IN THE HIGH COURT OF C_HHATT]SGARH AT BILASPUR Writ Petition (S) No2£>;$^/2008. Dr. P. C. Gupta, S/o late Shri P. L. Gupta, aged about 69 years., Retired Assistant Surgeon, R/o Doctors' Colony, Sarswati Nagar, Behind Medical College, Near Pratap Talkies, Bilaspur (CG). Respondents: ^ >s ^"^^ ^.^' 2. 3. /,</ / Versus The State of Madhya Pradesh, Through its Secretary, Deptt. Of Public Health & Family Welfare, Vallabh Bhavan, Bhopal (MP) The Director, Health Services, Madhya Pradesh, Satpura Bhavan, Bhopal (MP) The State of Chhattisgarh, Through its Secretary, Deptt. Of Public Health & Family Welfare, D.K.S. Bhavan, Raipur (C.G.) ^cy?9f~ ^.^<^/ o^:.^-"J'7 4. /'' br The Director, Health Services, Chhattisgarh, Old Nurses Hostel, Raipur (C.G.) 5. Chief Medical & Health Officer, District Hospital, Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. hflr. Justice Pritinker Diwaker) Writ Petition (S) No. 2055 of 2008 PETITIONER RESPONDENTS VERSUS Dr. P.C. Gupta State of Madhya Pradesh and others Postfor pronouncement of the order on ^.11.2011 Sd/- Pritinker Diwaker Judge ^ ^ -y HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 2055 of 2008 PETITIONER RESPONDENTS VERSUS Dr. P.C. Gupta State of Madhya Pradesh and others Shri P.S. Koshy counsel forthe petitioner. Shri Sachin Singh Rajput counsel for respondents 1 & 2. Shri Pravin Das Dy. GA for respondents 3 to 5. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ORDER (fe.11.2011) Challenge in this petition is to the order dated 22.2.2008 (Annexure P-1) passed by respondent No.1 whereby representation of the petitioner dated 3.4.2007 has been rejected. 2. Facts ofthe case in briefare that on 26.12.1968 vide Annexure P-2, the petitioner was appointed as Assistant Surgeon and asked to join on the said post by 5.1.1969. After joining the service, petitioner did his Post Graduate Diploma on 30.9.1977 and was given the charge of Specialist (Pathologist) on 4.7.1979. The petitioner retired as Assistant Surgeon on 31.10.1997. Earlier on 12.9.1998 the petitioner filed OA No. 623/1998 before the Madhya Pradesh State Administrative Tribunal Bench at Bhopal and later after formation of State of Chhattisgarh and abolition of State Administrative Tribunal, the said application was transferred to this Court which was registered as W.P.S. 2226/2005. In the said writ petition it has been contended by the petitioner that he was entitled for his seniority, pay, selection grade in terms ofthe order passed by the Tribunal on 14.5.1997 in OA No. 3835/1993 (Rajnikant Verma and others v. State of M.P. and others). Said petition was ultimately decided by this Court on 21.3.2007 in the following terms: "In view of the foregoing, the petition is disposed of with a direction to the competent authorities to consider and decide the case of the petitioner in accordance with the judgments and order passed by M.P. State Administrative Tribunal (supra) in accordance with law within a period of six ^' Fi/y l-' ' / weeks from the date of receipt of the representation, if any. No order as to costs." Pursuant to the order passed by this Court, the petitioner made a representation (Annexure P-14) to the State of Madhya Pradesh praying that in terms of the order passed by this Couri: he be also given all the benefits. By the impugned order dated 22.2.2008 the representation of the petitioner has been rejected by respondent No.1. Hence this petition. 3. Counsel for the petitioner submits that while rejecting the representation of the petitioner, respondent No.1 has erred in law in holding that case of Dr. M.K. Joshi is not applicable to the case of the petitioner as facts of the two are altogether different. He submits that Dr. Joshi was initially appointed as Assistant Surgeon on 22.9.1970 and thereafter in the year 1973 he did his diploma in Clinical Pathology and then obtained PG degree in Pathology and Microbiology in the year1977. He submits that in the case of the petitioner though there is no formal order appointing him on ad hoc basis as Specialist (Pathologist), the fact remains that on 4.7.1979, he was given the charge of the said post. Counsel for the petitioner referred to the original document dated 4.7.1979 from the record of the State of Chhattisgarh giving charge of Pathology to him. He submits that once the petitioner uninterruptedly continued to hold the post of Specialist (Pathologist) right from 1979 till the date of his retirement i.e. 31.10.1997, he has to be treated as Specialist and must be given the benefit thereof. He submits that similar was the position with Dr. M.K. Joshi who after doing his diploma in the year 1973 continued on the post of Specialist till the date of his retirement but for that fact there was a formal order promoting him as Specialist on ad hoc basis. According to the counsel for the petitioner, merely not passing the formal order in the case ofthe petitioner appointing him as Specialist on ad hoc basis will not nullify his claim and that he is entitled to all the benefits of Specialist as has been granted to Dr. Joshi. Counsel for the petitioner placed reliance on the decisions of the Supreme Court in the matter of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others reported in (1990) 2 SCC 715 and in the matter of L. Chandrakishore Singh v. State of Manipur and others reported in (1999) 8 SCC 287. He has further argued that while passing the impugned order, respondent No.1 has erred in law in holding that the case of the petitioner should be / s '?• fct — 3. inferred as if his appointment was on ad hoc basis. He submits that once in the appointment order word "ad hoc" was not used, it cannot be presumed that it was ad hoc. He submits that once respondent No.1 admitted the fact that word "ad hoc" has not been used in the appointment order, by no streteh of imagination it can be said that appointment of the petitioner w as on ad hoc basis. He submits that though ultimately regularization order of the petitioner was passed in the year 1987 vide Annexure P-10, his seniority will be reckoned from the date of joining the service on the basis of his initial appointment and the period of initial appointment or for that matter the period of officiation on the post of Specialist would not get wiped out for the purpose of determining his seniority by virtue of order dated 10.6.1987 (Annexure P-10). He submits that it is not in dispute that prior to 1988 the post of Specialist could be filled up by way of direct recruitment but yet as there was no such recruitment drive, posts of Specialist were lying vacant, looking to the need and efficiency in the working of the department, time and again promotions were made on the post of Specialist on ad hoc basis but the petitioner was ignored from the beginning itselffor no fault on his part and no formal order or his promotion or ad hoc promotion was passed though he was qualified and performing the duties of Specialist from 4.7.1979. Counsel for the petitioner further submits that candidature of the petitioner was rejected only on the ground that there was no formal order of ad hoc promotion on the post of Specialist and Dr. Joshi was granted benefits of the same just because there was an order in his favour granting ad hoc promotion. He submits that in the prevailing Rules of 1967, there was no provision for promoting an Assistant Surgeon to the post of Specialist but when the benefit was given to Dr. Joshi based on the judgment of the Tribunal, same should have been given to the petitioner also as he was fully qualified and performing the work on the said post. He submits that in the case of Dr. Rajnikant Verma i.e. (OA No. 3835/1993) in which the petitioner herein was also one of the applicants, an order was passed on 14.5.1977 granting him seniority from the dateof initial appointment i.e. 26.12.1968 treating him to be the regular employee from that day and therefore all the benefits should have been given to the petitioner also. Counsel for the petitioner submits that ratio laid down in the case of M.P. Rajpatrit Adhikari i-Bia- t-1— Sangh v. State of M.P. (OA No. 486/1989) decided on 16.8.1992, was sought to be implemented in the case of Dr. Rajnikant verma where the petitioner was also one of the applicants but as in between case of Dr. Joshi (OA No. 1365/89) was also decided vide order dated 24.11.1995 (Annexure P-16) the petitioner is entitled to all the benefits as has been granted to Dr. Joshi and his representation has been rejected on the basis of incorrect comparison drawn by the respondents. He submits that subsequent to the decision in the case of Dr. M.K. Joshi one more petition was filed by the similarly situated persons in representative capacity registered as OA No. 66/1998 and while deciding the same on 24.8.1998 the Tribunal held that once the case of Dr. M.K. Joshi has been implemented and when there was an observation that case of other similarly situated persons should also be considered by the State of Madhya Pradesh, individuals thereafter should not be forced to approach the Court of law. According to the counsel for the petitioner, once the petitioner was also holding the post of Specialist since 1979, he should also have been given the benefit of the decision in the case of Dr. M.K. Joshi which has later been followed in the case of Madhya Pradesh Medical Specialist Association, Branch Indore v. State of M.P. and others reported in 1998 MPLSR 315. He submits that pursuant to the order passed by this Court the representation of the petitioner has been decided in a mechanical and vindictive manner just to deprive the petitioner of his legitimate right. He submits that immediately after becoming Specialist and acquiring Diploma in Clinical Pathology, the petitioner got the benefit of one advance increment with effect from 30.9.1977 and thus for all practical purposes it can be said that the then State of Madhya Pradesh had recognized the petitioner as Specialist though there may not be any formal order to this effect. He submits that had the qualification been reflected in the seniority list of Assistant Surgeon, by automatic implication the petitioner would have been promotion as Specialist on ad hoc basis at the time of same being given to Dr. M.K. Joshi. He submits that the charge of Specialist of Pathology Department having been given to the petitioner makes it clear that he was appointed as Specialist even if there was no formal order in his favour with respect thereto. ^CfL -r- 4. On the other hand, counsel for State of Madhya Pradesh submits that the present petition is hopelessly barred by limitation as the petitioner retired from service on 31.10.1997 whereas he filed the first Original Application before the Madhya Pradesh State Administrative Tribunal in the month of September, 1998. According to him, the petitioner was not vigilant in approaching the Tribunal immediately after the judgment in the matter of Dr. M.K. Joshi which came to be rendered on 24.11.1995 and that being the position the petition is liable to be dismissed on the ground of delay and laches. He further submits that the order impugned rejecting the representation of the petitioner is strictly in accordance with law and that as Dr. M.K. Joshi's case stood on entirely a different footing; the petitioner cannot draw any advantage of the same. He submits that in the case of Dr. M.K. Joshi there was a formal order giving him ad hoc promotion as Specialist in the year 1978 itself whereas the petitioner was never promoted as Specialist either on ad hoc or regular basis. He submits that in the year 1989 Dr. M.K. Joshi was given regular promotion as Specialist. According to him, as per Rules of 1967, there was no provision for promoting a person on the post &f Specialist and therefore neither Dr. M.K. Joshi was entitled to be promoted nor can the petitioner derive any benefit from the promotion of Dr. Joshi. He further submits that in case the present petition is allowed, seniority of number of those persons would be affected who are not before this Court and their rights would ultimately be prejudiced. He submits that the petitioner was merely officiating on the post of Specialist but was not given the benefit of said post including the scale and therefore, he cannot take any advantage of having worked as Specialist. In support of his contentions, he placed reliance on the decisions of the Supreme Court in the matter of Keshav Chandra Joshi and others etc. v. Union of India and others reported in AIR 1991 SC 284 and in the matter of Union of India and another v. Prof. S.K. Sharma reported in AIR 1992 SC 1188. Hesubmits that the decision in the case of Dr. M.K. Joshi does not lay down a good law and therefore the same has to be ignored in view of the various decisions of the Supreme Court. Countering this submission of the counsel for the State of Madhya Pradesh, it has been submitted by the counsel for the petitioner that the decisions cited above are of no help to the State of Madhya Pradesh as in I. -6— the case of the petitioner he was appointed against a sanctioned vacant post and has worked thereon throughout his career. 5. Shri Das appearing for the State of Chhattisgarh submits that basic dispute is between the petitioner and the State of Madhya Pradesh because the implementation has to be done by the State of Madhya Pradesh as the petitioner retired in the year 1998 and the State of Chhattisgarh is willing to obey any order passed by this Court. 6. Heard counsel for the parties and perused the documents available on record. 7. On the basis of the arguments advanced by the respective parties following two questions are to be decided by this Court: (i) Whether the petitioner is entitled for his seniority as Assistant Surgeon from the date of his initial appointment with all consequential benefits? (ii) Whether the petitioner is entitled to be considered as Specialist (pathologist) from 4.7.1979? 8. Undisputedly, on 26.12.1968 vide Annexure P-2 the petitioner was appointed as Assistant Surgeon and in the said order it was nowhere mentioned that his appointment was ad hoc or temporary. Further undisputed fact is that the petitioner continued in his service against the sanctioned post, he was given his regular salary against the permanent establishment and regular increments were also granted to him on the post of Assistant Surgeon. It is not even the case of the respondents that the petitioner was a contingent employee and given his salary from the contingent fund. The record also shows that after completion of DCP the petitioner was recommended and granted the benefit of advance increment. From the order dated 24.11.1995 passed in OA No. 1365/1989 {Dr. M.K. Joshi v. State of M.P. and 363 others (Annexure P-16)} it is apparent that while passing the said order the Tribunal has accepted the contention of Dr. M.K. Joshi that even if the order of regularization or confirmation is passed on the subsequent date, un-interrupted service rendered on ad hoc basis would be reckoned for the purpose of counting seniority. Thus the principle laid down in the case of Dr. M.K. Joshi would d^ i.'y -7 also be applicable in the case of the petitioner herein to this extent and therefore the conclusion drawn in the impugned order dated 22.2.2008 does not appear to be based on a sound ground. Order impugned dated 22.2.2008 has been passed by the State of Madhya Pradesh on the basis ofthe direction given by this Court in W.P. (S) 2226/2005 dated 21.3.2007. Further, while passing the order impugned dated 22.2.2008, the State of Madhya Pradesh has completely misunderstood the order passed in the case of M.P. Rajpatrit Adhikari Sangh, Indore v. State of M.P. and others {OA No. 486/1989 decided on 16.8.1991 (Annexure P-7)}. In the said case it was categorically held by the Tribunal that for the purpose of counting seniority the services rendered on ad hoc basis were to be considered from the date of initial appointment. That apart, in the case of Rajnikant Verma and others v. State of M.P. and others (OA No. 3835/1993 wherein the petitioner herein was also one of the applicants claiming seniority from the date of initial appointment in stead of 10.6.1987, the Tribunal has observed as under: "The applicants have filed this petition claiming their seniohty from the date of their initial ad hoc appointment instead of from the date of their confirmation. It is very sad on the part of the respondents that they failed to submit any return despite a period of five years has elapsed. On perusal of the record in which some of the applicants made representation tothe Govt. it is clear that the respondents gave seniohty to all the employees having similar situation as of the applicants from the date of their appointment vide order No. 7/27117/89/17 Medical dated 25.3.93 but later on withdrew the same and gave benefit only to those persons who making approach to the Tribunal or the Court got the order of the Tribunal or of the Court in their favour vide order No. 7/37/112/89/17 Med. 1 dt. 26.06.92. This indicates that the respondents compelled the other employees having similar facts to approach the Tribunal again and again. This action of the Govt. cannot be appreciated at all. The order dt. 26.6.92 is therefore discriminatory and is liable to be quashed. For the foregoing reasons this petition be and is hereby disposed of finally with the direction that the respondents shall scrutinize and verify the aforesaid memos from their own record and consider the cases of the applicants in the light of the decision passed in OA No. 486/89, M.P. Rajpatht Adhikari Sangh vs. State of M.P. decided on 16.8.92 and extend the benefit of the said decision to the applicants regarding the claim of 'iC^t '• ^•'?>. ;3 •<^a3;l"-""g g vwse' J^ ^' ^ their seniohty. It is hoped that the Govt. shall extend the benefit to all other persons having similar cases as of the applicants and will not compel them to approach this Tribunal for seeking relief on the same point. However, there will be no order as to costs." 9. From the order impugned dated 22.2.2008 it appears that the authority concerned has not considered the principle and ratio laid down in the case of M.P. Rajpatrit Adhikari Sangh (supra) which was later confirmed in the case of Rajnikant Verma and others (supra) and has simply distinguished the same on the ground that the applicants in the case of M.P. Rajpatrit Adhikari Sangh (supra) were from the nursing department and therefore the ratio laid down in the said case cannot be applied in the case of Assistant Surgeons. This Court is of the considered opinion that here also the order impugned has been passed on misconceived notion. 10. Thus from the facts and circumstances of the case and the record made available before this Court, it is apparent that the order passed by this Court in W.P. No. 2226/2005 has not been complied in letter and spirit while passing the order impugned dated 22.2.2008 so far it relates to counting of seniority from the date of initial appointment. 11. As far as the second point i.e. whether the petitioner is entitled to be treated as Specialist (Pathologist) from 1979 is concerned, the year in which he was made in-charge of the Pathology department by order of the State Government. This Court finds sufficient force in the argument of Shri Sachin Singh Rajput appearing for respondents 1 and 2 that there was no formal order in this respect promoting the petitioner as Specialist, he cannot draw any benefit of the said post. Further, though according to the petitioner he was working as Specialist (Pathologist) since 1979, from the record it is clear that he was never granted the benefit of the post of Specialist nor any special pay was given to him against the said post. Thus according to the considered opinion of this Court, there is no illegality in the order impugned so far as it relates to rejection of the petitioner's claim for promotion as Specialist on the strength ofthe facts involved in the case of Dr. M.K. Joshi (supra). In the case of Dr. M.K. Joshi thee was a formal order promoting him as Specialist but in the case of the petitioner there :"'\ vi^ . '^^^' -9- was no such order and therefore the petitioner cannot claim any parity with Dr. M.K. Joshi for the post of Specialist (Pathologist). 12. This Court finds no force in the argument of Shri Rajput appearing for respondents 1 and 2 that the petition suffers from delay and laches as the petitioner retired on 31.10.1997 whereas the present petition was filed in the year 2008. From the record it is apparent that the petitioner retired on 31.7.1997, he filed OA No. 623/1998 immediately thereafter which on abolition of the Tribunal stood transferred to the High Court of Madhya Pradesh and registered as W.P. (S) 2226/2006. Secondly, the petitioner was also one of the applicants in the case of Dr. Rajnikant Verma (OA No. 3835/1993) which was decided on 14.5.1997 vide Annexure P-6. Further, once a direction was given in W.P. (S) 2226/2005 on 21.3.2007 for considering the case of the petitioner in the light of the order passed in Dr. M.K. Joshi and Dr. Rajnikant Verma and the same has been complied with while passing the order impugned dated 22.2.2008. Moreover, immediately after passing of the order impugned dated 22.2.2008 the petitioner has filed the present writ petition on 31.3.2008 and as such it cannot be said that the present petition suffers from delay and laches. 13. This Court also finds no force in the argument of Shri Rajput that if any order is passed in favour of the petitioner, the same would affect the seniority of number persons for the reason that as the petitioner has already retired from service, question of seniority of other persons being affected does not arise. 14. This Court further finds no force in the argument of Shri Rajput that seniority of the petitioner would be counted from the date of his appointment i.e. 10.6.1997 vide Annexure P-10. Tenor of letter dated 10.6.1997 makes it dear that the same was issued after considering the relevant regularization Rules of 1986. Dealing with identical question in the matter of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others reported in (1990) 2 SCC 715, the constitution bench of the Apex Court has as under: "47. To sum up, we hold that: (A) Once an incumbeht is appointed to a post according to rule, his seniority has to be counted from ,f- •-' •v.-^. "'%, ^ —10— the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted." Relying upon this constitution Bench judgment ofthe Supreme Court in the matter of L. Chandrakishore Singh v. State of Manipur and others reported in (1999) 8 SCC 287 it has further been