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2006 DIGILAW 1777 (RAJ)

Dr. Rajnish Sharma v. State of Rajasthan

2006-05-19

MOHAMMAD RAFIQ, S.N.JHA

body2006
JUDGMENT 1. - This special appeal is directed against the order of learned Single Judge dated 20.8.2004 in S.B. Civil Writ Petition No. 4751/2804 dismissing the writ petition of the appellant. The learned Single Judge observed that the appellant could raise his grievances in the earlier petition i.e. S.B. Civil Writ Petition No. 3687/2002 filed by him, by amending the petition and incorporating the grievances and seek reliefs prayed for in the (present) writ petition. 2. On 28.12.1990 the appellant was appointed as Lecturer (now Assistant Professor) (Physical Medicine) in the Medical College, Bikaner in accordance with rule 30(1) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter referred to as 'the Rules'). Case of the appellant is that the appointment was pursuant to advertisement and after due selection by Selection Committee. On 2.11.1996 advertisement was issued by the Rajasthan Public Service Commission for regular appointment on the post. On 1.4.1998 however, the advertisement was withdrawn. A fresh advertisement was issued by the Commission on 5.1.2002 and services of the appellant were terminated on 11.6.2002. The appellant approached this Court in S.B. Civil Writ Petition No. 3687/2002 in which an interim order was passed on 16.7.2002 pursuant to which the appellant continued on the post. 3. On 23.12.2003 he was appointed on the recommendation of the Commission as Assistant Professor (Physical Medicine and Rehabilitation) on temporary basis on probation for a period of two years in the pay scale of Rs. 10000-325-15200 and posted in the Medical College, Bikaner. Pursuant to the said appointment he joined the post on 5.1.2004. On 19.2.2004 an office order was issued fixing pay of the appellant at Rs. 10,000/- with effect from 5.1.2004. The order stated that the appellant was continuing on the post of Assistant Professor (Physical Medicine and Rehabilitation) from 18.7.2002 pursuant to the order of this Court dated 16.7.2002 on Stay Application No. 3440/2002 in S.B. Civil Writ Petition No. 3687/2002, and, therefore, his pay would be fixed for the period upto 4.1.2004 and thereafter from 5.1.2004 for quashing the orders dated 23.12.2003 and 19.2.2004, in the light of the orders which may be passed by this Court in the said writ petition. Feeling aggrieved, the appellant filed present writ petition i.e. S.B. Civil Writ Petition No. 4751/2004 for quashing the order dated 23. Feeling aggrieved, the appellant filed present writ petition i.e. S.B. Civil Writ Petition No. 4751/2004 for quashing the order dated 23. i2.2003 and 19.2.2004, to the extent, treating the appellant as a fresh appointee and "depriving him of the service rendered, experience acquired and increments earned after his initial appointment", and for declaration that the service rendered/experience acquired by him may be reckoned and taken into consideration for the purpose of eligibility for promotion to the next higher post. In short, the appellant sought direction to give him the benefit of service rendered and experience acquired pursuant to the initial appointment dated 28.12.1990. 4. Under rule 31 of the Rules, seniority in the lowest post of the Service or lowest category of posts in the Service is determined from the date of confirmation, and in case of promotion to the higher post, from the date of regular selection to such post. The rule being adverse to the appellant's claim, he challenged the validity of the said rule.Rule 31 runs as under : "31-Seniority-Seniority of persons appointed to the Lowest post of the Service or Lowest Categories of posts in each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the Service or other higher categories of posts in each of the Group/Section in the Service, as the case may be, shall be determined from the date of their regular selection to such posts. Provided- ........." 5. Shri Sanjeev Prakash Sharma appearing for the appellant submitted that in the case of regularisation of ad hoc appointment, the benefit of continuous officiation for the entire period in the matter of seniority etc. is allowed, and if that is so in the case of ad hoc appointment, there is no reason why person appointed on urgent/temporary basis should be denied the benefit of seniority on the basis of continuous officiation. Counsel drew our attention to rule 30 of the Rules which contains provisions for urgent temporary appointments and submitted that the urgent temporary appointment of the appellant was as per rules. 6. Counsel drew our attention to rule 30 of the Rules which contains provisions for urgent temporary appointments and submitted that the urgent temporary appointment of the appellant was as per rules. 6. Rule 31 lays down that a vacancy which cannot be filled in immediately either by direct recruitment or by promotion under the rules, may be filled in by the Government or by the Appointing Authority as the case may be, by appointing in an officiating capacity, and an officer eligible for appointment to the post either by recruitment or by promotion as the case may be. In terms of the proviso, however, the said appointment cannot be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary. 7. Part II of the Rules provides for methods of recruitment and in terms of rule 7, recruitment to the service is to be made either (a) by direct recruitment in accordance with Part IV of the Rules; or (b) by promotion in accordance with Part V of the Rules; or (c) by selection by Special Recruitment Board in accordance with the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968. It may not be out of place to mention here that the third mode of recruitment i.e. selection by Special Recruitment Board was inserted by notification dated 20.4.1974 effective from 1.3.1969. 8. Part IV of the Rules, as seen above, provides for procedure for direct recruitment. Under rule 9, applications for direct recruitment are invited by the Public Service Commission by advertising the vacancies in the Official Gazette and in such other manner, as may be deemed fit. In terms of rule 12, candidates must possess the academic & technical qualifications and experience as laid down in the Schedule. It is not necessary to notice rest of the provisions. Suffice it to say that rules 9 to 22 comprising Part IV of the Rules provide complete machinery for direct recruitment to the post in the Medical Service. The claim of the appellant has to be considered in the light of these provisions. 9. It is to be kept in mind that the initial appointment of the appellant dated 28.12.1990 though professedly made in term of rule 30(1) was not in accord with rule 7 of the Rules. The claim of the appellant has to be considered in the light of these provisions. 9. It is to be kept in mind that the initial appointment of the appellant dated 28.12.1990 though professedly made in term of rule 30(1) was not in accord with rule 7 of the Rules. Further, in terms of proviso to rule 30(1), the appointment was to continue for one year only. In our opinion, the decisive fact of the case Is that the appellant participated in the selection process pursuant to an advertisement dated 5.1.2002. He was offered a fresh appointment in the pay scale of Rs. 10000-325-15200 and placed on probation for a period of two years. Apparently, the appointment was in accordance with clause (a) of rule 7 read with the provisions of Chapter IV. Being de novo appointment, pursuant to advertisement, the appellant cannot claim the benefit of past service for the purpose of seniority. He may be entitled to increments in accordance with rule 31 of the Rajasthan Service Rules, 1951 read with Government Orders issued in that behalf for the purpose of pay protection but he cannot claim the benefit of seniority on the basis of the past service. We may observe here that when a candidate participates in the selection process, he takes chance of selection. He may or may not be selected. Thus, in the instant case, by subjecting himself to the selection process the appellant exposed himself to the vicissitudes of selection, and the appointment, therefore, must be treated as a fresh appointment. It may be recalled that his pay was fixed at Rs. 10,000/- in view of pendency of Writ Petition No. 3787/2002 awaiting orders/directions therein. In other words, fixation of pay in the scale of Rs. 10,000-15,200 was to depend on the outcome of Writ Petition No. 3687/2002, and his pay is accordingly to be fixed. While considering the appellant's claim for seniority on the basis of the past service it may also be kept in mind that his services were terminated on 11.6.2002. He was taken Lack on the post on 18.7.2002 in compliance of an interim order of this Court dated 16.7.2002. Continuance on the strength of interim orders of any Court can not inure the benefit of seniority. 10. Counsel referred to the definition of 'Service' and 'Experience' in clause (1) of rule 3 of the Rules. He was taken Lack on the post on 18.7.2002 in compliance of an interim order of this Court dated 16.7.2002. Continuance on the strength of interim orders of any Court can not inure the benefit of seniority. 10. Counsel referred to the definition of 'Service' and 'Experience' in clause (1) of rule 3 of the Rules. These terms in rule 3(1) occur in the context of promotion from one service to another or from one category of pots to another or to senior posts in the same service, and in that context it is provided that "'Service' or 'Experience' wherever prescribed in the rules as a condition for promotion shall include the period for which the person has continuously worked on such lower post after regular selection in accordance with rules promulgated under proviso to Article 309 of the Constitution of India". The provision is of no help to the appellant in the matter of his claim for counting his past service for the propose of seniority on the post of Assistant Professor not only because the definition clause is not a substantive provision but also because it refers to the period of service after "regular selection". The Rules no doubt provides for "urgent temporary" appointment under, rule 30(1) but that rule does not refer to any kind of selection and therefore, it is doubtful if the appellant can claim benefit of the past service. The words 'regular selection' cannot be stretched to include urgent temporary appointment. 11. Counsel placed reliance on Dr. Chandra Prakash & Ors. v. State of U.P. & Anr., (2002) 10 SCC 710 . Facts of the case were that doctors possessing requisite qualifications under the rules were temporarily appointed against the substantive vacancies and continued for long periods from 1965-76 to 1983 enjoying all the benefits of regular service and meanwhile they had also been selected by the Public Service Commission. Dispute arose after merger of the cadre of the Provincial Medical Service and Subordinate Medical Service. Dispute arose after merger of the cadre of the Provincial Medical Service and Subordinate Medical Service. The Supreme Court held that in the facts and circumstances the initial appointment of the doctors of Provincial Medical Service was not de hors the rules and therefore, they could not be brought within the purview of the 1979 "Regularization Rules", and as such they were entitled to seniority from the date of their initial appointment and not selection by Public Service Commission or receipt of select list by the Government. The decision was rendered on interpretation of different sets of rules and is of no help to the appellant. 12. Counsel also referred to the decision in Rudra Kumar Sain & Ors. v. Union of India & Ors., (2000) 8 SCC 25 . In that case, it was held that irrespective of the terminology of appointment being 'ad hoc' or 'fortuitous' or 'stopgap', where appointment is made of persons possessing statutory qualifications to promotional post after due consultation with or approval of the contempt authority, and the persons continue for a fairly long period, the appointment cannot be held to be 'ad hoc', 'fortuitous' or 'stopgap', and the length of such service cannot be ignored in determining inter se seniority between promotees and direct recruits. The decision, it would appear, was rendered in entirely different context and has no bearing on the point involved in the present case. 13. In the above premises, we find no merit in the case of the appellant, and as such dismissal of the writ petition by the learned Single Judge cannot be said t "e erroneous so as to warrant interference by the Division Bench.In a result, the appeal is dismissed.Appeal Dismissed. *******