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2005 DIGILAW 604 (GAU)

Parbati Prasad Chaliha v. Union of India

2005-08-19

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The present writ petition is concerned with the seniority dispute between the Petitioner and the Respondent No. 4 who are presently serving as Chief Medical Officer under the Respondents. 2. The history of the case leads us to 1975 when the State of Arunachal Pradesh had not attained statehood and was a Union Territory. While the Petitioner was appointed as Junior Medical Officer on ad hoc basis under the then administration of A.P. by Annexure-P1 order dated Nil of May, 1975, the Respondent No. 4 was appointed as such by Annexure-P3 order dated 23.10.75. Both the orders were issued by the Govt. of India in the Ministry of Health and Family Welfare (Department of Health). Their such appointments were in the basic pay of Rs. 650-1200/-. The terms and conditions of both the appointments were the same. Thus, on the basis of the initial orders of appointment the Petitioner is admittedly senior to the Respondent No. 4. Both the incumbents, i.e. the Petitioner and Respondent No. 4 were regularized in their service pursuant to their selection by the UPSC. Both of them were appointed as Medical Officer in A.P. in the pay scale of Rs. 700-1300/- and the pay of the Petitioner was fixed at Rs. 820/-. By Annexures-P7 and P8 orders dated 13.07.77 and 23.02.78 respectively, the Petitioner and the Respondent No. 4 were stated to be on probation with effect from 30.10.76. 3. A civil list of Medical Officers (Junior Class-I) of the Central Health Service (C.H.S.) as on 01.01.83 was issued in which the Petitioner was included at serial No. 495 and the Respondent No. 4 was included at serial No. 595. It is the case of the Petitioner that such fixation of seniority was on the basis of the merit positions obtained by the Medical Officers in the selection conducted by the UPSC. 4.By Annexure-P11 order dated 09.02.83, the Petitioner and the Respondent No. 3 alongwith some others were promoted/placed in the Senior Class-I Grade in the basic pay scale of Rs. 1100-1600/- and in that order of appointment also the name of the Petitioner appeared at serial No. 227, above the Respondent No. 4 whose name appeared at serial No. 285. 5. On 02.08.90 the Govt. 1100-1600/- and in that order of appointment also the name of the Petitioner appeared at serial No. 227, above the Respondent No. 4 whose name appeared at serial No. 285. 5. On 02.08.90 the Govt. of India in the Ministry of Health and Family Welfare circulated a civil list of Senior Medical Officers with the C.H.S. as on 01.04.90 in which the Respondent No. 4 was placed at serial No. 158 as against he Petitioner's position at serial No. 96. 6. From the above, it will be seen that the Petitioner was all along senior to the Respondent No. 4 in the earlier grades. By Annexure-P 13 order dated 01.11.90 issued by the Govt. of India in the Ministry of Family Welfare, the Respondent No. 4 along with some others was promoted as Chief Medical Officer in the pay scale of Rs. 3700-5000/-. The Petitioner was also promoted as Chief Medical Officer of the C.H.S. by Annexure P14 order with effect from 31.12.91. In both the orders of promotion, it was stipulated that seniority of the officers would be regulated on the basis of inter-se-seniority in the Grade of Senior Medical Officer of the C.H.S. It was also provided that the promotions would be effective from the date of assumption of charge of the post of C.M.O. 7. Although the Respondent No. 4 was promoted by order dated 01.11.90 and was posted at the then Bombay, it is on record and rather admitted by the Respondent No. 4 that he did not join the promotional post there. The Petitioner and the Respondent No. 4 joined the promotional post with effect from 01.12.91 as will be evident from Annexure-P15 notification which reads as follows: (TO BE PUBLISHED IN PART-I SECTION 2 OF THE GAZETTE OF INDIA) No. A. 110145/92-CHS. II Government of India Ministry of Health and Family Welfare New Delhi dated the 29th March, 1993 NOTIFICATION Consequent on their promotion to the post of Chief Medical Officer of Central Health Service, the following officers relinquished the charge of the post of Senior Medical Officer of the Central Health Service under the Government of Arunachal Pradesh and assumed charge of the post of Chief Medical Officer in the same organization on the date indicated against their name. SI. No. Name Date of relinquishing the Charge of the post of Sr. SI. No. Name Date of relinquishing the Charge of the post of Sr. Medical Officer Date of assumption of charge of the post of the Chief Medical Officer 1. Dr. P.P. Chaliha 01.12.91 (FN) 01.12.91 (FN) 2. Dr. Ati Moyong 01.12.91 (FN) 01.12.91 (FN) Under Secretary to the Govt. of India 8. When the matter rested thus, a development took place in respect of the regularization of service of ad hoc doctors. As per the judgment dated 29.10.99 passed by the Apex Court in Civil Appeal No. 3519/84 and W.P.(C) No. 1228/86, the adhoc periods of service of the Medical Officers were to be regularized from the initial date of appointment. This judgment is reported in (1992) 1 SCC 331 (P.P.C. Rawani and Ors. v. Union of India) 9. Pursuant to the aforesaid judgment of the Apex Court, the Respondent No. 4 was conferred with all benefits of regularization of his service from the initial date of ad hoc appointment on 22.11.75 by Annexure-P17 notification dated 22.09.93. However, the name of the Petitioner was not included in the order. Certain correspondences were made in this regard by the departmental authorities pointing out as to how the Petitioner was also entitled to the same benefit. Eventually by Annexure-P23 order dated 18.08.97 the adhoc period of service of the Petitioner from 19.05.75 to 29.10.76 was also regularized. The distinction between two orders of regularization of ad hoc service of both the incumbents, i.e. the Respondent No. 4 and the Petitioner is that while the order of regularization in respect of the Respondent No. 4 was issued by the Respondent No. 1, i.e. the Union of India, such order of regularization was in respect of the Petitioner, was issued by the Respondent No. 2, i.e. the State of A.P. It will be pertinent to mention here that both the Petitioner and the Respondent No. 4 was part of the C.H.S., but later on with the attainment of statehood by A.P. they came to be part of A.P. Health Services. 10. The grievance of the Petitioner started when the Annexure P24 civil list of Medical Officers including that of C.M.O. who were absorbed in APHS was published calling for objection, if any. 10. The grievance of the Petitioner started when the Annexure P24 civil list of Medical Officers including that of C.M.O. who were absorbed in APHS was published calling for objection, if any. In this provisional list, the Respondent No. 4 was included at serial No. 2 while the Petitioner was included at serial No. 3 and thus, he was made junior to the Respondent No. 4 in the civil list, although the date of appointment of both the incumbents as C.M.O. was shown as 01.12.91, but in respect of regular appointment as Medical Officer, i.e. the initial entry grade was shown as 22.11.75 and 30.10.76 respectively. Thus, it is apparent that regularization of adhoc service of the Petitioner was not taken into account while such regularization in respect of the Respondent No. 4 was taken into account. In the civil list it could be because of the fact that the list was published as on 12.07.93 by which time the adhoc service of the Petitioner was not regularized while such ad hoc service of the Respondent No. 4 stood regularized. Prior to that another provisional seniority list was issued on 02.12.99 maintaining the same positions. 11. By Annuexure-P27 representation, the Petitioner objected to such fixation of seniority below the Respondent No. 4. In his representation he also pointed out as to how his initial ad hoc period of service was also regularized pursuant to the aforesaid decision of the Apex Court. 12. Another provisional seniority list of APHS Doctors was issued on 15.07.02 in which also the Respondent No. 4 was placed at serial No. 2 above the Petitioner who was placed at serial No. 3. This time it was wrongly shown that the Respondent No. 4 was initially appointed in Grade-A service and the Petitioner was appointed in Grade-B Service although their respective dates of appointment, i.e. 22.11.75 and 19.05.75 were maintained. Once again the Petitioner submitted objection which did not yield any result and the provisional civil list was made final by the impugned P32 civil list dated 18.08.04. 13. It is in the aforesaid backdrop in which the instant writ petition has been filed challenging the legality and validity of fixation of the seniority of the Petitioner below the Respondent No. 4. 14. 13. It is in the aforesaid backdrop in which the instant writ petition has been filed challenging the legality and validity of fixation of the seniority of the Petitioner below the Respondent No. 4. 14. From the counter affidavit filed by the official as well as the Respondent No. 4, it appears that the whole controversy has arisen out of the orders of regularization issued in respect of both the incumbents. As noticed above, while the order of regularization of initial ad hoc service as Medical Officer in respect of the Respondent No. 4 was issued by the Central Govt. but such order of regularization in respect of the Petitioner was issued by the State Govt. It is not understood as to how the Petitioner could be shown to be in Grade-B service for the period of his adhoc service. As per the order of appointment issued in favour of both the incumbents, they were appointed as Medical Officers on ad hoc basis in the same pay scale and Grade. Thus, there was apparent mistake firstly, in not taking into account the regularization of adhoc period of service of the Petitioner and secondly in showing the said period as Grade-B service as against counting of such service of the Respondent No. 4 as Grade-A service. Learned Counsel for the Respondents could not explain this anomaly during the course of hearing. 15. I have heard Mr. R. Deka, learned Counsel for the Petitioner and Mr. C.K. Sarmah Baruah, learned Advocate General, assisted by Mr. B.L. Singh, learned Sr. Govi. Advocate, A.P. Also heard Mr. N. Grayu, learned Counsel for the Respondent No. 4. 16. Mr. Deka, learned Counsel for the Petitioner pointing out the above infirmities in fixation of seniority of the Petitioner submitted that on the face of it, the approach adopted by the Respondents in fixing the seniority of the Petitioner below the Respondent No. 4 was wrong. 17. Mr. C.K. Sarmah Baruah, learned Advocate General, appearing for the State submitted that when the facts are undisputed irrespective of the stand taken in the counter affidavit, the state cannot deviate from such fact. However, Mr. B.L. Singh, learned Sr. Govt. Advocate referring to the stand of the official Respondents in their counter affidavit, submitted that since the orders of regularization in respect of both the incumberns were issued by two different authorities, same has made the whole difference. 18. However, Mr. B.L. Singh, learned Sr. Govt. Advocate referring to the stand of the official Respondents in their counter affidavit, submitted that since the orders of regularization in respect of both the incumberns were issued by two different authorities, same has made the whole difference. 18. Mr. N. Grayu, learned Counsel for the Respondent No. 4 tried to justify the fixation of seniority of the Respondent No. 4 above the Petitioner on the ground that the Petitioner was not appointed in the Central Health Service at the initial stage. The submissions of the learned Counsel for the Respondent No. 4 is contrary to the facts and documents so staring on the face of it. Referring to annexure P-28 civil list of CMO dated 01.01.92, Mr. N. Grayu submitted that even in that list the Petitioner was shown junior to the Respondent No. 4, he having been placed at serial No. 484 as against the seniority position of the Respondent No. 4 at serial No. 468. He submitted that no objection was raised by the Petitioner on that occasion. 19. The aforesaid submission of Mr. N. Grayu is not acceptable. Firstly, because the list was a provisional one and secondly, the Petitioner has explained in the writ petition as to how he was not furnished with a copy of the said civil list enabling him to raise objection. In that list also there was a mistake in not mentioning the date of promotion of the Petitioner as CMO with effect from 01.12.91. Thereafter also the provisional lists were published in 1999 and 2000 and eventually, the civil list was finalized by the impugned memorandum dated 18.08.04 (Annexure-P32). Thus it cannot be said that the Petitioner is estopped from agitating his grievance relating to fixation of seniority. The wrong fixation of seniority of the Petitioner below the Respondent No. 4 is clear on the face of the record, same cannot be ignored by this Court. 20. There is no dispute that the Petitioner was appointed prior in point of time than the Respondent No. 4 as Medical Officer. He was appointed with effect from 19.05.75 and the Respondent No. 4 was appointed with effect from 22.11.75. Both were appointed as Medical Officer in the same grade and scale of pay of Rs. 650-1200/- by appointment orders issued by the Central Govt. about which mention has been made above. He was appointed with effect from 19.05.75 and the Respondent No. 4 was appointed with effect from 22.11.75. Both were appointed as Medical Officer in the same grade and scale of pay of Rs. 650-1200/- by appointment orders issued by the Central Govt. about which mention has been made above. After regularization of their service through UPSC, both of them were appointed on probation with effect from 30.10.76. However, on the basis of the merit positions obtained in the UPSC select list, the Petitioner was shown senior (serial No. 495) to the Respondent No. 4 (serial No. 595). 21. At the time of promotion of the Petitioner and the Respondent No. 4 to Senior Class-I Grade also, the Petitioner was shown senior to the Respondent No. 4. In the civil list of Medical Officers published on 02.08.90 also the Petitioner was shown senior to the Respondent No. 4. Thus, all along his seniority above the Respondent No. 4 was maintained. However, trouble started in the Grade of C.M.O. to which post both the incumbents joined with effect from 01.12.91. In their orders of appointment it was clearly stipulated that the promotion would take effect from the date of assumption of charge which for the both incumbents was 01.12.91. It was stipulated that the seniority in the Grade of C.M.O. would be fixed in reference to existing seniority in the substantive Grade. If that be so, there could not be any question of holding that the Respondent No. 4 was senior to the Petitioner. 22. The whole controversy has arisen due to the orders of regularization of the ad hoc service of the Petitioner and the Respondent No. 4. Such adhoc service in their initial entry grade of Medical Officer was regularized pursuant to the aforesaid decision of the Apex Court. While the order of regularization was issued by the Central Govt. in respect of the Respondent No. 4, such order was issued by the State Govt. in respect of the Petitioner. Although both the incumbents were in the C.H.S., later on with the creation of Arunachal Pradesh both of them became members of the A.P.H.S. Merely because the orders of regularization were issued by two different authorities giving same effect, it cannot be said that the Petitioner was not born in the C.H.S. 23. in respect of the Petitioner. Although both the incumbents were in the C.H.S., later on with the creation of Arunachal Pradesh both of them became members of the A.P.H.S. Merely because the orders of regularization were issued by two different authorities giving same effect, it cannot be said that the Petitioner was not born in the C.H.S. 23. The Respondents have not been able to explain as to how and why in the civil list the factum of regularization of adhoc service of the Petitioner was not taken into account and why the said period was shown to be in Grade-B service unlike the Respondent No. 4 in the whose case it was shown to be Grade-A service. Both of them were appointed in same scale of pay and Grade without any distinction. Such remarks against the Petitioner appearing in the Gradation list were totally uncalled for. 24. There is another aspect of the matter. The controversy relating to regularization of adhoc service in the entry grade has got hardly any relevance. Such regularization was effected pursuant to the aforesaid decision of the Apex Court. Even on that basis, the Petitioner having entered the service in the entry grade prior to the Respondent No. 4, he would rank senior to the Respondent No. 4. However, he obtained higher seniority position in the entry grade upon regularization of his service by the UPSC on the basis of his merit position obtained in the select list. Such seniority was all along maintained and eventually both of them were appointed as C.M.O. with effect from 01.12.91. Their such seniority was to be maintained in terms of the orders of promotion which clearly provided that the promotion would be effective from the date of assumption of the charges and that the seniority would be governed by the seniority in the substantive grade. Undoubtedly the Petitioner was senior to the Respondent No. 4 in the substantive grades. If that be so, there is no earthly reason as to why the Petitioner will not rank senior to the Respondent No. 4. 25. In view of the above, the final civil list of C.M.O. in the APHS published by memorandum dated 18.08.04 (Annexure-P32) stands set aside and quashed so far as the same relates to fixation of seniority of the Petitioner below the Respondent No. 4. 25. In view of the above, the final civil list of C.M.O. in the APHS published by memorandum dated 18.08.04 (Annexure-P32) stands set aside and quashed so far as the same relates to fixation of seniority of the Petitioner below the Respondent No. 4. The Petitioner shall be treated as senior to the Respondent No. 4 and necessary correction in this regard shall be carried out in the civil list. The case for further promotion of both the incumbents and for that matter any other incumbents in the zone of consideration shall be considered on that basis and not on the basis of the seniority position assigned to the Petitioner below the Respondent No. 4 in the impugned civil list published vide memorandum dated 18.08.04. 26. The writ petition stands allowed leaving the parties to bear their own costs. Petition allowed.