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2008 DIGILAW 57 (MP)

SANTLAL SINGH GOND v. STATE OF M. P.

2008-01-11

DIPAK MISRA, S.R.WAGHMARE

body2008
Judgment ( 1. ) BY this writ appeal preferred under section 2 (1) of the M. P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellant has called in question the sustainability of the order dated 7-9-2006 passed by the learned single Judge in Writ Petition No. 22201/2003. ( 2. ) THE facts which are essential to be adumbrated are that the writ petitioner, respondent No. 4, herein filed an application before the M. P. Administrative Tribunal forming the subject-matter of O. A. No. 256/03 assailing the promotion of the fourth respondent, appellant herein to the post of Bio-Chemist. The writ petitioner was appointed on the post of Lab-Technician. She was, as set forth, having the requisite qualification including the Diploma in medical Pathology and, therefore, on the date the fourth respondent was appointed she had all the requisite qualifications prescribed under the Rules to be appointed on the post of Lab-Technician. It was contended that the present appellant, the fourth respondent in the writ petition, was appointed to the post of lab-Technician on 18-10-1996 on the date when the fourth respondent was appointed. The State Government vide Annexure R-4/3 dated 31-9-1995 relaxed the requisite educational qualification for appointment to the post of Lab-Technician with regard to the candidates belonging to the reserved categories. It was provided therein that it was necessary for an incumbent to complete the training before attaining regular appointment to the post of Lab-Technician and on acquisition of such training, the appointment shall be treated as regular appointment. It was further envisaged that if the incumbent fails to acquire such training then the services of the incumbent shall be terminated. In the appointment letter of the fourth respondent a condition was incorporated that he has to successfully pass the training course often months or of one year within a period of three years failing which the services as such shall be terminated. The respondent No. 4 appeared in the training and became successful and a certificate to that effect was issued in his favour on 23-9-1998. ( 3. ) THE factual matrix, as further exposited, are that the writ petitioner was appointed as Lab-Technician at Bhopal Medical College in the year 1992 and thereafter she was transferred to Jabalpur Medical College on the basis of his request. It was conceded before the learned single Judge that seniority list was maintained as unit-wise and not State-wise. ( 3. ) THE factual matrix, as further exposited, are that the writ petitioner was appointed as Lab-Technician at Bhopal Medical College in the year 1992 and thereafter she was transferred to Jabalpur Medical College on the basis of his request. It was conceded before the learned single Judge that seniority list was maintained as unit-wise and not State-wise. Name of the writ petitioner was reflected in the merit list dated 1-4-2002 below the 4th respondent. It was further set forth that though an incumbent was granted bottom seniority yet he was entitled to be considered for promotion as previous services be counted with regard to experience. It was pleaded that the case of the writ petitioner was not considered by the respondents 1 to 3 for her promotion to the post of Bio-Chemist. ( 4. ) IN the counter affidavit filed by the respondents 1 to 3, as has been observed by the learned single Judge case of the writ petitioner was not considered at all for promotion. It was further asserted that as the 4th respondent was senior, the promotion was rightly conferred on him. ( 5. ) AS is manifest, the learned single Judge adverted himself to the relevant rules i. e. M. P. Public Health and Family Welfare Department Non-Ministerial (related to the Directorate of Health Services) Class III Services Recruitment rules 1989 (in short the Rules) which provide that for the promotion to the post of Bio-Chemist five years experience in the post of Lab Technician is required. The appellant was appointed in the year 1996 under relaxation of educational qualification. He obtained requisite qualification on 23-9-1998. In that backdrop the learned single Judge expressed the opinion that the regular appointment of the respondent No. 4 would only be counted with regard to service after such qualification was obtained, In view of the aforesaid conclusion the learned single judge quashed the promotion of the present appellant and directed a review DPC to be held so as to consider the case of the writ petitioner for her promotion to the post of Bio-Chemist. ( 6. ) WE have heard Mr. Sujoy Paul, learned counsel for the appellant, Mr. Samdarshi Tiwari, learned Government Advocate for the State and Mr. Anand dadariya, learned counsel for the respondent No. 4. ( 7. ( 6. ) WE have heard Mr. Sujoy Paul, learned counsel for the appellant, Mr. Samdarshi Tiwari, learned Government Advocate for the State and Mr. Anand dadariya, learned counsel for the respondent No. 4. ( 7. ) AT the very outset it is condign to state that there is no dispute with regard to the facts in question. Basically two aspects arise for consideration: whether the writ petitioner could have been considered for promotion despite the bottom seniority given to her on the foundation that her previous service with regard to experience has to be counted, and second, whether the present appellant, the 4th respondent in the writ petition was not eligible to be considered. ( 8. ) FIRST we shall advert to the first facet. As is patent the writ petitioner was transferred from Medical College, Bhopal to Medical College, Jabalpur on her own request. In view of the request transfer she was put below the 4th respondent, In Renu Mullick (Smt.) vs. Union of India and another, 1994 SCC (L and S) 570 their Lordships of the Apex Court considered this aspect and held that service rendered prior to transfer at own request be counted for determination for the purpose of meeting the eligibility condition though such transfer downgrades the seniority. In view of the aforesaid, the case of the writ petitioner should have been considered by the DPC. ( 9. ) THE next aspect which arises for consideration is whether the present appellant should have been kept out of the consideration as held by the learned single Judge. ( 10. ) RULE 2 (e) of the Rules defines service as under : "2. Definitions.- (e) "service" means the Madhya Pradesh Public health and Family Welfare Department Non-Ministerial (related to the directorate of Health Services) Class III Services;" ( 11. ) RULE 4 deals with the constitution of the service. Sub-rule (iii) is as follows : "4. Constitution of the Service.- (iii) Persons recruited to the service in accordance with the provisions of these rules. " ( 12. ) RULE 20 deals with the relaxation. The same being relevant for our present purpose is reproduced below : "20. ) RULE 4 deals with the constitution of the service. Sub-rule (iii) is as follows : "4. Constitution of the Service.- (iii) Persons recruited to the service in accordance with the provisions of these rules. " ( 12. ) RULE 20 deals with the relaxation. The same being relevant for our present purpose is reproduced below : "20. Relaxation.- Nothing contained in these rules shall be construed as to limit or abridge the powers of the Governor to deal with the case of any person to whom these rules apply, in such a manner as may appear to him to be just and equitable : provided that the case shall not be dealt within any manner less, favourable to him than that provided in the these rules. " ( 13. ) SUBMISSION of Mr. Sujoy Paul is that the State Government upon relaxation had extended the benefit with a condition and the said condition was satisfied and, therefore, the doctrine of relation back would apply. The learned counsel for the appellant further proponed that because the appellant availed the requisite certificate on 23-9-1998 as per the terms of appointment that would not mean that he had not gathered the requisite experience. To appreciate the aforesaid submission we have carefully perused the order of appointment. On a scrutiny of the same it is quite clear that the petitioner was appointed after extending benefit of relaxation. If the dictionary clause is read in the conjunction with the anatomy of the scheme of the Rules in entirety there can be no trace of doubt that the appointment was made within the parameters of the Rules. Once an appointment has been made within the framework of the Rules inasmuch as the relaxation is a part and parcel of the Rules, the same would come within the term of appointment and, therefore, the entire service period has to be computed for the purpose of meeting the eligibility criteria required for promotional post. Had the appellant not obtained the requisite certificate within the stipulated time as stated in the order of appointment contained in Annexure A-6, the matter would have been totally different. The same is not the case. The appellant had obtained the said certificate within the stipulated time. ( 14. Had the appellant not obtained the requisite certificate within the stipulated time as stated in the order of appointment contained in Annexure A-6, the matter would have been totally different. The same is not the case. The appellant had obtained the said certificate within the stipulated time. ( 14. ) IN this context, we may refer with profit to the decision rendered in a. K. Raghumani Singh and others vs. Gopal Chandra Nath and others, (2000) 4 scc 30 wherein in paragraphs 8 and 9 it has been held as under : "8. . . Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word subsequent after word with. 9. Even on a point of principle it would be unreasonable to distinguish between the nature of the regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualification were quantitatively different from the service in the grade prior thereto. In fact no such case has been made out. " ( 15. ) IN view of the aforesaid pronouncement of law there can be no scintilla of doubt that the appellant was eligible to be considered. In view of the aforesaid premises, the directions of the learned single Judge to consider the writ petitioner alone and give all consequential benefits on her selection is not correct. The only possible direction that could have been given is to consider the case of the writ petitioner along with the 4th respondent to the writ petition (Appellant herein) by holding a review DPC. ( 16. ) IN view of the aforesaid we set aside the direction issued by the learned single Judge as far as it relates to consideration of the case of the writ petitioner alone and the further finding that the 4th respondent was not eligible to be considered and direct that a review DPC be convened within a period of six months to consider the case of the present appellant as well as the 4th respondent herein (the writ petitioner) on the basis of criteria meant for promotion. As the appellant is continuing in the post he shall hold the post till the final decision is taken after convening of review DPC. ( 17. ) RESULTANTLY the writ appeal is allowed to the extent indicated above. There shall he no order as to costs. Order accordingly.