingly. The petitioner, therefore, made a request in her said objection dated 7.2.92 that her seniority in the rank of Assistant Professor in O&G Department should have been determined after counting her service under the Govt in the Anaesthesiology Department with effect from 5.3.74 and not from 1.9.74 which was the date on which she joined as Registrar in O&G Department. As no orders were communicated to her on the said objection dated 7.2.92, the petitioner submitted a representation dated 7.4.93 reiterating the aforesaid objections to the fixation of seniority in the rank of Assistant Professor but no orders were communicated by the Govt to the petitioner on the said representation also. In the circumstances the petitioner sent a reminder dated 24.12.93 to the Secretary and yet no orders were commu­nicated to her. Thereafter by notification dated 9.3.94, the respondent No. 5 was promoted temporarily and appointed to officiate as Associate Professor of O&G Department under Regulation 4 (4) of the APSC (L&F) Regulations, 1951. Aggrieved, the petitioner has filed the present writ petition for appropriate relief. 3. At the hearing, Mr. Thereafter by notification dated 9.3.94, the respondent No. 5 was promoted temporarily and appointed to officiate as Associate Professor of O&G Department under Regulation 4 (4) of the APSC (L&F) Regulations, 1951. Aggrieved, the petitioner has filed the present writ petition for appropriate relief. 3. At the hearing, Mr. AK Bhattacharyya, learned counsel for the petitioner submitted that the petitioner joined in Govt service as Registrar, Anaesthesiology on 5.3.74 pursuant to her appointment under Regulation 3 (f) of the APSC (L&F) Regulations, 1951 by notification dated 27.2.74 and her said service was also regularised in consultation with the APSC by notification dated 6.11.74. The petitioner, therefore, joined in Govt service as Registrar much before the respondent Nos 5, 6 and 7 who joined as Registrar in O&G Department on 28.11.74,7.12.74 and 7.7.76 respectively. Hence the petitioner should be treated as senior to the respondent Nos 5, 6 and 7 in the cadre of Registrar. But in the Gradation List circulated by the notification dated 8.2.91, the entry of the petitioner in the Govt service has been wrongly shown as 1.9.74 presumably because she joined as Registrar in O&G Department on 1.9.74. According to Mr. Bhattacharyya, the service rendered by the petitioner from 5.3.74 to 31.8.74 as Registrar, Anaesthesiology should be counted for the purpose of determining the seniority in the cadre of Registrar in O&G Department. He further submitted that there were no statutory rules for fixation of seniority of Doctors in the Medical Colleges of Assam. But there are executive instructions notified in the notification dated 5.2.54 of the Govt of Assam laying down the principles for fixation of seniority and the Supreme Court has held in the case of Dr. Satyabrata Dutta Choudhury vs. State of Assam, AIR 1976 SC 487 , that in the absence of statutory rules, the said notified instructions, regarding seniority will hold the field. Mr. Bhattacharyya pointed out that the aforesaid notified Govt instructions have been ignored while fixing the inter-se seniority of the petitioner vis-a-vis the respondent Nos 5,6 and 7 in the cadres of Registrar as Assistant Professor. He also cited the decision of the Supreme Court in the case of State of Andhra Pradesh vs. Dr. Mr. Bhattacharyya pointed out that the aforesaid notified Govt instructions have been ignored while fixing the inter-se seniority of the petitioner vis-a-vis the respondent Nos 5,6 and 7 in the cadres of Registrar as Assistant Professor. He also cited the decision of the Supreme Court in the case of State of Andhra Pradesh vs. Dr. N. Ramachandra Rao, (1990) 3 SCC 590, wherein it was held that promotions to administrative posts such as Additional Director of Medical and Health Services should not be on the basis of seniority determined in concerned specialty. According to Mr. Bhattacharyya, therefore, the seniority in the present case should not be determined on the basis of the service rendered in the specialty of O&G Department but on the basis of service rendered under the Govt and since the petitioner had put in longer period of service under the Govt than the respondent Nos 5,6 and 7 he should be treated as senior to the said respondents as Registrar and Assistant Professor. Mr. Bhattacharyya further pointed out that, as a matter of fact, the order dated 22.9.93 of the Govt annexed to the affidavit-in-opposition filed by the respondent Nos 5 and 7 as Annexure B would show that the Govt had itself fixed the seniority of Dr. (Ms) Kabita Baruah in E&T Department who had initially joined as Demonstrator in Anatomy Department on 10.10.72 and thereafter transferred to E&T Department as Registrar on 21.7.82 counting her service from 10.10.72. He vehemently argued that the adoption of a different stand by the Govt in the case of the petitioner will amount to discrimination against the petitioner. 4. Mr. BC Das, Senior Govt Advocate Assam, on the other hand, submitted that the objection of the petitioner to the Gradation List of Assistant Professor, O&G Department, circulated by the notification dated 8.2.91 has in the meanwhile been disposed of by order dated 19.12.94 of the Secretary to the Govt of Assam, " Health' and FW (B) Department; a copy of which has been annexed to the additional affidavit of the petitioner as Annexure XXIX. He submitted that a reading of the said order dated 19.12.94 would show that the petitioner has been placed below the respondent No.7 in the Gradation List in accordance with her position in the merit list of selected candidates for appointment to the post of Registrar of O&G Department. He submitted that a reading of the said order dated 19.12.94 would show that the petitioner has been placed below the respondent No.7 in the Gradation List in accordance with her position in the merit list of selected candidates for appointment to the post of Registrar of O&G Department. Such fixation of seniority of the petitioner vis-a­vis respondent No.7 was in accordance with paragraph 10:2 (ii) of the notified instructions of the Govt relating to determination of seniority, which provides that if the appointments of number of persons were regularised in one batch, then the inter-se seniority of these persons should be according to merit list of APSC. He further submitted that the aforesaid order of the .Govt dated 19.12.94 would show that the Govt has taken a view that the seniority of Doctors in the Medical Colleges is to be maintained discipline wise and, therefore, the petitioner's service in the discipline of Anaesthesiology will not be counted towards her seniority in the discipline of O&G Department. Mr. Dey, appearing for the respondent No.5, Mr. BK Sharma, appearing for the respondent No.6 and Mr. HN Sarma, appearing for the respondent No.7 reiterated the aforesaid arguments of Mr. Das. Mr. HN e Sarma further submitted that the case of Dr. (Ms) Kabita Baruah was not a case of fresh appointment in the Department of E&T Department but was a case of transfer from the Department of Anatomy to E&T Department whereas the case of the petitioner is not one of transfer from the Department of Anaesthesiology to O&G Department but was a case of fresh appointment in the O&G Department on the basis of recommendation of the APSC. Hence, the petitioner cannot be placed above the respondent No.7 in the seniority list in the Department of O&G when in the merit list recommended by the APSC, the respondent No. 6 has been placed above the petitioner for the purpose of appointment to the post of O&G Department. 5. Fixation of inter-se seniority between the persons is done for the purpose of their consideration for promotion to a higher post. The higher post for which promotion is to be considered from amongst the Registrars of O&G Department is the post of Assistant Professor in the O&G Department. 5. Fixation of inter-se seniority between the persons is done for the purpose of their consideration for promotion to a higher post. The higher post for which promotion is to be considered from amongst the Registrars of O&G Department is the post of Assistant Professor in the O&G Department. For such promotion to the post of Assistant Professor in O&G Department, therefore, seniority of Registrar is to be determined on the basis of their appointment to the post of Registrar .of O&G Department and not on the basis of their appointment as Registrar in any other Department. This position has been acknowledged by the Supreme Court in the case of State of Andhra Pradesh vs. Dr. N. Ramachandra Rao & others (supra) in which it has been held that promotions are allowed on the basis of respective specialities and the availability of promotional vacancies for such specialities. In the said decision however, the Supreme Court has held that seniority determined in the speciality should not be the basis for promotion to administrative posts. In the present case, the petitioner has not claimed promotion to any administrative post, but has claimed that she should be treated as senior to respondent Nos 5, 6 and 7 for the purpose of promotion to the rank of Assistant Professor and Associate Professor in O&G Department. Moreover, the petitioner has joined as Registrar in O&G Department not on transfer from the Anaesthesiology Department but on fresh appointment under Regulation 3 (f) of the APSC (L&F) Regulations, 1951. Thus, her case cannot be equated with the case of Dr. (Mrs) Kabita Baruah. 6. There are no statutory rules governing the seniority of Doctors in the Medical Colleges in Assam, but there are instructions of the State Govt for determination of seniority and in Dr. Satyabrata Dutta Choudhury vs. State of Assam (supra) the Supreme Court has held that such Govt instructions would hold the field in the absence of service rules. Paragraph 8,10.1 and 10.2 of the Hand Book of General Circulars of the Govt of Assam which contain the relevant instructions of the Govt are extracted herein below : "8. ABP.50.61/204 2.6.1961 : 8. Paragraph 8,10.1 and 10.2 of the Hand Book of General Circulars of the Govt of Assam which contain the relevant instructions of the Govt are extracted herein below : "8. ABP.50.61/204 2.6.1961 : 8. In partial modification of the Appointment Department's No. ABP 27/50, dated 31.3.1960 the seniority inter-se of the promoted officers in the higher post should be determined in order of preference as arranged by the Departmental Selection Committee/board and/or approved by the APSC for the purpose of appointment to that grade for post. It has also been decided that confirmation in the higher post should be made strictly in order of preference as above, provided work and conduct of the incumbent are found satisfactory. Cases which have been previously decided will not be reopened. ' 10. APB 51/63/1 5.2.1954 :10.1. In the matter of fixation of seniority the following instructions, incorporating all the principles enunciated in the past are issued for the guidance of all departments. These instructions will not, however, apply if there are specific rules on this matter. Appointments made through the Assam Public Service Commission : (i) The seniority of candidates appointed on the recommendation of the APSC in one batch should be fixed according to their order in the merit list as arranged by the APSC if all the persons in the batch join the appointment within 15 days. But if a candidate is prevented from joining within this period by circumstances of a public nature and beyond his control, the period may be extended by the Appointing Authority. In that case, the seniority should be fixed according to his order of merit in the merit list of the APSC. If the period is not so extended by the Appointing Authority, then his seniority will be fixed according to the date of joining. (ii) If two persons are appointed on the recommendation of the Assam PSC in two different batches, then the person who was recommended in the earlier batch should be considered senior to the person who was recommended in the later batch. (ii) If two persons are appointed on the recommendation of the Assam PSC in two different batches, then the person who was recommended in the earlier batch should be considered senior to the person who was recommended in the later batch. (iii) Sometimes two or more persons are bracketed in the merit list of the Assam PSC if there is any indication of preference in the merit list about their suitability for the post in question,' the seniority should be fixed according to the preference indicated otherwise the inter-se seniority of these persons should be determined in accordance with the date of birth. 10.2. Appointments made under Regulations 3 (a) and 3 (f) of the APSC (Limitations of Functions) Regulations and later regularised through the APSC: Normally the appointments made under these two Regulations should be regularised within the time limits specified in the Regulation itself. The seniority of the persons whose appointments have regularised should be determined as follows: (i) If the appointments of two persons are regularised earlier, should be considered senior to the persons whose appointment was regularised later. (ii) If the appointments of a number of persons are regularised on one batch, then the inter-se seniority of these persons should be according to the merit list of APSC. Even if the APSC does not give any merit list, the Appointing Authority should request the APSC to indicate the order of preference of these persons. '(iii) If the APSC does not give any merit list in spite of specific request from the Appointing Authority, then the following principles should be adopted : (a) At the time of appointment under Regulation the Appointing Authorities usually make appointments on the basis of the recommendations of a Departmental Selection Committee. The inter-se seniority of persons who are appointed on the recommendations of such a Selection Committee should be fixed according to the order of preference indicated in the Selection Committee. The inter-se seniority of persons who are appointed on the recommendations of such a Selection Committee should be fixed according to the order of preference indicated in the Selection Committee. (b) If there was no such Selection Committee (or when the Selection Committee does not indicate any preference) then the date of the initial appointment under the Regulation should be the basis of fixing seniority provided that at the time of initial appointment the persons concerned were fully qualified to hold the post and they join the posts within 15 days of their appointment (But if a candidate is prevented from joining within the period, by circumstances of a public nature and beyond his control, the Appointing Authority may extend the period in that case, the date of appointment will continue to govern seniority. If the period is not so extended, the date of joining will determine seniority. In all other cases, a reference should be made to the Appointing Department" Sub-para (ii) of paragraphs 10.2 of the Govt instructions quoted above lays down that in the appointment of number of persons regularised in one batch, then inter-se seniority of those persons are to be according to the merit list of APSC. In the merit list of the APSC, the respondent No.7 was placed above the petitioner and therefore the respondent No.7 would be senior to the petitioner as Registrar of O&G Department. In the O&G Department admittedly the respondent No.5 joined on 28.11.74 as Registrar pursuant to his appointment on the recommendation of the APSC by notification dated 14.11.74. Similarly, in the O&G Department respondent No.6 joined as Registrar on 7.12.74 pursuant to her appointment on the recommendation of the APSC by notification dated 14.11.74 whereas the appointment of the petitioner under Regulation 3 (f) as Registrar of O&G was' regularised on the recommendation of the APSC much later by notification dated 7.7.76. Respondent Nos 5 and 6 therefore were senior to the petitioner in the rank of Registrar of O&G Department as per paragraph 10.1 (ii) and 10.2 (i) of the Govt instructions quoted above. 7. Respondent Nos 5 and 6 therefore were senior to the petitioner in the rank of Registrar of O&G Department as per paragraph 10.1 (ii) and 10.2 (i) of the Govt instructions quoted above. 7. So far as the seniority between the petitioner and the respondent Nos 5, 6 and 7 in the rank of Assistant Professor of O&G Department is concerned, it appears that the petitioner and respondent Nos 5, 6 and 7 were all regularly promoted to the posts of Assistant Professor of O&G Department on the recommendation of the APSC with effect from the date of taking over charge by one and the same notification dated 2.8.90 and the said notification dated 2.8.90 shows that while the petitioner was allowed to take over the charge on officiating basis as Assistant Professor of O&G Department by notification dated 11.2.88 the respondent Nos 5,6 and 7 took over the charge as Assistant Professor on officiating basis by notifications dated 24.1.87,20.11.87 and 11.2.88 respectively. In the said notification dated 2.8.90, the petitioner has also been placed below the respondent Nos 5,6 and 7 on the recommendation of the APSC. Thus, the petitioner was junior to respondent Nos 5, 6 and 7 in the rank of Assistant Professor of O&G Department as per paragraph 8 of the Govt instructions quoted above. 8. In the result, no direction can be issued to the State-respondents to fix the inter-se seniority of the petitioner above the respondent Nos 5, 6 and 7 and to change the date of entry of the petitioner into Govt service in the Gradation List of Assistant Professor in O&G Department to 5.3.74. Further, since the respondent No.5 was senior to the petitioner in the rank of Assistant Professor of O&G Department, the impugned notification dated 9.3.94 promoting the respondent No.5 and appointing him to officiate as Associate Professor of O&G Department under Regulation 4 (d) of the APSC (Limitation of Functions) Regulation, 1951 cannot be quashed. Regarding direction for correction of date of birth of the petitioner in the Gradation List dated 8.2.91, it appears that the said relief has already been granted by the Govt by order dated 19.12.94 and the date of birth of the petitioner has been corrected as 8.12.49 as claimed by her. 9. With the aforesaid observations, the writ petition stands dismissed. 9. With the aforesaid observations, the writ petition stands dismissed. However, considering the entire facts and circumstances of the case, the parties shall bear their own costs.