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2016 DIGILAW 137 (JK)

Mohd. Riaz v. State of J&K

2016-03-28

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Vide Government Order No. 541-HME of 2009 dated 17.12.2009, petitioner was appointed as Lecturer in the discipline of Surgery in Govt. Medical College Jammu under ST category. 2. Respondent No. 3 also been appointed as Lecturer in the discipline of Surgery in Govt. Medical College Jammu vide Government Order No. 565-HME (GR) of 2008 dated 11.07.2008 At the time of appointment, he was undergoing super specialty course i.e MCH in Cordio Vascular Thoracic Surgery in SKIMS Soura w.e.f 31.07.2006 Its duration was three years which was to expire on 31.07.2009 On the representation of the respondent No. 3, the Government vide Order No. 48 HME (GR) of 2008 dated 08.09.2009 read with Government Order No. 203-HME of 2009 dated 13.05.2009 granted extension of joining time till 31.07.2009 3. Admittedly, respondent No. 3 in pursuance to Government Order dated 11.07.2008 could not join within stipulated 21 days but subsequently the joining time has been extended till 31.07.2009 The two other doctors namely Dr. Ilyas Sharma and Dr. Ishtiaq Ahmed Mir who were appointed alongwith petitioner vide Government Order No. 565-HME (GR) of 2008 dated 11.07.2008 were initially promoted as I/C Assistant Professor on 09.09.2011 they were regularised w.e.f 09.09.2011 Respondent No. 3 was also eligible for I/C promotion on 09.09.2011 but was not considered. However, vide Government Order No. 744-HME of 2012 dated 21.09.2012, respondent was promoted as I/C Assistant Professor alongwith petitioner w.e.f 17.12.2012 4. Respondent No. 3 was required to be considered against roster point No. 5 but was not considered as a result whereof SWP No. 430/2013 was filed and disposed of on 28.02.2013 with a direction to the State Government to consider the representation of the petitioner. 5. The Government has issued final seniority list of Lecturers in the discipline of Surgery vide Government Order No. 265-HME of 2013 dated 16.04.2013 in which respondent figures at Sl. No. 1 and the petitioner figures at Sl. No. 3. The said seniority last till date has not been challenged. 6. (a) Petitioner has sought quashment of Government Order No. 201-HME of 2014 dated 15.04.2014 whereby respondent No. 3 has been deemed to have joined the post of Lecturer (Surgery) on notional basis from 11.07.2008 i.e date of order of appointment. The period from 11.07.2008 to 01.08.2009 has been directed to count towards his seniority. 6. (a) Petitioner has sought quashment of Government Order No. 201-HME of 2014 dated 15.04.2014 whereby respondent No. 3 has been deemed to have joined the post of Lecturer (Surgery) on notional basis from 11.07.2008 i.e date of order of appointment. The period from 11.07.2008 to 01.08.2009 has been directed to count towards his seniority. (b) Petitioner has further sought clarification of Government Order No. 605-HME of 2014 dated 20.10.2014 whereby respondent No. 3 has been given benefit notionally w.e.f 25.05.2012 (c) It has been prayed that Respondents No. 1 & 2 shall be commanded to treat the respondent No. 3 as Assistant Professor w.e.f 17.12.2012 and to place him junior to the petitioner. 7. The question in essence for determination is as to whether the appointment of respondent No. 3 is to reckon from 11.07.2008 when he was appointed or w.e.f 01.08.2009 when he joined after the period of his joining was extended by the Government Order No. 203-HME of 2009 dated 13.05.2009 Respondents 1 and 2 after obtaining the opinion of the Law Department had treated the period from 11.07.2008 to 01.08.2009 to be counted towards the service of respondent No. 3 subject to a condition that he shall not be entitled to any pecuniary benefits for the said period as is clear from the Government Order No. 201-HME of 2014 dated 15.04.2014 This order has been challenged by the petitioner as according to him the appointment will not reckon from the date the respondent No. 3 has been appointed but will reckon from the date he has actually joined i.e 01.08.2009 8. Respondent No. 3 admittedly has been appointed on 11.07.2008 only after proper selection vide Government Order No. 565-HME (GR) of 2008 dated 11.07.2008 He had to join within a period of 21 days which he could not in view of having been undergoing MCH in SKIMS Soura. The joining time had been extended up to 31.07.2009 in the same background vide Government Order dated 78-HME (GR) of 2008 dated 08.09.2008 and then Government Order No. 203-HME of 2009 dated 13.05.2009 has been issued. As a result whereof, respondent No. 3 has joined on 01.08.2009 9. Respondent No. 3 has joined only pursuant to the basic appointment order of the year 2008. He has not been appointed consequent to any fresh selection. As a result whereof, respondent No. 3 has joined on 01.08.2009 9. Respondent No. 3 has joined only pursuant to the basic appointment order of the year 2008. He has not been appointed consequent to any fresh selection. Now the question is whether after valid extension for joining, his appointment will reckon from the date he has been appointed or from the date he has joined. It has to be from the date of appointment as has been clearly done by Respondents 1 and 2 as they after obtaining opinion of the Law Department have issued Government Order No. 201-HME of 2014 dated 15.04.2014 pursuant to which respondent No. 3 has been deemed to have joined to the post of Lecturer (Surgery) on 11.07.2008 and the period from 11.07.2008 to actual date of joining dated 01.08.2009 has been treated to count towards seniority. Whether such a position is now open to challenge, answer is in negative because later on seniority list has been issued and notified vide Government Order No. 265-HME of 2013 dated 16.04.2013 wherein petitioner figures at Sl. No. 3 and Respondent No. 3 figures at Sl. No. 1. The said seniority list has not been challenged; therefore the petitioner is bound by the said seniority list. The challenge to Government Order No. 605 HME of 2014 dated 20.10.2014 in terms whereof on the recommendations of the Public Service Commission sanction has been accorded to the promotion of faculty members of Government Medical College Jammu to the posts as mentioned therein which include the post of Assistant Professor (Surgery) where-under promotion of the petitioner has been given effect from 17.12.2012 In case of Respondent No. 3 notionally w.e.f 25.05.2012 and regularly w.e.f 17.12.2012 which in fact is based on the seniority which the petitioner and respondent No. 3 had while holding the posts of Lecturers. 10. Learned counsel for respondent No. 3 has rightly pointed out that the petitioner has been appointed as Lecturer on 17.12.2009 whereas respondent No. 3 has been appointed as Lecturer on 11.07.2008 Even though respondent No. 3 has not joined within time but after Government granted extension for joining, he has joined on 01.08.2009 Even if for sake of argument his joining is taken as 01.08.2009, still the petitioner is junior to him as he on selection has joined on 17.12.2009 Therefore he cannot claim to be senior to the respondent No. 3. 11. Respondent No. 3 in fact was eligible for promotion to the post of Assistant Professor w.e.f 09.09.2011 but has been promoted alongwith petitioner w.e.f 17.12.2012 i.e when the petitioner acquired the eligibility for promotion. Respondent No. 3 was required to be considered against roster point No. 5. His claim was stalled in view of two writ petitions filed by the petitioner but without any success. 12. The petitioner had challenged the position of Respondent No. 3 by medium of two writ petitions one SWP No. 430/2013 which was disposed of on 28.02.2013 with a direction to the State Government to consider the representation of the petitioner. Second, SWP No. 3352/2014 whereunder Government Order No. 605-HME of 2014 was challenged which government order is also under challenge in the instant petition. The petitioner could not get any interim relief in SWP No. 3352/2014 and was also aware about the Government Order No. 201-HME of 2014 dated 15.04.2014 which provided that the joining of Respondent No. 3 be reckoned from 11.07.2008 and the period from 11.07.2008 to 01.08.2009 to be counted towards service, yet at that time, petitioner did not chose to challenge the said Government Order No. 201-HME of 2014 dated 15.04.2014 However he had withdrawn the said writ petition. 13. While filing the instant petition, the petitioner had concealed the fact of filing of above referred two earlier writ petitions. On this count alone for concealment of important fact, petition is liable to be dismissed. The judgment rendered in the case of Dr. Amarjit Singh Ahhuwalia v. State of Punjab decided on 20.12.1974 by the Hon'ble Apex Court reported in (1975) 3 SCC 503 : AIR 1975 SC 984 supports the case of Respondent No. 3. The following “portion” from Para 10 of the judgment is advantageous to be quoted: “Para.10………………………………………………………. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from the date. It is true that respondents Nos. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from the date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, 1964 and since that was longer than the continuous service of Dr. Jagjit singh and the appellant in Public Health Service Class I, which commenced only on 25th April 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I.” 14. In the case on hand, admittedly the petitioner has been appointed on 11.07.2008 However, his jointing time in view of his position of undergoing MCH in Cordio Vascular Thoracic Surgery has been extended by the Government vide Government Order No. 203-HME of 2009 dated 13.05.2009 Therefore on completion of his MCH he has joined on 01.08.2009 but basic appointed is dated 11.07.2008 15. Though in both the situations i.e from the date of order of appointment and from the date of joining, respondent No. 3 is senior to the petitioner. While applying the law as quoted above, the length of service as is reckonable from the date of appointment and for the period respondent No. 3 has not joined, pecuniary benefits have not been granted as is mentioned in the Government Order No. 605-HME of 2014 dated 22.10.2014 granting extension of time for joining. On any count, the petition is found to be without any merit, as such dismissed alongwith connected MPs.