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Madhya Pradesh High Court · body

2006 DIGILAW 1400 (MP)

B M ARORA v. STATE OF MADHYA PRADESH

2006-12-07

R.K.GUPTA

body2006
Judgment ( 1. ) PETITIONER by way of filing the original application before the Tribunal has claimed that he is entitled to count his seniority from 7-6-1980, i. e. , the date when he was appointed on ad hoc basis to the post of Professor in Radiology in the pay scale of Rs. 1100-1500. ( 2. ) THE facts leading to the present case are that since the vacancy for the post of Professor in Radiology was lying vacant, therefore, the petitioner was appointed on ad hoc basis on the said post. The Rules regulating the appointment on the regular post of Professor are governed by the Rules, which are known as Medical Education (Gazetted) Service Recruitment Rules, 1987. The post of Professor therein is 100% promotional post and promotion has to be regulated with the concurrence of the Public Service Commission. The matter was referred to the Public Service Commission after giving the ad hoc appointment to the petitioner. By an order dated 16-5-1983, the State government has communicated the petitioner that the Public Service commission has accorded its concurrence by letter dated 20th July, 1982 for the petitioners promotion to the post of Professor. ( 3. ) LEARNED Counsel for the petitioner submitted that since the petitioners initial appointment on ad hoc basis was regularized and the Public service Commission has accorded its approval by letter dated 20th July, 1982, therefore, petitioner is entitled to count his seniority from the first date of appointment on the post of Professor, which was effected by an order dated 7-6-1980 as ad hoc appointment. ( 4. ) THE question with regard to grant of seniority from the date of ad hoc appointment, which is a stop-gap appointment, has been considered in detail by the Apex Court and the Apex Court interpreting the Rule 12 of the m. P. Civil Services (General Conditions of Service) Rules, 1961 has held in masood Akhtar Khan and others Vs. State of Madhya Pradesh and others, (1990)4 SCC 24 , that a person appointed on ad hoc basis shall have no right to count his seniority, if the appointment as such is de hors to the rules then the person will have a right to count his seniority from the date of his regular appointment. State of Madhya Pradesh and others, (1990)4 SCC 24 , that a person appointed on ad hoc basis shall have no right to count his seniority, if the appointment as such is de hors to the rules then the person will have a right to count his seniority from the date of his regular appointment. In this judgment, the Apex Court has also considered the impact of the case decided by the Apex Court in Direct Recruit Class II Engineering Officers association Vs. State of Maharashtra, (1990) 2 SCC 715 = AIR 1990 SC 1607 . While considering the Rules in vogue in the State of Madhya Pradesh the Apex court held that an incumbent, who is appointed de hors to the Rules, shall have no right to claim his seniority from the date of his initial appointment. If the rule prescribes for an appointment after consultation of the Public Service commission then the seniority has to be counted from the date of selection by the Commission and not from an earlier date. The Apex Court in Para 3 of masood Akhtar Khans case (supra) has held as under:-"mr. Ramamurthis second contention was that there were no special rules for appointment to the said posts and, therefore, it is the General Rules of 1961 (supra), which applied and according to rule 12 of the said Rules, the seniority is to be counted from the date of initial appointment. We do not read any such provision in rule 12. On the contrary, Rule 12 (a) (i) makes it clear that where the appointment has to be made in consultation with the commission, the seniority is firstly from the date of the selection by the Commission and secondly according to the order of merits given by the Commission. Hence none of the authorities relied upon by Mr. Ramamurthi, viz. , Direct Recruit Class II Engineering officers Association Vs. State of Maharashtra, D. N. Agrawal Vs. State of Madhya Pradesh and Union of India Vs. Ansusekhar Guin helps him. These authorities unequivocally make it clear that if the initial appointment is not made according to the Rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority. State of Maharashtra, D. N. Agrawal Vs. State of Madhya Pradesh and Union of India Vs. Ansusekhar Guin helps him. These authorities unequivocally make it clear that if the initial appointment is not made according to the Rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority. " The Apex Court in the aforesaid judgment has already considered the ratio laid down in Direct Recruit Class II (supra) and thereafter came to conclusion that the State of Madhya Pradesh since has the rules such as Rule 12 (a) (i) of M. P. Civil Services (General Conditions of Service) Rules, 1961, therefore, due to the application of the judgment passed in Direct Recruit Class ii (supra), the incumbent shall have no right to count seniority from the date of ad hoc appointment but the seniority has to be counted from the date when the incumbent is given regular appointment. Similar view has also been taken by the apex Court in D. N. Agrawal and another Vs. State of Madhya Pradesh and others, (1990) 2 SCC 553 . ( 5. ) LEARNED Counsel for the petitioner also submitted that earlier the tribunal has already passed a judgment which is filed as Annexure A/10-A to the petition whereby certain persons were given benefit of counting their services of ad hoc appointment after their regularisation. On that basis, it is submitted that since the persons similarly situated have already been given the benefit of the judgment passed by the Tribunal, therefore, petitioner should also be given the benefit of the same. ( 6. ) ANNEXURE A/10-A in this case is the judgment passed by the State administrative Tribunal and the same was perused. The judgment passed by the tribunal as such does not deal with the aforesaid two judgments passed by the apex Court in Masood Akhtar Khan (supra), and D. N. Agrawal (supra), wherein the earlier judgment passed by the Apex Court in Direct Recruit Class II (supra), was highly relied upon by the learned Counsel for the petitioner. The judgment passed by the tribunal as such does not deal with the aforesaid two judgments passed by the apex Court in Masood Akhtar Khan (supra), and D. N. Agrawal (supra), wherein the earlier judgment passed by the Apex Court in Direct Recruit Class II (supra), was highly relied upon by the learned Counsel for the petitioner. As this Court records a finding that the judgment passed by the Tribunal filed as Annexure a/10-A does not considers the judgments passed by the Apex Court as aforesaid, therefore, under the circumstances the law which was laid down by the Tribunal in its judgment is not a binding precedent on the High Court as the Tribunal is held to be subordinate to the High Court in L. Chandra Kumar Vs. Union of india and others, AIR 1997 SC 1125 . Therefore, the judgment (Annexure a/10-A) passed by the Tribunal as such shall not have any binding precedent on the High Court. ( 7. ) APART from the aforesaid, this Court has already held in the earlier paragraphs of this judgment that the judgment passed by the Tribunal cannot be treated to be a correct law in the light of the judgments of the Apex Court in masood Akhtar Khan (supra), and D. N. Agrawal (supra), which have already been referred to above. Therefore, the petitioner cannot be given the benefit of a negative equality. ( 8. ) THE concept with regard to negative equality has already been considered by this Court in W. P. No. 26187/2003 (O. A No. 951/2001), decided on 15-11-2006. This Court while deciding the case with regard to applicability of the negative equality has also relied upon the judgments passed by the Apex court in Union Bank of India and others Vs. M. T. Latheesh, (2006) 7 SCC 350 , harpal Kaur Chahal (Smt.) Vs. Director, Punjab Instructions Punjab and another, 1995 Suppl. (4) SCC 706, and Gursharan Singh and others Vs. New delhi Municipal Committee and others, (1996) 2 SCC 459 , and thereafter came to conclusion that if certain persons have wrongly been given some benefit or if the benefit earlier given to them was found to be given under the wrong presumption of law then the other persons cannot claim that the same benefits should also be extended to them. ( 9. ( 9. ) IN view of the aforesaid, the present petition is devoid of substance and accordingly is dismissed. Writ Petition dismissed.