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2002 DIGILAW 461 (MP)

State of M. P. v. A. K. Jain

2002-04-29

DIPAK MISRA, UMA NATH SINGH

body2002
ORDER Misra, J. -- 1. The question of law being similar in both the writ petitions they were heard analogously and disposed of by this common order. For the sake of clarity and convenience the facts in Writ Petition No. 1777/2000 are narrated herein. 2. The respondent No.1, Dr. A.K. Jain, was appointed as Assistant Surgeon vide order dated 3.9.1969. Later on he was appointed on temporary basis by order dated 14.12.1970. It is not disputed that the said respondent appeared in the examination conducted by Madhya Pradesh Public Service Commission (hereinafter referred to as 'the Commission') but could not clear the same. As there were similar cases, the State Government thought it apposite to bring into existence a set of rules called Madhya Pradesh Regularisation of Ad-hoc Appointment Rules, 1985 (hereinafter called as the 1986 Rules'). The said rules remained in vogue till 30.6.1987. The respondent was appointed on probation for two years under the said set of Rules. Being dissatisfied with the aforesaid action of the respondent the petitioner visited this Court in writ petition which stood transferred to the Madhya Pradesh State Administrative Tribunal (in short 'the Tribunal') and before the Tribunal it was registered as T.A. No. 367/88. The Tribunal placed reliance on the decisions rendered in the cases of G.P. Doyal v. Chief Secretary Government of U.P. [AIR 1984 SC 527] Narendra Chaddha v. Union of India [ AIR 1986 SC 638 ] and S.K. Chopra and others v. State of M.P. and others [1997 MPSLR 61] and came to hold that the seniority of the applicant therein would commence from the date of initial appointment i.e. 3.9.1969. It is apposite to mention here that the Tribunal also referred to the decisions rendered in the cases of Direct Recruit Class II Engg. Officers' Association v. State of Maharashtra [ AIR 1990 SC 1607 ] and State of West Bengal v. Aghore Nath Dey and others [1993 SCC (L&S) 783]. The Tribunal distinguished the decision rendered in the case of Excise Commissioner, Karnataka and another v. Shreekanta [ AIR 1993 SC 1564 ]. 3. It is submitted by Mr. Ajay Mishra, learned Deputy Advocate General that the Tribunal has not kept in view the relevant rules in vogue and relied on certain decisions which are, in fact, not applicable to the instant case. 3. It is submitted by Mr. Ajay Mishra, learned Deputy Advocate General that the Tribunal has not kept in view the relevant rules in vogue and relied on certain decisions which are, in fact, not applicable to the instant case. It is further urged by him that the clarification given by the Apex Court in the case of Aghore Nath Dey (supra) would go along way to show that the respondent was not entitled to the benefit that has been conferred. Learned counsel has placed reliance on the decision rendered in the case of Dr. J.S. Chhabra v. State of M.P. and others [ 1997 (2) JLJ 37 = (1997) 3 SCC 203 ]. 4. Mr. N.S. Kale, learned senior counsel being assisted by Mr. Abhijit Bhowmik, per contra, contended that the respondent has continued for a considerable length of time and hence, regularisation directed by the Tribunal is absolutely just and proper in the facts and circumstances of the case. Learned senior counsel further urged that the reliance on the rules in question which have been highlighted before this Court by the State Government was not putforth before the Tribunal. It is also canvassed by him that the rules are patently arbitrary and hit by the conscience of Article 14 of the Constitution of India. 5. To appreciate the rival submissions raised at the Bar we have carefully perused the order passed by the Tribunal. We have also gone through the averments made in the writ petition. In the writ petition it has been asserted that a contention was raised with regard to the rules in vogue and the Tribunal did not advert to the same. On a perusal of the order of the Tribunal we notice that the order is absolutely silent as far as rules in question are concerned. Without detaining ourselves further we may straightway refer to the decision rendered in the case of Dr. J.S. Chhabra (supra) wherein the Apex Court was considering the aforesaid rules. In paragraph 8 their Lordships expressed the view as under: "8. What is required to be considered next is from which date seniority of Dr. Tiwari whose services were regularised on 4.4.1987 and was declared/redesignated as lecturer on 21.7.1989 should be considered as lecturer. Accepting his contention the Tribunal has granted him seniority as a lecturer right from the date he started working as CMO (Lecturer Grade) in 1971. What is required to be considered next is from which date seniority of Dr. Tiwari whose services were regularised on 4.4.1987 and was declared/redesignated as lecturer on 21.7.1989 should be considered as lecturer. Accepting his contention the Tribunal has granted him seniority as a lecturer right from the date he started working as CMO (Lecturer Grade) in 1971. As against that the contention raised on behalf of Dr. Chhabra is that in any case Dr. Tiwari could not have been granted seniority from the date earlier than 21.7.1989. The contention raised on behalf of the State is that it has rightly given him seniority from 4.4.1989. The services of Dr. Tiwari were regularised under the M.P. Regularisation of Ad-hoc Appointment Rules, 1986. Rule 12 of the said Rules provides that a person appointed under those Rules shall be entitled to seniority only from the date of the order of regular appointment and shall be placed below the persons already appointed in accordance with the relevant recruitment rules. Dr. Tiwari accepted his regularisation under those Rules. Neither at the time of regularisation of his services nor at any subsequent time did he challenge the validity of the said Rules. Therefore, he could not have been given seniority as CMO (Lecturer Grade) from a date earlier than the order of his regular appointment. The Tribunal was, therefore, wrong in directing that his seniority as lecturer should be counted from the date he has started working as CMO (Lecturer Grade). The Tribunal failed to appreciate that the said direction was contrary to the statutory rules and for that reason no benefit on the basis of principle of continuous officiation could have been given to hi m. As the services of Dr. Tiwari were regularised on 4.4.1987 and he was appointed regularly from that date on an equivalent post, the Government has rightly determined his seniority as a lecturer from that date. Merely because the Government declared him as a lecturer on 21.7.1989, it would not have been fair and just to grant him seniority as a lecturer only from that date. The contention to that effect raised on behalf of the appellant Dr. Chhabra has thus no substance and has to be rejected." 6. On a perusal of the aforesaid decision it becomes clear as noon day that the rules would have full play. The contention to that effect raised on behalf of the appellant Dr. Chhabra has thus no substance and has to be rejected." 6. On a perusal of the aforesaid decision it becomes clear as noon day that the rules would have full play. For the sake of completeness, we think it apposite to reproduce Rules 11 and 12 of the Rules. They read as under: "11. Appointments made from the selection list shall be treated to have made under the recruitment rules -- The Selection List prepared by the Screening Committee and the appointments made from such Selection List shall be treated as a Selection List prepared and appointments made under the relevant recruitment rules. 12. Seniority. -- (1) A person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such person under these rules. (2) If two or more persons are appointed together, their seniority inter se shall be determined in the order mentioned in the order of appointment." 7. If the aforesaid Rules are allowed to have play full, in our considered view, the order of the Tribunal is unsustainable inasmuch as the Rules confer the benefit of regularisation from a particular date. The said Rule was considered by the Apex Court. At this juncture Mr. Kale, learned senior counsel submitted that the matter may be remitted to the Tribunal to challenge the vires. We cannot accede to such a prayer of Mr. Kale in view of the decision rendered in the case of Dr. J.S. Chhabra (supra) wherein the Apex Court observed that the rule 12 was not challenged at the time of regularisation. The respondent No.1 very well knew that he was regularised under the Rules in question. If he was aggrieved he could have challenged the vires of the Rule. To remit the matter after 14 years would not be appropriate as we do not intend to disturb the seniority. We cannot permit the respondent to take recourse to such a course at a belated stage. 8. Consequently, the writ petitions are allowed and the order passed by the Tribunal is quashed. However, there shall be no order as to costs.