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Madhya Pradesh High Court · body

2012 DIGILAW 1108 (MP)

S. K. Saxena v. State of M. P.

2012-11-02

K.K.TRIVEDI

body2012
JUDGMENT : The petitioners, two in number working as Surgical Specialist in Public Health and Family Welfare Department of Government of Madhya Pradesh, have approached this Court by way of filing this writ petition, challenging the correctness of the order dated 27-11-2006 (Annx. P/11), by which the private respondents have been regularised on the administrative promotional post of Chief Medical and Health Officer/Deputy Director, as also the order dated 7-2-2007, by which the representation made by the petitioners has been rejected, denying them the benefit of seniority with retrospective effect and the order dated 10-5-2007, by which again certain persons have been promoted on the next higher post, giving them the benefit of notional promotion, on the grounds that the petitioners were senior to the private respondents No. 3 to 5 on the post of Assistant Surgeon. According to the petitioners, their claims were to be considered for promotion on the post of Specialist, but instead of considering the cases of petitioners, such juniors were promoted only because in their speciality, the vacancy was available and, as such, they were promoted on the post of specialist. However, the respondent No. 3 was given the benefit of ad hoc promotion and that period has been regularized by the impugned orders treating as if the said respondent was promoted on regular basis. This is how the petitioners have been superseded in the matter of promotion and, therefore, they made a representation before the competent authority. Earlier the benefit of seniority was granted to the petitioners, but because of making of representation by the private respondents and some others, the petitioners have been again lowered down in the seniority list by rejection of their representation. According to the petitioners, the issue has already been raised in the case of State of A. P. vs. Dr. N. Ramchandra Rao and others, (1990) 14 Administrative Tribunal Cases 780 (S.C.), wherein it was held that a junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality. The juniors who get the accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancy in such speciality should not be allowed to march over their seniors for appointment to administrative post. The juniors who get the accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancy in such speciality should not be allowed to march over their seniors for appointment to administrative post. It is contented by the petitioners that since this law is very clear, even if the private respondents were promoted on the post of Specialist prior to the promotion of petitioners, their seniority of the feeder post of Assistant Surgeon should have been maintained and, accordingly, the claim of petitioners should have been considered for promotion on the next higher post. It is contended that since this aspect has been totally overlooked, the action of rejecting the representation of the petitioners and granting benefit of promotion to the juniors on administrative post by subsequent orders, is per se illegal. 2. In view of the submissions made in the petition, the petitioners have claimed the following reliefs :- It is, therefore, humbly prayed that this Hon'ble Court be pleased to quash the gradation list of the year 2000 and 2005 which was subsequently modified by order dated 7-2-2007 and place the petitioners above the respondent No. 3 ; Quash the order dated 27-11-2006 and 10-5-2007 ; Grant promotion and pay scales to the petitioners to the post of Dy. Director from the date when their juniors have been given promotion with all consequential benefits ; Any other appropriate order, direction or writ may be issued." 3. Refuting the allegations made in the petition, a return has been filed by the respondents No. 1 and 2 and they have contended that the posts of Assistant Surgeon were to be filled in by direct recruitment through M. P. Public Service Commission. The petitioner No. 1 though was selected in the year 1974, could join the post only after grant of extension of joining time in the year 1976. The petitioner No. 2 was selected in the year 1974 and had joined the services in the same year. The private respondents were selected in the year 1977 and 1979 by the M. P. Public Service Commission and, accordingly, the seniority list was prepared showing the private respondents below the petitioners in the order of appointment on the post of Assistant Surgeon. The gradation seniority list was never challenged by any such junior persons. However, the promotion on the post of Specialist was done in the year 1994. The gradation seniority list was never challenged by any such junior persons. However, the promotion on the post of Specialist was done in the year 1994. The petitioners were shown senior to the respondent No. 3. However, in the year 2000, the gradation list was issued taking into consideration the period for which the respondent No. 3 had worked as Incharge Specialist. It is contended that the ad hoc promotion of respondent No. 3 was done only because a vacancy was available in the speciality in which the respondent No. 3 had obtained the degree of Post Graduation. He being the fit person to be considered for promotion, ad hoc promotion was done only because at the relevant time the post of Specialist was to be filled in 100% by direct recruitment. Since the direct recruitment was to take some time, ad hoc posting of respondent No. 3 was alone, keeping in view the educational qualification prescribed under the Rules. It is contended that subsequently the vacancies on the post of Specialist again became available for persons like respondents No. 4 and 5 and after their consideration, they too were given the posting as specialist on ad hoc basis. The Rules came into force in the year 1988 and since a quota of promotion was prescribed, it was decided to consider the cases of persons like respondents No. 3 to 5 for regularization of such ad hoc promotion and the orders in that respect were issued. This being the situation, the petitioners who were not having specific speciality, in the education for that particular post, if the claims of persons like petitioners were not considered in that particular year, or they were subsequently promoted as Specialist in their particular speciality, on availability of the vacancies, it cannot be said that wrong was committed. It is contended that in one of the cases filed by one Dr. M. K. Joshi, the directions were given by the M. P. Administrative Tribunal to count the services rendered by him on ad hoc basis as Specialist for the purposes of fixing the seniority in the cadre of Specialist and in compliance of the said order, benefit was extended to the persons like respondents No. 3 to 5. M. K. Joshi, the directions were given by the M. P. Administrative Tribunal to count the services rendered by him on ad hoc basis as Specialist for the purposes of fixing the seniority in the cadre of Specialist and in compliance of the said order, benefit was extended to the persons like respondents No. 3 to 5. It is contended that at no point of time any representation was made in that particular year even when the Special Leave Petition filed by the State Government against the order passed by the Tribunal, was disposed of observing that adequate safeguards have been provided by the Tribunal in its order to the persons who are aggrieved by such fixation of seniority. In case the petitioners were aggrieved by the fixation of seniority of private respondents, it was necessary on their part to approach the departmental authorities or the Court of law at the relevant time. Having failed to do so, at such a belated stage, if a representation is made and the same has been dismissed, it cannot be said that the right of the petitioners is jeopardised. It is contended that the law laid down by the Apex Court in the case of Dr. N. Ramchandra Rao (supra) would not be attracted in the present case, inasmuch as, the claim of the petitioners is with respect to fixation of seniority on the post of Specialist and not promotion on any administrative post, therefore, the entire petition is misconceived and is, thus, liable to be dismissed. It is contended by the respondents that no such relief as claimed can be granted to the petitioners. 4. The private respondents though have filed the returns, but have virtually adopted the return of the State respondent and they have not put forth any new ground except that the settled position of seniority is not required to be disturbed at such a belated stage. It is contended that because of the lapses and delay caused on the part of the petitioners, the claim made by the petitioners in such a belated petition cannot be granted. It is contended that considering all such factors, the representation of the petitioners has rightly been rejected. It is contended that because of the lapses and delay caused on the part of the petitioners, the claim made by the petitioners in such a belated petition cannot be granted. It is contended that considering all such factors, the representation of the petitioners has rightly been rejected. It is contended that the private respondents have virtually worked on the post of Specialist from the date of their ad hoc promotion and, therefore, they are entitled to grant of seniority on the said post from the date the ad hoc promotion was made on the post of Specialist. The respondents have thus contended that the petition is liable to be dismissed. 5. Heard learned counsel for the parties at length and minutely perused the record. 6. Undisputedly, the post of Specialist prior to coming into force of M. P. Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 (hereinafter referred to as the Rules for brevity), was to be filled in only and only by direct recruitment. Only in the year 1988, when the Rules were made and published, a quota was prescribed and it was said that 25% posts of Specialist were to be filled in by direct recruitment and 75% posts were to be filled in by promotion. The post of Specialist was never in the channel of promotion for the post of Assistant Surgeon prior to the coming into force of the Rules. Whether the persons working as Assistant Surgeon were having the qualification to be appointed on the said post or not was irrelevant till the Rules were framed in this respect. For the first time, though no specific number of posts were mentioned in the Rules by making a provision in Schedule-III, it was said that the posts of Specialist were to be filled in by direct recruitment as also by promotion in the ratio mentioned hereinabove. For direct recruitment, the eligibilities were prescribed and the educational qualification prescribed were Post Graduate degree in speciality concerned with three years experience after passing M.D./M.S. or Post Graduate diploma in speciality with five years experience after passing diploma from a recognised university. For direct recruitment, the eligibilities were prescribed and the educational qualification prescribed were Post Graduate degree in speciality concerned with three years experience after passing M.D./M.S. or Post Graduate diploma in speciality with five years experience after passing diploma from a recognised university. Meaning thereby the speciality was consisting of two sets of essential qualification, one; the Post Graduate degree or diploma and, two, working on the said post of Specialist the experience of three years for the Post Graduate degree holder and five years experience for persons holding Post Graduate diploma in the speciality. It was not prescribed as to what would be the nature of experience and whether working as an Assistant Surgeon with the degree or diploma for the required years would be sufficient compliance of the aforesaid eligibility condition. Thus, to say that the persons like respondents No. 3 to 5 were given the ad hoc promotion only because direct recruitment on the said post of Specialist was to take some time, only because the persons like respondents aforesaid were fulfilling the criteria laid down, is not acceptable. As it is qualified in the Rules which were in vogue at the relevant time known as M. P. Health Services (Gazetted) Service Recruitment Rules, 1967 (hereinafter referred to as the Rules of 1967 for brevity), the working experience would be the working on the post of Specialist and not otherwise after obtaining the Post Graduate degree or diploma in the speciality concerned for the years mentioned in Schedule-III of the Rules so as to become eligible to take part in the direct recruitment process. Admittedly, the respondents No. 3 to 5 were working as Assistant Surgeon and not as a Specialist in the particular speciality and, therefore, they could not have taken part in the selection for direct recruitment on the post of Specialist in the speciality concerned in which they have obtained the degree of Post Graduation. It is not believable that respondents No. 3 to 5 were qualified to be appointed on the post of Specialist in their speciality and that is why they were granted ad hoc promotion though it was not prescribed in the Rules at the relevant time. At any rate, these respondents could not have been granted the benefit of ad hoc promotion on the said post when it was not prescribed under the Rule. In the case of Dr. At any rate, these respondents could not have been granted the benefit of ad hoc promotion on the said post when it was not prescribed under the Rule. In the case of Dr. M. K. Joshi, these particular aspects were never considered by the Tribunal and only because a plea was raised that ad hoc promotions were made in respect of such persons having the speciality in the concerned subject, the Tribunal directed counting of services of ad hoc period of Dr. M. K. Joshi for fixation of his seniority on the post of Specialist. However, this would not be the correct position of law. Even if power to relax certain conditions was prescribed under the Rules, in what circumstances, the said power is exercised by the State Government and whether any action was taken in respect of certain persons after granting relaxation was neither pointed out nor was considered by the Tribunal. The well settled law is that the ad hoc officiation on a post can be given benefit if it is done in accordance to the Rules, but not otherwise. Therefore, if on wrong consideration any such direction was given by the Tribunal, it cannot be said that the respondents would become automatically entitled to the benefit extended in the case of Dr. M. K. Joshi. Even otherwise, the Rules of 1967 were in vogue till the Rules of 1988 were made. The Rules of 1988 have replaced the Rules of 1967 as per the Repeal and Saving clause. The simple meaning is that the Rules of 1967 were in vogue till they were repealed by the Rules of 1988. The Rules of 1988 cannot be said to be made with retrospective effect. Further the saving is only to the extent that the act done as prescribed in the Rules of 1967 are saved. Certain acts done in violation of the Rules of 1967 cannot be said to be saved. If there was no provision for making promotion on the post of Specialist prior to coming into force of the Rules of 1988, the respondents No. 3 to 5 could not have been granted any benefit of ad hoc promotion on the post of Specialist. If there was no provision for making promotion on the post of Specialist prior to coming into force of the Rules of 1988, the respondents No. 3 to 5 could not have been granted any benefit of ad hoc promotion on the post of Specialist. Therefore, such a submission made by the respondent State that only on account of an order passed by the Tribunal, duly affirmed by the Apex Court, the benefit was to be extended to the similarly situated persons, the seniority for the ad hoc period of promotion of respondents No. 3 to 5, prior to coming into force of the Rules was rightly granted to them is not to be accepted. To this extent, the stand taken by the respondent-State is to be rejected. 7. Now the question would be whether there was any; erroneous consideration in respect of petitioners while promoting them on the post of Specialist or not? It is the case of the petitioners that all the cases of promotion on the post of Specialist were considered only after coming into force of the Rules. It was rightly done so because for the first time, it was provided that the posts of Specialist were to be filled in 75% by promotion and for the said purposes, the feeder post prescribed under the Rules was the post of Assistant Surgeon with five years experience as Assistant Surgeon after obtaining the Post Graduation degree in speciality or seven years experience as Assistant Surgeon after obtaining Post Graduate diploriia in Speciality from recognised university. However, again a fallacy was created by the department by not making special provision for different specialities. If the posts of Specialist were to be filled in only in accordance to the educational qualification of particular speciality in the concerned field, the respondent department was required to indicate as to how many posts were available in particular speciality and how many posts were to be filled in by promotion. It is also not clear when the particular post become available for promotion of persons: Undisputedly, the Departmental Promotion Committee was held in the year 1994 for the first time and the orders were issued in that respect. Even otherwise, the separate gradation list of each and every speciality was to be prepared so as td indicate how the Assistant Surgeon having the qualification in particular speciality is considered and promoted. Even otherwise, the separate gradation list of each and every speciality was to be prepared so as td indicate how the Assistant Surgeon having the qualification in particular speciality is considered and promoted. Nothing is indicated in this respect. In the case* of Dr. N. Ramchandra Rao (supra), the administrative Tribunal has considered these aspect and has reached to the conclusion that there was a circumstance if for a specific speciality, post became available earlier than the other specialities and a junior is given promotion on the said available post, it will be an arbitrary act if on the occasion of consideration of claims for further promotions on administrative post cases are not considered taking into account the seniority as was obtaining on the feeder post. The Apex Court has very categorically considered these aspects and has held in paragraph 17 of the report which is profitably qubted hereinbelow thus :- "17. Furthermore, Rule 2 does not expressly exclude the service in Class-II cadre for preparing panel for consideration for promotion to posts with which we are concerned. We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission. In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility. However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities. A junior with relatively less importance speciality may be fortunate enough to get quick promotion than his senior with a different speciality. We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for appointment to administrative posts. Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to post where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts. Any rule providing for the contrary may be vulnerable to attach on the ground of arbitrariness." 8. The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts. Any rule providing for the contrary may be vulnerable to attach on the ground of arbitrariness." 8. It is the contention of the respondents that for the persons like respondents No. 3 to 5 vacancy occurred earlier and for them the consideration was done, therefore, they were given ad hoc promotion and because of this reason, they were treated as senior to the petitioners on the post of Specialist. Such a contention of the respondents cannot be accepted in view of the foregoing discussions. On the other hand, the respondent department should have prepared the list of all such Specialist, who have fulfilled the criteria and eligibility conditions for promotion on the next administrative post which is to be filled in by promotion of the Specialist and should have considered the claim of persons like petitioners, giving them the right placement in the said list of Specialist according to their respective seniority on the feeder post of Assistant Surgeon. If that would have been done, the petitioners would have been treated senior to the respondents No. 3 to 5 even if ad hoc promotion of respondents No. 3 to 5 on the post of Specialist was regularised with retrospective effect. Instead of doing this, since the gradation seniority list was issued, objection raised by the petitioners was rejected erroneously by the impugned order, the right of petitioners was arbitrarily affected. 9. In view of the foregoing discussions, the order dated 7-2-2007 (Annx.P/9) passed by the respondents cannot be sustained. While passing the said order, the respondents have wrongly held that the law laid down by the Apex Court in the case of N. Ramchandra Rao (supra) would not be attracted. Accordingly, the order dated 7-2-2007 is quashed. Matter is remitted back to the respondents to reconsider the representation of the petitioners in light of the aforesaid discussions, prepare a common gradation list of Specialist, to be considered for promotion on the administrative post, strictly in order of seniority on the feeder post of Assistant Surgeon, only with respect to those Specialist, who have completed the requisite years of service as Specialist for promotion on the administrative post and they to review the cases for grant of such promotion. In case, the petitioners are found fit for such promotion, the orders in this respect be issued with retrospective effect with all the consequential benefits, within a period of four months from the date of receipt of certified copy of the order passed today. 10. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. Petition allowed.